Broadcasting Services Act 1992

This compilation includes a commenced amendment made by Act No. 93, 2017. Amendments made by Act No. 99, 2017 have not commenced but are noted in the endnotes.

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 20 September 2017 (the compilation date).

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 the Legislation Register (www.legislation.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 the Legislation Register 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.

Editorial changes

For more information about any editorial changes made in this compilation, see 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 the Legislation Register 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If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes.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

Part 1—Preliminary 1

1............................ Short title............................................................................ 1

2............................ Commencement.................................................................. 1

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

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

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

6............................ Interpretation....................................................................... 6

7............................ Interpretation—meaning of control................................... 19

8............................ Interpretation—shareholding interests, voting interests, dividend interests and winding‑up interests 19

8A......................... Captioning taken to be part of program............................. 21

8AA...................... Designated community radio broadcasting licence............ 21

8AB....................... Digital program enhancement content taken to be a radio program 22

8AC....................... Digital radio start‑up day.................................................. 23

8AD...................... Deemed radio broadcasting licence areas.......................... 24

8AF....................... Regional racing service radio licence................................ 26

8B.......................... Remote Indigenous community........................................ 27

9............................ Act to bind the Crown...................................................... 27

10.......................... Extension of Act to the external Territories....................... 28

10AA.................... Operation in relation to Norfolk Island............................. 28

10A....................... Application of the Criminal Code..................................... 28

Part 2—Categories of broadcasting services 29

11.......................... Categories of broadcasting services.................................. 29

11A....................... Dual categorisation of international broadcasting services 29

12.......................... Method of regulating particular services........................... 29

13.......................... National broadcasting services.......................................... 30

14.......................... Commercial broadcasting services.................................... 31

15.......................... Community broadcasting services.................................... 31

16.......................... Subscription broadcasting services................................... 32

17.......................... Subscription narrowcasting services................................. 32

18.......................... Open narrowcasting services............................................ 32

18A....................... International broadcasting services................................... 33

19.......................... ACMA may determine additional criteria or clarify existing criteria 35

21.......................... Requests to ACMA to decide which category a broadcasting service falls into 35

22.......................... Matters to be considered by ACMA................................. 37

Part 3—Planning of the broadcasting services bands 39

23.......................... Planning criteria................................................................ 39

26.......................... Preparation of licence area plans....................................... 39

26AA.................... Compliance with television licence area plan.................... 42

26C........................ Licence area plans not required to deal with certain digital radio broadcasting services 43

26D....................... Licence area plans—how digital radio broadcasting services may be dealt with 44

29.......................... Designation of licence areas.............................................. 45

30.......................... ACMA may determine population figures........................ 45

31.......................... Minister may reserve capacity for national broadcasters or community broadcasters 46

33.......................... Development of technical planning guidelines.................. 46

34.......................... Alternative uses of broadcasting services bands............... 46

Part 4—Commercial television broadcasting licences and commercial radio broadcasting licences 49

Division 1—Allocation of licences 49

36.......................... ACMA to determine system for allocating licences.......... 49

36A....................... Commercial radio broadcasting licences to provide analog or digital commercial radio broadcasting services.......................................................................................... 50

37.......................... When licences must not be allocated................................. 51

37A....................... Limitation on number of commercial television broadcasting licences 51

38.......................... ACMA to advertise for applications for certain licences... 52

38A....................... Additional commercial television licences in single markets 52

38B........................ Additional commercial television licences in 2‑station markets 54

38C........................ Commercial television broadcasting licences—services provided with the use of a satellite 58

39.......................... Additional commercial radio licences in single markets.... 62

40.......................... Allocation of other licences............................................... 65

41.......................... When persons are regarded as suitable............................. 68

Division 2—Services authorised by licences 70

41C........................ Services authorised by commercial television broadcasting licences 70

41CA..................... Services authorised by commercial television broadcasting licences allocated under section 38C 70

41D....................... Services authorised by commercial radio broadcasting licences 76

Division 3—Licence conditions 79

42.......................... Conditions of commercial broadcasting licences............... 79

43.......................... ACMA may impose additional conditions........................ 79

43A....................... Material of local significance—regional aggregated commercial television broadcasting licences 80

43AA.................... Local news to be provided to section 38C licensees by regional commercial television broadcasting licensees.......................................................................................... 81

43AB..................... Commercial television programs to be provided to section 38C licensees by metropolitan commercial television broadcasting licensees....................................... 84

43AC..................... Commercial television programs to be provided to section 38C licensees by remote terrestrial licensees.......................................................................................... 86

43AD.................... Compensation for acquisition of property......................... 87

43B........................ Local presence—regional commercial radio broadcasting licences 88

43C........................ Local content—regional commercial radio broadcasting licences 89

43D....................... Special licence conditions relating to digital radio commercial broadcasting services 92

44.......................... Matters to which conditions may relate............................. 95

Division 4—General provisions 96

45.......................... Duration of licences.......................................................... 96

46.......................... Applications for renewal................................................... 96

47.......................... ACMA to renew licences unless it is aware of special circumstances 96

48.......................... Transfer of commercial broadcasting licences................... 97

49.......................... Surrender of commercial broadcasting licences................ 97

Part 5—Control of commercial broadcasting licences and datacasting transmitter licences 98

Division 1—Preliminary 98

50A....................... This Part does not apply in relation to licences allocated under section 38C or subsection 40(1) 98

50.......................... Interpretation—knowledge of company............................ 98

51.......................... Means of dealing with overlapping licence areas.............. 98

51A....................... This Part does not apply to certain channel B datacasting transmitter licences 99

52.......................... Changes in licence area populations not to put persons in breach of this Part 99

52A....................... Newspapers—additional constitutional basis.................... 99

Division 2—Limitation on control 100

Subdivision A—Commercial broadcasting licences 100

53.......................... Limitation on control of commercial television broadcasting licences 100

54.......................... Limitation on control of commercial radio broadcasting licences 100

Subdivision B—Commercial television broadcasting licences and datacasting transmitter licences 100

54A....................... Limitation on control of commercial television broadcasting licences and datacasting transmitter licences........................................................................................ 100

Division 3—Limitation on directorships 101

Subdivision A—Television and radio 101

55.......................... Limitation on numbers of directorships—television....... 101

56.......................... Limitation on numbers of directorships—radio.............. 102

Subdivision B—Television and datacasting 102

56A....................... Limitation on directorships—television and datacasting. 102

Division 5—Newspapers associated with licence areas 104

59.......................... Newspapers associated with commercial television or radio broadcasting licence areas 104

Division 5A—Media diversity 107

Subdivision A—Introduction 107

61AA.................... Definitions...................................................................... 107

61AB..................... Unacceptable media diversity situation........................... 109

61AC..................... Points.............................................................................. 109

61AD.................... Statutory control rules..................................................... 112

61AE..................... Shared content test.......................................................... 112

61AEA.................. Unacceptable 3‑way control situation............................. 113

61AF..................... Overlapping licence areas............................................... 113

Subdivision B—Prohibition of transactions that result in an unacceptable media diversity situation coming into existence etc. 114

61AG.................... Prohibition of transactions that result in an unacceptable media diversity situation coming into existence—offence............................................................................ 114

61AH.................... Prohibition of transactions that result in an unacceptable media diversity situation coming into existence—civil penalty............................................................................ 114

61AJ...................... Prior approval of transactions that result in an unacceptable media diversity situation coming into existence etc......................................................................................... 115

61AK..................... Extension of time for compliance with prior approval notice 117

61AL..................... Breach of prior approval notice—offence....................... 118

61AM.................... Breach of prior approval notice—civil penalty................ 119

Subdivision BA—Prohibition of transactions that result in an unacceptable 3‑way control situation coming into existence etc. 119

61AMA................. Prohibition of transactions that result in an unacceptable 3‑way control situation coming into existence—offence............................................................................ 119

61AMB................. Prohibition of transactions that result in an unacceptable 3‑way control situation coming into existence—civil penalty............................................................................ 120

61AMC................. Prior approval of transactions that result in an unacceptable 3‑way control situation coming into existence etc......................................................................................... 120

61AMD................. Extension of time for compliance with prior approval notice 122

61AME................. Breach of prior approval notice—offence....................... 123

61AMF................. Breach of prior approval notice—civil penalty................ 123

Subdivision C—Remedial directions 124

61AN.................... Remedial directions—unacceptable media diversity situation.. 124

61ANA................. Remedial directions—unacceptable 3‑way control situation 127

61AP..................... Extension of time for compliance with remedial direction 128

61AQ.................... Breach of remedial direction—offence............................ 130

61AR..................... Breach of remedial direction—civil penalty.................... 130

Subdivision D—Enforceable undertakings 131

61AS..................... Acceptance of undertakings............................................ 131

61AT..................... Enforcement of undertakings.......................................... 131

Subdivision E—Register of Controlled Media Groups 132

61AU.................... Register of Controlled Media Groups............................. 132

61AV.................... How a media group is to be entered in the Register........ 133

61AW.................... Explanatory notes may be included in the Register......... 133

61AX.................... Continuity of media group.............................................. 133

61AY.................... Initial registration of media groups................................. 134

61AZ..................... Registration of newly‑formed media group.................... 134

61AZA.................. De‑registration of media group that has ceased to exist.. 138

61AZB.................. Registration of change of controller of registered media group 138

61AZC.................. Registration of change of composition of media group... 139

61AZCA............... ACMA must deal with notifications in order of receipt.. 140

61AZD.................. Conditional transactions.................................................. 140

61AZE................... Review and confirmation of entries and alterations etc... 142

61AZF................... Reconsideration of decisions.......................................... 145

61AZG.................. Corrections of clerical errors or obvious defects............. 147

61AZH.................. Regulations..................................................................... 147

Division 5B—Disclosure of cross‑media relationships 148

61BA..................... Definitions...................................................................... 148

61BB..................... Disclosure of cross‑media relationship by commercial television broadcasting licensee 148

61BC..................... Choice of disclosure method—commercial radio broadcasting licensee 150

61BD..................... Disclosure of cross‑media relationship by commercial radio broadcasting licensee—business affairs disclosure method............................................................................ 151

61BE..................... Disclosure of cross‑media relationship by commercial radio broadcasting licensee—regular disclosure method........................................................................................ 152

61BF..................... Disclosure of cross‑media relationship by publisher of newspaper 154

61BG..................... Exception—political communication............................... 155

61BH..................... Matter or material about the business affairs of a broadcasting licensee or newspaper publisher 156

Division 5C—Local news and information requirements for regional commercial radio broadcasting licensees 159

Subdivision A—Introduction 159

61CA..................... Definitions...................................................................... 159

61CAA.................. This Division does not apply in relation to certain licences 161

61CB..................... Trigger event................................................................... 162

61CC..................... What is local?.................................................................. 164

Subdivision B—Minimum service standards for local news and information 164

61CD..................... Licensee must meet minimum service standards for local news and information 164

61CE..................... Minimum service standards for local news and information 165

Subdivision C—Local content plans 168

61CF..................... Licensee must submit draft local content plan to the ACMA 168

61CG..................... Content of draft or approved local content plan.............. 169

61CH..................... Approval of draft local content plan................................ 169

61CJ...................... Register of approved local content plans......................... 170

61CK..................... Approved local content plan must be varied if minimum service standards are imposed or increased 170

61CL..................... Approved local content plan may be varied by the licensee 171

61CM.................... Approval of draft variation............................................. 171

61CN..................... ACMA review of approved local content plan............... 172

61CP..................... Compliance with approved local content plan................. 173

61CPA.................. Licensee must submit annual compliance report............. 173

61CQ..................... Minister may direct the ACMA about the exercise of its powers 173

Subdivision D—Other local content requirements 174

61CR..................... Minister may direct the ACMA to conduct an investigation about other local content requirements 174

61CS..................... Minister may direct the ACMA to impose licence conditions relating to local content 174

61CT..................... Regular reviews of local content requirements................ 175

Division 6—Notification provisions 177

63.......................... Requirement to notify changes in control........................ 177

64.......................... Person who obtains control of a licence or newspaper must notify the ACMA 178

65A....................... Strict liability offences.................................................... 179

65B........................ Designated infringement notice provisions..................... 179

Division 7—Approval of temporary breaches 180

66.......................... Offence for breaches without approval........................... 180

67.......................... Applications for prior approval of temporary breaches... 181

68.......................... Extension of time for compliance with notice................. 182

69.......................... Breach of notice under section 67 to constitute an offence 183

Division 8—Action by the ACMA 184

70.......................... Notices by the ACMA.................................................... 184

71.......................... Extension of time for compliance with notice................. 185

72.......................... Breach of notice under section 70 to constitute an offence 186

Division 9—Special provision for small markets 187

73.......................... Additional licence under section 38A not to result in breach of ownership limits 187

73A....................... Additional licence allocated under section 38B not to result in breach of control rules 187

Division 10—Prior opinions by the ACMA 188

74.......................... Requests to ACMA to give an opinion on whether a person is in a position to control a licence, a newspaper or a company.................................................................. 188

Division 11—Miscellaneous 190

75.......................... Register of matters under this Part.................................. 190

76.......................... Continuing offences........................................................ 190

77.......................... Part has effect notwithstanding Competition and Consumer Act 191

78.......................... Part not to invalidate appointments................................. 191

Part 6—Community broadcasting licences 192

79.......................... Interpretation................................................................... 192

79A....................... Application..................................................................... 192

80.......................... ACMA to advertise for applications for BSB community broadcasting licences 192

81.......................... When licences must not be allocated............................... 193

82.......................... Other community broadcasting licences.......................... 193

83.......................... When persons are regarded as suitable........................... 193

84.......................... Allocation of community broadcasting licences.............. 194

84A....................... Designated community radio broadcasting licences to provide analog or digital services 195

85.......................... ACMA not required to allocate community broadcasting licence to any applicant 197

85A....................... Services authorised by designated community radio broadcasting licences 197

86.......................... Conditions of community broadcasting licences............. 199

87.......................... ACMA may impose additional conditions on community broadcasting licences 199

87A....................... Additional conditions on CTV licences.......................... 200

87B........................ Special licence condition relating to digital community radio broadcasting services 202

88.......................... Matters to which conditions may relate........................... 202

89.......................... Duration of community broadcasting licences................ 202

90.......................... Applications for renewal of community broadcasting licences 203

91.......................... ACMA may renew community broadcasting licences.... 204

91A....................... Transfer of community broadcasting licences................. 205

92.......................... Surrender of community broadcasting licences............... 207

Part 6A—Temporary community broadcasting licences 208

92A....................... Interpretation................................................................... 208

92B........................ Temporary community broadcasting licences................. 208

92C........................ Applicants for temporary community broadcasting licences 208

92D....................... When applicants and licensees are regarded as suitable.. 209

92E........................ Criteria for deciding whether to allocate a licence........... 210

92F........................ Licences to accord with alternative planning procedures. 211

92G....................... Licence area, timing conditions and licence period.......... 211

92H....................... Conditions of temporary community broadcasting licences 211

92J......................... ACMA may vary conditions or periods, or impose new conditions 212

92K........................ Duration of temporary community broadcasting licences 213

92L........................ Surrender of temporary community broadcasting licences 213

Part 7—Subscription television broadcasting services 214

Division 1—Allocation of subscription television broadcasting licences 214

95.......................... When subscription television broadcasting licence must not be allocated 214

96.......................... Allocation of other subscription television broadcasting licences 214

97.......................... Requests to Australian Competition and Consumer Commission 215

98.......................... Suitability for allocation of licence.................................. 216

98D....................... Compensation................................................................. 217

Division 2—Conditions of subscription television broadcasting licence 218

99.......................... Conditions applicable to subscription television broadcasting licence 218

100........................ Matters to which conditions may relate........................... 219

Division 2A—Eligible drama expenditure 221

Subdivision A—Introduction 221

103A..................... Simplified outline............................................................ 221

103B...................... Definitions...................................................................... 222

103C...................... Channel providers........................................................... 225

103D..................... Part‑channel providers.................................................... 226

103E...................... Pass‑through providers................................................... 226

103F...................... Part‑pass‑through providers........................................... 227

103G..................... Supply of channel or package......................................... 227

103H..................... Non‑designated pre‑production expenditure not to be counted unless principal photography has commenced........................................................................................ 228

103J....................... Cash‑based accounting—when expenditure is incurred.. 228

103JA.................... When designated script development expenditure is incurred in relation to an eligible drama program etc......................................................................................... 228

103K...................... When expenditure incurred on a new eligible drama program 231

103L...................... ACMA may make determinations about what constitutes program expenditure 231

103M..................... Expenditure to be nominated only once in meeting licence conditions 233

Subdivision B—Channel provider supplies channel 234

103N..................... 10% minimum eligible drama expenditure—channel provider supplies channel 234

103NA.................. Carry‑forward eligible drama expenditure...................... 236

103P...................... Shortfall of eligible drama expenditure—channel provider supplies channel exclusively to licensee 236

103Q..................... Shortfall of eligible drama expenditure—channel provider supplies channel to multiple licensees 238

Subdivision C—Pass‑through provider supplies channel 241

103R...................... 10% minimum eligible drama expenditure—pass‑through provider supplies channel 241

103RA................... Carry‑forward eligible drama expenditure...................... 243

103S...................... Shortfall of eligible drama expenditure—pass‑through provider supplies channel 244

Subdivision D—Licensee supplies all program material 245

103T...................... 10% minimum eligible drama expenditure—licensee supplies all program material 245

103TA................... Carry‑forward eligible drama expenditure...................... 247

Subdivision E—Part‑channel provider supplies package of programs 248

103U..................... 10% minimum eligible drama expenditure—part‑channel provider supplies package of programs 248

103UA.................. Carry‑forward eligible drama expenditure...................... 249

103V..................... Shortfall of eligible drama expenditure—part‑channel provider supplies a package of programs exclusively to licensee........................................................................... 250

103W..................... Shortfall of eligible drama expenditure—part‑channel provider supplies a package of programs to multiple licensees.......................................................................... 252

Subdivision F—Part‑pass‑through provider supplies package of programs 255

103X..................... 10% minimum eligible drama expenditure—part‑pass‑through provider supplies package of programs 255

103XA.................. Carry‑forward eligible drama expenditure...................... 256

103Y..................... Shortfall of eligible drama expenditure—part‑pass‑through provider supplies package of programs 257

Subdivision G—Licensee supplies part of program material 259

103Z...................... 10% minimum eligible drama expenditure—licensee supplies part of program material 259

103ZAA................ Carry‑forward eligible drama expenditure...................... 260

Subdivision H—Annual returns 261

103ZA................... Licensee to lodge annual return....................................... 261

103ZB................... Channel provider and part‑channel provider to lodge annual return 262

103ZC................... ACMA may inquire into the correctness of an annual return 263

103ZD................... Nominations to be attached to annual returns.................. 263

Subdivision J—Miscellaneous 264

103ZG................... Anti‑avoidance—transactions between persons not at arm’s length 264

103ZH................... Expenditure to be expressed in Australian currency....... 264

Division 6—Miscellaneous 265

113........................ Transfer of subscription television broadcasting licence. 265

114........................ Surrender of subscription television broadcasting licence 265

115........................ Minister may protect the free availability of certain types of programs 265

116........................ Certain arrangements not to result in control or in persons being associates 266

116A..................... Use of additional capacity............................................... 267

116B...................... Application of section 51 of the Competition and Consumer Act 267

Part 8—Subscription broadcasting and narrowcasting class licences 268

117........................ Determination of class licences....................................... 268

118........................ Conditions of class licences............................................ 268

119........................ Matters to which conditions may relate........................... 268

120........................ Variation of class licences............................................... 269

Part 8A—Restrictions on subscription television broadcasting services in regional areas etc. 270

121A..................... Simplified outline............................................................ 270

121B...................... Definitions...................................................................... 270

121C...................... Identical program items................................................... 271

121D..................... Continuity of program items........................................... 271

121E...................... ACMA permission is required to provide certain television services in regional areas 272

Part 8B—International broadcasting licences 274

Division 1—Introduction 274

121F...................... Simplified outline............................................................ 274

121FAA................ Definitions...................................................................... 275

Division 2—Allocation of international broadcasting licences 276

121FA................... Application for international broadcasting licence........... 276

121FB................... Corporate status and suitability....................................... 276

121FC................... Unsuitable applicant........................................................ 278

121FD................... Australia’s national interest............................................. 279

121FE.................... Allocation of licence....................................................... 281

Division 3—Obligations of international broadcasting licensees 282

121FF.................... Conditions of international broadcasting licences........... 282

Division 4—Remedies 283

121FG................... Prohibition on providing an international broadcasting service without a licence 283

121FH................... Remedial directions—unlicensed international broadcasting services 283

121FHA................ Breach of remedial direction—offence............................ 284

121FHB................ Breach of remedial direction—civil penalty provision.... 284

121FJ.................... Offence for breach of conditions of international broadcasting licence 284

121FJA................. Civil penalty provision relating to breach of conditions of international broadcasting licences 285

121FJB.................. Remedial directions—licence conditions......................... 285

121FJC.................. Breach of remedial direction—offence............................ 286

121FJD................. Breach of remedial direction—civil penalty provision.... 286

121FK................... Cancellation of licence if service does not commence within 2 years 286

121FL.................... Formal warning, or cancellation or suspension of licence, where service is contrary to Australia’s national interest............................................................................ 287

Division 4A—Nominated broadcaster declarations 290

121FLA................. Object of this Division.................................................... 290

121FLB................. Applications for nominated broadcaster declarations...... 290

121FLC................. Making a nominated broadcaster declaration.................. 290

121FLD................. Effect of nominated broadcaster declaration.................... 292

121FLE................. Conditions of nominated broadcaster declarations.......... 293

121FLF................. Offence for breach of conditions of nominated broadcaster declaration 293

121FLG................. Revocation of nominated broadcaster declaration........... 294

121FLH................. Cancellation of licence if declaration ceases to be in force and licensee is not an Australian company 296

121FLJ.................. Register of nominated broadcaster declarations.............. 297

Division 5—ACMA to assist the Minister for Foreign Affairs 298

121FM.................. Report about compliance with international broadcasting guidelines 298

121FN................... Records of broadcasts..................................................... 298

Division 6—Miscellaneous 299

121FP.................... International broadcasting guidelines.............................. 299

121FQ................... Surrender of international broadcasting licences............. 299

121FR................... Complaints about international broadcasting services..... 299

121FS.................... Statements about decisions of the Minister for Foreign Affairs 299

Part 9—Content rules, program standards and codes of practice 301

121G..................... Australian content—transmission quota......................... 301

122........................ Program standards for children’s programs and Australian content 305

123........................ Development of codes of practice................................... 307

123B...................... Review by the ACMA—application of code of practice to section 38C licences 312

124........................ ACMA to maintain Register of codes of practice........... 313

125........................ ACMA may determine program standards where codes of practice fail or where no code of practice developed........................................................................................ 313

126........................ Consultation on standards............................................... 314

127........................ Notification of determination or variation or revocation of standards 314

128........................ Standards and codes to be amendable by the Parliament. 314

129........................ Limitation of ACMA’s power in relation to standards... 315

130........................ Application of the Competition and Consumer Act........ 315

Part 9A—Technical standards 316

130A..................... Technical standards for digital transmission—television etc. 316

130AA.................. Technical standards for digital transmission—radio etc.. 318

130AB................... Technical standards relating to the operation of multiplex transmitters 319

130AC................... Technical standards for digital transmission of television services provided with the use of a satellite 319

130B...................... Technical standards for domestic digital reception equipment—television etc. 320

130BA................... Technical standards for domestic digital reception equipment—radio etc. 322

130BB................... Technical standards for domestic digital reception equipment—television services provided with the use of a satellite............................................................................ 325

Part 9B—Industry codes and industry standards 329

Division 1—Simplified outline 329

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

Division 2—Interpretation 330

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

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

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

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

130H..................... Participants in a section of the industry........................... 333

Division 3—General principles relating to industry codes and industry standards 334

130J....................... Statement of regulatory policy........................................ 334

130K...................... Examples of matters that may be dealt with by industry codes and industry standards 334

130L...................... Industry codes and industry standards not to deal with certain matters 335

Division 4—Industry codes 336

130M..................... Registration of industry codes........................................ 336

130N..................... ACMA may request codes............................................. 337

130P...................... Publication of notice where no body or association represents a section of the industry 338

130Q..................... Replacement of industry codes....................................... 339

Division 5—Industry standards 340

130R...................... ACMA may determine an industry standard if a request for an industry code is not complied with 340

130S...................... ACMA may determine industry standard where no industry body or association formed 341

130T...................... ACMA may determine industry standards—total failure of industry codes 342

130U..................... ACMA may determine industry standards—partial failure of industry codes 343

130V..................... Compliance with industry standards............................... 345

130W..................... Formal warnings—breach of industry standards............ 345

130X..................... Variation of industry standards....................................... 345

130Y..................... Revocation of industry standards.................................... 346

Division 6—Register of industry codes and industry standards 347

130ZA................... ACMA to maintain Register of industry codes and industry standards 347

Part 9C—Access to commercial television broadcasting services provided with the use of a satellite 348

130ZBA................ Simplified outline............................................................ 348

130ZB................... Objectives of conditional access scheme—South Eastern Australia TV3 licence area and Northern Australia TV3 licence area............................................................. 348

130ZBB................. Objectives of conditional access scheme—Western Australia TV3 licence area 353

130ZC................... Registration of conditional access scheme developed by representative body or association 357

130ZCAA............. ACMA may invite representative body or association to develop a revised conditional access scheme 359

130ZCAB.............. ACMA may request development of replacement conditional access scheme 360

130ZCA................ Registration of conditional access scheme formulated by the ACMA 361

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

130ZE.................... ACMA to maintain register of conditional access schemes 364

130ZF.................... ACMA may direct a scheme administrator to issue a reception certificate etc. 365

130ZFA................. Adequate reception......................................................... 368

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

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

Part 9D—Captioning 373

Division 1—Introduction 373

130ZJ.................... Simplified outline............................................................ 373

130ZK................... Definitions...................................................................... 373

130ZKA................ Definition of channel provider....................................... 377

130ZKB................. Definition of part‑channel provider............................... 377

130ZKC................. Supply of channel or package......................................... 378

130ZL.................... Designated viewing hours.............................................. 378

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

130ZN................... This Part does not apply to programs that consist wholly of music 379

130ZO................... Captioning service provided for part of program............ 379

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

130ZQ................... Television service provided in a period........................... 380

Division 2—Captioning obligations of commercial television broadcasting licensees and national broadcasters 381

130ZR................... Captioning obligations—basic rule................................. 381

130ZS.................... Captioning obligations—special rules for multi‑channelled services 384

130ZUA................ Exemption orders and target reduction orders—unjustifiable hardship 386

130ZUAA............. Effect of target reduction order....................................... 391

130ZUB................ Certain breaches to be disregarded.................................. 393

Division 3—Captioning obligations of subscription television licensees 395

130ZV................... Annual captioning targets—subscription television licensees 395

130ZVA................ Categories for subscription television movie services..... 398

130ZW.................. Categories for subscription television general entertainment services 399

130ZX................... Exemptions—certain subscription television services provided before 1 July 2022 401

130ZY................... Exemption orders and target reduction orders—unjustifiable hardship 407

130ZYA................ Effect of target reduction order....................................... 411

130ZZ.................... Captioning services for repeats of television programs... 412

130ZZAA.............. Captioning services for simultaneously transmitted television programs 412

130ZZAB.............. Certain breaches to be disregarded.................................. 413

Division 4—Captioning standards 414

130ZZA................. Captioning standards...................................................... 414

Division 5—Emergency warnings 416

130ZZB................. Emergency warnings...................................................... 416

Division 6—Reports and record‑keeping 418

130ZZC................. Annual compliance reports............................................. 418

130ZZD................. Record‑keeping............................................................... 419

Division 7—Review of this Part etc. 421

130ZZE................. Review of this Part etc.................................................... 421

Part 10—Remedies for breaches of licensing provisions 422

Division 1—Offences for providing unlicensed services 422

131........................ Prohibition on providing a commercial television broadcasting service without a licence 422

132........................ Prohibition on providing a subscription television broadcasting service without a licence 422

133........................ Prohibition on providing a commercial radio broadcasting service without a licence 422

134........................ Prohibition on providing a community television broadcasting service without a licence 422

135........................ Prohibition on providing a community radio broadcasting service without a licence 423

136........................ Continuing offences........................................................ 423

Division 1A—Civil penalty provisions relating to unlicensed services 424

136A..................... Prohibition on providing a commercial television broadcasting service without a licence 424

136B...................... Prohibition on providing a subscription television broadcasting service without a licence 424

136C...................... Prohibition on providing a commercial radio broadcasting service without a licence 424

136D..................... Prohibition on providing a community television broadcasting service without a licence 424

136E...................... Prohibition on providing a community radio broadcasting service without a licence 425

136F...................... Continuing breaches....................................................... 425

Division 2—Action by ACMA where a person provides a service without a licence 426

137........................ Remedial directions—unlicensed services...................... 426

138........................ Breach of remedial direction—offences.......................... 426

138A..................... Breach of remedial direction—civil penalty provision.... 427

Division 3—Action in relation to breaches by licensees 428

139........................ Offence for breach of conditions of licences and class licences 428

140........................ Continuing offences........................................................ 430

140A..................... Civil penalty provisions relating to breach of conditions of licences and class licences 430

141........................ Remedial directions—licence conditions, class licences and codes of practice 431

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

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

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

Division 4—Action in relation to class licences 438

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

Part 10A—Anti‑hoarding rules 439

Division 1—Introduction 439

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

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

146C...................... Designated events and designated series of events......... 442

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

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

Division 2—Commercial television broadcasting licensees 446

146E...................... Anti‑hoarding rule—licensees........................................ 446

146F...................... Anti‑hoarding rule—program suppliers.......................... 447

146G..................... What constitutes an offer to transfer rights to televise live events 449

146H..................... Offers to transfer rights to televise live events................ 449

146J....................... Contracts to acquire rights to televise live events must authorise the transfer of the rights 450

146K...................... Simultaneous events in a series....................................... 451

146KA................... Delayed televising in the Central‑Western time zones..... 452

Division 3—National broadcasters 455

146L...................... Anti‑hoarding rule.......................................................... 455

146M..................... What constitutes an offer to transfer rights to televise live events 456

146N..................... Offers to transfer rights to televise live events................ 457

146P...................... Contracts to acquire rights to televise live events must authorise the transfer of the rights 457

146Q..................... Simultaneous events in a series....................................... 458

146R...................... Delayed televising in the Central‑Western time zones..... 458

Part 11—Complaints to the ACMA 461

Division 1—Complaints relating to action under licences and class licences 461

147........................ Complaints relating to offences or breach of licence conditions 461

148........................ Complaints under codes of practice................................ 461

149........................ Investigation of complaints by the ACMA..................... 462

Division 2—Complaints relating to national broadcasting services or datacasting services provided by the ABC or SBS 463

150........................ Complaints relating to national broadcasting services or datacasting services provided by the ABC or SBS........................................................................................ 463

151........................ Investigation of complaints relating to the ABC or SBS by the ACMA 464

152........................ Action by ACMA where complaint justified.................. 464

153........................ ACMA may report to Minister on results of recommendation 464

Part 13—Information gathering by the ACMA and the Commissioner 465

Division 1—Introduction 465

168........................ Obtaining of information by the ACMA........................ 465

169........................ Decision‑making by the ACMA not limited to matters discovered by investigation or hearing 465

169A..................... Investigation by the Commissioner................................. 466

Division 2—Investigations 467

170........................ Investigations by the ACMA.......................................... 467

171........................ Minister may direct ACMA to conduct an investigation. 467

172........................ ACMA may call for written submissions from the public 467

173........................ Notice requiring appearance for examination.................. 468

174........................ Examination on oath or affirmation................................. 468

175........................ Examination to take place in private................................ 469

176........................ Record to be made of examination.................................. 469

177........................ Production of documents for inspection......................... 470

178........................ Report on investigation................................................... 470

179........................ Publication of report....................................................... 471

180........................ Person adversely affected by report to be given opportunity to comment 471

Division 3—Hearings 472

182........................ Power to hold hearings................................................... 472

183........................ Minister may direct ACMA to hold a hearing................ 472

184........................ Procedure for conduct of hearings.................................. 472

185........................ ACMA may direct holding of conference....................... 472

186........................ Hearings to be informal, quick and economical.............. 473

187........................ Hearings to be in public except in exceptional cases....... 473

188........................ Public notice of hearings................................................. 473

189........................ Confidential material not to be published........................ 473

190........................ Directions as to private hearings..................................... 474

191........................ Constitution of ACMA for conduct of hearings............. 474

192........................ Presiding member........................................................... 474

193........................ Reconstitution of hearing panel....................................... 474

194........................ Exercise of powers in relation to conduct of hearing...... 475

195........................ Summons to give evidence or produce documents......... 475

196........................ Written submissions may be made to hearing................. 475

197........................ Evidence and submissions to be taken into account by ACMA 475

198........................ Representation at hearings.............................................. 476

199........................ Reports on hearings........................................................ 476

Division 4—General 477

200........................ Protection of members and persons giving evidence...... 477

201........................ Protection of panel conducting hearing........................... 477

202........................ Non‑compliance with requirement to give evidence........ 477

203........................ Proceedings for defamation not to lie.............................. 479

Part 14—Appeals to the Administrative Appeals Tribunal 481

204........................ Appeals to the Administrative Appeals Tribunal............ 481

205........................ Notification of decisions to include notification of reasons and appeal rights 488

Part 14A—Accounts and payment of licence fees 489

205A..................... Definitions...................................................................... 489

205B...................... Broadcasting licensees to keep accounts......................... 489

205BA................... Datacasting transmitter licensees to keep accounts.......... 491

205C...................... Payment of licence fees................................................... 492

205D..................... Penalty for unpaid licence fees........................................ 493

Part 14B—Civil penalties 497

Division 1—Ancillary contravention of civil penalty provision 497

205E...................... Ancillary contravention of civil penalty provision.......... 497

Division 2—Civil penalty orders 498

205EA................... Simplified outline............................................................ 498

205F...................... Civil penalty orders......................................................... 498

205G..................... Who may apply for a civil penalty order......................... 500

205H..................... 2 or more proceedings may be heard together................. 500

205J....................... Time limit for application for an order............................ 500

205K...................... Civil evidence and procedure rules for civil penalty orders 500

205L...................... Civil proceedings after criminal proceedings.................. 500

205M..................... Criminal proceedings during civil proceedings............... 500

205N..................... Criminal proceedings after civil proceedings.................. 501

205P...................... Evidence given in proceedings for a civil penalty order not admissible in criminal proceedings 501

205PAA................ Mistake of fact................................................................ 501

Part 14C—Injunctions 503

205PA................... Simplified outline............................................................ 503

205Q..................... Injunctions...................................................................... 503

205R...................... Interim injunctions.......................................................... 504

205S...................... Discharge etc. of injunctions........................................... 504

205T...................... Certain limits on granting injunctions not to apply.......... 504

205U..................... Other powers of the Federal Court unaffected................ 505

Part 14D—Enforceable undertakings 506

205V..................... Simplified outline............................................................ 506

205W..................... Acceptance of undertakings............................................ 506

205X..................... Enforcement of undertakings.......................................... 507

Part 14E—Infringement notices 508

205XAA............... Simplified outline............................................................ 508

205XA.................. Formal warning.............................................................. 508

205Y..................... When an infringement notice can be given...................... 508

205Z...................... Matters to be included in an infringement notice............. 509

205ZA................... Amount of penalty.......................................................... 509

205ZB................... Withdrawal of an infringement notice............................. 510

205ZC................... What happens if the penalty is paid................................. 510

205ZD................... Effect of this Part on criminal proceedings..................... 510

205ZE.................... Appointment of authorised infringement notice officer... 511

205ZF.................... Regulations..................................................................... 511

Part 15—Miscellaneous 512

206........................ Broadcasting or datacasting taken to be publication in permanent form 512

207........................ Amounts of fees............................................................. 512

209........................ Prosecutions................................................................... 512

210........................ Publication of opinions................................................... 512

211AA.................. Time when a television program is broadcast—certain terrestrial licence areas 513

211A..................... Time when a television program is broadcast—South Eastern Australia TV3 and Northern Australia TV3 licence areas.................................................................... 514

212........................ Special provisions for re‑transmission of programs....... 516

212A..................... Self‑help providers......................................................... 518

212B...................... Declared self‑help providers and excluded providers..... 520

213........................ Penalties for continuing offences.................................... 521

214........................ Procedure relating to continuing offences....................... 521

215........................ Guidelines relating to ACMA’s enforcement powers etc. 522

216........................ Ministerial consultative and advisory bodies.................. 523

216A..................... Schedule 4 (digital television broadcasting).................... 523

216B...................... Schedule 5 (online services)........................................... 523

216C...................... Schedule 6 (datacasting services).................................... 523

216D..................... Schedule 7 (content services).......................................... 523

217........................ Regulations..................................................................... 523

218........................ Channel sharing.............................................................. 524

Schedule 1—Control and ownership of company interests 525

Part 1—Introduction 525

1............................ Control—general............................................................ 525

Part 2—When person is in a position to exercise control 527

2............................ When person is in a position to exercise control............. 527

3............................ When person is in a position to exercise control of a newspaper 530

4............................ Special provisions for authorised lenders....................... 531

Part 3—Deemed control 535

5............................ Explanation of examples................................................. 535

6............................ The 15% rule.................................................................. 535

7............................ Application of method through chain of companies........ 535

Part 4—Tracing of ownership 536

8............................ Tracing of ownership...................................................... 536

Schedule 2—Standard conditions 538

Part 1—Interpretation 538

1............................ Definitions...................................................................... 538

2............................ Interpretation—certain things do not amount to broadcasting of advertisements 541

Part 2—Special conditions 543

3............................ Broadcasting of political or controversial material.......... 543

3A......................... Broadcasting of election advertisements......................... 543

4............................ Identification of certain political matter........................... 544

5............................ Records of matter broadcast............................................ 545

6............................ Advertisements relating to medicines.............................. 546

Part 3—Commercial television broadcasting licences 548

Division 1—General 548

7............................ Conditions of commercial television broadcasting licences 548

Division 2—Licences allocated under section 38C 553

7A......................... Common conditions........................................................ 553

7B.......................... Conditions about the provision of primary commercial television broadcasting services 553

7C.......................... Conditions about the provision of non‑primary commercial television broadcasting services 557

7D......................... Condition about the provision of local news services..... 561

7E.......................... Exemption—provision of new commercial television broadcasting services not technically feasible 561

7F.......................... Exemption—commercial television broadcasting services with the same program content 562

7G......................... Delay in commencement of new commercial television broadcasting services 564

7J........................... Program content.............................................................. 565

7L.......................... Definitions...................................................................... 565

Part 4—Commercial radio broadcasting licences 567

8............................ Standard conditions of commercial radio broadcasting licences 567

Part 5—Community broadcasting licences 571

9............................ Conditions applicable to services provided under community broadcasting licences 571

Part 6—Subscription television broadcasting licences 576

10.......................... Conditions applicable to subscription television broadcasting licences 576

Part 7—Services provided under class licences 579

11.......................... Conditions applicable to broadcasting services provided under class licences 579

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

Part 1—Preliminary

1 Short title

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

2 Commencement

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

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

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

3 Objects of this Act

(1) The objects of this Act are:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(2) In this section:

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

internet content has the same meaning as in Schedule 5.

4 Regulatory policy

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

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

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

(b) will readily accommodate technological change; and

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

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

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

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

(b) will readily accommodate technological change; and

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

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

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

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

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

(b) will readily accommodate technological change; and

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

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

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

(4) In this section:

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

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

internet content has the same meaning as in Schedule 5.

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

5 Role of the ACMA

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

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

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

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

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

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

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

(b) the Australian Competition and Consumer Commission; or

(4) In this section:

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

6 Interpretation

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

ACMA means the Australian Communications and Media Authority.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(i) the other company is a related body corporate of the person for the purposes of the Corporations Act 2001; or

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

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

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

Note 2: See also subsection (3).

associate member means an associate member of the ACMA.

authorised infringement notice officer means:

(a) the Chair of the ACMA; or

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

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

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

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

(c) a service, or a class of services, that the Minister determines, under subsection (2), not to fall within this definition.

broadcasting services bands means:

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

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

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

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

CER Trade in Services Protocol:

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

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

Chair means the Chair of the ACMA.

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

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

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

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

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

commercial broadcasting service has the meaning given by section 14.

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

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

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

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

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

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

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

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

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

Commissioner means the eSafety Commissioner.

community broadcasting licence means:

(a) a community radio broadcasting licence; or

(b) a community television broadcasting licence.

community broadcasting service has the meaning given by section 15.

community radio broadcasting licence means:

(a) a licence under Part 6 to provide:

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

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

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

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

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

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

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

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

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

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

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

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

datacasting service means a service that delivers content:

(a) whether in the form of text; or

(b) whether in the form of data; or

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

(e) whether in any other form; or

(f) whether in any combination of forms;

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

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

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

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

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

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

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

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

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

(a) in the form of text; or

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

(d) in any combination of the above forms;

where:

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

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

(g) if:

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

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

the reception equipment will also receive the content.

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

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

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

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

Federal Circuit Court means the Federal Circuit Court of Australia.

Federal Court means the Federal Court of Australia.

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

infringement notice means an infringement notice under section 205Y.

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

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

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

legislature of a Territory means:

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

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

licence means:

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

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

(ii) a datacasting transmitter licence; and

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

licence area means:

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

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

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

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

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

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

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

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

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

member means a member of the ACMA.

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

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

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

national broadcasting service has the meaning given by section 13.

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

near relative, in relation to a person, means:

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

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

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

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

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

open narrowcasting service has the meaning given by section 18.

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

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

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

Parliament means:

(a) the Parliament of the Commonwealth; or

(b) a State Parliament; or

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

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

primary commercial television broadcasting service, in relation to a commercial television broadcasting licence, has the same meaning as in Schedule 4.

program, in relation to a broadcasting service, means:

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

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

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

radio program has a meaning affected by section 8AB.

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

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

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

(a) section 123; or

(b) clause 62 of Schedule 5; or

(d) clause 85 of Schedule 7.

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

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

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

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

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

scheme administrator:

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

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

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

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

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

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

subscription broadcasting service has the meaning given by section 16.

subscription fee includes any form of consideration.

subscription narrowcasting service has the meaning given by section 17.

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

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

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

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

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

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

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

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

temporary community broadcasting licence means a community broadcasting licence that:

(a) is a broadcasting services bands licence; and

(b) is allocated under Part 6A.

transaction includes:

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

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

(2) For the purposes of paragraph (c) of the definition of broadcasting service in subsection (1), the Minister may, by legislative instrument, determine that a service, or a class of services, does not fall within that definition.

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

7 Interpretation—meaning of control

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

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

(b) tracing company interests of persons.

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

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

(1) For the purposes of this Act:

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

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

(2) For the purposes of this Act:

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

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

(3) For the purposes of this Act:

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

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

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

(b) the percentage of the interest is:

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

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

(4) For the purposes of this Act:

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

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

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

8A Captioning taken to be part of program

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

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

8AA Designated community radio broadcasting licence

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

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

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

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

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

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

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

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

Commercial radio broadcasting services

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

(a) a digital commercial radio broadcasting service; and

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

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

Community radio broadcasting services

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

(a) a digital community radio broadcasting service; and

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

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

National radio broadcasting services

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

(a) a digital national radio broadcasting service; and

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

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

8AC Digital radio start‑up day

(1) If the ACMA is satisfied that:

(a) the ACMA has taken sufficient action under:

(i) Part 3 of this Act; and

(ii) Part 2.3 of the Radiocommunications Act 1992;

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

(iii) digital commercial radio broadcasting services;

(iv) digital community radio broadcasting services;

(v) digital national radio broadcasting services; and

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

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

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

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

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

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

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

ACMA to give notice of intention to make a declaration

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

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

Definitions

(8) In this section:

licence area means:

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

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

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

8AD Deemed radio broadcasting licence areas

Western Suburbs Sydney RA1

(1) For the purposes of:

(a) section 8AC of this Act; and

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

(i) any other provision of this Act; or

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

(iii) any other law of the Commonwealth;

to digital commercial radio broadcasting services;

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

Hobart RA2 and Hobart RA4

(2) For the purposes of:

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

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

(d) the application of:

(i) any other provision of this Act; or

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

(iii) any other law of the Commonwealth;

to digital community radio broadcasting services;

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

Other licence areas

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

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

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

(d) the application of:

(i) any other provision of this Act; or

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

(iii) any other law of the Commonwealth;

to digital community radio broadcasting services;

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

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

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

8AF Regional racing service radio licence

(1) For the purposes of this Act, a regional racing service radio licence is a regional commercial radio broadcasting licence (within the meaning of Division 5C of Part 5), where the following conditions are satisfied in relation to a broadcasting service provided under the licence:

(a) the broadcasting service is promoted, on the broadcasting service:

(i) as a broadcasting service of interest mainly to persons involved in horse racing, harness racing or greyhound racing; or

(ii) using the phrase “racing radio service”;

(b) the racing content percentage, in relation to the broadcasting service, is 60% or more for each day, other than Christmas Day and Good Friday;

(c) if, on a particular day, content other than racing content is broadcast on the broadcasting service—a significant proportion of that content is:

(i) relevant to horse racing, harness racing or greyhound racing; or

(ii) of interest mainly to persons involved in horse racing, harness racing or greyhound racing.

(2) For the purposes of this section, racing content percentage means the percentage worked out using the following formula:

(3) For the purposes of this section, racing content means content that consists of:

(a) coverage of a horse race, a harness race or a greyhound race; or

(b) information directly related to horse racing, harness racing or greyhound racing, including:

(i) selections; and

(ii) scratchings; and

(iii) betting information; and

(iv) track conditions; or

(i) is broadcast between 2 races of a kind referred to in paragraph (a); and

(ii) is not broadcast for more than 15 minutes of the hour.

8B Remote Indigenous community

An Indigenous community is a remote Indigenous community for the purposes of this Act if the ACMA so determines by legislative instrument.

9 Act to bind the Crown

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

10 Extension of Act to the external Territories

This Act extends to all the external Territories.

10AA Operation in relation to Norfolk Island

The operation of this Act in relation to Norfolk Island is not affected by the amendments made by Division 1 of Part 1 of Schedule 5 to the Territories Legislation Amendment Act 2016.

10A Application of the Criminal Code

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

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

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

Part 2—Categories of broadcasting services

11 Categories of broadcasting services

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

(a) national broadcasting services;

(b) commercial broadcasting services;

(d) subscription broadcasting services;

(e) subscription narrowcasting services;

(f) open narrowcasting services;

(fa) international broadcasting services.

11A Dual categorisation of international broadcasting services

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

12 Method of regulating particular services

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

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

Dual categorisation of international broadcasting services

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

(a) an international broadcasting licence; and

(b) either:

(i) a commercial radio broadcasting licence; or

(ii) a commercial television broadcasting licence.

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

(a) an international broadcasting licence; and

(b) a community broadcasting licence.

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

(a) an international broadcasting licence; and

(b) a subscription television broadcasting licence.

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

(a) the service requires an international broadcasting licence;

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

13 National broadcasting services

(1) National broadcasting services are:

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

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

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

(3) Subsection (2) does not apply to services specified by the Minister under subsection (4).

(4) The Minister may, by legislative instrument, specify services for the purposes of subsection (3).

(5) Except as expressly provided by this Act, the regulatory regime established by this Act does not apply to national broadcasting services.

14 Commercial broadcasting services

(1) Commercial broadcasting services are broadcasting services:

(a) that provide programs that, when considered in the context of the service being provided, appear to be intended to appeal to the general public; and

(b) that provide programs that:

(i) are able to be received by commonly available equipment; and

(ii) are made available free to the general public; and

(d) that are operated for profit or as part of a profit‑making enterprise; and

(e) that comply with any determinations or clarifications under section 19 in relation to commercial broadcasting services.

(2) For the purposes of the application of subsection (1) to a broadcasting service provided under a licence allocated under section 38C, assume that there is no conditional access system that relates to the broadcasting service.

15 Community broadcasting services

Community broadcasting services are broadcasting services that:

(a) are provided for community purposes; and

(b) are not operated for profit or as part of a profit‑making enterprise; and

(i) are able to be received by commonly available equipment; and

(ii) are made available free to the general public; and

(d) comply with any determinations or clarifications under section 19 in relation to community broadcasting services.

16 Subscription broadcasting services

Subscription broadcasting services are broadcasting services that:

(a) provide programs that, when considered in the context of the service being provided, appear to be intended to appeal to the general public; and

(b) are made available to the general public but only on payment of subscription fees (whether periodical or otherwise); and

17 Subscription narrowcasting services

Subscription narrowcasting services are broadcasting services:

(a) whose reception is limited:

(i) by being targeted to special interest groups; or

(ii) by being intended only for limited locations, for example, arenas or business premises; or

(iii) by being provided during a limited period or to cover a special event; or

(iv) because they provide programs of limited appeal; or

(v) for some other reason; and

(b) that are made available only on payment of subscription fees (whether periodical or otherwise); and

(c) that comply with any determinations or clarifications under section 19 in relation to subscription narrowcasting services.

18 Open narrowcasting services

(1) Open narrowcasting services are broadcasting services:

(a) whose reception is limited:

(i) by being targeted to special interest groups; or

(ii) by being intended only for limited locations, for example, arenas or business premises; or

(iii) by being provided during a limited period or to cover a special event; or

(iv) because they provide programs of limited appeal; or

(v) for some other reason; and

(b) that comply with any determinations or clarifications under section 19 in relation to open narrowcasting services.

(1A) A HDTV multi‑channelled commercial television broadcasting service (within the meaning of Schedule 4) is not an open narrowcasting service.

(1AA) A SDTV multi‑channelled commercial television broadcasting service (within the meaning of Schedule 4) is not an open narrowcasting service.

(1B) A HDTV multi‑channelled national television broadcasting service (within the meaning of Schedule 4) is not an open narrowcasting service.

(2) A SDTV multi‑channelled national television broadcasting service (within the meaning of Schedule 4) is not an open narrowcasting service.

(3) A digital commercial radio broadcasting service is not an open narrowcasting service.

(4) A digital community radio broadcasting service is not an open narrowcasting service.

(5) A digital national radio broadcasting service is not an open narrowcasting service.

18A International broadcasting services

(1) International broadcasting services are broadcasting services that are targeted, to a significant extent, to audiences outside Australia, where:

(a) the means of delivering the services involves the use of a radiocommunications transmitter in Australia (whether alone or in combination with any other means); and

(b) the services comply with any determinations or clarifications under section 19 in relation to international broadcasting services.

(2) A broadcasting service is not an international broadcasting service if the broadcasting service is:

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

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

(3) For the purposes of this section, a broadcasting service is an exempt broadcasting service if:

(a) the service delivers only programs packaged outside Australia (which may include programs produced in Australia); and

(b) all relevant programming decisions are made outside Australia; and

(c) the service is transmitted from a place outside Australia to an earth station in Australia for the sole purpose of being immediately re‑transmitted to a satellite; and

(d) the satellite is a means of delivering the service (whether alone or in combination with any other means).

(4) The references in this section to localities do not, by implication, affect the application of paragraph 21(1)(b) of the Acts Interpretation Act 1901 and section 10 of this Act to a provision of this Act that deals with a category of broadcasting services other than international broadcasting services.

(5) In this section:

Australia includes the external Territories.

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

19 ACMA may determine additional criteria or clarify existing criteria

(1) The ACMA may, by legislative instrument:

(a) determine additional criteria to those specified in sections 14 to 18A; or

(b) clarify the criteria specified in sections 14 to 18A;

for the purpose of distinguishing between categories of broadcasting services.

(2) Different criteria or clarifications may be determined or made for radio services and television services.

(3) The Minister may give specific directions to the ACMA as to the making of determinations and clarifications, and the ACMA must observe those directions.

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

(1) A person who is providing, or who proposes to provide, a broadcasting service may apply to the ACMA for an opinion as to which category, or categories, of broadcasting services the service falls into.

(2) An application must be in accordance with a form approved in writing by the ACMA, and must state the applicant’s opinion as to which category, or categories, of broadcasting services the service falls into.

(3) If the ACMA considers that additional information is required before an opinion can be given, the ACMA may, by notice in writing given to the applicant within 30 days after receiving the application, request the applicant to provide that information.

(4) The ACMA must, as soon as practicable after:

(a) receiving the application; or

(b) if the ACMA has requested further information—receiving that further information;

give the applicant, in writing, its opinion as to which category, or categories, of broadcasting services the service falls into.

(5) If the ACMA has given an opinion under this section to the provider of a broadcasting service, neither the ACMA nor any other Government agency may, while the circumstances relating to the broadcasting service remain substantially the same as those advised to the ACMA in relation to the application for the opinion:

(a) take any action against the provider of the service during the period of 5 years commencing on the day on which the opinion is given on the basis that the service falls into a different category, or different categories, of broadcasting services than that advised in the opinion; or

(b) unless the ACMA has made a determination or clarification under section 19 after that opinion was given that places the broadcasting service in a different category or different categories—take any action against the provider of the service after the end of that period on the basis that the service falls into a different category, or different categories, of broadcasting services.

(6) If the ACMA does not, within 45 days after:

(a) receiving the application; or

(b) if the ACMA has requested further information—receiving that further information;

give the applicant, in writing, its opinion as to which category, or categories, of broadcasting services the service falls into, the ACMA is taken to have given an opinion at the end of that period that accords with the applicant’s opinion.

(7) The ACMA may charge a fee for providing an opinion under this section.

(8) The ACMA must not give an opinion under this section that a particular broadcasting service falls into more than one category of broadcasting services unless one of the categories is international broadcasting services.

(9) A person must not, in an application under this section, state an opinion that a particular broadcasting service falls into more than one category of broadcasting services unless one of the categories is international broadcasting services.

22 Matters to be considered by ACMA

In making determinations or clarifications under section 19 in relation to broadcasting services, and in giving opinions under section 21 in relation to broadcasting services, the ACMA is to have regard to:

(a) the geographic coverage of those services; and

(b) the number of persons who receive or are able to receive those services; and

(i) whether those services are encrypted; and

(ii) whether their availability is otherwise restricted, whether because of the high cost of the equipment required to receive those services, the controlled supply of that equipment or otherwise; and

(iii) whether their comprehensibility is otherwise restricted; and

(d) the duration and frequency of the provision of those services, including whether those services are provided for a set period only; and

(e) the nature of the audience to which those services are targeted; and

(f) the nature of the programs being provided by those services, including:

(i) the level of interest in the subject matter of those programs; and

(ii) whether those programs are directed at a specialised audience; and

(iii) the social and cultural impact of those programs; and

(g) such other matters as the ACMA thinks fit.

Part 3—Planning of the broadcasting services bands

23 Planning criteria

In performing functions under this Part, the ACMA is to promote the objects of this Act including the economic and efficient use of the radiofrequency spectrum, and is to have regard to:

(a) demographics; and

(b) social and economic characteristics within the licence area, within neighbouring licence areas and within Australia generally; and

(c) the number of existing broadcasting services and the demand for new broadcasting services within the licence area, within neighbouring licence areas and within Australia generally; and

(d) developments in technology; and

(e) technical restraints relating to the delivery or reception of broadcasting services; and

(f) the demand for radiofrequency spectrum for services other than broadcasting services; and

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

26 Preparation of licence area plans

(1) The ACMA must, by legislative instrument, prepare licence area plans that determine the number and characteristics, including technical specifications, of broadcasting services that are to be available in particular areas of Australia with the use of the broadcasting services bands.

(1A) To the extent to which a licence area plan prepared under subsection (1) deals with:

(a) digital commercial radio broadcasting services; or

(b) digital community radio broadcasting services; or

the licence area plan is not required to determine the technical specifications of those services.

Television licence area plans

(1B) The ACMA may, by legislative instrument, prepare licence area plans that:

(a) specify the channels that are to be available in particular areas of Australia to provide the following services:

(i) commercial television broadcasting services;

(ii) national television broadcasting services;

(iii) other television broadcasting services;

with the use of the broadcasting services bands; and

(b) allot, or empower the ACMA to allot, those channels to:

(i) particular commercial television broadcasting licensees; or

(ii) particular national broadcasters; or

(iii) particular providers of television broadcasting services (other than commercial television broadcasting licensees or national broadcasters);

as the case requires; and

(c) determine the characteristics, including technical specifications, of the transmission of each of the following services:

(i) commercial television broadcasting services;

(ii) national television broadcasting services;

(iii) other television broadcasting services;

using those channels; and

(d) determine, or empower the ACMA to determine, any technical limitations on the use of a particular channel that the ACMA considers should be applicable; and

(e) determine, or empower the ACMA to determine, whether the use of a particular channel depends on any event or circumstances that the ACMA considers should be applicable.

(1C) A licence area plan prepared under subsection (1B) is to be known as a television licence area plan.

(1D) A television licence area plan may allot, or empower the ACMA to allot, different channels to:

(a) a particular commercial television broadcasting licensee; or

(b) a particular national broadcaster; or

(c) a particular provider of a television broadcasting service (other than a commercial television broadcasting licensee or a national broadcaster);

for different periods.

(1E) A television licence area plan may allot, or empower the ACMA to allot, 2 or more channels to:

(a) a particular commercial television broadcasting licensee; or

(b) a particular national broadcaster; or

(c) a particular provider of a television broadcasting service (other than a commercial television broadcasting licensee or a national broadcaster).

(1G) A television licence area plan does not need to identify a particular television broadcasting service by name.

(1M) Section 23 has effect as if a function or power conferred on the ACMA by a television licence area plan were a function conferred on the ACMA by this section.

Variation

(2) The ACMA may, by legislative instrument, vary a licence area plan.

Ministerial direction

(8) The Minister may, by legislative instrument, direct the ACMA about the exercise of its powers to make or vary a licence area plan for a particular area.

(9) The ACMA must comply with a direction under subsection (8).

Legislative instruments

(11) If a determination made by the ACMA under a television licence area plan is in writing, the determination is not a legislative instrument.

Definitions

(13) In this section:

national television broadcasting service has the same meaning as in Schedule 4.

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

Note: For designation of licence areas, see section 29.

26AA Compliance with television licence area plan

(1) If:

(a) a television licence area plan is applicable to the transmission of one or more commercial television broadcasting services in a particular area; and

(b) those services are provided under a particular commercial television broadcasting licence;

the licensee must not transmit any of those commercial television broadcasting services in that area otherwise than in accordance with the television licence area plan.

(2) If:

(a) a television licence area plan is applicable to the transmission of one or more national television broadcasting services in a particular area; and

(b) those services are provided by a particular national broadcaster;

the national broadcaster must not transmit any of those national television broadcasting services in that area otherwise than in accordance with the television licence area plan.

(3) If:

(a) a television licence area plan is applicable to the transmission of one or more television broadcasting services in a particular area; and

(b) those services are not provided:

(i) under a commercial television broadcasting licence; or

(ii) by a national broadcaster;

the provider of those television broadcasting services must not transmit any of those services in that area otherwise than in accordance with the television licence area plan.

(4) In this section:

national television broadcasting service has the same meaning as in Schedule 4.

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

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

Commercial radio broadcasting services

(1) If:

(a) a commercial radio broadcasting licence was in force immediately before the digital radio start‑up day for the licence area; and

(b) the licence authorises the licensee to provide digital commercial radio broadcasting services in the licence area;

the relevant licence area plan is not required to deal with those services.

Community radio broadcasting services

(3) If:

(a) a designated community radio broadcasting licence was in force immediately before the digital radio start‑up day for the licence; and

(b) the licence authorises the licensee to provide digital community radio broadcasting services in the licence area;

the relevant licence area plan is not required to deal with those services.

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

(1) This section applies if a licence area plan deals with:

(a) digital commercial radio broadcasting services; or

(b) digital community radio broadcasting services; or

(2) The licence area plan is not required to identify:

(a) individual digital commercial radio broadcasting services; or

(b) individual digital community radio broadcasting services; or

(3) It is sufficient if the licence area plan deals collectively with:

(a) the digital commercial radio broadcasting services; and

(b) the digital community radio broadcasting services; and

that, from time to time, are, or are to be, transmitted under the digital radio multiplex transmitter licence or licences issued, or to be issued, in relation to the area concerned.

29 Designation of licence areas

(1) Before allocating a new commercial television broadcasting licence, commercial radio broadcasting licence or community broadcasting licence (other than a temporary community broadcasting licence) that is a broadcasting services bands licence, the ACMA is to designate one of the areas referred to in whichever of subsection 26(1) or (1B) is applicable as the licence area of the licence.

(2) If the ACMA varies a licence area plan, the ACMA may vary the designation of the relevant licence areas.

(3) This section does not apply to a licence allocated under section 38C.

30 ACMA may determine population figures

(1) The ACMA may, by notice in writing, determine the licence area population of a licence area.

(2) The ACMA may, by notice in writing, determine a number that is to be the population of Australia for the purposes of this Act.

(3) In making a determination, the ACMA is to have regard to the most recently published census count prepared by the Australian Statistician.

(4) The ACMA is to make a new determination of the licence area population of a licence area if the licence area is changed.

(5) The ACMA is to specify, in a determination of the licence area population of a licence area:

(a) the percentage of the population of Australia constituted by that licence area population; and

(b) the percentage of that licence area population that is attributable to an overlap area.

31 Minister may reserve capacity for national broadcasters or community broadcasters

(1) The Minister may, by legislative instrument, notify the ACMA that capacity in the broadcasting services bands is to be reserved for a specified number of:

(a) national broadcasting services; or

(b) community broadcasting services (other than services provided by temporary community broadcasting licensees);

but such a notice must not affect the provision of services in accordance with a licence already allocated by the ACMA under this Act or in accordance with a class licence.

(2) The ACMA must not, except in accordance with section 34, allocate a licence or determine a class licence that would allow the provision of broadcasting services (other than services provided by national broadcasters or community broadcasting licensees) which would make use of reserved capacity in the broadcasting services bands.

33 Development of technical planning guidelines

The ACMA is to develop in writing guidelines for the technical planning of individual services that use the broadcasting services bands as a means of delivery.

34 Alternative uses of broadcasting services bands

(1) If:

(a) the ACMA has advertised under section 38 for applications for the allocation of one or more commercial television broadcasting licences or commercial radio broadcasting licences that are broadcasting services bands licences and that licence is not allocated or not all of those licences are allocated; or

(b) broadcasting services bands spectrum is available in a licence area but has not been made available for commercial television broadcasting licences or commercial radio broadcasting licences; or

(c) broadcasting services bands spectrum has been reserved under section 31 but has not been made available for the purpose for which it was reserved; or

(d) broadcasting services bands spectrum is available but the ACMA has not commenced or completed planning and allocation processes in relation to that spectrum;

the ACMA may, by written instrument, determine that the part or parts of the radiofrequency spectrum concerned is or are available for allocation, for a period specified by the ACMA:

(e) for the temporary transmission or the re‑transmission of programs; or

(ea) to temporary community broadcasting licensees; or

(f) to providers of subscription broadcasting services, subscription narrowcasting services or open narrowcasting services; or

(fa) for the transmission of datacasting services on a temporary basis; or

(g) for other purposes.

(2) In making a determination under subsection (1), the ACMA is to have regard to:

(a) the possible future demand for the use of that part of the radiofrequency spectrum; and

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

(3) The ACMA may, by written instrument, determine that a part or parts of the broadcasting services bands spectrum is or are available for allocation for the purposes of the transmission of datacasting services.

(4) In making a determination under subsection (3), the ACMA is to have regard to:

(a) the possible future demand for the use of that part of the radiofrequency spectrum for the provision of commercial television broadcasting services; and

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

(4A) Each part determined under subsection (3) must be 7 MHz. However, this rule does not prevent a particular part from being determined even if it adjoins:

(a) another part that is also specified in the determination; or

(b) 2 other parts that are also specified in the determination.

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

Division 1—Allocation of licences

36 ACMA to determine system for allocating licences

(1) The ACMA is to determine in writing a price‑based system for allocating:

(a) commercial television broadcasting licences that are broadcasting services bands licences; and

(b) commercial radio broadcasting licences that are broadcasting services bands licences.

(2) The Minister may give specific directions to the ACMA for the purpose of a determination.

(3) Directions may be to include in a determination specified reserve prices for licences, and those reserve prices may be different for licences in different licence areas.

(4) If a commercial television broadcasting licence or a commercial radio broadcasting licence referred to in subsection (1) is allocated, the ACMA must, unless the allocation system adopted was public, publish in the Gazette the name of the successful applicant and the amount that the applicant agreed to pay to the Commonwealth for the allocation of the licence.

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

Licences in force immediately before the commencement of this section

(1) If a commercial radio broadcasting licence was in force immediately before the commencement of this section, the licence is taken, for the purposes of this Act, to have been allocated as a licence to provide an analog commercial radio broadcasting service.

Licences allocated before the digital radio start‑up day for the licence area

(2) If the ACMA allocates a commercial radio broadcasting licence after the commencement of this section but before the digital radio start‑up day for the licence area, the licence must be allocated as a licence to provide an analog commercial radio broadcasting service.

Licences allocated on or after digital radio start‑up day for the licence area

(3) If the ACMA allocates a commercial radio broadcasting licence on or after the digital radio start‑up day for the licence area, the licence must be allocated as:

(a) a licence to provide an analog commercial radio broadcasting service; or

(b) a licence to provide digital commercial radio broadcasting services.

Licence conditions

(4) Subject to subsection (5), if a commercial radio broadcasting licence is or was allocated as a licence to provide an analog commercial radio broadcasting service, the licence is subject to the condition that the licensee may only provide an analog commercial radio broadcasting service under the licence.

(5) If:

(a) a commercial radio broadcasting licence was in force immediately before the digital radio start‑up day for the licence area; and

(b) the licence authorised the licensee to provide an analog commercial radio broadcasting service in the licence area;

subsection (4) ceases to apply in relation to the licence at the start of the digital radio start‑up day for the licence area.

(6) If a commercial radio broadcasting licence is allocated as a licence to provide digital commercial radio broadcasting services, the licence is subject to the condition that the licensee may only provide digital commercial radio broadcasting services under the licence.

Subsection 40(1) licences

(8) This section does not apply to a commercial radio broadcasting licence that is or was allocated under subsection 40(1).

37 When licences must not be allocated

(1) A licence is not to be allocated to an applicant if:

(a) the applicant is not a company that is registered as a company under Part 2A.2 of the Corporations Act 2001 and has a share capital; or

(b) the ACMA decides that subsection 41(2) applies to the applicant.

(2) Paragraph (1)(b) does not require the ACMA to consider the application of section 41 in relation to an applicant before allocating a licence to the applicant.

37A Limitation on number of commercial television broadcasting licences

The ACMA must ensure that the number of commercial television broadcasting licences that:

(a) have the same licence area; and

(b) are broadcasting services bands licences;

does not exceed 3.

38 ACMA to advertise for applications for certain licences

(1) Where the ACMA is going to allocate one or more commercial television broadcasting licences or commercial radio broadcasting licences referred to in subsection 36(1), the ACMA is to advertise, in a manner determined by the ACMA, for applications for licences of that kind, and is to include in the advertisements:

(a) the date before which applications must be received by the ACMA; and

(b) a statement specifying how details of:

(i) the system determined under section 36; and

(ii) the conditions that are to apply to the licence; and

(iii) the licence area of the licence, the licence area population of the licence and any areas of overlap with other licence areas;

can be obtained.

(2) Applications must:

(a) be in accordance with a form approved in writing by the ACMA; and

(b) be accompanied by the application fee determined in writing by the ACMA.

38A Additional commercial television licences in single markets

Circumstances in which existing licensee may apply for additional licence

(1) If:

(a) a particular licence area is the licence area of only one commercial television broadcasting licence (the parent licence) that is in force; and

(aa) the parent licence is not a licence allocated under section 38C; and

(b) additional commercial television broadcasting licences can be allocated for the licence area;

the existing licensee may apply in writing to the ACMA for an additional commercial television broadcasting licence for the licence area.

ACMA must grant additional licence

(2) As soon as practicable, the ACMA must allocate an additional commercial television broadcasting licence to the existing licensee for the licence area, so long as:

(a) all of the following conditions are satisfied:

(i) no licence for the licence area previously allocated under this section to the existing licensee has been cancelled because of a breach of the condition set out in paragraph 7(1)(i) of Schedule 2;

(iii) no licence for the licence area previously held by the existing licensee has been surrendered; or

(b) both:

(i) paragraph (a) does not apply; and

(ii) the ACMA is satisfied that there are exceptional circumstances.

Amalgamation of licence areas in some cases

(7) If:

(a) more than 30% of the licence area population of a licence area is attributable to an overlap area; or

(b) a licence area is entirely within another licence area;

this section applies as if the 2 licence areas were one.

Fee for additional licence

(8) On allocation of the additional licence, the applicant must pay to the ACMA a fee determined by the ACMA. The fee must not be more than the amount that, in the opinion of the ACMA, represents the costs (including planning costs) incurred by the ACMA in allocating the additional licence.

Section 37 restrictions apply

(11) This section has effect subject to section 37.

38B Additional commercial television licences in 2‑station markets

(1) If:

(a) a particular licence area is the licence area of only 2 commercial television broadcasting licences (the parent licences) that are in force; and

(ca) the ACMA, by notice published in the Gazette, invites:

(i) the existing licensees to give the ACMA a joint written notice under paragraph (d); and

(ii) each existing licensee to give the ACMA a written notice under paragraph (e);

during the period specified in the notice;

then, within the period specified in the paragraph (ca) notice:

(d) the existing licensees may give the ACMA a joint written notice stating that:

(i) a company specified in the notice (the joint‑venture company) will apply for an additional commercial television broadcasting licence for the licence area; and

(ii) the joint‑venture company is jointly owned by the existing licensees; and

(iii) the joint‑venture company is registered as a company under Part 2A.2 of the Corporations Act 2001 and has a share capital; or

(e) each existing licensee may give the ACMA a written notice stating that the licensee will apply separately for an additional commercial television broadcasting licence for the licence area.

(1A) A notice under paragraph (1)(ca) is not a legislative instrument.

Application by joint‑venture company

(2) If a notice is given under paragraph (1)(d), the joint‑venture company may, within 12 months after the notice is given, apply in writing to the ACMA for an additional commercial television broadcasting licence for the licence area.

Separate applications by existing licensees

(3) If an existing licensee gives a notice under paragraph (1)(e), the licensee may, within 12 months after the notice is given, apply in writing to the ACMA for an additional commercial television broadcasting licence for the licence area.

Allocation of additional licence to joint‑venture company

(5) As soon as practicable after receiving an application under subsection (2), the ACMA must allocate an additional commercial television broadcasting licence to the joint‑venture company for the licence area, so long as the ACMA is satisfied that the joint‑venture company is jointly owned by the existing licensees.

Allocation of additional licence to existing licensee

(6) If the ACMA has received applications from both of the existing licensees under subsection (3), the ACMA must allocate an additional commercial television broadcasting licence to one of those licensees for the licence area in accordance with a price‑based system determined under subsection (10).

(7) If:

(a) each existing licensee gives a notice under paragraph (1)(e); and

(b) by the end of the 12‑month period beginning at the time when the notice is given:

(i) the ACMA has received an application from only one existing licensee (the first licensee) under subsection (3); and

(ii) the ACMA has not received a notice from the other existing licensee stating that it will not be applying under subsection (3);

the ACMA must, as soon as practicable after the end of that 12‑month period, allocate an additional commercial television broadcasting licence to the first licensee for the licence area.

(8) If:

(a) each existing licensee gives a notice under paragraph (1)(e); and

(b) before the end of the 12‑month period beginning at the time when the notice is given, the ACMA receives:

(i) an application from one existing licensee (the first licensee) under subsection (3); and

(ii) a notice from the other existing licensee stating that it will not be applying under subsection (3);

the ACMA must, as soon as practicable after both have been received, allocate an additional commercial television broadcasting licence to the first licensee for the licence area.

(9) If only one existing licensee gives a notice under paragraph (1)(e), then, as soon as practicable after receiving an application under subsection (3) from that licensee, the ACMA must allocate an additional commercial television broadcasting licence to that licensee for the licence area.

Price‑based system for allocating licences where separate applications have been received

(10) The ACMA may determine in writing a price‑based system for allocating commercial television broadcasting licences under subsection (6).

(11) The Minister may give specific directions to the ACMA for the purpose of a determination.

(12) Directions may be to include in a determination specified reserve prices for licences, and those reserve prices may be different for licences in different licence areas.

(13) If a commercial television broadcasting licence is allocated under subsection (6), the ACMA must, unless the allocation system adopted was public, publish in the Gazette:

(a) the name of the successful applicant; and

(b) the amount that the applicant agreed to pay to the Commonwealth for the allocation of the licence.

Amalgamation of licence areas in some cases

(14) The ACMA may, by legislative instrument, determine that, if:

(a) more than 30% of the licence area population of a specified licence area is attributable to a specified overlap area; or

(b) a specified licence area is entirely within another specified licence area;

this section applies as if the 2 licence areas were one.

(14A) If a determination is made under subsection (14) for 2 licence areas that are remote licence areas (within the meaning of Schedule 4) because of paragraph (14)(b), this section applies as if the single licence area referred to in subsection (14) were the licence area that is entirely within the other licence area.

(15) A determination under subsection (14) has effect accordingly.

Fee for additional licence

(17) On allocation of the additional licence under subsection (5), (7), (8) or (9), the applicant must pay to the ACMA a fee determined by the ACMA. The fee must not be more than the amount that, in the opinion of the ACMA, represents the costs (including planning costs) incurred by the ACMA in allocating the additional licence.

Section 37 restrictions apply

(24) This section has effect subject to section 37.

Jointly owned company

(25) For the purposes of this section, a company (the first company) is jointly owned by 2 other companies if, and only if, each share in the first company is beneficially owned by either or both of those other companies.

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

(1) The following table has effect:

Licence areas and eligible joint venturers
	Column 1	Column 2	Column 3
Item	Licence area for a commercial television broadcasting licence allocated, or to be allocated, under this section	Description of the licence area	Eligible joint venturers for the licence area
1	South Eastern Australia TV3	The area consisting of New South Wales, Victoria, South Australia, Tasmania, the Australian Capital Territory, Norfolk Island and the Jervis Bay Territory.	The commercial television broadcasting licensees for the following licence areas: (a) Remote Central and Eastern Australia TV1;
			(b) Remote Central and Eastern Australia TV2; (c) Mt Isa TV1.
2	Northern Australia TV3	The area consisting of Queensland, the Northern Territory and the Coral Sea Islands Territory.	The commercial television broadcasting licensees for the following licence areas: (a) Remote Central and Eastern Australia TV1; (b) Remote Central and Eastern Australia TV2; (c) Mt Isa TV1.
3	Western Australia TV3	The area consisting of Western Australia, the Territory of Christmas Island and the Territory of Cocos (Keeling) Islands.	The commercial television broadcasting licensees for the following licence areas: (a) Remote and Regional WA TV1; (b) Western Zone TV1; (c) Kalgoorlie TV1; (d) Geraldton TV1; (e) South West and Great Southern TV1.

Allocation of licence

(2) A commercial television broadcasting licence that was allocated under this section before the commencement of Schedule 2 to the Broadcasting and Other Legislation Amendment (Deregulation) Act 2015 continues in force unless it is cancelled.

Cancellation of licence—services not provided

(15) If:

(a) the licensee of a licence allocated under this section is contravening a licence condition set out in:

(i) clause 7B of Schedule 2; or

(ii) clause 7C of Schedule 2; and

(b) the ACMA is satisfied that the contravention is not due to:

(i) technical circumstances that are beyond the licensee’s control; or

(ii) unforeseen circumstances that are beyond the licensee’s control; or

(iii) circumstances specified in the regulations; and

(c) the ACMA gives the licensee a written notice warning the licensee that, if the contravention continues for 30 days, the licence may be cancelled; and

(d) 30 days pass after the notice is given, and the contravention continues;

the ACMA must, by written notice given to the licensee, cancel the licence.

(16) The cancellation takes effect:

(a) when the notice of cancellation is given to the licensee; or

(b) if a later time is specified in the notice of cancellation—at that later time.

Allocation of licence after cancellation etc.

(17) If the ACMA gives a notice under subsection (15) to a licensee, cancelling the licence for a licence area, the ACMA must, within 45 days after the giving of the notice, advertise, in a manner determined by the ACMA, for applications for a licence to be allocated under subsection (23) for the licence area.

(18) Before commencing to advertise under subsection (17), the ACMA must, by legislative instrument, determine the eligibility requirements that must be met by persons applying for a licence in response to such an advertisement.

(19) The eligibility requirements determined under subsection (18) must include that the applicant has the capacity to provide the services that the licensee will be required to provide under clauses 7B, 7C and 7D of Schedule 2. This subsection does not limit other eligibility requirements that may be determined under subsection (18).

(20) The Minister may, by legislative instrument, direct the ACMA about the exercise of its powers under subsection (18).

(21) The ACMA must include in an advertisement under subsection (17):

(a) a description of the matter mentioned in the applicable paragraph of subsection (17); and

(b) the date on or before which applications must be received by the ACMA (the applications closing date); and

(i) the licence area for the licence; and

(ii) the eligibility requirements; and

(iii) the conditions that will apply to the licence;

may be obtained.

(22) The applications closing date must be the 90th day after the day of publication of the first advertisement under subsection (17) that describes the contravention or cancellation concerned.

(23) If:

(a) in response to an advertisement under subsection (17), the ACMA receives one or more applications for a licence; and

(b) the applications were received on or before the applications closing date specified in the advertisement; and

the ACMA must:

(d) allocate the licence to one of the applicants referred to in paragraph (c); and

(e) do so within 90 days after the applications closing date.

(24) Subsection (23) has effect subject to section 37.

Restrictions on transfer of licences

(25) During the period of 2 years after the date of allocation of a licence under this section, any attempt by any person to transfer the licence is of no effect.

Definitions

(26) In this section:

wholly‑owned subsidiary has the same meaning as in the Corporations Act 2001.

39 Additional commercial radio licences in single markets

Conditions for allocation of additional licence

(1) If:

(a) a particular licence area is the licence area of only one commercial radio broadcasting licence (the parent licence) that is in force; and

(b) a service is being provided under the parent licence; and

(c) the licence area for the parent licence does not have an excessive overlap area, as determined under subsection (5); and

(d) the licensee requests the ACMA, in writing, to allocate to the licensee, for the same licence area, another commercial radio broadcasting licence that is a broadcasting services bands licence; and

(e) in the opinion of the ACMA, suitable broadcasting services bands spectrum is available for providing another commercial radio broadcasting service in the same licence area;

the ACMA must allocate an additional licence to the applicant for the same licence area as soon as practicable.

Time limit for applications

(2) An application under subsection (1) must be made within 60 days after:

(a) the commencement of this section; or

(b) the time when paragraphs (1)(a), (b) and (c) are first satisfied in relation to the parent licence;

whichever is later.

(3) If the conditions in paragraphs (1)(a), (b), (c) and (e) are not all satisfied at the time when the application is made, but at a later time they are all satisfied, then the ACMA is under an obligation at that later time to allocate the additional licence (unless the application has been withdrawn).

Matters that ACMA must take into account

(4) The matters that the ACMA must take into account in forming an opinion for the purposes of paragraph (1)(e) include the following:

(b) any relevant plan under section 26;

Excessive overlap area

(5) The licence area for the parent licence has an excessive overlap area if:

(a) more than 30% of the licence area population of the licence area of the parent licence is attributable to an area that overlaps with the licence area of another commercial radio broadcasting licence; and

(b) at least one of the following situations exists:

(i) more than 30% of the licence area population of the licence area of that other licence is also attributable to the area that overlaps with the licence area of the parent licence;

(ii) more than one commercial radio broadcasting licence is in force with the same licence area as that other licence.

Technical specifications for additional licence

(6) The ACMA must make a determination in writing setting out the technical specifications that apply to the additional licence. The ACMA is not required to make the determination if a plan under section 26 applies to the licence area of the additional licence.

(7) For the purposes of this Act and section 109 of the Radiocommunications Act 1992, the technical specifications are taken to have been determined under section 26 of this Act.

Fee for additional licence

Licence conditions

(9) On the allocation of the additional licence, it becomes a condition of both the parent licence and the additional licence that the licensee will continue to provide services under those licences for at least 2 years after the date of allocation of the additional licence.

Restrictions on transfer of licences

(10) During the period of 2 years after the date of allocation of the additional licence, any attempt by any person to transfer either the parent licence or the additional licence is of no effect unless both of those licences are transferred at the same time by the same person to the same transferee.

Section 37 restrictions apply

(11) This section has effect subject to section 37.

Section 29 does not apply in some cases

(12) If the licence area of the parent licence is not provided for under a licence area plan under section 26, then section 29 does not apply to the allocation of the additional licence.

40 Allocation of other licences

(1) The ACMA may allocate to a person, on application in writing by the person, a commercial television broadcasting licence or a commercial radio broadcasting licence that is not a licence referred to in subsection 36(1).

(1A) Licences under subsection (1) are to be allocated on the basis of one licence per service.

(2) Before allocating a licence referred to in subsection (1), the ACMA is to designate a particular area in Australia as the licence area of the licence.

(3) Applications must:

(a) be in accordance with a form approved in writing by the ACMA; and

(b) be accompanied by the application fee determined in writing by the ACMA.

(4) If the ACMA makes a decision under subsection (1) or (2), the ACMA must publish in the Gazette details of the allocation or the designation of a licence area.

Referral of application to the Minister

(5) Before allocating a commercial television broadcasting licence under subsection (1), the ACMA must refer the application to the Minister.

(6) If an application for a commercial television broadcasting licence is referred to the Minister under subsection (5), the ACMA must not make a decision about the application until the Minister:

(a) gives a direction under subsection (7) in relation to the application; or

(b) gives a notice under subsection (9) in relation to the application.

(7) If:

(a) an application for a commercial television broadcasting licence is referred to the Minister under subsection (5); and

(b) the Minister is of the opinion that the proposed commercial television broadcasting service is likely to be contrary to the public interest;

the Minister must, by written notice given to the ACMA, direct the ACMA not to allocate the licence to the applicant.

(8) The ACMA must comply with a direction under subsection (7).

(9) If:

(a) an application for a commercial television broadcasting licence is referred to the Minister under subsection (5); and

(b) the Minister is not of the opinion that the proposed commercial television broadcasting service is likely to be contrary to the public interest;

the Minister must, by written notice given to the ACMA, inform the ACMA that he or she has no objection to the allocation of the licence to the applicant.

Minister may request additional information

(10) If an application is referred to the Minister under subsection (5), and the Minister considers that additional information is required before the Minister can decide whether to:

(a) give a direction under subsection (7) in relation to the application; or

(b) give a notice under subsection (9) in relation to the application;

the Minister may, by written notice given to the applicant within 30 days after the day on which the application is referred to the Minister, request the applicant to provide that information.

(11) If the Minister requests additional information under subsection (10), the Minister must give the ACMA a copy of the request.

Decision to be made within 60 days

(12) If the Minister does not, within 60 days after the day on which:

(a) an application is referred to the Minister under subsection (5); or

(b) if the Minister requests additional information under subsection (10)—that additional information is received;

do either of the following:

(d) give a notice under subsection (9) in relation to the application;

then the Minister is taken to have given a notice under subsection (9) in relation to the application.

Licence condition

(13) If the ACMA allocates a commercial television broadcasting licence under subsection (1), the licence is subject to the condition that the licensee may only provide the commercial television broadcasting service concerned in digital mode (within the meaning of Schedule 4).

41 When persons are regarded as suitable

(1) For the purposes of this Part, a company is a suitable licensee or a suitable applicant for a licence if the ACMA has not decided that subsection (2) applies to the company.

(2) The ACMA may, if it is satisfied that allowing a particular company to provide or continue to provide commercial broadcasting services under a licence would lead to a significant risk of:

(a) an offence against this Act or the regulations being committed; or

(aa) a breach of a civil penalty provision occurring; or

(b) a breach of the conditions of the licence occurring;

decide that this subsection applies to the company.

(3) In deciding whether such a risk exists, the ACMA is to take into account:

(a) the business record of the company; and

(b) the company’s record in situations requiring trust and candour; and

(c) the business record of each person who is, or would be, if a licence were allocated to the applicant, in a position to control the licence; and

(d) the record in situations requiring trust and candour of each such person; and

(e) whether the company, or a person referred to in paragraph (c) or (d), has been convicted of an offence against this Act or the regulations; and

(f) whether a civil penalty order has been made against:

(i) the company; or

(ii) a person referred to in paragraph (c) or (d).

(4) This section does not affect the operation of Part VIIC of the Crimes Act 1914 (which includes provisions that, in certain circumstances, relieve persons from the requirement to disclose spent convictions and require persons aware of such convictions to disregard them).

Division 2—Services authorised by licences

41C Services authorised by commercial television broadcasting licences

(1) A commercial television broadcasting licence for a licence area authorises the licensee to provide the following services in the licence area:

(a) one or more HDTV multi‑channelled commercial television broadcasting services;

(b) one or more SDTV multi‑channelled commercial television broadcasting services.

Licences allocated under section 38C or subsection 40(1)

(2) This section does not apply to a commercial television broadcasting licence allocated under section 38C or subsection 40(1).

Definitions

(3) In this section:

HDTV multi‑channelled commercial television broadcasting service has the same meaning as in Schedule 4.

SDTV multi‑channelled commercial television broadcasting service has the same meaning as in Schedule 4.

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

Authorised services

(1) A licence allocated under section 38C authorises the licensee to provide the following commercial television broadcasting services in the licence area:

(b) if:

(i) a commercial television broadcasting licensee (a related terrestrial licensee) for a related terrestrial licence area provides a SDTV multi‑channelled commercial television broadcasting service in the related terrestrial licence area; and

(ii) the service is not the primary commercial television broadcasting service provided by the related terrestrial licensee;

a SDTV multi‑channelled commercial television broadcasting service the program content of which is the same, or substantially the same, as the service provided by the related terrestrial licensee;

(ii) the service is the primary commercial television broadcasting service provided by the related terrestrial licensee;

a commercial television broadcasting service the program content of which is the same, or substantially the same, as the service provided by the related terrestrial licensee;

(e) if:

(i) a commercial television broadcasting licensee (a metropolitan licensee) for a metropolitan licence area provides a SDTV multi‑channelled commercial television broadcasting service in the metropolitan licence area; and

(ii) the service is not the primary commercial television broadcasting service provided by the metropolitan licensee;

a SDTV multi‑channelled commercial television broadcasting service the program content of which is the same, or substantially the same, as the service provided by the metropolitan licensee;

(f) if:

(ii) the service is the primary commercial television broadcasting service provided by the metropolitan licensee;

a commercial television broadcasting service the program content of which is the same, or substantially the same, as the service provided by the metropolitan licensee;

(fa) if:

(i) a commercial television broadcasting licensee (a related terrestrial licensee) for a related terrestrial licence area provides a HDTV multi‑channelled commercial television broadcasting service in the related terrestrial licence area; and

(ii) the service is not the primary commercial television broadcasting service provided by the related terrestrial licensee;

a HDTV multi‑channelled commercial television broadcasting service the program content of which is the same, or substantially the same, as the service provided by the related terrestrial licensee;

(fb) if:

(ii) the service is the primary commercial television broadcasting service provided by the related terrestrial licensee;

a commercial television broadcasting service the program content of which is the same, or substantially the same, as the service provided by the related terrestrial licensee;

(fc) if:

(i) a commercial television broadcasting licensee (a metropolitan licensee) for a metropolitan licence area provides a HDTV multi‑channelled commercial television broadcasting service in the metropolitan licence area; and

(ii) the service is not the primary commercial television broadcasting service provided by the metropolitan licensee;

a HDTV multi‑channelled commercial television broadcasting service the program content of which is the same, or substantially the same, as the service provided by the metropolitan licensee;

(fd) if:

(ii) the service is the primary commercial television broadcasting service provided by the metropolitan licensee;

a commercial television broadcasting service the program content of which is the same, or substantially the same, as the service provided by the metropolitan licensee;

(g) one or more multi‑channelled commercial television broadcasting services the program content of which consists wholly or primarily of programs provided, or required to be provided, to the licensee under subsection 43AA(1).

Program content

(2) In determining, for the purposes of this section, whether the program content of a commercial television broadcasting service provided by a licensee in a licence area is the same, or substantially the same, as the program content of another commercial television broadcasting service:

(a) ignore the following:

(i) advertising or sponsorship material (whether or not of a commercial kind);

(ii) a promotion for a television program or a television broadcasting service;

(iii) community information material or community promotional material;

(iv) a weather bulletin;

(v) any other similar material; and

(b) ignore a news program; and

(i) committing an offence; or

(ii) becoming liable to a civil penalty; or

(iii) breaching an order or direction of a court; or

(iv) being in contempt of court; and

(d) ignore a program broadcast in circumstances specified in the regulations.

(3) In determining, for the purposes of:

(a) paragraph (1)(c); or

(b) paragraph (1)(f); or

(d) paragraph (1)(fd);

whether the program content of a commercial television broadcasting service provided by a licensee in a licence area is the same, or substantially the same, as the program content of another commercial television broadcasting service, assume that a program that provides coverage of an anti‑siphoning event is the same as a program that provides coverage of another anti‑siphoning event.

(4) Subsection (3) does not limit subsection (2).

Providing an authorised service on Norfolk Island

(5A) A person authorised by a licence allocated under section 38C to provide a commercial television broadcasting service in a licence area including Norfolk Island may provide the service despite a law of Norfolk Island about broadcasting services.

Definitions

(6) In this section:

HDTV multi‑channelled commercial television broadcasting service has the same meaning as in Schedule 4.

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

(a) New South Wales; or

(b) Victoria; or

(d) Western Australia; or

(e) South Australia;

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

related terrestrial licence area:

(a) in relation to a licence allocated under section 38C for the South Eastern Australia TV3 licence area—means a licence area mentioned in column 3 of item 1 of the table in subsection 38C(1); or

(b) in relation to a licence allocated under section 38C for the Northern Australia TV3 licence area—means a licence area mentioned in column 3 of item 2 of the table in subsection 38C(1); or

(c) in relation to a licence allocated under section 38C for the Western Australia TV3 licence area—means a licence area mentioned in column 3 of item 3 of the table in subsection 38C(1).

SDTV multi‑channelled commercial television broadcasting service has the same meaning as in Schedule 4.

41D Services authorised by commercial radio broadcasting licences

Licences in force immediately before the commencement of this section

(1) If:

(a) a commercial radio broadcasting licence was in force immediately before the commencement of this section; and

(b) the licence authorised the licensee to provide an analog commercial radio broadcasting service in the licence area;

then, during the period:

(d) ending immediately before the digital radio start‑up day for the licence area;

the licence is taken to authorise the licensee to provide that service in the licence area.

Licences allocated on or after the commencement of this section

(2) If:

(a) a commercial radio broadcasting licence is allocated on or after the commencement of this section but before the digital radio start‑up day for the licence area; and

(b) the licence is allocated as a licence to provide an analog commercial radio broadcasting service in the licence area;

then, during the period:

(d) ending immediately before the digital radio start‑up day for the licence area;

the licence is taken to authorise the licensee to provide that service in the licence area.

Licences in force immediately before the digital radio start‑up day for the licence area

(3) If:

(a) a commercial radio broadcasting licence was in force immediately before the digital radio start‑up day for the licence area; and

(b) the licence authorised the licensee to provide an analog commercial radio broadcasting service in the licence area;

then, on and after the digital radio start‑up day for the licence area, the licence is taken to authorise the licensee to provide the following services in the licence area:

(d) one or more digital commercial radio broadcasting services.

Licences allocated on or after digital radio start‑up day for the licence area

(4) If:

(a) a commercial radio broadcasting licence is allocated on or after the digital radio start‑up day for the licence area; and

(b) the licence is allocated as a licence to provide an analog commercial radio broadcasting service in the licence area;

the licence is taken to authorise the licensee to provide that service in the licence area.

(5) If:

(a) a commercial radio broadcasting licence is allocated on or after the digital radio start‑up day for the licence area; and

(b) the licence is allocated as a licence to provide digital commercial radio broadcasting services in the licence area;

the licence is taken to authorise the licensee to provide one or more digital commercial radio broadcasting services in the licence area.

Subsection 40(1) licences

(7) This section does not apply to a commercial radio broadcasting licence allocated under subsection 40(1).

Division 3—Licence conditions

42 Conditions of commercial broadcasting licences

(1) Each commercial television broadcasting licence is subject to:

(a) the conditions set out in Division 1 of Part 3 of Schedule 2; and

(b) such other conditions as are imposed under section 43.

(1A) Each commercial television broadcasting licence allocated under section 38C is also subject to the conditions set out in Division 2 of Part 3 of Schedule 2.

(2) Each commercial radio broadcasting licence is subject to:

(a) the conditions set out in Part 4 of Schedule 2; and

(b) such other conditions as are imposed under section 43.

43 ACMA may impose additional conditions

(1) The ACMA may, by notice in writing given to a commercial television broadcasting licensee or a commercial radio broadcasting licensee, vary or revoke a condition of the licence or impose an additional condition on the licence.

(2) If the ACMA proposes to vary or revoke a condition or to impose a new condition, the ACMA must:

(a) give to the licensee written notice of its intention; and

(b) give to the licensee a reasonable opportunity to make representations to the ACMA in relation to the proposed action; and

(3) This section does not allow the ACMA to vary or revoke a condition set out in Part 3 or 4 of Schedule 2.

(4) If the ACMA varies or revokes a condition or imposes a new condition, the ACMA must publish the variation, the fact of the revocation or the new condition, as the case may be, in the Gazette.

(5) Action taken under subsection (1) must not be inconsistent with:

(a) determinations and clarifications under section 19; or

(b) conditions set out in Part 3 or 4 of Schedule 2.

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

(1) The ACMA must ensure that, at all times on and after 1 January 2008, there is in force under section 43 a condition that has the effect of requiring the licensee of a regional aggregated commercial television broadcasting licence to broadcast to each local area, during such periods as are specified in the condition, at least a minimum level of material of local significance.

(2) For the purposes of subsection (1), a regional aggregated commercial television broadcasting licence is a commercial television broadcasting licence for any of the following licence areas:

(a) Northern New South Wales;

(b) Southern New South Wales;

(d) Eastern Victoria;

(e) Western Victoria;

(f) Regional Queensland;

(g) Tasmania.

(3) The condition must define local area and material of local significance for the purposes of the condition. The definition of material of local significance must be broad enough to cover news that relates directly to the local area concerned.

(4) To avoid doubt, this section does not:

(a) prevent the condition from setting out different requirements for different types of material; or

(b) prevent the condition from specifying periods that recur (for example, the hours between 7 am and 10 am Monday to Friday); or

(d) create any obligations under subsection 43(2) that would not exist apart from this section.

(5) Subsection 43(5) does not apply to the condition.

(6) This section does not limit the powers conferred on the ACMA by section 43 to impose, vary or revoke other conditions.

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

(1) A commercial television broadcasting licence for a regional licence area is subject to the condition that, if:

(a) the licensee broadcasts a local news program in the licence area; and

(aa) the licensee has not previously broadcast the program in the licence area; and

(b) the licence area is wholly or partly included in the licence area of a licence allocated under section 38C;

the licensee of the regional commercial television broadcasting licence must:

(c) provide the local news program to the licensee of the section 38C licence for broadcast by the section 38C licensee; and

(d) do so:

(i) simultaneously with the broadcast of the program by the licensee of the regional commercial television broadcasting licence; or

(ii) as soon as practicable after the broadcast of the program by the licensee of the regional commercial television broadcasting licence.

(2) A program must be provided under subsection (1) by transmitting it in digital mode (within the meaning of Schedule 4).

(3) If:

(a) apart from this subsection, a commercial television broadcasting licensee for a regional licence area (the regional licensee) is required by subsection (1) to provide a program to the licensee of a commercial television broadcasting licence allocated under section 38C; and

(b) the regional licensee believes, on reasonable grounds, that the broadcasting of a part of the program in any jurisdiction in the licence area of the section 38C licence could result in the section 38C licensee:

(i) committing an offence; or

(ii) becoming liable to a civil penalty; or

(iii) breaching an order or direction of a court; or

(iv) being in contempt of court;

subsection (1) has effect as if the program did not include that part of the program.

(3A) If:

(b) the regional licensee believes, on reasonable grounds, that the broadcasting of the program in any jurisdiction in the licence area of the section 38C licence could result in the section 38C licensee:

(i) committing an offence; or

(ii) becoming liable to a civil penalty; or

(iii) breaching an order or direction of a court; or

(iv) being in contempt of court;

subsection (1) does not apply to the program.

(3B) A commercial television broadcasting licence for a regional licence area is subject to the condition that, if:

(a) the licensee broadcasts a local news program in the licence area on 2 or more occasions; and

(b) the licence area is wholly or partly included in the licence area of a licence allocated under section 38C;

the licensee of the regional commercial television broadcasting licence will take reasonable steps to ensure that the licensee of the regional commercial television broadcasting licence does not, on more than one occasion, provide the program to the section 38C licensee for broadcast by the section 38C licensee.

(6) This section does not apply to a commercial television broadcasting licence allocated under subsection 40(1).

(7) In this section:

local news program means:

(a) a program that consists solely of local news and/or local weather information; or

(b) a program:

(i) that consists primarily of local news and/or local weather information; and

(ii) the remainder of which consists of other news and/or other weather information;

but does not include:

(c) a short segment, or a headline update, that is broadcast for the sole or primary purpose of promoting another program; or

(d) a short segment, or a headline update, that repeats news content that has previously been broadcast by the licensee concerned.

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

(a) New South Wales; or

(b) Victoria; or

(d) Western Australia; or

(e) South Australia;

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

regional licence area means a licence area that is not a metropolitan licence area, but does not include:

(a) the licence area of a commercial television broadcasting licence allocated under section 38C; or

(b) a licence area specified in column 3 of the table in subsection 38C(1).

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

Programs to be provided by metropolitan licensees

(1) A commercial television broadcasting licence for a metropolitan licence area is subject to the condition that, if:

(a) the licensee (the metropolitan licensee) broadcasts a program in a metropolitan licence area on either of the following services (a metropolitan service):

(i) a HDTV multi‑channelled commercial television broadcasting service;

(ii) a SDTV multi‑channelled commercial television broadcasting service; and

(b) before the program is broadcast, a section 38C licensee requests the metropolitan licensee to provide the section 38C licensee with the programs broadcast on the metropolitan service;

the metropolitan licensee must:

(d) do so:

(i) simultaneously with the broadcast of that program on the metropolitan service; or

(ii) as soon as practicable after the broadcast of that program on the metropolitan service.

HDTV digital mode or SDTV digital mode

(2) A program must be provided under subsection (1) by transmitting it:

(a) if subparagraph (1)(a)(i) applies—in HDTV digital mode (within the meaning of Schedule 4); or

(b) if subparagraph (1)(a)(ii) applies—in SDTV digital mode (within the meaning of Schedule 4).

Definitions

(4) In this section:

HDTV multi‑channelled commercial television broadcasting service has the same meaning as in Schedule 4.

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

(a) New South Wales; or

(b) Victoria; or

(d) Western Australia; or

(e) South Australia;

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

SDTV multi‑channelled commercial television broadcasting service has the same meaning as in Schedule 4.

section 38C licensee means the licensee of a commercial television broadcasting licence allocated under section 38C.

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

Scope

(1) This section applies if the licence area of a commercial television broadcasting licence (the remote terrestrial licence) is a related terrestrial licence area of a licence allocated under section 38C.

Programs to be provided by remote terrestrial licensees

(2) The remote terrestrial licence is subject to the condition that, if the licensee broadcasts a program in the related terrestrial licence area on either of the following services (a remote terrestrial service):

(a) a HDTV multi‑channelled commercial television broadcasting service;

(b) a SDTV multi‑channelled commercial television broadcasting service;

the licensee of the remote terrestrial licence must:

(d) do so:

(i) simultaneously with the broadcast of that program on the remote terrestrial service; or

(ii) as soon as practicable after the broadcast of that program on the remote terrestrial service.

HDTV digital mode or SDTV digital mode

(3) A program must be provided under subsection (2) by transmitting it:

(a) if paragraph (2)(a) applies—in HDTV digital mode (within the meaning of Schedule 4); or

(b) if paragraph (2)(b) applies—in SDTV digital mode (within the meaning of Schedule 4).

Definitions

(5) In this section:

HDTV multi‑channelled commercial television broadcasting service has the same meaning as in Schedule 4.

related terrestrial licence area:

(a) in relation to a licence allocated under section 38C for the South Eastern Australia TV3 licence area—means a licence area mentioned in column 3 of item 1 of the table in subsection 38C(1); or

(b) in relation to a licence allocated under section 38C for the Northern Australia TV3 licence area—means a licence area mentioned in column 3 of item 2 of the table in subsection 38C(1); or

(c) in relation to a licence allocated under section 38C for the Western Australia TV3 licence area—means a licence area mentioned in column 3 of item 3 of the table in subsection 38C(1).

SDTV multi‑channelled commercial television broadcasting service has the same meaning as in Schedule 4.

section 38C licensee means the licensee of a commercial television broadcasting licence allocated under section 38C.

43AD Compensation for acquisition of property

(1) If the operation of:

(b) section 43AA; or

(d) section 43AC;

in relation to the provision of a program to the licensee of a commercial television broadcasting licence would result in an acquisition of property from a person otherwise than on just terms, the licensee is liable to pay a reasonable amount of compensation to the person.

(2) If the licensee and the person do not agree on the amount of the compensation, the person may institute proceedings in a court of competent jurisdiction for the recovery from the licensee of such reasonable amount of compensation as the court determines.

(3) In this section:

acquisition of property has the same meaning as in paragraph 51(xxxi) of the Constitution.

just terms has the same meaning as in paragraph 51(xxxi) of the Constitution.

43B Local presence—regional commercial radio broadcasting licences

(1A) The ACMA must ensure that, at all times after the commencement of Schedule 2 to the Broadcasting Services Amendment (Regional Commercial Radio) Act 2012, there is in force under section 43 a condition that has the effect of requiring that, if a trigger event for a regional commercial radio broadcasting licence occurs after the commencement of that Schedule, then, throughout the 24‑month period beginning when the trigger event occurs, the licensee must maintain at least the existing level of local presence.

Note: A trigger event cannot occur in relation to a regional commercial radio broadcasting licence that was allocated under subsection 40(1): see section 50A.

(2) The condition must define existing level of local presence for the purposes of the condition.

(3) The definition must deal with:

(a) staffing levels; and

(b) studios and other production facilities.

(4) Subsection (3) does not limit subsection (2).

(4A) The condition does not apply to a regional commercial radio broadcasting licence that is:

(a) a remote area service radio licence; or

(b) a regional racing service radio licence.

(5) To avoid doubt, this section does not create any obligations under subsection 43(2) that would not exist apart from this section.

(6) Subsection 43(5) does not apply to the condition.

(7) This section does not limit the powers conferred on the ACMA by section 43 to impose, vary or revoke other conditions.

(8) The Minister may give the ACMA a written direction about the fulfilment of the obligation imposed on the ACMA by this section.

(9) The ACMA must comply with a direction under subsection (8).

(10) In this section:

regional commercial radio broadcasting licence has the same meaning as in Division 5C of Part 5.

staff includes individuals engaged as independent contractors.

trigger event has the same meaning as in Division 5C of Part 5.

43C Local content—regional commercial radio broadcasting licences

(1) The ACMA must ensure that, at all times on and after 1 January 2008, there is in force under section 43 a condition that has the effect of requiring the licensee of a regional commercial radio broadcasting licence to broadcast, during daytime hours each business day, at least the applicable number of hours of material of local significance.

(1A) A licence condition imposed as a result of subsection (1) does not require a licensee (the relevant licensee) to broadcast material:

(a) if:

(i) the ACMA, by legislative instrument, specifies a period, in relation to one or more specified regional commercial radio broadcasting licensees; and

(ii) the period does not exceed 5 weeks; and

(iii) the licensees specified in the instrument consist of or include the relevant licensee;

on a business day during that period; or

(b) if the ACMA, by legislative instrument, specifies a period that does not exceed 5 weeks—on a business day during that period; or

(c) if neither paragraph (a) nor (b) applies—on a business day during the 5‑week period beginning on the second Monday in December each year.

A period specified under paragraph (a) or (b) may be a recurring period.

Material of local significance

(2) The condition must define material of local significance for the purposes of the condition. If a regional commercial radio broadcasting licensee is required to comply with section 61CD, the definition of material of local significance must be broad enough to cover material that the licensee must broadcast in order to comply with that section.

Exclusion of certain licences

(2A) The condition does not apply to a regional commercial radio broadcasting licence that is:

(a) a remote area service radio licence; or

(b) a regional racing service radio licence; or

Applicable number

(3) For the purposes of the application of subsection (1) to a regional commercial radio broadcasting licence, the applicable number is:

(a) 4.5; or

(b) if the Minister, by legislative instrument, declares that another number is the applicable number for regional commercial radio broadcasting licences generally—the other number; or

(i) the Minister, by legislative instrument, declares that another number is the applicable number for a specified class of regional commercial radio broadcasting licences; and

(ii) the regional commercial radio broadcasting licence is included in that class;

the other number.

Changes in licence area populations not to put persons in breach of condition

(4) If:

(a) the ACMA makes a new determination of the licence area population of a licence area or of the population of Australia; and

(b) as a result of the determination, a person would be in breach of the condition;

the condition continues to apply to the person as if the previous determination remained in force.

Section 43 powers etc.

(5) To avoid doubt, this section does not create any obligations under subsection 43(2) that would not exist apart from this section.

(6) Subsection 43(5) does not apply to the condition.

(7) This section does not limit the powers conferred on the ACMA by section 43 to impose, vary or revoke other conditions.

Definitions

(8) In this section:

daytime hours means the hours:

(a) beginning at 6 am each day or, if another time is prescribed, beginning at that prescribed time each day; and

(b) ending at 6 pm on the same day or, if another time is prescribed, ending at that prescribed time on the same day.

metropolitan licence area means:

(a) a licence area in which is situated the General Post Office of the capital city of:

(i) New South Wales; or

(ii) Victoria; or

(iii) Queensland; or

(iv) Western Australia; or

(v) South Australia; or

(b) the licence area known as Western Suburbs Sydney RA1.

regional commercial radio broadcasting licence means a commercial radio broadcasting licence that has a regional licence area.

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

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

Scope

(1) This section applies to a commercial radio broadcasting licence (the first licence) if:

(a) the first licence authorises the licensee to provide one or more digital commercial radio broadcasting services; and

(b) the first licence was not allocated under subsection 40(1).

Transmission by multiplex transmitter

(2) The first licence is subject to the condition that the licensee must not provide a digital commercial radio broadcasting service under the first licence unless:

(a) the service is transmitted using a multiplex transmitter; and

(b) the operation of the multiplex transmitter is authorised by a digital radio multiplex transmitter licence.

Use of more than one‑ninth of multiplex capacity

(3) If there is only one digital radio multiplex transmitter licence for the licence area of the first licence, the first licence is subject to the condition that the licensee of the first licence must not use more than one‑ninth of multiplex capacity under the digital radio multiplex transmitter licence for the purpose of providing, under the first licence, a digital commercial radio broadcasting service that passes the shared content test in relation to an analog commercial radio broadcasting service provided under:

(a) the first licence; or

(b) another commercial radio broadcasting licence that has the same licence area as the first licence.

(4) If there are 2 or more digital radio multiplex transmitter licences for the licence area of the first licence, the first licence is subject to the condition that the licensee of the first licence must not use more than the designated fraction of the total multiplex capacities under those digital radio multiplex transmitter licences for the purpose of providing, under the first licence, a digital commercial radio broadcasting service that passes the shared content test in relation to an analog commercial radio broadcasting service provided under:

(a) the first licence; or

(b) another commercial radio broadcasting licence that has the same licence area as the first licence.

(5) For the purposes of subsection (4), the designated fraction of the total multiplex capacities under those digital radio multiplex transmitter licences is as follows:

Shared content test

(6) For the purposes of subsections (3) and (4), a digital commercial radio broadcasting service passes the shared content test at a particular time in relation to an analog commercial radio broadcasting service if:

(a) the program content of at least 50% of the total number of hours of programs broadcast by the first‑mentioned service during daytime/evening hours during the 6‑month period ending at that time;

were the same as:

(b) the program content of at least 50% of the total number of hours of programs broadcast by the other service during daytime/evening hours during the 6‑month period ending at that time.

(7) For the purposes of subsection (6), ignore the following:

(a) advertising or sponsorship material (whether or not of a commercial kind);

(b) a promotion for a radio program or a radio broadcasting service;

(d) community information material or community promotional material;

(e) a news break or weather bulletin;

(f) any other similar material.

Definitions

(8) In this section:

category 1 digital radio multiplex transmitter licence has the same meaning as in the Radiocommunications Act 1992.

category 2 digital radio multiplex transmitter licence has the same meaning as in the Radiocommunications Act 1992.

daytime/evening hours means the hours:

(a) beginning at 6 am each day; and

(b) ending at midnight on the same day.

digital radio multiplex transmitter licence means:

(a) a category 1 digital radio multiplex transmitter licence; or

(b) a category 2 digital radio multiplex transmitter licence.

44 Matters to which conditions may relate

(1) Conditions of commercial television broadcasting licences and commercial radio broadcasting licences must be relevant to the broadcasting services to which those licences relate.

(2) Without limiting the range of conditions that may be imposed, the ACMA may impose a condition on a commercial television broadcasting licensee or a commercial radio broadcasting licensee:

(a) requiring the licensee to comply with a code of practice that is applicable to the licensee; or

(b) designed to ensure that a breach of a condition by the licensee does not recur.

Division 4—General provisions

45 Duration of licences

(1) Subject to Part 10, commercial television broadcasting licences (other than commercial television broadcasting licences allocated under section 38C) and commercial radio broadcasting licences remain in force for 5 years.

(2) A commercial television broadcasting licence allocated under section 38C remains in force for 10 years.

(3) Subsection (2) has effect subject to:

(a) subsection 38C(15); and

(b) Part 10.

46 Applications for renewal

(1) The ACMA may renew a commercial television broadcasting licence or a commercial radio broadcasting licence if:

(a) the licensee makes an application for renewal of the licence, in accordance with a form approved in writing by the ACMA, at least 20 weeks but not more than one year before the licence is due to expire; and

(b) the application is accompanied by the renewal fee determined in writing by the ACMA.

(2) If the ACMA receives an application for renewal, the ACMA must notify in the Gazette the fact that the application has been made.

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

(1) Subject to subsection (2), if the ACMA receives an application under section 46, the ACMA must, by notice in writing given to the licensee, renew the licence for a period of 5 years.

(2) The ACMA must refuse to renew a licence if the ACMA decides that subsection 41(2) applies to the licensee.

(3) The ACMA is not required to conduct an investigation or a hearing into whether a licence should be renewed.

48 Transfer of commercial broadcasting licences

A commercial television broadcasting licensee or a commercial radio broadcasting licensee may transfer the licence to another person.

49 Surrender of commercial broadcasting licences

A commercial television broadcasting licensee or a commercial radio broadcasting licensee may, by notice in writing given to the ACMA, surrender the licence.

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

Division 1—Preliminary

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

This Part does not apply in relation to:

(a) a commercial television broadcasting licence; or

(b) a commercial radio broadcasting licence;

if the licence was allocated under section 38C or subsection 40(1).

50 Interpretation—knowledge of company

(1) For the purposes of this Part, if a director, the chief executive or a secretary of a company has knowledge of a matter, the company is taken to have knowledge of the matter.

(2) Subsection (1) does not limit the ways in which knowledge of a company can be established.

51 Means of dealing with overlapping licence areas

If:

(a) more than 30% of the licence area population of a licence area is attributable to an overlap area; or

(b) a licence area is entirely within another licence area;

the rules in this Part apply to the 2 licence areas, but not between those licence areas and other licence areas, as if the 2 licence areas were one.

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

This Part does not apply to a channel B datacasting transmitter licence unless the relevant transmitter, or any of the relevant transmitters, is operated for transmitting a datacasting service that is capable of being received by a domestic digital television receiver.

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

If:

(a) the ACMA makes a new determination of the licence area population of a licence area or of the population of Australia; and

(b) as a result of the determination, a person would be in breach of a provision of Division 2 or 3;

those subsections continue to apply to the person as if the previous determination remained in force.

52A Newspapers—additional constitutional basis

(1) Without limiting its effect apart from this section, this Act also has effect as provided by this section.

(2) This Act also has the effect it would have if each reference in this Part to a newspaper were, by express provision, confined to a newspaper where:

(a) the publisher of the newspaper is a constitutional corporation; or

(b) at least part of the circulation of the newspaper is:

(i) in 2 or more States; or

(ii) in a Territory; or

(iii) in a foreign country.

Division 2—Limitation on control

Subdivision A—Commercial broadcasting licences

53 Limitation on control of commercial television broadcasting licences

(1) A person must not be in a position to exercise control of commercial television broadcasting licences whose combined licence area populations exceed 75% of the population of Australia.

(2) A person must not be in a position to exercise control of more than one commercial television broadcasting licence in the same licence area.

54 Limitation on control of commercial radio broadcasting licences

A person must not be in a position to exercise control of more than 2 commercial radio broadcasting licences in the same licence area.

Subdivision B—Commercial television broadcasting licences and datacasting transmitter licences

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

A person must not be in a position to exercise control of:

(a) a commercial television broadcasting licence; and

(b) a datacasting transmitter licence.

Division 3—Limitation on directorships

Subdivision A—Television and radio

55 Limitation on numbers of directorships—television

(1) A person must not be a director of a company that is, or of 2 or more companies that are, between them, in a position to exercise control of commercial television broadcasting licences whose combined licence area populations exceed 75% of the population of Australia.

(2) A person must not be:

(a) in a position to exercise control of a commercial television broadcasting licence; and

(b) a director of a company that is in a position to exercise control of another commercial television broadcasting licence;

whose combined licence area populations exceed 75% of the population of Australia.

(3) A person must not be:

(a) a director of a company that is in a position to exercise control of a commercial television broadcasting licence; and

(b) a director of a company that is in a position to exercise control of another commercial television broadcasting licence;

if each of those licences have the same licence area.

(4) A person must not be:

(a) a director of a company that is in a position to exercise control of a commercial television broadcasting licence; and

(b) in a position to exercise control of another commercial television broadcasting licence;

if each of those licences have the same licence area.

56 Limitation on numbers of directorships—radio

A person must not be:

(a) a director of a company that is, or of 2 or more companies that are, between them, in a position to exercise control of more than 2 commercial radio broadcasting licences in the same licence area; or

(b) a director of a company that is, or of 2 or more companies that are, between them, in a position to exercise control of 2 commercial radio broadcasting licences in a licence area and in a position to exercise control of another commercial radio broadcasting licence in the same licence area; or

(c) in a position to exercise control of 2 commercial radio broadcasting licences in a licence area and a director of a company that is in a position to exercise control of another commercial radio broadcasting licence in the same licence area.

Subdivision B—Television and datacasting

56A Limitation on directorships—television and datacasting

(1) A person must not be a director of:

(a) a company that is in a position to exercise control of a commercial television broadcasting licence; and

(b) a company that is in a position to exercise control of a datacasting transmitter licence.

(2) A person must not:

(a) be in a position to exercise control of a commercial television broadcasting licence; and

(b) be a director of a company that is in a position to exercise control of a datacasting transmitter licence.

(3) A person must not:

(a) be a director of a company that is in a position to exercise control of a commercial television broadcasting licence; and

(b) be in a position to exercise control of a datacasting transmitter licence.

Division 5—Newspapers associated with licence areas

59 Newspapers associated with commercial television or radio broadcasting licence areas

(1) The ACMA is to maintain an Associated Newspaper Register.

(2) For the purposes of this Part, a newspaper is associated with the licence area of a licence if the name of the newspaper is entered in the Register as being associated with the licence area of the licence.

(3) If the ACMA is satisfied that at least 50% of the circulation of a newspaper is within the licence area of a commercial television broadcasting licence, the ACMA is to enter the name of the newspaper in the Register in relation to that licence area.

(4) If the ACMA is satisfied that less than 50% of the circulation of a newspaper that is entered in the Register in relation to a commercial television broadcasting licence is within the licence area of that licence, the ACMA is to remove the name of the newspaper from the Register in relation to that licence area.

(4A) If the ACMA is satisfied that:

(a) at least 50% of the circulation of a newspaper is within the licence area of a commercial radio broadcasting licence; and

(b) the circulation of the newspaper within that licence area is at least 2% of the licence area population;

the ACMA must enter the name of the newspaper in the Register in relation to the licence area.

(4B) If the ACMA is satisfied that:

(a) less than 50% of the circulation of a newspaper that is entered in the Register in relation to a commercial radio broadcasting licence is within the licence area of that licence; or

(b) the circulation of the newspaper within that licence area is less than 2% of the licence area population;

the ACMA must remove the name of the newspaper from the Register in relation to the licence area.

(4C) Despite subsections (3) and (4A), if the ACMA is satisfied that:

(a) a person (either alone or together with one or more other persons) has entered into, begun to carry out or carried out a scheme to publish a newspaper; and

(b) the person did so for the sole or dominant purpose of ensuring that the number of points in the licence area of a commercial radio broadcasting licence would be increased or maintained;

the ACMA may refuse to enter the name of the newspaper in the Register.

(4D) If:

(a) a newspaper is entered in the Register; and

(b) the ACMA is satisfied that:

(i) a person (either alone or together with one or more other persons) entered into, began to carry out or carried out a scheme to publish the newspaper; and

(ii) the person did so for the sole or dominant purpose of ensuring that the number of points in the licence area of a commercial radio broadcasting licence would be increased or maintained;

the ACMA may remove the name of the newspaper from the Register.

(5) The Register may be maintained by electronic means.

(6) The Register is to be made available for inspection on the internet.

(7) The ACMA may supply copies of or extracts from the Register certified by a member, and a copy or extract so certified is admissible in evidence in all courts and proceedings without further proof or production of the original.

(8) In this section:

points has the same meaning as in Division 5A.

scheme has the same meaning as in Division 5A.

Division 5A—Media diversity

Subdivision A—Introduction

61AA Definitions

In this Division:

commencement day means the day on which Schedule 2 to the Broadcasting Services Amendment (Media Ownership) Act 2006 commences.

controller of a media group means a person who is in a position to exercise control of each media operation in the media group.

daytime/evening hours means the hours:

(a) beginning at 6 am each day; and

(b) ending at midnight on the same day.

engage in conduct means:

(a) do an act; or

(b) omit to perform an act.

interest in a share means a legal or equitable interest in the share.

media group means a group of 2 or more media operations.

media operation means:

(a) a commercial television broadcasting licence; or

(b) a commercial radio broadcasting licence; or

(c) a newspaper that is associated with the licence area of a commercial television broadcasting licence or a commercial radio broadcasting licence.

metropolitan licence area means:

(a) a licence area in which is situated the General Post Office of the capital city of:

(i) New South Wales; or

(ii) Victoria; or

(iii) Queensland; or

(iv) Western Australia; or

(v) South Australia; or

(b) the licence area known as Western Suburbs Sydney RA1.

name of a commercial television broadcasting licence or a commercial radio broadcasting licence means the service licence number of the licence.

points, in relation to the licence area of a commercial radio broadcasting licence, has the meaning given by section 61AC.

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

Register means the Register of Controlled Media Groups maintained under section 61AU.

registered controller of a registered media group means a person whose name is entered in the Register as a controller of the media group.

registered media group means a media group that is entered in the Register.

registrable media group, in relation to the licence area of a commercial radio broadcasting licence, means a media group covered by item 1 of the table in subsection 61AC(1) in its application to that licence area. For this purpose, disregard subsection 61AC(2).

scheme means:

(a) any agreement, arrangement, understanding, promise or undertaking, whether express or implied and whether or not enforceable, or intended to be enforceable, by legal proceedings; and

(b) any scheme, plan, proposal, action, course of action or course of conduct, whether unilateral or otherwise.

shared content test has the meaning given by section 61AE.

statutory control rules has the meaning given by section 61AD.

unacceptable 3‑way control situation has the meaning given by section 61AEA.

unacceptable media diversity situation has the meaning given by section 61AB.

61AB Unacceptable media diversity situation

Metropolitan licence area

(1) For the purposes of this Division, an unacceptable media diversity situation exists in relation to a metropolitan licence area of a commercial radio broadcasting licence if the number of points in the licence area is less than 5.

Regional licence area

(2) For the purposes of this Division, an unacceptable media diversity situation exists in relation to a regional licence area of a commercial radio broadcasting licence if the number of points in the licence area is less than 4.

61AC Points

(1) Use the table to work out the number of points in the licence area of a commercial radio broadcasting licence (the first radio licence area):

Points
Item	This ...	is worth ...
1	a group of 2 or more media operations, where: (a) a person is in a position to exercise control of each of those media operations; and (b) each of those media operations complies with the statutory control rules; and (c) if a commercial television broadcasting licence is in the group—more than 50% of the licence area population of the first radio licence area is attributable to the licence area of the commercial television broadcasting licence; and (d) if a commercial radio broadcasting licence is in the group—the first radio licence area is the same as, or is entirely within, the licence area of the commercial radio broadcasting licence; and (e) if a newspaper is in the group—the newspaper is associated with the first radio licence area	1 point.
2	a commercial radio broadcasting licence, where: (a) the licence complies with the statutory control rules; and (b) the first radio licence area is the same as, or is entirely within, the licence area of the licence; and (c) item 1 does not apply to the licence	1 point.
3	a newspaper, where: (a) the newspaper complies with the statutory control rules; and (b) the newspaper is associated with the first radio licence area; and (c) item 1 does not apply to the newspaper	1 point.
4	a group of 2 or more commercial television broadcasting licences, where: (a) each of those licences complies with the statutory control rules; and (b) more than 50% of the licence area population of the first radio licence area is attributable to the licence area of each of those commercial television broadcasting licences; and (c) the primary commercial television broadcasting service to which those commercial television broadcasting licences relate pass the shared content test in relation to each other; and (d) item 1 does not apply to any of those commercial television broadcasting licences	1 point.
5	a commercial television broadcasting licence, where: (a) the licence complies with the statutory control rules; and (b) more than 50% of the licence area population of the first radio licence area is attributable to the licence area of the commercial television broadcasting licence; and (c) none of the commercial television broadcasting services provided under the licence passes the shared content test in relation to any of the commercial television broadcasting services provided under another commercial television broadcasting licence, where more than 50% of the licence area population of the first radio licence area is attributable to the licence area of the other commercial television broadcasting licence; and (d) item 1 does not apply to the first‑mentioned licence	1 point.

(2) If, apart from this subsection, all the media operations in a group of media operations mentioned in an item of the table are also in one or more other groups mentioned in an item of the table, then, for the purposes of subsection (1), ignore the existence of:

(a) if one of the groups has the highest number of media operations—the remaining group or groups; or

(b) if 2 or more of the groups have an equal highest number of media operations:

(i) all but one of the groups that have an equal highest number of media operations; and

(ii) the remaining group or groups; or

61AD Statutory control rules

For the purposes of this Division, a media operation complies with the statutory control rules if, and only if:

(a) no person is in breach of a prohibition in Division 2 or 3 that relates directly or indirectly to the media operation; or

(b) a person is in breach of a prohibition in Division 2 or 3 that relates directly or indirectly to the media operation, but the ACMA has approved the breach under section 67.

Note: Section 67 is about approval of temporary breaches.

61AE Shared content test

(1) For the purposes of this Division, a commercial television broadcasting service passes the shared content test at a particular time in relation to another commercial television broadcasting service if:

were the same as:

(b) the program content of at least 50% of the total number of hours of programs broadcast by the other service during daytime/evening hours during the 6‑month period ending at that time.

(2) For the purposes of subsection (1), ignore the following:

(a) advertising or sponsorship material (whether or not of a commercial kind);

(b) a promotion for a television program or a television broadcasting service;

(d) a news break or weather bulletin;

(e) any other similar material.

61AEA Unacceptable 3‑way control situation

For the purposes of this Division, an unacceptable 3‑way control situation exists in relation to the licence area of a commercial radio broadcasting licence (the first radio licence area) if a person is in a position to exercise control of:

(a) a commercial television broadcasting licence, where more than 50% of the licence area population of the first radio licence area is attributable to the licence area of the commercial television broadcasting licence; and

(b) a commercial radio broadcasting licence, where the licence area of the commercial radio broadcasting licence is, or is the same as, the first radio licence area; and

61AF Overlapping licence areas

Section 51 does not apply to this Division.

Note: Section 51 is about overlapping licence areas.

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

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

A person commits an offence if:

(a) one or more transactions take place on or after the commencement day; and

(b) the transactions have the result that:

(i) an unacceptable media diversity situation comes into existence in relation to the licence area of a commercial radio broadcasting licence; or

(ii) if an unacceptable media diversity situation already exists in relation to the licence area of a commercial radio broadcasting licence—there is a reduction in the number of points in the licence area; and

(i) a party to the transactions; or

(ii) in a position to prevent the transactions taking place; and

(d) the ACMA has not approved the transactions under section 61AJ.

Penalty: 20,000 penalty units.

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

(1) This section applies if:

(a) one or more transactions take place on or after the commencement day; and

(b) the transactions have the result that:

(i) an unacceptable media diversity situation comes into existence in relation to the licence area of a commercial radio broadcasting licence; or

(2) A person must not be:

(a) a party to the transactions; or

(b) in a position to prevent the transactions taking place.

(3) Subsection (2) is a civil penalty provision.

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

(1) A person may, before a transaction takes place that would place a person in breach of section 61AG or 61AH, make an application to the ACMA for an approval of the transaction.

(2) An application is to be made in accordance with a form approved in writing by the ACMA.

(3) If the ACMA considers that additional information is required before the ACMA can make a decision on an application, the ACMA may, by written notice given to the applicant within 30 days after receiving the application, request the applicant to provide that information.

(4) If, after receiving an application, the ACMA is satisfied that:

(a) if the transaction took place, it would place a person in breach of section 61AG or 61AH; and

(b) either:

(i) the applicant; or

(ii) another person;

will take action, within a period of not longer than 2 years, to ensure that:

(iii) an unacceptable media diversity situation does not exist in relation to the licence area concerned; or

(iv) if an unacceptable media diversity situation already exists in relation to the licence area concerned—there is not a reduction in the number of points in the licence area concerned;

the ACMA may, by written notice given to the applicant:

(d) if subparagraph (b)(i) applies—specify a period within which action must be taken by the applicant to ensure that:

(i) an unacceptable media diversity situation does not exist in relation to the licence area concerned; or

(ii) if an unacceptable media diversity situation already exists in relation to the licence area concerned—there is not a reduction in the number of points in the licence area concerned; and

(e) if subparagraph (b)(ii) applies—inform the applicant accordingly.

(5) The period specified in the notice must be at least one month, but not longer than 2 years.

(6) The ACMA may specify in a notice given to an applicant the action that the ACMA considers the applicant must take to ensure that:

(a) an unacceptable media diversity situation does not exist in relation to the licence area concerned; or

(b) if an unacceptable media diversity situation already exists in relation to the licence area concerned—there is not a reduction in the number of points in the licence area concerned.

(7) In deciding whether to approve a transaction, the ACMA may have regard to:

(a) any relevant undertakings that:

(i) have been accepted by the ACMA under section 61AS; and

(ii) have not been withdrawn or cancelled; and

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

(8) If the ACMA refuses to approve a transaction, the ACMA must give written notice of the refusal to the applicant.

(9) The ACMA must deal with applications under subsection (1) in order of receipt.

(10) If the ACMA receives an application under subsection (1), the ACMA must use its best endeavours to make a decision on the application within 45 days after receipt of the application.

61AK Extension of time for compliance with prior approval notice

(1) A person who has been given a notice under section 61AJ may, within 3 months before the end of the period specified in the notice but not less than one month before the end of that period, apply in writing to the ACMA for an extension of that period.

(2) The ACMA may grant an extension if it is of the opinion that an extension is appropriate in all the circumstances.

(4) The ACMA must not grant more than one extension, and the period of any extension must not exceed:

(a) the period originally specified in the notice; or

(b) one year;

whichever is the lesser period.

(5) In deciding whether to grant an extension to an applicant, the ACMA is to have regard to:

(a) the endeavours that the applicant made in attempting to comply with the notice; and

(b) the difficulties that the applicant experienced in attempting to comply with the notice;

but the ACMA must not have regard to any financial disadvantage that compliance with the notice may cause.

(6) If the ACMA does not, within 45 days after:

(a) receiving the application; or

(b) if the ACMA has requested further information—receiving that further information;

extend the period or refuse to extend the period originally specified in the notice, the ACMA is to be taken to have extended that period by:

(d) one year;

whichever is the lesser period.

(7) If the ACMA refuses to approve an application made under subsection (1), the ACMA must give written notice of the refusal to the applicant.

61AL Breach of prior approval notice—offence

(1) A person commits an offence if:

(a) the person has been given a notice under section 61AJ; and

(b) the person engages in conduct; and

Penalty: 20,000 penalty units.

(2) A person who contravenes subsection (1) commits a separate offence in respect of each day (including a day of a conviction for the offence or any later day) during which the contravention continues.

61AM Breach of prior approval notice—civil penalty

(1) A person must comply with a notice under section 61AJ.

(2) Subsection (1) is a civil penalty provision.

(3) A person who contravenes subsection (1) commits a separate contravention of that subsection in respect of each day (including a day of the making of a relevant civil penalty order or any later day) during which the contravention continues.

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

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

A person commits an offence if:

(a) one or more transactions take place on or after the commencement day; and

(b) the transactions have the result that an unacceptable 3‑way control situation comes into existence in relation to the licence area of a commercial radio broadcasting licence; and

(i) a party to the transactions; or

(ii) in a position to prevent the transactions taking place; and

(d) the ACMA has not approved the transactions under section 61AMC.

Penalty: 20,000 penalty units.

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

(1) This section applies if:

(a) one or more transactions take place on or after the commencement day; and

(b) the transactions have the result that an unacceptable 3‑way control situation comes into existence in relation to the licence area of a commercial radio broadcasting licence; and

(2) A person must not be:

(a) a party to the transactions; or

(b) in a position to prevent the transactions taking place.

(3) Subsection (2) is a civil penalty provision.

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

(1) A person may, before a transaction takes place that would place a person in breach of section 61AMA or 61AMB, make an application to the ACMA for an approval of the transaction.

(2) An application is to be made in accordance with a form approved in writing by the ACMA.

(4) If, after receiving an application, the ACMA is satisfied that:

(a) if the transaction took place, it would place a person in breach of section 61AMA or 61AMB; and

(b) either:

(i) the applicant; or

(ii) another person;

will take action, within a period of not longer than 12 months, to ensure that an unacceptable 3‑way control situation does not exist in relation to the licence area concerned;

the ACMA may, by written notice given to the applicant:

(d) if subparagraph (b)(i) applies—specify a period within which action must be taken by the applicant to ensure that an unacceptable 3‑way control situation does not exist in relation to the licence area concerned; and

(e) if subparagraph (b)(ii) applies—inform the applicant accordingly.

(5) The period specified in the notice must be at least one month, but not longer than 12 months.

(6) The ACMA may specify in a notice given to an applicant the action that the ACMA considers the applicant must take to ensure that an unacceptable 3‑way control situation does not exist in relation to the licence area concerned.

(7) In deciding whether to approve a transaction, the ACMA may have regard to:

(a) any relevant undertakings that:

(i) have been accepted by the ACMA under section 61AS; and

(ii) have not been withdrawn or cancelled; and

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

(8) If the ACMA refuses to approve a transaction, the ACMA must give written notice of the refusal to the applicant.

(9) The ACMA must deal with applications under subsection (1) in order of receipt.

(10) If the ACMA receives an application under subsection (1), the ACMA must use its best endeavours to make a decision on the application within 45 days after receipt of the application.

61AMD Extension of time for compliance with prior approval notice

(1) A person who has been given a notice under section 61AMC may, within 3 months before the end of the period specified in the notice but not less than one month before the end of that period, apply in writing to the ACMA for an extension of that period.

(2) The ACMA may grant an extension if it is of the opinion that an extension is appropriate in all the circumstances.

(4) The ACMA must not grant more than one extension, and the period of any extension must not exceed:

(a) the period originally specified in the notice; or

(b) 6 months;

whichever is the lesser period.

(5) In deciding whether to grant an extension to an applicant, the ACMA is to have regard to:

(a) the endeavours that the applicant made in attempting to comply with the notice; and

(b) the difficulties that the applicant experienced in attempting to comply with the notice;

but the ACMA must not have regard to any financial disadvantage that compliance with the notice may cause.

(6) If the ACMA does not, within 45 days after:

(a) receiving the application; or

(b) if the ACMA has requested further information—receiving that further information;

extend the period or refuse to extend the period originally specified in the notice, the ACMA is to be taken to have extended that period by:

(d) 6 months;

whichever is the lesser period.

(7) If the ACMA refuses to approve an application made under subsection (1), the ACMA must give written notice of the refusal to the applicant.

61AME Breach of prior approval notice—offence

(1) A person commits an offence if:

(a) the person has been given a notice under section 61AMC; and

(b) the person engages in conduct; and

Penalty: 20,000 penalty units.

61AMF Breach of prior approval notice—civil penalty

(1) A person must comply with a notice under section 61AMC.

(2) Subsection (1) is a civil penalty provision.

Subdivision C—Remedial directions

61AN Remedial directions—unacceptable media diversity situation

(1) If, on or after the commencement day, the ACMA is satisfied that an unacceptable media diversity situation exists in relation to the licence area of a commercial radio broadcasting licence, the ACMA may give a person such written directions as the ACMA considers appropriate for the purpose of ensuring that that situation ceases to exist.

(2) The ACMA’s directions may include:

(a) a direction requiring the disposal of shares or interests in shares; or

(b) a direction restraining the exercise of any rights attached to:

(i) shares; or

(ii) interests in shares; or

(c) a direction prohibiting or deferring the payment of any sums due to a person in respect of shares, or interests in shares, held by the person; or

(d) a direction that any exercise of rights attached to:

(i) shares; or

(ii) interests in shares;

be disregarded.

(3) Subsection (2) does not limit subsection (1).

(4) The ACMA must not give a direction under subsection (1) if the direction would have the effect of requiring a registered controller of a registered media group to cease to be in a position to exercise control of any of the media operations in the group.

(4A) Subsection (4) does not prevent the ACMA from giving a direction under subsection (1) to a registered controller of a registered media group that would have the effect of requiring the registered controller to cease to be in a position to exercise control of a media operation in the group if:

(a) the registered controller failed to comply with a notice under section 61AJ; and

(b) the notice related, to any extent, to the media operation.

(4B) Subsection (4) does not prevent the ACMA from giving a direction under subsection (1) to a registered controller of a registered media group that would have the effect of requiring the registered controller to cease to be in a position to exercise control of a media operation in the group if:

(a) an approval under section 61AJ was given on the basis that the ACMA was satisfied that a person other than the registered controller would, within a particular period, take action that, to any extent, relates to the media operation; and

(b) the person failed to take the action within that period.

(4C) If:

(a) the ACMA made any of the following decisions (the original decision) in connection with a registrable media group in relation to the licence area of a commercial radio broadcasting licence:

(i) a decision to enter the media group in the Register under subsection 61AY(1) or 61AZ(1);

(ii) a decision under subsection 61AZE(1) confirming the entry of the media group in the Register;

(iii) a decision under section 61AZF affirming a decision under subsection 61AZE(1) to confirm the entry of the media group in the Register;

(iv) a decision under section 61AZF revoking a decision under subsection 61AZE(1) to cancel the entry of the media group in the Register; and

(b) any of the following subparagraphs applies:

(i) in the case of a decision under subsection 61AZE(1)—a person applied to the ACMA for a reconsideration of the original decision;

(ii) in the case of a decision under section 61AZF—a person applied to the Administrative Appeals Tribunal for a review of the original decision;

(iii) in any case—a person applied to a court for an order of review, a writ of mandamus or prohibition, or an injunction, in relation to the original decision; and

(d) after the original decision was set aside or revoked, the ACMA entered another registrable media group in relation to that licence area in the Register; and

(e) after that other group was entered in the Register, the Administrative Appeals Tribunal or a court made a decision the effect of which was to restore or affirm the original decision;

subsection (4) does not prevent the ACMA from giving a direction under subsection (1) to a registered controller of that other group that would have the effect of requiring the registered controller to cease to be in a position to exercise control of any media operation in that other group.

(5) A direction under subsection (1) must specify a period within which the person must comply with the direction.

(6) The period must not be longer than 2 years.

(6A) If:

(a) the ACMA gives a direction under subsection (1) in the circumstances referred to in subsection (4C); and

(b) subsection (8) does not apply;

the period specified in the direction must be 2 years.

(7) If the ACMA is satisfied that the person:

(a) acted in good faith; and

(b) took reasonable precautions, and exercised due diligence, to avoid:

(i) the unacceptable media diversity situation coming into existence; or

(ii) if the unacceptable media diversity situation already existed—a reduction in the number of points in the licence area concerned;

the period specified in the direction must be 2 years.

(8) If the ACMA is satisfied that the person acted flagrantly in breach of section 61AG or 61AH, the period specified in the direction must be one month.

(9) The Parliament recognises that, if a period of one month is specified in a direction, the person to whom the direction is given or another person may be required to dispose of shares or interests in shares in a way, or otherwise make arrangements, that could cause the person a considerable financial disadvantage. Such a result is seen as necessary in order to discourage flagrant breaches of sections 61AG and 61AH.

61ANA Remedial directions—unacceptable 3‑way control situation

(1) If, on or after the commencement day, the ACMA is satisfied that an unacceptable 3‑way control situation exists in relation to the licence area of a commercial radio broadcasting licence, the ACMA may give a person such written directions as the ACMA considers appropriate for the purpose of ensuring that that situation ceases to exist.

(2) The ACMA’s directions may include:

(a) a direction requiring the disposal of shares or interests in shares; or

(b) a direction restraining the exercise of any rights attached to:

(i) shares; or

(ii) interests in shares; or

(c) a direction prohibiting or deferring the payment of any sums due to a person in respect of shares, or interests in shares, held by the person; or

(d) a direction that any exercise of rights attached to:

(i) shares; or

(ii) interests in shares;

be disregarded.

(3) Subsection (2) does not limit subsection (1).

(4) A direction under subsection (1) must specify a period within which the person must comply with the direction.

(5) The period must not be longer than 12 months.

(6) If the ACMA is satisfied that the person:

(a) acted in good faith; and

(b) took reasonable precautions, and exercised due diligence, to avoid the unacceptable 3‑way control situation coming into existence;

the period specified in the direction must be 12 months.

(7) If the ACMA is satisfied that the person acted flagrantly in breach of section 61AMA or 61AMB, the period specified in the direction must be one month.

(8) The Parliament recognises that, if a period of one month is specified in a direction, the person to whom the direction is given or another person may be required to dispose of shares or interests in shares in a way, or otherwise make arrangements, that could cause the person a considerable financial disadvantage. Such a result is seen as necessary in order to discourage flagrant breaches of sections 61AMA and 61AMB.

61AP Extension of time for compliance with remedial direction

(1) A person who has been given a direction under section 61AN or 61ANA may, within 3 months before the end of the period specified in the direction but not less than one month before the end of that period, apply in writing to the ACMA for an extension of that period.

(2) An application for an extension cannot be made if the period specified in the direction was one month.

(3) In the case of a direction under section 61AN, the ACMA may grant an extension if it is of the opinion that:

(a) an unacceptable media diversity situation is likely to cease to exist in the licence area concerned within 3 months after the end of the period specified in the direction under section 61AN; and

(b) the applicant acted in good faith; and

(3A) In the case of a direction under section 61ANA, the ACMA may grant an extension if it is of the opinion that:

(a) an unacceptable 3‑way control situation is likely to cease to exist in the licence area concerned within 3 months after the end of the period specified in the direction under section 61ANA; and

(b) the applicant acted in good faith; and

(4) If the ACMA considers that additional information is required before the ACMA can make a decision on an application, the ACMA may, by written notice given to the applicant within 30 days after receiving the application, request the applicant to provide that information.

(5) The ACMA must not grant more than one extension, and the period of any extension must not exceed 3 months.

(6) In deciding whether to grant an extension to a person, the ACMA is to have regard to:

(a) the endeavours that the applicant made in attempting to comply with the direction; and

(b) the difficulties experienced by the applicant in attempting to comply with the direction; and

(c) the seriousness of the situation that led to the giving of the direction under section 61AN or 61ANA, as the case may be;

but the ACMA must not have regard to any financial disadvantage that compliance with the direction may cause.

(7) If the ACMA does not, within 45 days after:

(a) receiving the application; or

(b) if the ACMA has requested further information—receiving that further information;

extend the period or refuse to extend the period originally specified in the direction, the ACMA is to be taken to have extended that period by 3 months.

(8) If the ACMA refuses to approve an application made under subsection (1), the ACMA must give written notice of the refusal to the applicant.

61AQ Breach of remedial direction—offence

(1) A person commits an offence if:

(a) the person has been given a direction under section 61AN or 61ANA; and

(b) the person engages in conduct; and

Penalty: 20,000 penalty units.

61AR Breach of remedial direction—civil penalty

(1) A person must comply with a direction under section 61AN or 61ANA.

(2) Subsection (1) is a civil penalty provision.

Subdivision D—Enforceable undertakings

61AS Acceptance of undertakings

(1) The ACMA may accept any of the following undertakings:

(a) a written undertaking given by a person that the person will take specified action to ensure that an unacceptable media diversity situation does not exist in relation to the licence area of a commercial radio broadcasting licence;

(b) if an unacceptable media diversity situation already exists in relation to the licence area of a commercial radio broadcasting licence—a written undertaking given by a person that the person will take specified action to ensure that there is not a reduction in the number of points in the licence area;

(c) a written undertaking given by a person that the person will take specified action to ensure that an unacceptable 3‑way control situation does not exist in relation to the licence area of a commercial radio broadcasting licence.

(2) The undertaking must be expressed to be an undertaking under this section.

(3) The person may withdraw or vary the undertaking at any time, but only with the consent of the ACMA.

(4) The ACMA may, by written notice given to the person, cancel the undertaking.

(5) The ACMA may publish the undertaking on its website.

61AT Enforcement of undertakings

(1) If:

(a) a person has given an undertaking under section 61AS; and

(b) the undertaking has not been withdrawn or cancelled; and

the ACMA may apply to the Federal Court for an order under subsection (2).

(2) If the Federal Court is satisfied that the person has breached the undertaking, the court may make any or all of the following orders:

(a) an order directing the person to comply with the undertaking;

(b) an order directing the person to pay to the ACMA, on behalf of the Commonwealth, an amount up to the amount of any financial benefit that the person has obtained directly or indirectly and that is reasonably attributable to the breach;

(c) any order that the court considers appropriate directing the person to compensate any other person who has suffered loss or damage as a result of the breach;

(d) any other order that the court considers appropriate.

Subdivision E—Register of Controlled Media Groups

61AU Register of Controlled Media Groups

(1) The ACMA is to maintain a register, to be known as the Register of Controlled Media Groups.

(2) The Register is to be maintained by electronic means.

(3) The Register is to be made available for inspection on the internet.

(4) The Register is not a legislative instrument.

(5) The ACMA must begin to comply with subsection (1) as soon as practicable after the start of 1 February 2007.

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

(1) For the purposes of this Subdivision, the ACMA is to enter a media group in the Register by entering in the Register, under a heading for the group:

(a) the names of the media operations in the group; and

(b) the name of the controller, or the names of each of the controllers, of the media operations in the group.

(2) A media group is to be identified in the Register by a unique number assigned by the ACMA.

61AW Explanatory notes may be included in the Register

(1) The ACMA may include explanatory notes in the Register.

(2) Explanatory notes do not form part of a media group’s entry in the Register.

61AX Continuity of media group

(1) For the purposes of this Subdivision, a change in the controller, or any of the controllers, of a media group does not affect the continuity of the group.

(2) For the purposes of this Subdivision, a change in the composition of the media operations in a media group results in the group ceasing to exist.

(3) However, the rule in subsection (2) does not apply to a change in the composition of the media operations in a media group if:

(a) one or more media operations cease to be in the group; and

(b) at least 2 media operations remain in the group; and

61AY Initial registration of media groups

(1) If the ACMA is satisfied that a particular media group was a registrable media group in relation to the licence area of a commercial radio broadcasting licence at the start of 1 February 2007, the ACMA must enter the group in the Register.

(2) For the purposes of subsection (1), the ACMA may rely on one or more notifications given, or purportedly given, under Division 6 on or after 1 February 2007.

(3) If the ACMA relies on a notification or notifications given, or purportedly given, under Division 6, the ACMA must make the relevant entry within 2 business days after receiving the notification or the last of the notifications.

(4) If the ACMA makes an entry under subsection (1), the ACMA is to include in the Register a note to the effect that the entry is unconfirmed.

(5) An entry under subsection (1) is taken to have been made at the start of 1 February 2007.

61AZ Registration of newly‑formed media group

(1) If:

(a) the ACMA is satisfied that:

(i) a registrable media group has come into existence on or after 1 February 2007; and

(ii) the media group is not already entered in the Register; and

(b) the ACMA is satisfied that the coming into existence of the media group does not have the result that:

(i) an unacceptable media diversity situation comes into existence in relation to the licence area of a commercial radio broadcasting licence; or

(c) the ACMA is satisfied that the coming into existence of the media group does not have the result that an unacceptable 3‑way control situation comes into existence in relation to the licence area of a commercial radio broadcasting licence;

the ACMA must enter the group in the Register.

(2) For the purposes of subsection (1), the ACMA may rely on one or more notifications given, or purportedly given, under Division 6 on or after 1 February 2007.

(4) If the ACMA makes an entry under subsection (1), the ACMA is to include in the Register a note to the effect that the entry is unconfirmed.

(5) If:

(a) the ACMA makes a decision under this Subdivision in connection with a registrable media group in relation to the licence area of a commercial radio broadcasting licence; and

(b) any of the following subparagraphs applies:

(i) in the case of a decision under subsection 61AZE(1)—a person applies to the ACMA for a reconsideration of the decision;

(ii) in the case of a decision under section 61AZF—a person applies to the Administrative Appeals Tribunal for a review of the decision;

(iii) in any case—a person applies to a court for an order of review, a writ of mandamus or prohibition, or an injunction, in relation to the decision;

then:

(c) despite subsection (1), the ACMA must not enter any other registrable media group in relation to that licence area in the Register under that subsection during the period (the pending period) when that application has not been finalised unless the ACMA is satisfied that, assuming that the decision were not to be set aside or revoked, the coming into existence of the media group does not have the result that:

(i) an unacceptable media diversity situation comes into existence in relation to the licence area of a commercial radio broadcasting licence; or

(d) if the ACMA is satisfied that another registrable media group in relation to that licence area has come into existence during the pending period—subsection (3) has effect, in relation to the other registrable media group, as if the relevant notification, or the last of the relevant notifications, as the case may be, had been received on the first day after the end of the pending period.

(6) For the purposes of subsection (5), an application for reconsideration of a decision is taken not to have been finalised during the period of 28 days beginning on:

(a) if, because of the operation of subsection 61AZF(9), the decision is taken to be affirmed—the day on which the decision is taken to have been affirmed; or

(b) in any other case—the day on which the decision on the reconsideration is notified to the person concerned.

(7) For the purposes of subsection (5), if:

(a) a person applied to the Administrative Appeals Tribunal for a review of a decision; and

(b) the Administrative Appeals Tribunal makes a decision on the application;

the application is taken not to have been finalised during the period of 28 days beginning on the day on which the decision mentioned in paragraph (b) is made.

(8) For the purposes of subsection (5), if:

(a) a person applied to the Administrative Appeals Tribunal for a review of a decision; and

(b) the Administrative Appeals Tribunal made a decision on the application; and

(d) the Court makes a decision on the appeal;

the application is taken not to have been finalised during the period of 28 days beginning on the day on which the decision mentioned in paragraph (d) is made.

(9) For the purposes of subsection (5), if:

(a) a person applied to a court for an order of review, a writ of mandamus or prohibition, or an injunction, in relation to a decision; and

(b) the court makes a decision on the application;

the application is taken not to have been finalised during the period of 28 days beginning on the day on which the decision mentioned in paragraph (b) is made.

(10) For the purposes of subsection (5), if:

(a) a person applied to a court for an order of review, a writ of mandamus or prohibition, or an injunction, in relation to a decision; and

(b) the court made a decision on the application; and

(d) the court or another court makes a decision on the appeal; and

(e) the decision mentioned in paragraph (d) could be the subject of an appeal;

the application is taken not to have been finalised during the period of 28 days beginning on the day on which the decision mentioned in paragraph (d) is made.

(11) The regulations may provide that, in specified circumstances, an application is taken, for the purposes of subsection (5), not to have been finalised during a period ascertained in accordance with the regulations.

(12) The regulations may extend the 28‑day period referred to in subsection (6), (7), (8), (9) or (10).

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

(1) If the ACMA is satisfied that a registered media group has ceased to exist on or after 1 February 2007, the ACMA must remove the group’s entry from the Register.

(2) For the purposes of subsection (1), the ACMA may rely on one or more notifications given, or purportedly given, under Division 6 on or after 1 February 2007.

(3) If the ACMA relies on a notification or notifications given, or purportedly given, under Division 6, the ACMA must remove the relevant entry within 2 business days after receiving the notification or the last of the notifications.

(4) If, under subsection (1), the ACMA removes a group’s entry from the Register, the ACMA must include in the Register a note to the effect that the removal is unconfirmed.

61AZB Registration of change of controller of registered media group

(1) If the ACMA is satisfied that:

(a) a person who is not a registered controller of a registered media group has become a controller of the group on or after 1 February 2007; or

(b) a registered controller of a registered media group has ceased to be a controller of the group on or after 1 February 2007;

the ACMA must:

(d) if paragraph (b) applies—alter the group’s entry in the Register by omitting the name of the controller concerned.

(2) For the purposes of subsection (1), the ACMA may rely on one or more notifications given, or purportedly given, under Division 6 on or after 1 February 2007.

(3) If the ACMA relies on a notification or notifications given, or purportedly given, under Division 6, the ACMA must make the relevant alteration within 2 business days after receiving the notification or the last of the notifications.

(4) If the ACMA makes an alteration under subsection (1), the ACMA must include in the Register a note to the effect that the alteration is unconfirmed.

61AZC Registration of change of composition of media group

(1) If the ACMA is satisfied that:

(a) one or more of the media operations in a registered media group have ceased to be in that group on or after 1 February 2007; and

(b) the group continues in existence;

the ACMA must alter the group’s entry in the Register by omitting the name or names of the media operations referred to in paragraph (a).

(2) For the purposes of subsection (1), the ACMA may rely on one or more notifications given, or purportedly given, under Division 6 on or after 1 February 2007.

(4) If the ACMA makes an alteration under subsection (1), the ACMA is to include in the Register a note to the effect that the alteration is unconfirmed.

61AZCA ACMA must deal with notifications in order of receipt

(1) For the purposes of sections 61AY, 61AZ, 61AZA, 61AZB and 61AZC, the ACMA must deal with notifications given, or purportedly given, under Division 6 in order of receipt.

(2) Subsection (1) has effect subject to subsection 61AZ(5).

61AZD Conditional transactions

Entry of media group

(1) If:

(a) a person is a party to a proposed transaction; and

(b) the proposed transaction is subject to the condition that the ACMA enters a proposed media group in the Register; and

(i) had been completed; and

(ii) were not subject to that condition; and

(d) the ACMA is satisfied that:

(i) the parties to the proposed transaction are acting in good faith; and

(ii) if the media group were to be entered in the Register on the basis of the assumption mentioned in paragraph (c)—the proposed transaction will be completed within 5 business days after the making of the relevant entry in the Register;

then, for the purposes of this Subdivision, the ACMA may make the assumption mentioned in paragraph (c).

Removal of entry of media group

(2) If:

(a) a person is a party to a proposed transaction; and

(b) the proposed transaction is subject to the condition that the ACMA removes a media group’s entry from the Register; and

(i) had been completed; and

(ii) were not subject to that condition; and

(d) the ACMA is satisfied that:

(i) the parties to the proposed transaction are acting in good faith; and

(ii) if the media group’s entry were to be removed from the Register on the basis of the assumption mentioned in paragraph (c)—the proposed transaction will be completed within 5 business days after the removal of the relevant entry from the Register;

then, for the purposes of this Subdivision, the ACMA may make the assumption mentioned in paragraph (c).

Alteration of entry of media group

(3) If:

(a) a person is a party to a proposed transaction; and

(b) the proposed transaction is subject to the condition that the ACMA alters a media group’s entry in the Register; and

(i) had been completed; and

(ii) were not subject to that condition; and

(d) the ACMA is satisfied that:

(i) the parties to the proposed transaction are acting in good faith; and

(ii) if the media group’s entry in the Register were to be altered on the basis of the assumption mentioned in paragraph (c)—the proposed transaction will be completed within 5 business days after the making of the relevant alteration in the Register;

then, for the purposes of this Subdivision, the ACMA may make the assumption mentioned in paragraph (c).

Requests

(4) A request under subsection (1), (2) or (3) must be:

(a) in a form approved in writing by the ACMA; and

(b) accompanied by such information as the ACMA requires.

(5) An approved form of a request may provide for verification by statutory declaration of information accompanying requests.

61AZE Review and confirmation of entries and alterations etc.

Review

(1) If the ACMA:

(a) enters a media group in the Register under subsection 61AY(1) or 61AZ(1); or

(b) removes a media group’s entry from the Register under subsection 61AZA(1); or

the ACMA must review the entry, removal or alteration, and make a decision:

(d) confirming the relevant entry, removal or alteration; or

(e) cancelling the relevant entry, removal or alteration.

Confirmation

(2) If the ACMA confirms the relevant entry, removal or alteration, the ACMA must remove from the Register the note stating that the entry, removal or alteration is unconfirmed.

Cancellation

(3) If the ACMA cancels an entry, the ACMA must:

(a) remove the entry from the Register; and

(b) remove from the Register the note stating that the entry is unconfirmed.

(4) If the ACMA cancels the removal of an entry, the ACMA must:

(a) restore the entry to the Register; and

(b) remove from the Register the note stating that the removal is unconfirmed.

(5) If the ACMA cancels an alteration, the ACMA must:

(a) reverse the alteration; and

(b) remove from the Register the note stating that the alteration is unconfirmed.

ACMA not required to rely on notifications

(6) To avoid doubt, in exercising its powers under subsection (1), the ACMA is not required to rely on a notification given, or purportedly given, under Division 6.

Conditional transactions

(7) If:

(a) under subsection (1), the ACMA reviews an entry or alteration; and

(b) the entry or alteration was made on the assumption that a proposed transaction had been completed (see section 61AZD); and

(c) the ACMA is not satisfied that the proposed transaction was completed within 5 business days after the making of the entry or alteration;

the ACMA must make a decision under subsection (1) cancelling the entry or alteration.

(8) If:

(a) under subsection (1), the ACMA reviews a removal of an entry; and

(b) the removal was done on the assumption that a proposed transaction had been completed (see section 61AZD); and

the ACMA must make a decision under subsection (1) to cancel the removal.

ACMA may request additional information

(9) If:

(a) under subsection (1), the ACMA reviews an entry, removal or alteration; and

(b) the ACMA considers that additional information is required before the ACMA can make a decision under subsection (1);

the ACMA may, within 14 days after the relevant entry, removal or alteration, by written notice given to a person, request the person to provide that information.

Deadline

(10) If the ACMA does not, within 28 days after:

(a) doing whichever of the following is applicable:

(i) entering a media group in the Register under subsection 61AY(1) or 61AZ(1);

(ii) removing a media group’s entry from the Register under subsection 61AZA(1);

(iii) making an alteration to a media group’s entry in the Register under subsection 61AZB(1) or 61AZC(1); or

(b) if the ACMA has requested further information—receiving that further information;

make a decision under subsection (1):

(d) cancelling the relevant entry, removal or alteration;

the ACMA is taken to have made a decision under subsection (1) at the end of that 28‑day period confirming the relevant entry, removal or alteration.

61AZF Reconsideration of decisions

Applications for reconsideration of decisions

(1) A person:

(a) whose interests are affected by a decision under subsection 61AZE(1); and

(b) who is dissatisfied with the decision;

may apply to the ACMA for the ACMA to reconsider the decision.

(2) The application must:

(a) be in a form approved in writing by the ACMA; and

(b) set out the reasons for the application.

(3) The application must be made within 7 days after the taking of the action required by subsection 61AZE(2), (3), (4) or (5) to give effect to the decision.

(4) An approved form of an application may provide for verification by statutory declaration of statements in applications.

Reconsideration of decisions—application

(5) Upon receiving an application under subsection (1), the ACMA must:

(a) reconsider the decision; and

(b) affirm or revoke the decision.

(6) The ACMA’s decision on reconsideration of a decision has effect as if it had been made under subsection 61AZE(1).

(7) The ACMA must give to the applicant a notice stating its decision on the reconsideration.

ACMA may request additional information

(8) If:

(a) an application is made under subsection (1); and

(b) the ACMA considers that additional information is required before the ACMA can make a decision under subsection (5);

the ACMA may, within 14 days after receiving the application, by written notice given to:

(d) any other person;

request the applicant or other person to provide that information.

(9) If the ACMA does not, within 28 days after:

(a) receiving an application under subsection (1); or

(b) if the ACMA has requested further information—receiving that further information;

make a decision under subsection (5), the ACMA is taken to have made a decision under subsection (5) at the end of that 28‑day period affirming the original decision.

Reconsideration of decisions—ACMA’s own initiative

(10) The ACMA may, at any time:

(a) reconsider a decision made under subsection 61AZE(1); and

(b) affirm or revoke the decision.

(11) The ACMA’s decision on reconsideration of a decision has effect as if it had been made under subsection 61AZE(1).

61AZG Corrections of clerical errors or obvious defects

The ACMA may alter the Register for the purposes of correcting a clerical error or an obvious defect in the Register.

61AZH Regulations

The regulations may make further provision about the operation of the Register.

Division 5B—Disclosure of cross‑media relationships

61BA Definitions

In this Division:

media operation means:

(a) a commercial television broadcasting licence; or

(b) a commercial radio broadcasting licence; or

(c) a newspaper that is associated with the licence area of a commercial television broadcasting licence or a commercial radio broadcasting licence.

prime‑time hours means the hours:

(a) beginning at 6 am each day or, if another time is prescribed, beginning at that prescribed time each day; and

(b) ending at 10 am on the same day or, if another time is prescribed, ending at that prescribed time on the same day.

set of media operations means:

(a) a commercial television broadcasting licence and a commercial radio broadcasting licence that have the same licence area; or

(b) a commercial television broadcasting licence and a newspaper that is associated with the licence area of the licence; or

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

Scope

(1) This section applies if:

(a) a person is in a position to exercise control of each media operation in a set of media operations; and

(b) a commercial television broadcasting licence is in the set; and

(i) the business affairs of a commercial radio broadcasting licensee whose licence is in the set; or

(ii) the business affairs of the publisher of a newspaper that is in the set.

Note: For business affairs, see section 61BH.

Requirement to disclose cross‑media relationship

(2) If subparagraph (1)(c)(i) applies, the commercial television broadcasting licensee must also broadcast a statement describing (whether in summary form or otherwise) the relationship between the commercial television broadcasting licensee and the commercial radio broadcasting licensee.

(3) It is sufficient if the statement under subsection (2) is to the effect that there is a cross‑media relationship between the commercial television broadcasting licensee and the commercial radio broadcasting licensee.

(4) If subparagraph (1)(c)(ii) applies, the commercial television broadcasting licensee must also broadcast a statement describing (whether in summary form or otherwise) the relationship between the commercial television broadcasting licensee and the publisher of the newspaper.

(5) It is sufficient if the statement under subsection (4) is to the effect that there is a cross‑media relationship between the commercial television broadcasting licensee and the publisher of the newspaper.

How statement is to be broadcast

(6) A statement under subsection (2) or (4) must be broadcast in a way that will adequately bring it to the attention of a reasonable person who may have viewed the broadcast mentioned in paragraph (1)(c).

(7) The regulations may provide that subsection (6) is taken to have been complied with if the statement is broadcast in the manner, and at the time, specified in, or ascertained in accordance with, the regulations.

61BC Choice of disclosure method—commercial radio broadcasting licensee

Notice of choice may be given to the ACMA

(1) A commercial radio broadcasting licensee may give the ACMA a written notice making a choice that section 61BE apply to the licensee with effect from a Sunday specified in the notice.

Note: If a notice is not given, section 61BD applies to the licensee.

When notice must be given

(2) A notice under subsection (1) must be given at least 5 business days before the Sunday specified in the notice.

Duration of notice

(3) A notice under subsection (1):

(a) comes into force at the beginning of the Sunday specified in the notice; and

(b) unless sooner revoked, remains in force indefinitely.

Revocation of notice

(4) If a notice under subsection (1) is in force in relation to a commercial radio broadcasting licensee, the licensee may, by written notice given to the ACMA, revoke the subsection (1) notice with effect from the end of a Saturday specified in the revocation notice.

(5) A notice under subsection (4) must be given at least 5 business days before the Saturday specified in the notice.

Notices to be available on the internet

(6) If a notice is in force under subsection (1), the ACMA must make a copy of the notice available on the internet.

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

Scope

(1) This section applies if:

(a) a person is in a position to exercise control of each media operation in a set of media operations; and

(b) a commercial radio broadcasting licence is in the set; and

(i) the business affairs of a commercial television broadcasting licensee whose licence is in the set; or

(ii) the business affairs of the publisher of a newspaper that is in the set; and

(d) a notice under subsection 61BC(1) is not in force in relation to the commercial radio broadcasting licensee.

Note: For business affairs, see section 61BH.

Requirement to disclose cross‑media relationship

(2) If subparagraph (1)(c)(i) applies, the commercial radio broadcasting licensee must also broadcast a statement describing (whether in summary form or otherwise) the relationship between the commercial radio broadcasting licensee and the commercial television broadcasting licensee.

(3) It is sufficient if the statement under subsection (2) is to the effect that there is a cross‑media relationship between the commercial radio broadcasting licensee and the commercial television broadcasting licensee.

(4) If subparagraph (1)(c)(ii) applies, the commercial radio broadcasting licensee must also broadcast a statement describing (whether in summary form or otherwise) the relationship between the commercial radio broadcasting licensee and the publisher of the newspaper.

(5) It is sufficient if the statement under subsection (4) is to the effect that there is a cross‑media relationship between the commercial radio broadcasting licensee and the publisher of the newspaper.

How statement is to be broadcast

(6) A statement under subsection (2) or (4) must be broadcast in a way that will adequately bring it to the attention of a reasonable person who may have listened to the broadcast mentioned in paragraph (1)(c).

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

Scope

(1) This section applies if:

(a) a person is in a position to exercise control of each media operation in a set of media operations; and

(b) a commercial radio broadcasting licence is in the set; and

Requirement to disclose cross‑media relationship

(2) If a commercial television broadcasting licence is in the set, the commercial radio broadcasting licensee must regularly broadcast a statement describing (whether in summary form or otherwise) the relationship between the commercial radio broadcasting licensee and the commercial television broadcasting licensee.

(4) If a newspaper is in the set, the commercial radio broadcasting licensee must regularly broadcast a statement describing (whether in summary form or otherwise) the relationship between the commercial radio broadcasting licensee and the publisher of the newspaper.

How statement is to be broadcast

(6) Statements under subsection (2) or (4) are to be broadcast in a way, and with a frequency, that is reasonably likely to ensure that the audience of the commercial radio broadcasting service during prime‑time hours is aware that:

(a) in the case of statements under subsection (2)—there is a relationship between the commercial radio broadcasting licensee and the commercial television broadcasting licensee; or

(b) in the case of statements under subsection (4)—there is a relationship between the commercial radio broadcasting licensee and the publisher of the newspaper.

(7) A commercial radio broadcasting licensee is taken to have complied with subsection (6) if:

(a) the statement is broadcast at least once each day during prime‑time hours; and

(b) the statement is broadcast in a way that will adequately bring it to the attention of a reasonable person who may have listened to the broadcast of the statement.

(8) The regulations may provide that a commercial radio broadcasting licensee is taken to have complied with subsection (6) if the statement is broadcast in the manner, and at the times, ascertained in accordance with the regulations.

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

Scope

(1) This section applies if:

(a) a person is in a position to exercise control of each media operation in a set of media operations; and

(b) a newspaper is in the set; and

(i) the business affairs of a commercial television broadcasting licensee whose licence is in the set; or

(ii) the business affairs of a commercial radio broadcasting licensee whose licence is in the set.

Note: For business affairs, see section 61BH.

Requirement to disclose cross‑media relationship

(2) If subparagraph (1)(c)(i) applies, the publisher of the newspaper must cause to be published in the same edition of the newspaper a statement describing (whether in summary form or otherwise) the relationship between the publisher and the commercial television broadcasting licensee.

(3) It is sufficient if the statement under subsection (2) is to the effect that there is a cross‑media relationship between the publisher and the commercial television broadcasting licensee.

(4) If subparagraph (1)(c)(ii) applies, the publisher of the newspaper must cause to be published in the same edition of the newspaper a statement describing (whether in summary form or otherwise) the relationship between the publisher and the commercial radio broadcasting licensee.

(5) It is sufficient if the statement under subsection (4) is to the effect that there is a cross‑media relationship between the publisher and the commercial radio broadcasting licensee.

How statement is to be published

(6) A statement under subsection (2) or (4) must be published in a way that will adequately bring it to the attention of a reasonable person who may have read the material mentioned in paragraph (1)(c).

(7) The regulations may provide that subsection (6) is taken to have been complied with if the statement is published in the manner specified in, or ascertained in accordance with, the regulations.

Offence

(8) A person commits an offence if:

(a) the person is subject to a requirement under this section; and

(b) the person omits to do an act; and

Penalty for contravention of this subsection: 2,000 penalty units.

61BG Exception—political communication

Sections 61BB, 61BD, 61BE and 61BF do not apply to the extent (if any) that they would infringe any constitutional doctrine of implied freedom of political communication.

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

Matter or material about business affairs—what is included and excluded

(1) A reference in this Division to matter or material that is wholly or partly about the business affairs of a commercial television broadcasting licensee, a commercial radio broadcasting licensee or a newspaper publisher:

(a) includes a reference to matter or material, where, having regard to:

(i) the nature of the matter or material; and

(ii) the way in which the matter or material is presented;

it would be reasonable to conclude that the object, or one of the objects, of the broadcast of the matter or the publication of the material, as the case may be, was to:

(iii) promote; or

(iv) otherwise influence members of the public, or of a section of the public, to view, to listen to, or to read;

matter broadcast, or to be broadcast, by the licensee, or material published, or to be published, in the newspaper, as the case may be; and

(b) does not include a reference to:

(i) a journalistic acknowledgment of a program or article as being the source of particular information; or

(ii) advertising matter or advertising material, where a reasonable person would be able to distinguish the advertising matter or advertising material from other matter or material; or

(iii) a program guide (see subsection (2)); or

(iv) exempt matter or exempt material (see subsection (4)).

Program guide

(2) For the purposes of this section, a program guide is matter or material that consists of no more than:

(a) a schedule of:

(i) the television programs provided by 2 or more television broadcasting services; or

(ii) the radio programs provided by 2 or more radio broadcasting services; or

(b) a combination of:

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

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

where the matter or material does not single out one of those services for special promotion.

(3) For the purposes of subsection (2):

(a) a television broadcasting service is:

(i) a commercial broadcasting service that provides television programs; or

(ii) a national broadcasting service that provides television programs; and

(b) a radio broadcasting service is:

(i) a commercial broadcasting service that provides radio programs; or

(ii) a national broadcasting service that provides radio programs.

Exempt matter or exempt material

(4) The Minister may, by legislative instrument, determine that:

(a) matter included in a specified class of matter is exempt matter for the purposes of this section; and

(b) material included in a specified class of material is exempt material for the purposes of this section.

(5) A determination under subsection (4) has effect accordingly.

Advertising

(6) This section does not, by implication, affect the meaning of the expression advertising when used in any other provision of this Act.

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

Subdivision A—Introduction

61CA Definitions

In this Division:

approved local content plan means an approved local content plan under Subdivision C.

benchmark year means:

(a) in relation to a regional commercial radio broadcasting licence where a single trigger event has occurred—the 52‑week period ending on the Saturday before the day on which the trigger event occurred; and

(b) in relation to a regional commercial radio broadcasting licence where 2 or more trigger events have occurred—the 52‑week period ending on the Saturday before the day on which the most recent trigger event occurred.

community service announcement means community information, or community promotional material, for the broadcast of which the licensee does not receive any consideration in cash or in kind.

controller has the same meaning as in Division 5A.

designated local content program means a program about matters of local significance, other than:

(a) a news bulletin; or

(aa) a weather bulletin; or

(b) a community service announcement; or

draft local content plan means a draft local content plan under Subdivision C.

eligible local news bulletins means local news bulletins that meet the following requirements:

(a) the bulletins are broadcast on at least 5 days during the week;

(b) the bulletins broadcast on each of those days have a total duration of at least 12.5 minutes;

(d) the bulletins adequately reflect matters of local significance;

(e) none of the bulletins consists wholly of material that has previously been broadcast in the licence area concerned.

eligible local weather bulletins means local weather bulletins that meet the following requirements:

(a) the bulletins are broadcast on at least 5 days during the week;

(b) the bulletins are broadcast during prime‑time hours.

emergency service agency means:

(a) a police force or service; or

(b) a fire service; or

local (except in sections 61CR and 61CS) has a meaning affected by section 61CC.

metropolitan licence area means:

(a) a licence area in which is situated the General Post Office of the capital city of:

(i) New South Wales; or

(ii) Victoria; or

(iii) Queensland; or

(iv) Western Australia; or

(v) South Australia; or

(b) the licence area known as Western Suburbs Sydney RA1.

news bulletin means a regularly scheduled news bulletin.

prime‑time hours means the hours:

(a) beginning at 6 am each day or, if another time is prescribed, beginning at that prescribed time each day; and

(b) ending at 10 am on the same day or, if another time is prescribed, ending at that prescribed time on the same day.

regional commercial radio broadcasting licence means a commercial radio broadcasting licence that has a regional licence area.

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

Register has the same meaning as in Division 5A.

registrable media group has the same meaning as in Division 5A.

trigger event has the meaning given by section 61CB.

weather bulletin means a regularly scheduled weather bulletin that is transmitted:

(a) as a stand‑alone bulletin; or

(b) in conjunction with a news bulletin.

week means a 7‑day period that begins on a Sunday.

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

This Division does not apply in relation to:

(a) a remote area service radio licence; or

(b) a regional racing service radio licence.

Note: This Division does not apply to a regional commercial radio broadcasting licence allocated under subsection 40(1): see section 50A.

61CB Trigger event

Transfer of licence

(1) For the purposes of this Division, if:

(a) a regional commercial radio broadcasting licence is held by a person; and

(b) the person transfers the licence to another person; and

the transfer of the licence is a trigger event for the licence.

Change in control of licence

(1A) For the purposes of this Division, if either of the following events (a control event) happens after the commencement of this subsection:

(a) a person starts to be in a position to exercise control of a regional commercial radio broadcasting licence;

(b) a person ceases to be in a position to exercise control of a regional commercial radio broadcasting licence;

the control event is a trigger event for the licence.

(1B) Subsection (1A) does not apply to a control event if:

(a) the control event is attributable to a transfer of shares from one person (the first person) to another person (the second person); and

(b) there is no consideration for the transfer; and

Note: For near relative, see subsection 6(1).

(1C) Subsection (1A) does not apply to a control event if the control event is attributable to circumstances beyond the control of each person who was, immediately before the control event occurred, in a position to exercise control of the regional commercial radio broadcasting licence concerned.

(1D) The regulations may provide for exemptions from subsection (1A).

Formation of new registrable media group

(2) For the purposes of this Division, if:

(a) a registrable media group comes into existence; and

(b) the media group is not already entered in the Register; and

the coming into existence of the group is a trigger event for the licence.

(2A) Subsection (2) does not apply to a registrable media group that comes into existence after the commencement of this subsection only because the ACMA varies, under section 29, the designation of a licence area.

(2B) Subsection (2) does not apply to a registrable media group that comes into existence after the commencement of this subsection only because the ACMA makes or varies a determination, under section 30, of the licence area population of a licence area.

(2C) The regulations may provide for exemptions from subsection (2).

Change of controller of registrable media group

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

(a) either:

(i) a person who is not a controller of a registrable media group becomes a controller of the group; or

(ii) a controller of a registrable media group ceases to be a controller of the group; and

(b) a regional commercial radio broadcasting licence is in the group;

the change of controller is a trigger event for the licence.

(4) Subsection (3) does not apply to a change of controller of a registrable media group if the change of controller is attributable to circumstances beyond the control of each person who was, immediately before the change occurred, a controller of the registrable media group.

(5) The regulations may provide for exemptions from subsection (3).

61CC What is local?

(1) The ACMA may, by legislative instrument, define what is meant by the expression local for the purposes of the application of:

(a) this Division (other than sections 61CR and 61CS); or

(b) a specified provision of this Division (other than sections 61CR and 61CS);

to a specified licence area.

(2) In making an instrument under subsection (1), the ACMA must have regard to:

(a) the areas where separate programming is provided; and

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

Note: Program includes advertising or sponsorship matter—see the definition of program in subsection 6(1).

Subdivision B—Minimum service standards for local news and information

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

(1) If a trigger event for a regional commercial radio broadcasting licence occurs, then, after the occurrence of the trigger event, the licensee must meet:

(a) minimum service standards for local news; and

(aa) minimum service standards for local weather; and

(b) minimum service standards for local community service announcements; and

(d) if a declaration is in force under subsection 61CE(6)—minimum service standards for designated local content programs.

(2) A licensee (the relevant licensee) is not required to meet any of the minimum service standards referred to in subsection (1):

(a) if:

(i) the ACMA, by legislative instrument, specifies a period, in relation to one or more specified regional commercial radio broadcasting licensees; and

(ii) the period does not exceed 5 weeks; and

(iii) the licensees specified in the instrument consist of or include the relevant licensee;

on a day during that period; or

(b) if the ACMA, by legislative instrument, specifies a period that does not exceed 5 weeks—on a day during that period; or

(c) if neither paragraph (a) nor (b) applies—on a day during the 5‑week period beginning on the second Sunday in December each year.

A period specified under paragraph (a) or (b) may be a recurring period.

61CE Minimum service standards for local news and information

Local news

(1) For the purposes of this Subdivision, a commercial radio broadcasting licensee meets the minimum service standards for local news during a particular week if, during that week, the number of eligible local news bulletins broadcast by the licensee is at least:

(a) the local news target number; or

(b) if the average weekly number of eligible local news bulletins broadcast under the licence during the benchmark year is a number greater than the local news target number—the greater number.

(2) For the purposes of subsection (1), the local news target number is:

(a) 5; or

(b) if the Minister, by legislative instrument, declares that a greater number is the local news target number—the greater number.

Local weather

(2A) For the purposes of this Subdivision, a commercial radio broadcasting licensee meets the minimum service standards for local weather during a particular week if, during that week, the number of eligible local weather bulletins broadcast by the licensee is at least the local weather target number.

(2B) For the purposes of subsection (2A), the local weather target number is:

(a) 5; or

(b) if the Minister, by legislative instrument, declares that a greater number is the local weather target number—the greater number.

Local community service announcements

(3) For the purposes of this Subdivision, a commercial radio broadcasting licensee meets the minimum service standards for local community service announcements during a particular week if, during that week, the number of local community service announcements broadcast by the licensee is at least the community service target number.

(4) For the purposes of subsection (3), the community service target number is:

(a) 1; or

(b) if the Minister, by legislative instrument, declares that a greater number is the local community service target number—the greater number.

Emergency warnings

(5) For the purposes of this Subdivision, a commercial radio broadcasting licensee meets the minimum service standards for emergency warnings during a particular week if:

(a) on one or more occasions during the week, one or more emergency service agencies asked the licensee to broadcast emergency warnings, and the licensee broadcast those warnings as and when asked to do so by those emergency service agencies; or

(b) there was no occasion during the week when an emergency service agency asked the licensee to broadcast an emergency warning.

Designated local content programs

(6) For the purposes of this Subdivision, the Minister may, by legislative instrument, declare that a regional commercial radio broadcasting licence meets the minimum service standards for designated local content programs during a particular week if, during that week, the licensee meets such requirements in relation to designated local content programs as are specified in the declaration.

Subdivision C—Local content plans

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

(1) If a trigger event for a regional commercial radio broadcasting licence occurs, the licensee must give the ACMA:

(a) a draft local content plan for the licence; and

(b) a statement setting out such information about the licensee’s broadcasting operations as the ACMA requires;

within 90 days after the day on which the trigger event occurs.

(2) If the licensee does not comply with subsection (1), the ACMA may, by legislative instrument, determine that a plan in the terms specified in the determination is the approved local content plan for the licence.

Replacement of approved local content plan

(3) If an approved local content plan (the original plan) for a commercial radio broadcasting licence is in force:

(a) a draft local content plan given under subsection (1) for the licence must be expressed to replace the original plan; and

(b) if the draft local content plan becomes an approved local content plan for the licence—the original plan ceases to be in force.

(4) If:

(a) the ACMA makes a determination under subsection (2) in relation to a commercial radio broadcasting licence; and

(b) an approved local content plan (the original plan) for the licence was in force immediately before the determination takes effect;

then:

(d) the original plan ceases to be in force.

61CG Content of draft or approved local content plan

A draft or approved local content plan for a regional commercial radio broadcasting licence must set out how the licensee will comply with section 61CD.

61CH Approval of draft local content plan

(1) If a commercial radio broadcasting licensee gives the ACMA a draft local content plan under section 61CF, the ACMA must:

(a) approve the plan; or

(b) refuse to approve the plan.

Approval of plan

(2) In deciding whether to approve a draft local content plan, the ACMA must have regard to:

(a) whether the plan is adequate; and

(b) whether the plan is sufficiently detailed; and

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

(3) If the ACMA approves the draft local content plan, the plan becomes an approved local content plan for the licence.

(4) If the ACMA approves the draft local content plan, the ACMA must give the licensee a written notice setting out the decision.

Refusal to approve plan

(5) If the ACMA refuses to approve the draft local content plan, the ACMA may, by legislative instrument, determine that a plan in the terms specified in the determination is the approved local content plan for the licence.

(6) If the ACMA refuses to approve the draft local content plan, the ACMA must give the licensee a written notice setting out the reasons for the refusal.

Occurrence of trigger event when ACMA’s decision is pending

(7) If:

(a) a commercial radio broadcasting licensee gives the ACMA a draft local content plan under section 61CF as the result of the occurrence of a trigger event for the licence; and

(b) another trigger event for the licence occurs before the ACMA makes a decision under subsection (1) in relation to the plan;

then:

(d) subsections (5) and (6) do not apply to that refusal.

61CJ Register of approved local content plans

(1) The ACMA is to maintain a Register in which the ACMA includes approved local content plans as in force from time to time.

(2) The Register is to be maintained by electronic means.

(3) The Register is to be made available for inspection on the internet.

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

(1) This section applies if:

(a) an approved local content plan (the current plan) for a regional commercial radio broadcasting licence is in force; and

(b) the Minister makes a declaration under:

(i) paragraph 61CE(2)(b); or

(ia) paragraph 61CE(2B)(b); or

(ii) paragraph 61CE(4)(b); or

(iii) subsection 61CE(6); and

(c) in the case of a declaration under paragraph 61CE(2)(b)—the effect of the declaration is to raise the licensee’s minimum service standards for local news.

(2) The licensee must give the ACMA:

(a) a draft variation of the current plan; and

(b) a statement setting out such information about the licensee’s broadcasting operations as the ACMA requires;

within 90 days after the day on which the declaration is made.

(3) If the licensee does not comply with subsection (2), the ACMA may, by legislative instrument, vary the current plan.

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

If an approved local content plan (the current plan) for a regional commercial radio broadcasting licence is in force, the licensee may give the ACMA:

(a) a draft variation of the current plan; and

(b) a statement setting out such information about the licensee’s broadcasting operations as the ACMA requires.

61CM Approval of draft variation

(1) If, under section 61CK or 61CL, a commercial radio broadcasting licensee gives the ACMA a draft variation of an approved local content plan (the current plan), the ACMA must:

(a) approve the variation; or

(b) refuse to approve the variation.

Approval of variation

(2) The ACMA must not approve the variation unless the ACMA is satisfied that, if the licensee were to give the ACMA a draft local content plan in the same terms as the current plan as proposed to be varied, the ACMA would approve that draft.

(3) If the ACMA approves the variation, the current plan is varied accordingly.

(4) If the ACMA approves the variation, the ACMA must give the licensee a written notice setting out the decision.

Refusal to approve variation

(5) If the ACMA refuses to approve the variation, the ACMA must give the licensee a written notice setting out the reasons for the refusal.

(6) If the ACMA refuses to approve the variation, the ACMA may, by legislative instrument, vary the current plan.

Occurrence of trigger event when ACMA’s decision is pending

(7) If:

(a) under section 61CK or 61CL, a commercial radio broadcasting licensee gives the ACMA a draft variation of an approved local content plan; and

(b) a trigger event for the licence occurs after the receipt of the variation but before the ACMA makes a decision under subsection (1) in relation to the variation;

then:

(d) subsections (5) and (6) do not apply to that refusal.

61CN ACMA review of approved local content plan

(1) If an approved local content plan for a regional commercial radio broadcasting licence is in force, the ACMA must review the plan at least once every 3 years.

(2) If, after such a review, the ACMA considers that the approved local content plan should be varied, the ACMA may, by legislative instrument, vary the plan.

61CP Compliance with approved local content plan

If an approved local content plan for a regional commercial radio broadcasting licence is in force, the licensee must take all reasonable steps to ensure that the plan is complied with.

61CPA Licensee must submit annual compliance report

(1) This section applies if an approved local content plan for a regional commercial radio broadcasting licence was in force during the whole or a part of a financial year.

(2) The regional commercial radio broadcasting licensee must, within 3 months after the end of the financial year, give the ACMA a report about the licensee’s compliance with the approved local content plan during the whole or the part, as the case may be, of the financial year.

(3) A report under subsection (2) must:

(a) be in a form approved in writing by the ACMA; and

(b) set out such information as the ACMA requires.

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

(1) The Minister may give the ACMA a written direction about the exercise of the powers conferred on the ACMA by this Subdivision.

(2) The ACMA must comply with a direction under subsection (1).

Subdivision D—Other local content requirements

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

(1) The Minister may give the ACMA a written direction requiring the ACMA to conduct an investigation under section 170 into:

(a) whether the ACMA should exercise its powers under section 43 to impose conditions requiring regional commercial radio broadcasting licensees to broadcast programs about matters of local significance; and

(b) if so, the content of those conditions.

(2) The ACMA must comply with a direction under subsection (1).

(3) This section does not limit the powers conferred on the ACMA by section 43 or 170.

(4) This section does not limit the powers conferred on the Minister by section 61CS.

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

(1) The Minister may give the ACMA a written direction requiring the ACMA to exercise its powers under section 43 to impose conditions requiring regional commercial radio broadcasting licensees to broadcast programs about matters of local significance.

(2) The Minister may give the ACMA a written direction requiring the ACMA to exercise its powers under section 43 to impose one or more specified conditions requiring regional commercial radio broadcasting licensees to broadcast programs about matters of local significance.

(3) The Minister may give the ACMA a written direction requiring the ACMA to exercise its powers under section 43 to impose conditions requiring a specified regional commercial radio broadcasting licensee to broadcast programs about matters of local significance.

(4) The Minister may give the ACMA a written direction requiring the ACMA to exercise its powers under section 43 to impose one or more specified conditions requiring a specified regional commercial radio broadcasting licensee to broadcast programs about matters of local significance.

(5) The ACMA must comply with a direction under subsection (1), (2), (3) or (4).

(6) This section does not limit the powers conferred on the ACMA by section 43.

61CT Regular reviews of local content requirements

(1) At least once every 3 years, the Minister must cause to be conducted a review of the following matters:

(a) the operation of sections 43B and 43C;

(b) the operation of this Division;

(d) whether sections 43B and 43C should be amended;

(e) whether this Division should be amended;

(f) whether paragraph 8(2)(c) of Schedule 2 should be amended.

(2) For the purposes of facilitating the conduct of a review under subsection (1), the ACMA must make available information about regional commercial radio broadcasting licensees’ compliance with:

(a) licence conditions imposed as a result of section 43B or 43C; and

(b) licence conditions imposed as a result of an investigation directed under section 61CR; and

(d) the licence condition set out in paragraph 8(2)(c) of Schedule 2.

(3) The Minister may give the ACMA a written direction requiring the ACMA to make available specified information for the purposes of facilitating the conduct of a review under subsection (1).

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

(5) The Minister must cause to be prepared a report of a review under subsection (1).

(6) The Minister must cause copies of a report to be laid before each House of the Parliament within 15 sitting days of that House after the completion of the report.

Division 6—Notification provisions

63 Requirement to notify changes in control

Notification by licensee—general

(1) If a commercial television broadcasting licensee, commercial radio broadcasting licensee or datacasting transmitter licensee becomes aware that:

(a) a person who was not in a position to exercise control of the licence has become in a position to exercise control of the licence; or

(b) a person who was in a position to control the licence has ceased to be in that position;

the licensee must, within 10 business days after becoming so aware, notify the ACMA in writing of that event.

(2) The details are to be provided in a form approved in writing by the ACMA.

Notification by publisher of newspaper

(3) If the publisher of a newspaper that is associated with the licence area of a commercial television broadcasting licence or a commercial radio broadcasting licence becomes aware that:

(a) a person who was not in a position to exercise control of the newspaper has become in a position to exercise control of the newspaper; or

(b) a person who was in a position to control the newspaper has ceased to be in that position;

the publisher of the newspaper must, within 10 business days after becoming so aware, notify the ACMA in writing of that event.

(4) The details are to be provided in a form approved in writing by the ACMA.

Offence

(5) A person commits an offence if:

(a) the person is subject to a requirement under subsection (1) or (3); and

(b) the person omits to do an act; and

Penalty for contravention of this subsection:

(a) if the breach relates to a commercial television broadcasting licence, a datacasting transmitter licence or a newspaper—500 penalty units; or

(b) otherwise—50 penalty units.

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

Notification by controller of licence—general

(1) If a person who was not in a position to exercise control of a commercial television broadcasting licence, a commercial radio broadcasting licence or a datacasting transmitter licence becomes aware that that person is in a position to exercise control of the licence, the person must, within 10 business days after becoming so aware, notify the ACMA in writing of that position.

(2) The details are to be provided in a form approved in writing by the ACMA.

Notification by controller of newspaper

(3) If a person who was not in a position to exercise control of a newspaper that is associated with the licence area of a commercial television broadcasting licence or a commercial radio broadcasting licence becomes aware that the person is in a position to exercise control of the newspaper, the person must, within 10 business days after becoming so aware, notify the ACMA in writing of that position.

(4) The details are to be provided in a form approved in writing by the ACMA.

Offence

(5) A person commits an offence if:

(a) the person is subject to a requirement under subsection (1) or (3); and

(b) the person omits to do an act; and

Penalty for contravention of this subsection:

(a) if the breach relates to a commercial television broadcasting licence, a datacasting transmitter licence or a newspaper—500 penalty units; or

(b) otherwise—50 penalty units.

65A Strict liability offences

An offence against section 63, or 64 is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

65B Designated infringement notice provisions

Sections 63, and 64 are designated infringement notice provisions.

Division 7—Approval of temporary breaches

66 Offence for breaches without approval

(1) If:

(a) a transaction takes place that places a person in breach of a provision of Division 2 or 3; and

(b) the person knew, or ought reasonably to have known, that a result of the transaction would be to place the person in breach of a provision of Division 2 or 3; and

(d) the ACMA has not approved the breach under section 67;

the person commits an offence.

Penalty:

(e) if the breach relates to a commercial television broadcasting licence or datacasting transmitter licence—20,000 penalty units; or

(f) if the breach relates to a commercial radio broadcasting licence—2,000 penalty units.

(1A) In a prosecution for an offence against subsection (1), it is not necessary to prove that the defendant knew that the provision breached was a provision of Division 2 or 3.

(2) A person who breaches subsection (1) commits a separate offence in respect of each day (including a day of a conviction under this subsection or any subsequent day) during which the breach of Division 2 or 3 continues.

(3) A prosecution for an offence under this section against a person in relation to a transaction cannot be commenced if the ACMA has given the person a notice under section 70 in relation to the transaction and the time for compliance with the notice has not expired.

67 Applications for prior approval of temporary breaches

(1) A person may, before a transaction takes place or an agreement is entered into that would place a person in breach of a provision of Division 2 or 3, make an application to the ACMA for an approval of the breach.

(2) An application is to be made in accordance with a form approved in writing by the ACMA.

(3) If the ACMA considers that additional information is required before the ACMA can make a decision on an application, the ACMA may, by notice in writing given to the applicant within 30 days after receiving the application, request the applicant to provide that information.

(4) If, after receiving an application, the ACMA is satisfied that:

(a) if the transaction took place or the agreement was entered into, it would place a person in breach of a provision of Division 2 or 3; and

(b) the person will take action to ensure that the breach of that provision ceases; and

the ACMA may, by notice in writing given to the applicant, approve the breach arising as a result of the transaction or agreement and specify a period during which action must be taken to ensure that the breach ceases, being a period that commences on the day on which the transaction takes place or the agreement is entered into.

(5) The period specified in the notice must be 6 months, one year or 2 years.

(6) The ACMA may specify in a notice the action that the ACMA considers the person is to take so that the person is no longer in breach of the relevant provision.

(7) If the ACMA does not, within 45 days after:

(a) receiving the application; or

(b) if the ACMA has requested further information—receiving that further information;

approve or refuse to approve the breach arising as a result of the transaction or agreement, the ACMA is to be taken to have approved the breach and allowed a period of 2 years before which the breach must cease.

68 Extension of time for compliance with notice

(1) A person who has been given a notice under section 67 may, within 3 months before the end of the period specified in the notice, apply in writing to the ACMA for an extension of that period.

(2) The ACMA is not required to grant an extension, but may do so if, in its opinion, an extension is appropriate in all the circumstances.

(4) The ACMA must not grant more than one extension, and the period of any extension must not exceed:

(a) the period originally specified in the notice; or

(b) one year;

whichever is the lesser.

(5) In deciding whether to grant an extension to an applicant, the ACMA is to have regard to:

(a) the endeavours that the applicant made in attempting to comply with the notice; and

(b) the difficulties that the applicant experienced in attempting to comply with the notice;

but the ACMA must not have regard to any financial disadvantage that compliance with the notice may cause.

(6) If the ACMA does not, within 45 days after:

(a) receiving the application; or

(b) if the ACMA has requested further information—receiving that further information;

extend the period or refuse to extend the period originally specified in the notice, the ACMA is to be taken to have extended that period by:

(d) one year;

whichever is the lesser.

69 Breach of notice under section 67 to constitute an offence

A person who fails to comply with a notice under section 67 commits an offence.

Penalty:

(a) if the breach relates to a commercial television broadcasting licence or datacasting transmitter licence—20,000 penalty units; or

(b) if the breach relates to a commercial radio broadcasting licence—2,000 penalty units.

Division 8—Action by the ACMA

70 Notices by the ACMA

(1) If the ACMA is satisfied that a person is in breach of a provision of Division 2 or 3, the ACMA may, by notice in writing given to:

(a) the person; or

(b) if the person is not the licensee and the breach is one that can be remedied by the licensee—the licensee;

direct the person or the licensee to take action so that the person is no longer in breach of that provision.

(2) The ACMA is not to give a notice to a person under subsection (1) in relation to a breach if an approval under section 67 has been given in respect of the breach and the period specified under that section, or an extension of that period, has not expired.

(3) The notice is to specify a period during which the person must take action to ensure that the person is no longer in that position.

(4) The period must be one month, 6 months, one year or 2 years.

(5) If the ACMA is satisfied that the breach was deliberate and flagrant, the period specified in the notice must be one month.

(6) If the ACMA gives a notice under subsection (1) in respect of a breach that the ACMA had approved under section 67, the ACMA must specify a period of one month in the notice under subsection (1).

(7) If the ACMA is satisfied that the person breached the relevant provision as a result of the actions of other persons none of whom is an associate of the person, a period of one year or 2 years must be specified, but such a period must not be specified in other circumstances.

(8) The Parliament recognises that, if a period of one month is specified in a notice, the person to whom the notice is given or another person may be required to dispose of shares in a way, or otherwise make arrangements, that could cause the person a considerable financial disadvantage. Such a result is seen as necessary in order to discourage deliberate and flagrant breaches of this Part.

71 Extension of time for compliance with notice

(1) A person who has been given a notice under section 70 may, within 3 months before the end of the period specified in the notice, apply in writing to the ACMA for an extension of that period.

(2) An application for an extension cannot be made if the period specified in the notice was one month.

(3) The ACMA is not required to grant an extension, but may do so if, in its opinion, an extension is appropriate in all the circumstances.

(4) If the ACMA considers that additional information is required before the ACMA can make a decision on an application, the ACMA may, by notice in writing given to the applicant within 30 days after receiving the application, request the applicant to provide that information.

(5) The ACMA must not grant more than one extension, and the period of any extension must not exceed:

(a) the period originally specified in the notice; or

(b) one year;

whichever is the lesser.

(6) In deciding whether to grant an extension to a person, the ACMA is to have regard to:

(a) the endeavours that the applicant made in attempting to comply with the notice; and

(b) the difficulties experienced by the applicant in attempting to comply with the notice; and

but the ACMA must not have regard to any financial disadvantage that compliance with the notice may cause.

(7) If the ACMA does not, within 45 days after:

(a) receiving the application; or

(b) if the ACMA has requested further information—receiving that further information;

extend the period or refuse to extend the period originally specified in the notice, the ACMA is to be taken to have extended that period by:

(d) one year;

whichever is the lesser.

72 Breach of notice under section 70 to constitute an offence

A person who fails to comply with a notice under section 70 commits an offence.

Penalty:

(a) if the breach relates to a commercial television broadcasting licence or datacasting transmitter licence—20,000 penalty units; or

(b) if the breach relates to a commercial radio broadcasting licence—2,000 penalty units.

Division 9—Special provision for small markets

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

(1) If an additional licence has been allocated under section 38A to the holder of an existing licence, the existing licence and additional licence are to be treated, for the purposes of this Part, as being only one licence.

(2) This section does not apply to the licences at any time after either of the licences is first held by a different person (whether or not it continues to be held by a different person).

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

(1) If an additional licence is allocated under section 38B, then for the purposes of Divisions 2 and 3 of this Part:

(a) the licence is to be disregarded in relation to a person who is in a position to exercise control of that licence at the time it is allocated; and

(b) the licence is to be so disregarded until that person first ceases to be in a position to exercise control of that licence.

(2) If, during the time a licence is disregarded in relation to a person under subsection (1), that person is in a position to exercise control of another person who is in a position to exercise control of the licence, then, for the purposes of Divisions 2 and 3 of this Part, the licence is also to be disregarded during that time in relation to that other person.

Division 10—Prior opinions by the ACMA

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

(1) A person may apply to the ACMA for an opinion as to whether:

(a) the person is in a position to exercise control of a commercial television broadcasting licence, a commercial radio broadcasting licence, a satellite subscription television broadcasting licence, a datacasting transmitter licence, a newspaper or a company; or

(b) the person would, if a transaction took place or a contract, agreement or arrangement were entered into, being one details of which are given in the application, be in a position to exercise control of a commercial television broadcasting licence, a commercial radio broadcasting licence, a satellite subscription television broadcasting licence, a datacasting transmitter licence, a newspaper or a company.

(2) An application must be in accordance with a form approved in writing by the ACMA, and must state the applicant’s opinion as to whether the applicant is, or would be, in a position to exercise control of the commercial television broadcasting licence, the commercial radio broadcasting licence, the satellite subscription television broadcasting licence, the datacasting transmitter licence, the newspaper or the company.

(4) The ACMA must, as soon as practicable after:

(a) receiving the application; or

(b) if the ACMA has requested further information—receiving that further information;

give the applicant, in writing, its opinion as to whether the applicant is in a position to exercise control of the relevant licence, newspaper or company.

(5) If the ACMA has given an opinion under this section to a person that the person is not in a position to exercise control of a licence or newspaper, neither the ACMA nor any other Government agency may, while the circumstances relating to the applicant and the licence, a newspaper or a company remain substantially the same as those advised to the ACMA in relation to the application for the opinion, take any action against the person under this Act on the basis that the person is in a position to exercise control of the licence, newspaper or company.

(6) If the ACMA does not, within 45 days after:

(a) receiving the application; or

(b) if the ACMA has requested further information—receiving that further information;

give the applicant, in writing, its opinion as to whether the applicant is in a position to exercise control of the relevant licence, newspaper or company, the ACMA is to be taken to have given an opinion at the end of that period that accords with the applicant’s opinion.

(7) The ACMA may charge a fee for providing an opinion under this section.

Division 11—Miscellaneous

75 Register of matters under this Part

(1) The ACMA is to maintain a Register of:

(aa) licences granted under section 38A or 38B; and

(a) notifications under Division 6; and

(b) approvals given by the ACMA under section 67; and

(d) notices given by the ACMA under section 70; and

(e) extensions granted by the ACMA under section 71.

(2) The ACMA is not to include in the Register an approval under section 67 until the relevant transaction or agreement has taken place or been entered into.

(3) The Register is to be open for public inspection, and a person is entitled to be given a copy of, or an extract from, any entry in the Register.

(4) The ACMA may charge fees for inspections of the Register or for the provision of copies of or extracts from the Register.

(5) The ACMA may supply copies of or extracts from the Register certified by a member, and a copy or extract so certified is admissible in evidence in all courts and proceedings without further proof or production of the original.

76 Continuing offences

In order to avoid any doubt, it is declared that section 4K of the Crimes Act 1914 applies to obligations under this Part to comply with a notice and other obligations under this Part to do things within a particular period.

77 Part has effect notwithstanding Competition and Consumer Act

The provisions of this Part have effect notwithstanding the Competition and Consumer Act 2010.

78 Part not to invalidate appointments

Nothing in this Part invalidates an appointment of a person as a director of a company.

Part 6—Community broadcasting licences

79 Interpretation

In this Part, company includes an incorporated association.

79A Application

This Part does not apply in relation to community broadcasting licences that are temporary community broadcasting licences.

Note: Part 6A deals with temporary community broadcasting licences.

80 ACMA to advertise for applications for BSB community broadcasting licences

(1) Where the ACMA is going to allocate one or more community broadcasting licences that are broadcasting services bands licences, the ACMA is to advertise, in a manner determined by the ACMA, for applications from companies that:

(a) are formed in Australia or in an external Territory; and

(b) represent a community interest.

(2) The advertisements are to include:

(a) the date before which applications must be received by the ACMA; and

(b) a statement specifying how details of:

(i) the conditions that are to apply to the licence; and

(ii) the licence area of the licence; and

(iii) any priorities that the Minister has, under subsection 84(1), directed the ACMA to observe in the allocation of that licence or those licences;

can be obtained.

(3) Applications must be in accordance with a form approved in writing by the ACMA.

81 When licences must not be allocated

(1) A licence is not to be allocated to an applicant if:

(a) in the case of an applicant for a CTV licence—the applicant is not a company limited by guarantee within the meaning of the Corporations Act 2001; or

(b) the ACMA decides that subsection 83(2) applies to the applicant.

(2) Paragraph (1)(b) does not require the ACMA to consider the application of subsection 83(2) in relation to an applicant before allocating a licence to the applicant.

82 Other community broadcasting licences

(1) The ACMA may allocate to a person, on application in writing by the person, a community broadcasting licence that is not a broadcasting services bands licence.

(1A) Licences under subsection (1) are to be allocated on the basis of one licence per service.

(2) Applications must:

(a) be in accordance with a form approved in writing by the ACMA; and

(b) be accompanied by the application fee determined in writing by the ACMA.

83 When persons are regarded as suitable

(1) For the purposes of this Part, a company is a suitable community broadcasting licensee or a suitable applicant for a community broadcasting licence if the ACMA has not decided that subsection (2) applies to the company.

(2) The ACMA may, if it is satisfied that allowing a particular company to provide or continue to provide broadcasting services under a community broadcasting licence would lead to a significant risk of:

(a) an offence against this Act or the regulations being committed; or

(aa) a breach of a civil penalty provision occurring; or

(b) a breach of the conditions of the licence occurring;

decide that this subsection applies to the company.

(3) In deciding whether such a risk exists, the ACMA is to take into account:

(a) the business record of the company; and

(b) the company’s record in situations requiring trust and candour; and

(d) the record in situations requiring trust and candour of each such person; and

(e) whether the company, or a person referred to in paragraph (c) or (d), has been convicted of an offence against this Act or the regulations; and

(f) whether a civil penalty order has been made against:

(i) the company; or

(ii) a person referred to in paragraph (c) or (d).

84 Allocation of community broadcasting licences

(1) The Minister may give directions to the ACMA to give priority to a particular community interest or interests, whether generally or in a particular licence area, in allocating community licences that are broadcasting services bands licences.

(2) In deciding whether to allocate a community broadcasting licence that is a broadcasting services bands licence to an applicant or to one of a group of applicants, the ACMA is to have regard to:

(a) the extent to which the proposed service or services would meet the existing and perceived future needs of the community within the licence area of the proposed licence; and

(b) the nature and diversity of the interests of that community; and

(c) the nature and diversity of other broadcasting services (including national broadcasting services) available within that licence area; and

(d) the capacity of the applicant to provide the proposed service or services; and

(e) the undesirability of one person being in a position to exercise control of more than one community broadcasting licence that is a broadcasting services bands licence in the same licence area; and

(f) the undesirability of the Commonwealth, a State or a Territory or a political party being in a position to exercise control of a community broadcasting licence.

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

Licences in force immediately before the commencement of this section

(1) If a designated community radio broadcasting licence was in force immediately before the commencement of this section, the licence is taken, for the purposes of this Act, to have been allocated as a licence to provide an analog community radio broadcasting service.

Licences allocated before the digital radio start‑up day for the licence area

(2) If the ACMA allocates a designated community radio broadcasting licence after the commencement of this section but before the digital radio start‑up day for the licence area, the licence must be allocated as a licence to provide an analog community radio broadcasting service.

Licences allocated on or after digital radio start‑up day for the licence area

(3) If the ACMA allocates a designated community radio broadcasting licence on or after the digital radio start‑up day for the licence area, the licence must be allocated as:

(a) a licence to provide an analog community radio broadcasting service; or

(b) a licence to provide digital community radio broadcasting services.

Licence conditions

(4) Subject to subsection (5), if a designated community radio broadcasting licence is or was allocated as a licence to provide an analog community radio broadcasting service, the licence is subject to the condition that the licensee may only provide an analog community radio broadcasting service under the licence.

(5) If:

(a) a designated community radio broadcasting licence was in force immediately before the digital radio start‑up day for the licence area; and

(b) the licence authorised the licensee to provide an analog community radio broadcasting service in the licence area;

subsection (4) ceases to apply in relation to the licence at the start of the digital radio start‑up day for the licence area.

(6) If a designated community radio broadcasting licence is allocated as a licence to provide digital community radio broadcasting services, the licence is subject to the condition that the licensee may only provide digital community radio broadcasting services under the licence.

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

The ACMA is not required to allocate a community broadcasting licence to any applicant.

85A Services authorised by designated community radio broadcasting licences

Licences in force immediately before the commencement of this section

(1) If:

(a) a designated community radio broadcasting licence was in force immediately before the commencement of this section; and

(b) the licence authorised the licensee to provide an analog community radio broadcasting service in the licence area;

then, during the period:

(d) ending immediately before the digital radio start‑up day for the licence area;

the licence is taken to authorise the licensee to provide that service in the licence area.

Licences allocated on or after the commencement of this section

(2) If:

(a) a designated community radio broadcasting licence is allocated on or after the commencement of this section but before the digital radio start‑up day for the licence area; and

(b) the licence is allocated as a licence to provide an analog community radio broadcasting service in the licence area;

then, during the period:

(d) ending immediately before the digital radio start‑up day for the licence area;

the licence is taken to authorise the licensee to provide that service in the licence area.

Licences in force immediately before the digital radio start‑up day for the licence area

(3) If:

(a) a designated community radio broadcasting licence was in force immediately before the digital radio start‑up day for the licence area; and

(b) the licence authorised the licensee to provide an analog community radio broadcasting service in the licence area;

then, after the digital radio start‑up day for the licence area, the licence is taken to authorise the licensee to provide the following services in the licence area:

(d) one or more digital community radio broadcasting services.

Licences allocated on or after digital radio start‑up day for the licence area

(4) If:

(a) a designated community radio broadcasting licence is allocated on or after the digital radio start‑up day for the licence area; and

(b) the licence is allocated as a licence to provide an analog community radio broadcasting service in the licence area;

the licence is taken to authorise the licensee to provide that service in the licence area.

(5) If:

(a) a designated community radio broadcasting licence is allocated on or after the digital radio start‑up day for the licence area; and

(b) the licence is allocated as a licence to provide digital community radio broadcasting services in the licence area;

the licence is taken to authorise the licensee to provide one or more digital community radio broadcasting services in the licence area.

86 Conditions of community broadcasting licences

(1) Each community broadcasting licence is subject to:

(a) the conditions set out in Part 5 of Schedule 2; and

(b) such other conditions as are imposed under section 87.

(2) In addition, CTV licences are subject to such other conditions as are imposed by or under section 87A.

87 ACMA may impose additional conditions on community broadcasting licences

(1) The ACMA may, by notice in writing given to a community broadcasting licensee, vary or revoke a condition of the licence or impose an additional condition on the licence.

(2) If the ACMA proposes to vary or revoke a condition or to impose a new condition, the ACMA must give to the licensee:

(a) written notice of its intention; and

(b) a reasonable opportunity to make representations to the ACMA in relation to the proposed action; and

(3) This section does not allow the ACMA to vary or revoke a condition set out in Part 5 of Schedule 2.

(4) If the ACMA varies or revokes a condition or imposes a new condition, the ACMA must publish the variation, the fact of the revocation or the new condition, as the case may be, in the Gazette.

(5) Action taken under subsection (1) must not be inconsistent with:

(a) determinations and clarifications under section 19; or

(b) conditions set out in Part 5 of Schedule 2; or

87A Additional conditions on CTV licences

Policy underlying additional conditions

(1) It is the intention of the Parliament that services provided under CTV licences be regulated in a manner that causes them not to operate in the same way as commercial television broadcasting services.

Conditions relating to sale of access to air‑time

(2) Each CTV licence is subject to the condition that the licensee must not sell access to more than 2 hours of air‑time in any day to a particular person who operates a business for profit or as part of a profit‑making enterprise, unless the person is a company that has a sole or dominant purpose of assisting a person in education or learning.

(3) Each CTV licence is subject to the condition that the licensee must not sell access to a combined total of more than 8 hours of air‑time in any day to people who operate businesses for profit or as part of profit‑making enterprises.

(4) Each CTV licence is subject to the condition that the licensee must not sell access to more than 8 hours of air‑time in any day to a particular person.

(5) For the purposes of the conditions imposed by subsections (2), (3) and (4), the sale of access to air‑time to any of the following is taken to be the sale of access to air‑time to a company:

(a) the sale of access to air‑time to any person in a position to exercise control of the company;

(b) the sale of access to air‑time to any related body corporate (within the meaning of the Corporations Act 2001) of the company.

(6) The ACMA may, by legislative instrument, impose other conditions on all CTV licences relating to sale of access to air‑time.

Conditions relating to other matters

(7) The ACMA may, by legislative instrument, impose other conditions on all CTV licences, including, but not limited to, conditions relating to:

(a) community access to air‑time; or

(b) the governance of CTV licensees (including conditions relating to provisions that the constitution of the licensee must at all times contain); or

Changes to conditions

(8) The ACMA may, by legislative instrument, vary or revoke any condition imposed by or under this section.

(9) The ACMA must, before imposing, varying or revoking a condition under this section, seek public comment on the proposed condition or the proposed variation or revocation.

(10) Action taken under this section must not be inconsistent with:

(a) determinations and clarifications under section 19; or

(b) conditions set out in Part 5 of Schedule 2.

Definitions

(12) In this section:

access, in relation to air‑time, means the right to select or provide programs to be broadcast during the air‑time.

air‑time means time available for broadcasting programs on a community broadcasting service.

sell, in relation to access to air‑time, means enter into any arrangement under which a person receives any consideration in cash or in kind in relation to provision of the access to air‑time.

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

(1) This section applies to a designated community radio broadcasting licence if the licence authorises the licensee to provide one or more digital community radio broadcasting services.

(2) The licence is subject to the condition that the licensee must not provide a digital community radio broadcasting service under the licence unless:

(a) the service is transmitted using a multiplex transmitter; and

(b) the operation of the multiplex transmitter is authorised by a digital radio multiplex transmitter licence.

88 Matters to which conditions may relate

(1) Conditions of community broadcasting licences must be relevant to community broadcasting services.

(2) Without limiting the range of conditions that may be imposed, the ACMA may impose a condition on a community broadcasting licensee:

(a) requiring the licensee to comply with a code of practice that is applicable to the licensee; or

(b) designed to ensure that a breach of a condition by the licensee does not recur.

89 Duration of community broadcasting licences

Subject to subsection 90(1E) and Part 10, community broadcasting licences remain in force for 5 years.

90 Applications for renewal of community broadcasting licences

(1) The ACMA may renew a community broadcasting licence if the licensee makes an application for renewal of the licence, in accordance with a form approved in writing by the ACMA.

(1A) Subject to subsection (1C), an application for renewal must be made no earlier than one year before the licence is due to expire, but no later than the earlier of the following times:

(a) 26 weeks before the licence is due to expire;

(b) a time that is notified in writing to the licensee by the ACMA.

(1B) A time that is notified under paragraph (1A)(b) must be at least 4 weeks after the day on which it is notified to the licensee.

Late applications

(1C) The ACMA may consider a late application for the renewal of a community broadcasting licence if:

(a) the licensee makes the application before the time when the licence is due to expire; and

(b) the application is accompanied by a written statement setting out the licensee’s reasons for the lateness of the application; and

(1D) In deciding whether there are exceptional circumstances that warrant the consideration of the application, the ACMA must have regard to:

(a) how late the application is; and

(b) the reasons given by the licensee for the lateness of the application; and

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

(1E) If:

(a) the ACMA decides, under subsection (1C), to consider a late application for the renewal of a community broadcasting licence; and

(b) the ACMA does not make a decision on the application before the time when the licence is due to expire;

the licence remains in force until the ACMA makes a decision on the application.

(1F) If:

(a) the ACMA decides, under subsection (1C), to consider a late application for the renewal of a community broadcasting licence; and

(b) the ACMA does not make a decision on the application within 26 weeks after receiving the application;

the ACMA is taken to have made, at the end of that 26‑week period, a decision under section 91 to refuse to renew the licence.

Notification

(2) If the ACMA receives an application for renewal, the ACMA must notify in the Gazette the fact that the application has been made.

91 ACMA may renew community broadcasting licences

(1) Subject to subsection (2), if the ACMA receives an application under section 90, the ACMA may, by notice in writing given to the licensee, renew the licence for:

(a) if:

(i) the ACMA renews the licence after the time when the licence was due to expire; and

(ii) under subsection 90(1E), the licence remained in force until the ACMA made a decision on the application;

the period:

(iii) beginning immediately after the time when the ACMA made a decision on the application; and

(iv) ending at the end of the period of 5 years that began immediately after the time when the licence was due to expire; or

(b) otherwise—the period of 5 years beginning immediately after the time when the licence is due to expire.

(2) The ACMA must refuse to renew a community broadcasting licence if the ACMA decides that subsection 83(2) applies to the licensee.

(2A) The ACMA may refuse to renew a community broadcasting licence that is a broadcasting services bands licence if, having regard to the matters in paragraphs 84(2)(a) to (f), it considers that it would not allocate such a licence if it were deciding whether to allocate the licence to the licensee.

(3) The ACMA is not required to conduct an investigation or a hearing into whether a licence should be renewed.

91A Transfer of community broadcasting licences

Application for approval of transfer

(1) A community broadcasting licensee may apply to the ACMA for approval of the transfer of the community broadcasting licence to another person.

(2) Applications must:

(a) be in accordance with a form approved in writing by the ACMA; and

(b) be accompanied by the application fee determined in writing by the ACMA.

Decision about approval of transfer

(3) After considering an application for approval of the transfer of a community broadcasting licence, the ACMA must, by written notice given to the applicant:

(a) approve the transfer; or

(b) refuse to approve the transfer.

Criteria

(4) The ACMA must not approve the transfer of a community broadcasting licence that is a broadcasting services bands licence if:

(a) the proposed transferee is not a company that:

(i) was formed in Australia or in an external Territory; and

(ii) represents a community interest; or

(b) in the case of a transfer of a CTV licence—the proposed transferee is not a company limited by guarantee within the meaning of the Corporations Act 2001; or

(5) Paragraph (4)(c) does not require the ACMA to consider the application of subsection 83(2) in relation to a proposed transferee before approving the transfer of a licence to the proposed transferee.

(6) The ACMA must not approve the transfer of a community broadcasting licence unless the ACMA is satisfied that:

(a) if the licence has not been renewed—the proposed transferee represents the same community interest as the original licensee represented when the licence was allocated; or

(b) if the licence has been renewed on one or more occasions—the proposed transferee represents the same community interest as the applicant for renewal represented when the licence was last renewed.

(7) In deciding whether to approve the transfer of a community broadcasting licence, the ACMA must have regard to:

(a) the principle that, except in special circumstances, the transfer should not be approved if consideration has been, or is to be, provided to the applicant in relation to the proposed transfer; and

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

Transfer

(8) If the ACMA has approved the transfer of a community broadcasting licence to a particular person, the community broadcasting licensee may, within 90 days after the approval was given, transfer the community broadcasting licence to the person.

92 Surrender of community broadcasting licences

A community broadcasting licensee may, by notice in writing given to the ACMA, surrender the licence.

Part 6A—Temporary community broadcasting licences

92A Interpretation

In this Part:

company includes an incorporated association.

licence period means the period of a temporary community broadcasting licence determined by the ACMA under paragraph 92G(1)(c) or varied by the ACMA under section 92J.

timing conditions means the conditions of a temporary community broadcasting licence that:

(a) are about the times in which the licence allows community broadcasting services to be provided; and

(b) are determined by the ACMA under paragraph 92G(1)(b) or varied by the ACMA under section 92J.

92B Temporary community broadcasting licences

(1) The ACMA may allocate to a person, on application in writing by the person, a temporary community broadcasting licence.

(2) Applications must be in accordance with a form approved in writing by the ACMA.

92C Applicants for temporary community broadcasting licences

(1) The ACMA is not to allocate a temporary community broadcasting licence to an applicant unless the applicant:

(a) is a company that is formed in Australia or in an external Territory; and

(b) represents a community interest.

(2) The ACMA is not to allocate a licence to an applicant if the ACMA decides that subsection 92D(2) applies to the applicant in relation to the licence. However, the ACMA is not required to consider the application of subsection 92D(2) to the applicant before allocating the licence.

(3) The ACMA may refuse to allocate a licence to an applicant if the applicant was a temporary community broadcasting licensee for a period but did not provide community broadcasting services in that period. This subsection does not limit the ACMA’s discretion to refuse to allocate a licence.

92D When applicants and licensees are regarded as suitable

(1) A company is a suitable applicant or suitable licensee in relation to a temporary community broadcasting licence if the ACMA has not decided that subsection (2) applies to the company in relation to the licence.

Note: It is a condition of a temporary community broadcasting licence that the licensee remain a suitable licensee: see paragraph 9(2)(a) of Schedule 2.

(2) The ACMA may, if it is satisfied that allowing a company to provide or continue to provide broadcasting services under a temporary community broadcasting licence would lead to a significant risk of:

(a) an offence against this Act or the regulations being committed; or

(aa) a breach of a civil penalty provision occurring; or

(b) a breach of the conditions of the licence occurring;

decide that this subsection applies to the company in relation to the licence.

(3) In deciding whether such a risk exists, the ACMA is to take into account only:

(a) the business record of the company; and

(b) the company’s record in situations requiring trust and candour; and

(d) the record in situations requiring trust and candour of each such person; and

(e) whether the company, or a person referred to in paragraph (c) or (d), has been convicted of an offence against this Act or the regulations; and

(f) whether a civil penalty order has been made against:

(i) the company; or

(ii) a person referred to in paragraph (c) or (d).

92E Criteria for deciding whether to allocate a licence

(1) In deciding whether to allocate a temporary community broadcasting licence to an applicant or to one of a group of applicants, the ACMA may have regard to:

(a) the undesirability of one person being in a position to exercise control of more than one community broadcasting licence that is a broadcasting services bands licence in the same licence area; and

(b) the undesirability of the Commonwealth, a State or a Territory or a political party being in a position to exercise control of a temporary community broadcasting licence.

(2) In deciding whether to allocate a temporary community broadcasting licence to an applicant or to one of a group of applicants, the ACMA is not to have regard to:

(a) the extent to which the proposed service would meet the existing and perceived future needs of the community within the licence area of the proposed licence; and

(b) the nature and diversity of the interests of that community; and

(c) the nature and diversity of other broadcasting services (including national broadcasting services) available within that licence area; and

(d) the capacity of the applicant to provide the proposed service.

92F Licences to accord with alternative planning procedures

The ACMA is not to allocate a temporary community broadcasting licence except in accordance with a determination of the ACMA under section 34.

92G Licence area, timing conditions and licence period

(1) Before allocating a temporary community broadcasting licence, the ACMA is to:

(a) designate a particular area in Australia as the licence area of the licence; and

(b) determine the timing conditions of the licence; and

(2) In determining the timing conditions and licence period, the ACMA is to have regard to:

(a) any other applications for temporary community broadcasting licences in the licence area of the proposed licence; and

(b) any other temporary community broadcasting licences in the licence area of the proposed licence; and

92H Conditions of temporary community broadcasting licences

Each temporary community broadcasting licence is subject to:

(a) the conditions set out in Part 5 (other than paragraph 9(1)(h)) of Schedule 2; and

(b) the timing conditions; and

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

(1) The ACMA may, by notice in writing given to a temporary community broadcasting licensee:

(a) vary or revoke a condition of the licence (including a timing condition); or

(b) impose an additional condition on the licence; or

(2) Without limiting subsection (1), the ACMA may impose an additional condition on a licence:

(a) requiring the licensee to comply with a code of practice that is applicable to the licensee; or

(b) designed to ensure that a breach of a condition by the licensee does not recur.

(3) An additional condition of a licence must be relevant to community broadcasting services.

(4) If the ACMA proposes to vary or revoke a condition, impose an additional condition or vary the licence period, the ACMA is to give to the licensee:

(a) written notice of its intention; and

(b) a reasonable opportunity to make representations to the ACMA in relation to the proposed action.

(5) This section does not allow the ACMA:

(a) to vary or revoke a condition set out in Part 5 of Schedule 2; or

(b) to vary or revoke a timing condition so that there are no times in which the licence allows community broadcasting services to be provided; or

(6) If the ACMA varies or revokes a condition (other than a timing condition), imposes an additional condition or varies the licence period, the ACMA is to publish the fact of the variation, revocation or additional condition in the Gazette.

(7) Action taken under subsection (1) must not be inconsistent with:

(a) determinations and clarifications under section 19; or

(b) conditions set out in Part 5 (other than paragraph 9(1)(h)) of Schedule 2.

92K Duration of temporary community broadcasting licences

Subject to section 92L and Part 10, a temporary community broadcasting licence remains in force for the licence period.

92L Surrender of temporary community broadcasting licences

A temporary community broadcasting licensee may, by notice in writing given to the ACMA, surrender the licence.

Part 7—Subscription television broadcasting services

Division 1—Allocation of subscription television broadcasting licences

95 When subscription television broadcasting licence must not be allocated

(1) A subscription television broadcasting licence is not to be allocated to an applicant if:

(a) the applicant is not a company that is registered under Part 2A.2 of the Corporations Act 2001 and has a share capital; or

(b) the ACMA decides that subsection 98(2) applies to the applicant.

(2) Paragraph (1)(b) does not require the ACMA to consider the application of subsection 98(2) in relation to an applicant before a subscription television broadcasting licence is allocated to the applicant.

96 Allocation of other subscription television broadcasting licences

(1) The ACMA may allocate to a person, on application in writing by the person, a subscription television broadcasting licence.

(2) Licences under subsection (1) are to be allocated on the basis of one licence per service.

(4) Applications must:

(a) be in accordance with a form approved in writing by the ACMA; and

(b) be accompanied by the application fee determined by the ACMA.

(5) The ACMA must not allocate a subscription television broadcasting licence under this section if the Australian Competition and Consumer Commission has reported, within 30 days after being requested for a report under section 97, that, in the opinion of the Australian Competition and Consumer Commission, the allocation of the licence to the applicant:

(a) would constitute a contravention of section 50 of the Competition and Consumer Act 2010 if the allocation of the licence were the acquisition by the applicant of an asset of a body corporate; and

(b) would not be authorised under section 88 of that Act if the applicant had applied for such an authorisation.

(6) If a licence is allocated under this section, the ACMA must publish in the Gazette the name of the successful applicant.

97 Requests to Australian Competition and Consumer Commission

(1) Before a subscription television broadcasting licence is allocated to a person under section 96, the ACMA must request the Australian Competition and Consumer Commission to provide a report under this section.

(2) The report is to advise whether, in the opinion of the Australian Competition and Consumer Commission, the allocation of the licence to the applicant:

(b) would not be authorised under section 88 of that Act if the applicant had applied for such an authorisation.

(3) For the purposes of the consideration of a request by the Australian Competition and Consumer Commission, section 155 of the Competition and Consumer Act 2010 applies as if the allocation of a licence under this Part were a matter referred to in subsection (1) of that section.

98 Suitability for allocation of licence

(1) For the purposes of this Part, a company is a suitable subscription television broadcasting licensee or a suitable applicant for a subscription television broadcasting licence if the ACMA has not decided that subsection (2) applies to the person.

(2) The ACMA may, if it is satisfied that allocating a subscription television broadcasting licence to a particular company or allowing a particular company to continue to hold a subscription television broadcasting licence would lead to a significant risk of:

(a) an offence against this Act or the regulations being committed; or

(aa) a breach of a civil penalty provision occurring; or

(b) a breach of the conditions of the licence occurring;

decide that this subsection applies to the company.

(3) In deciding whether such a risk exists, the ACMA is to take into account:

(a) the business record of the company; and

(b) the company’s record in situations requiring trust and candour; and

(c) the business record of each person who is, or would be, if a subscription television broadcasting licence were allocated to the applicant, in a position to exercise control of the licence; and

(d) the record in situations requiring trust and candour of each such person; and

(e) whether the company, or a person referred to in paragraph (c) or (d), has been convicted of an offence against this Act or the regulations; and

(f) whether a civil penalty order has been made against:

(i) the company; or

(ii) a person referred to in paragraph (c) or (d).

98D Compensation

(1) In this section:

acquisition of property has the same meaning as in paragraph 51(xxxi) of the Constitution.

just terms has the same meaning as in paragraph 51(xxxi) of the Constitution.

(2) If the operation of this Act (other than section 43AA, section 43AB or section 43AC) would result in the acquisition of property from a person otherwise than on just terms, the Commonwealth is liable to pay compensation of a reasonable amount to the person in respect of the acquisition.

(3) If the Commonwealth and the person do not agree on the amount of the compensation, the person may institute proceedings in the Federal Court of Australia for the recovery from the Commonwealth of such reasonable amount of compensation as the Court determines.

Division 2—Conditions of subscription television broadcasting licence

99 Conditions applicable to subscription television broadcasting licence

(1) The conditions set out in Part 6 of Schedule 2 apply to the provision by a subscription television broadcasting licensee of a subscription television broadcasting service.

(2) The ACMA may, by notice in writing given to a subscription television broadcasting licensee, specify additional conditions to which the licence is subject or vary or revoke a condition imposed under this subsection.

(4) If the ACMA proposes to impose a new condition or to vary or revoke a condition, the ACMA must:

(a) give to the licensee written notice of its intention; and

(b) give to the licensee a reasonable opportunity to make representations to the ACMA in relation to the proposed action; and

(5) This section does not allow the ACMA to vary or revoke a condition set out in Part 6 of Schedule 2.

(6) If the ACMA varies or revokes a condition or imposes a new condition, the ACMA must publish the variation, the fact of the revocation or the new condition, as the case may be, in the Gazette.

(7) Action taken under this section must not be inconsistent with:

(a) determinations and clarifications under section 19; or

(b) conditions set out in Part 6 of Schedule 2.

100 Matters to which conditions may relate

(1) Conditions of a subscription television broadcasting licence must be relevant to subscription television broadcasting services.

(2) Without limiting the range of conditions that may be imposed, the ACMA may impose a condition:

(a) requiring a licensee to comply with a code of practice that is applicable to the licensee; or

(b) designed to ensure that a breach of a condition by a subscription television broadcasting licensee does not recur; or

(c) designed to ensure compliance with the film classification system provided for by the Classification (Publications, Films and Computer Games) Act 1995.

(3) The ACMA must impose conditions on satellite subscription television broadcasting licences:

(a) designed to ensure that the domestic reception equipment used by each satellite subscription television broadcasting licensee is accessible by other satellite broadcasting services; and

(b) designed to ensure that each satellite subscription television broadcasting licensee that has a subscriber management system provides access to that system to other satellite subscription television broadcasting licensees at a fair price.

(4) The Minister may direct the ACMA to impose a condition under this section designed to ensure that subscription television broadcasting licensees adequately involve Australian industry in the provision of services under those licences.

(4A) Conditions under subsection (4) may be different for different classes of licensees.

(5) The ACMA must impose a condition on all subscription television broadcasting licences requiring each licensee to make available, as an option, domestic reception equipment on a rental basis.

(6) The ACMA must impose a condition on all non‑satellite subscription television broadcasting licences requiring that, if a licensee rents domestic reception equipment to a consumer, the rental agreement must allow the consumer to terminate the agreement on giving one month’s written notice to the licensee.

Division 2A—Eligible drama expenditure

Subdivision A—Introduction

103A Simplified outline

The following is a simplified outline of this Division:

• This Division requires subscription television broadcasting licensees to ensure the maintenance of minimum levels of expenditure on new eligible drama programs.

• An eligible drama program is a drama program that is an Australian program, an Australian/New Zealand program, a New Zealand program or an Australian official co‑production.

• If a licensee provides a subscription TV drama service, expenditure on new eligible drama programs for each financial year must be at least 10% of total program expenditure.

• If a channel provider supplies a channel that is televised on a subscription TV drama service, the 10% expenditure requirement is calculated by reference to the expenditure incurred by the channel provider.

• If a channel provider supplies a channel that is televised on a subscription TV drama service and the 10% expenditure requirement is not met for a particular financial year, the shortfall will have to be made up in the next financial year.

• If expenditure on new eligible drama programs for a financial year exceeds the 10% expenditure requirement, the excess expenditure may be carried forward to the next financial year.

• Licensees and channel providers are required to lodge annual returns about their program expenditure.

103B Definitions

In this Division:

acquiring, in relation to a drama program, includes acquiring rights in relation to the program.

Australian Content Standard means:

(a) the Broadcasting Services (Australian Content) Standard 2005 as in force from time to time; or

(b) if the standard mentioned in paragraph (a) is not in force, but there is in force another standard that is a successor (whether immediate or not) to the standard mentioned in paragraph (a)—that other standard as in force from time to time.

carry‑forward eligible drama expenditure provision means:

(a) subsection 103NA(2); or

(b) subsection 103RA(2); or

(d) subsection 103UA(2); or

(e) subsection 103XA(2); or

(f) subsection 103ZAA(2).

channel means a continuous stream of programs.

channel provider has the meaning given by section 103C.

designated script development expenditure, in relation to a program, means expenditure incurred in developing the screenplay or a script outline for the program, where:

(a) the program is a drama program; and

(b) the expenditure is incurred by a person (the first person) under a contract with another person who is not a director, officer or employee of the first person; and

(i) a citizen or permanent resident of Australia; or

(ii) a citizen or permanent resident of New Zealand; and

(d) the producer of the program is:

(i) a citizen or permanent resident of Australia; or

(ii) a citizen or permanent resident of New Zealand; and

(e) the expenditure is paid before the commencement of principal photography for the program; and

(f) the expenditure is paid on or after 1 January 2006.

For the purposes of paragraph (d), producer has the same meaning as in the Australian Content Standard.

drama program means:

(a) a program that has a fully scripted screenplay in which the dramatic elements of character, theme and plot are introduced and developed to form a narrative structure; or

(b) a program that has:

(i) a partially scripted screenplay in which the dramatic elements of character, theme and plot are introduced and developed to form a narrative structure; and

(ii) actors delivering improvised dialogue that is based on a script outline or outlines developed by a writer or writers; or

(i) developed by a writer or writers; and

(ii) in which the dramatic elements of character, theme and plot are introduced and developed to form a narrative structure;

and includes:

(d) a fully scripted sketch comedy program; and

(e) an animated drama; and

(f) a dramatised documentary;

but does not include:

(g) a program that involves the incidental use of actors; or

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

eligible drama program means:

(a) a drama program that is an Australian program (within the meaning of the Australian Content Standard); or

(b) a drama program that is an Australian/New Zealand program (within the meaning of the Australian Content Standard); or

(d) a drama program that is an Australian official co‑production (within the meaning of the Australian Content Standard).

expenditure, in relation to a program or program material, means:

(a) expenditure incurred in acquiring the program or program material; or

(b) expenditure incurred in producing the program or program material; or

(d) expenditure incurred by way of the making of an investment in the program or program material;

and includes nil expenditure.

Note: Section 103H sets out a special rule for non‑designated pre‑production expenditure.

financial year means:

(a) the financial year beginning on 1 July 1999; or

(b) a later financial year.

incidental matter means:

(a) advertising or sponsorship matter (whether or not of a commercial kind); or

(b) a program promotion; or

(d) a hosting; or

(e) any other interstitial program.

licensee means a subscription television broadcasting licensee.

new, in relation to an eligible drama program, has the meaning given by section 103K.

non‑designated pre‑production expenditure means pre‑production expenditure other than designated script development expenditure.

part‑channel provider has the meaning given by section 103D.

part‑pass‑through provider has the meaning given by section 103F.

pass‑through provider has the meaning given by section 103E.

pre‑production expenditure, in relation to a program or program material, means:

(a) expenditure incurred in developing the screenplay or a script outline for the program or program material; or

(b) any other expenditure incurred by way of pre‑production costs for the program or program material.

program material does not include advertising or sponsorship matter (whether or not of a commercial kind).

subscription TV drama service means a subscription television broadcasting service devoted predominantly to drama programs.

103C Channel providers

For the purposes of this Division, a channel provider, in relation to a subscription TV drama service provided by a licensee, is a person who:

(a) packages a channel (which may include programs produced by the person); and

(b) supplies the licensee with the channel; and

(c) carries on a business in Australia, by means of a principal office or of a branch, that involves the supply of the channel;

where, apart from any breaks for the purposes of the transmission of incidental matter, the channel is televised by the licensee on the subscription TV drama service.

103D Part‑channel providers

For the purposes of this Division, a part‑channel provider, in relation to a subscription TV drama service provided by a licensee, is a person who:

(a) assembles a package of programs (which may include programs produced by the person); and

(b) supplies the licensee with the package; and

(c) carries on a business in Australia, by means of a principal office or of a branch, that involves the supply of the package;

where:

(d) the package consists predominantly of drama programs; and

(e) the package constitutes a significant proportion of the program material that is televised by the licensee on the subscription TV drama service; and

(f) there is neither:

(i) a channel provider; nor

(ii) a pass‑through provider;

in relation to the subscription TV drama service.

103E Pass‑through providers

For the purposes of this Division, a pass‑through provider, in relation to a subscription TV drama service provided by a licensee, is a person who:

(a) packages a channel (which may include programs produced by the person); and

(b) supplies the licensee with the channel; and

(c) does not carry on a business in Australia, by means of a principal office or of a branch, that involves the supply of the channel;

where, apart from any breaks for the purposes of the transmission of incidental matter, the channel is televised by the licensee on the subscription TV drama service.

103F Part‑pass‑through providers

For the purposes of this Division, a part‑pass‑through provider, in relation to a subscription TV drama service provided by a licensee, is a person who:

(a) assembles a package of programs (which may include programs produced by the person); and

(b) supplies the licensee with the package; and

(c) does not carry on a business in Australia, by means of a principal office or of a branch, that involves the supply of the package;

where:

(d) the package consists predominantly of drama programs; and

(e) the package constitutes a significant proportion of the program material that is televised by the licensee on the subscription TV drama service; and

(f) there is neither:

(i) a channel provider; nor

(ii) a pass‑through provider;

in relation to the subscription TV drama service.

103G Supply of channel or package

For the purposes of this Division, a person is taken to have supplied a channel, or a package of programs, to a licensee if the channel or package, as the case may be, is supplied to the licensee by the person:

(a) directly; or

(b) indirectly through one or more interposed persons.

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

For the purposes of this Division, non‑designated pre‑production expenditure is not to be counted unless principal photography has commenced for the program or program material concerned.

103J Cash‑based accounting—when expenditure is incurred

(1) For the purposes of this Division:

(a) if the whole of an item of expenditure (other than non‑designated pre‑production expenditure) is paid at a particular time—the expenditure is incurred when the expenditure is paid; and

(b) if different parts of an item of expenditure (other than non‑designated pre‑production expenditure) are paid at different times—each part is incurred when the part is paid.

(2) For the purposes of this Division:

(a) if the whole of an item of non‑designated pre‑production expenditure is paid at a particular time—the expenditure is incurred at whichever is the later of the following times:

(i) the time when the expenditure is paid;

(ii) the commencement of principal photography for the program or program material concerned; and

(b) if different parts of an item of non‑designated pre‑production expenditure are paid at different times—each part is incurred at whichever is the later of the following times:

(i) the time when the part is paid;

(ii) the commencement of principal photography for the program or program material concerned.

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

(1) If:

(a) during a financial year, a person incurs designated script development expenditure in relation to a drama program; and

(b) principal photography did not commence for the program before the end of the financial year;

this Division has effect, in relation to that expenditure, as if the drama program were an eligible drama program.

Recoupment of expenditure incurred by a person—program is not produced as an eligible drama program

(2) If:

(a) during a financial year (the first financial year), a person incurred designated script development expenditure in relation to a drama program; and

(b) principal photography did not commence for the program before the end of the first financial year; and

(d) when principal photography commences for the program, the drama program is not an eligible drama program; and

(e) the person nominated the whole or a part of the designated script development expenditure for the purposes of the application of a particular provision of this Division in relation to a subscription TV drama service;

then, for the purposes of the application of this Division to the subscription TV drama service, the total expenditure incurred by the person during the later financial year on new eligible drama programs is taken to be reduced (but not below zero) by the amount of the whole or the part, as the case may be, of the expenditure referred to in paragraph (e).

Recoupment of expenditure incurred by a pass‑through provider—program is not produced as an eligible drama program

(3) If:

(a) during a financial year (the first financial year), a person incurred designated script development expenditure in relation to a drama program; and

(b) the person is a pass‑through provider in relation to a subscription TV drama service because the person supplies a channel; and

(d) principal photography commences for the program during a later financial year; and

(e) when principal photography commences for the program, the drama program is not an eligible drama program; and

(f) the licensee who provided the subscription TV drama service nominated the whole or a part of the designated script development expenditure for the purposes of the application of a particular provision of this Division in relation to the subscription TV drama service;

then, for the purposes of the application of this Division to the subscription TV drama service, the total expenditure incurred by the pass‑through provider during the later financial year on new eligible drama programs is taken to be reduced (but not below zero) by the amount of the whole or the part, as the case may be, of the expenditure referred to in paragraph (f).

Recoupment of expenditure incurred by a part‑pass‑through provider—program is not produced as an eligible drama program

(4) If:

(a) during a financial year (the first financial year), a person incurred designated script development expenditure in relation to a drama program; and

(b) the person is a part‑pass‑through provider in relation to a subscription TV drama service because the person supplies a package of programs; and

(d) principal photography commences for the program during a later financial year; and

(e) when principal photography commences for the program, the drama program is not an eligible drama program; and

then, for the purposes of the application of this Division to the subscription TV drama service, the total expenditure incurred by the part‑pass‑through provider during the later financial year on new eligible drama programs is taken to be reduced (but not below zero) by the amount of the whole or the part, as the case may be, of the expenditure referred to in paragraph (f).

103K When expenditure incurred on a new eligible drama program

(1) For the purposes of this Division, if a person incurs expenditure on an eligible drama program, the eligible drama program is new if, and only if, the whole or a substantial part of the program has not been televised in Australia or New Zealand on a broadcasting service at any time before the expenditure is incurred.

(2) For the purposes of subsection (1), it is to be assumed that the definition of broadcasting service in subsection 6(1) extended to matters and things in New Zealand.

103L ACMA may make determinations about what constitutes program expenditure

Program material

(1) The ACMA may make a written determination providing that, for the purposes of this Division, specified expenditure is taken to be expenditure incurred on program material (other than eligible drama programs).

(2) The ACMA may make a written determination providing that, for the purposes of this Division, specified expenditure is taken not to be expenditure incurred on program material (other than eligible drama programs).

Eligible drama programs

(3) The ACMA may make a written determination providing that, for the purposes of this Division, specified expenditure is taken to be expenditure incurred on an eligible drama program.

(4) The ACMA may make a written determination providing that, for the purposes of this Division, specified expenditure is taken not to be expenditure incurred on an eligible drama program.

Designated script development expenditure

(4A) The ACMA may make a written determination providing that, for the purposes of this Division, specified expenditure is taken to be designated script development expenditure.

(4B) The ACMA may make a written determination providing that, for the purposes of this Division, specified expenditure is taken not to be designated script development expenditure.

Determination has effect

(5) A determination under this section has effect accordingly.

Determination to be of a legislative character

(6) A determination under this section is to be an instrument of a legislative character.

Legislative instrument

(7) A determination under this section is a legislative instrument.

Note: For specification by class, see subsection 13(3) of the Legislation Act 2003.

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

Channel provider and part‑channel provider

(1) If:

(a) either:

(i) a person is a channel provider in relation to a subscription TV drama service provided by a licensee because the person supplies a channel; or

(ii) a person is a part‑channel provider in relation to a subscription TV drama service provided by a licensee because the person supplies a package of programs; and

(b) the person nominates the whole or a part of particular expenditure for the purposes of the application of a particular provision of this Division in relation to the subscription TV drama service;

the whole or part, as the case may be, of the expenditure must not be nominated by the person for the purposes of:

(c) the application of any other provision of this Division (other than a carry‑forward eligible drama expenditure provision) in relation to that service; or

(d) the application of any provision of this Division in relation to another subscription TV drama service provided by the licensee; or

(e) the application of any provision of this Division in relation to another subscription TV drama service provided by another licensee.

(2) However, the rule in paragraph (1)(e):

(a) does not apply in relation to a person who is a channel provider if:

(i) the person supplies the same or a substantially similar channel to the other licensee; and

(ii) apart from any breaks for the purposes of the transmission of incidental matter, the same or a substantially similar channel supplied by the person is televised by the other licensee on the other subscription TV drama service; and

(b) does not apply in relation to a person who is a part‑channel provider if:

(i) the person supplies the same or a substantially similar package of programs to the other licensee; and

(ii) apart from any breaks for the purposes of the transmission of incidental matter, the same or a substantially similar package of programs supplied by the person is televised by the other licensee on the other subscription TV drama service.

Licensee

(3) If:

(a) a licensee provides a subscription TV drama service; and

(b) the licensee nominates the whole or a part of particular expenditure for the purposes of the application of a particular provision of this Division in relation to the subscription TV drama service;

the whole or part, as the case may be, of the expenditure must not be nominated by the licensee for the purposes of:

(c) the application of any other provision of this Division (other than a carry‑forward eligible drama expenditure provision) in relation to that service; or

(d) the application of any provision of this Division in relation to another subscription TV drama service provided by the licensee.

Subdivision B—Channel provider supplies channel

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

(1) If:

(a) a licensee provides a subscription TV drama service; and

(b) a person is a channel provider in relation to the subscription TV drama service because the person supplies a channel;

it is a condition of the licence that, for each financial year of operation, the sum of:

(d) the channel provider’s carry‑forward eligible drama expenditure in relation to the subscription TV drama service;

equals or exceeds 10% of the channel provider’s total program expenditure in relation to the channel.

(2) In this section:

channel provider’s carry‑forward eligible drama expenditure, in relation to the subscription TV drama service, means the channel provider’s carry‑forward eligible drama expenditure (within the meaning of subsection 103NA(2)) for the financial year.

channel provider’s new eligible drama expenditure, in relation to the subscription TV drama service, means so much of the total expenditure incurred by the channel provider during the financial year on new eligible drama programs as the channel provider nominates for the purposes of the application of subsection (1) in relation to the subscription TV drama service.

channel provider’s total program expenditure, in relation to the channel, means the total expenditure incurred by the channel provider during the financial year on the program material that is included, or available to be included, in the channel.

(2A) The channel provider is not entitled to nominate, under the definition of channel provider’s new eligible drama expenditure in subsection (2), so much of the designated script development expenditure incurred by the channel provider during the financial year as exceeds 10% of the channel provider’s new eligible drama expenditure in relation to the subscription TV drama service.

(3) Division 3 of Part 10 (which deals with breaches of conditions) does not apply to the condition set out in subsection (1).

Note: If the sum of the channel provider’s new eligible drama expenditure and the channel provider’s carry‑forward eligible drama expenditure is less than 10% of the channel provider’s total program expenditure, the shortfall will have to be made up in the next financial year—see sections 103P and 103Q.

103NA Carry‑forward eligible drama expenditure

(1) This section applies if:

(a) a licensee provides a subscription TV drama service; and

(b) a person is a channel provider in relation to the subscription TV drama service because the person supplies a channel; and

(c) the channel provider’s new eligible drama expenditure (within the meaning of section 103N) in relation to the subscription TV drama service for a financial year exceeds 10% of the channel provider’s total program expenditure (within the meaning of section 103N) in relation to the channel for the financial year.

(2) For the purposes of section 103N, the channel provider’s carry‑forward eligible drama expenditure in relation to the subscription TV drama service for the next following financial year is so much of the excess expenditure as the channel provider nominates for the purposes of the application of this subsection in relation to the subscription TV drama service.

(3) Paragraph (1)(c) does not apply to so much of the channel provider’s new eligible drama expenditure (within the meaning of section 103N) in relation to the subscription TV drama service as was incurred before 1 January 2006.

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

(1) This section applies if:

(a) a licensee (the first licensee) provides a subscription TV drama service (the first subscription TV drama service); and

(b) a person is a channel provider in relation to the subscription TV drama service because the person supplies a channel (the first channel); and

(c) it is not the case that the channel provider supplies the same or a substantially similar channel to another licensee in circumstances where, apart from any breaks for the purposes of the transmission of incidental matter, the same or substantially similar channel supplied by the channel provider is televised by the other licensee on another subscription TV drama service; and

(d) the sum of:

(i) the channel provider’s new eligible drama expenditure (within the meaning of section 103N) in relation to the first subscription TV drama service for a particular financial year (the shortfall year); and

(ii) the channel provider’s carry‑forward eligible drama expenditure (within the meaning of section 103N) in relation to the first subscription TV drama service for the shortfall year;

is less than 10% of the channel provider’s total program expenditure (within the meaning of section 103N) in relation to the first channel for the shortfall year.

Shortfall amount to be made up next financial year

(2) It is a condition of the first licensee’s licence that, for the next financial year (the make‑up year):

(a) the channel provider’s make‑up expenditure is equal to the shortfall amount; or

(b) the first licensee’s make‑up expenditure is equal to the shortfall amount; or

(i) the channel provider’s make‑up expenditure; and

(ii) the first licensee’s make‑up expenditure;

is equal to the shortfall amount.

Definitions

(3) In this section:

channel provider’s make‑up expenditure means so much of the total expenditure incurred by the channel provider during the make‑up year on new eligible drama programs as the channel provider nominates for the purposes of the application of subsection (2) in relation to the first subscription TV drama service.

first licensee’s make‑up expenditure means so much of the total expenditure incurred by the first licensee during the make‑up year on new eligible drama programs not included, or available to be included, in the first channel as the first licensee nominates for the purposes of the application of subsection (2) in relation to the first subscription TV drama service.

shortfall amount means the amount by which the sum of:

(a) the channel provider’s new eligible drama expenditure (within the meaning of section 103N) in relation to the first subscription TV drama service for the shortfall year; and

(b) the channel provider’s carry‑forward eligible drama expenditure (within the meaning of section 103N) in relation to the first subscription TV drama service for the shortfall year;

fell short of 10% of the channel provider’s total program expenditure (within the meaning of section 103N) in relation to the first channel for the shortfall year.

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

(1) This section applies if:

(a) a licensee (the first licensee) provides a subscription TV drama service (the first subscription TV drama service); and

(b) a person is a channel provider in relation to the first subscription TV drama service because the person supplies a channel (the first channel); and

(c) the channel provider supplies the same or a substantially similar channel to one or more other licensees (the additional licensees) in circumstances where, apart from any breaks for the purposes of the transmission of incidental matter, the same or substantially similar channel supplied by the channel provider is televised by the additional licensees on subscription TV drama services (the additional subscription TV drama services); and

(d) the sum of:

(ii) the channel provider’s carry‑forward eligible drama expenditure (within the meaning of section 103N) in relation to the first subscription TV drama service for the shortfall year;

is less than 10% of the channel provider’s total program expenditure (within the meaning of section 103N) in relation to the first channel for the shortfall year.

Shortfall amount to be made up next financial year

(2) It is a condition of the first licensee’s licence that, for the next financial year (the make‑up year):

(a) the channel provider’s make‑up expenditure is equal to the shortfall amount; or

(b) the first licensee’s make‑up expenditure is equal to the first licensee’s subscriber percentage of the shortfall amount; or

(c) if the channel provider’s make‑up expenditure is less than the shortfall amount—the first licensee’s make‑up expenditure is equal to the first licensee’s subscriber percentage of the difference between the shortfall amount and the channel provider’s make‑up expenditure.

Definitions

(3) In this section:

first licensee’s subscriber percentage means the percentage worked out using the following formula:

monthly subscriber number, for a subscription TV drama service for a particular month, means the number worked out using the following formula:

shortfall amount means the amount by which the sum of:

(a) the channel provider’s new eligible drama expenditure (within the meaning of section 103N) in relation to the first subscription TV drama service for the shortfall year; and

(b) the channel provider’s carry‑forward eligible drama expenditure (within the meaning of section 103N) in relation to the first subscription TV drama service for the shortfall year;

fell short of 10% of the channel provider’s total program expenditure (within the meaning of section 103N) in relation to the first channel for the shortfall year.

subscribers of additional licensees means the sum of the monthly subscriber numbers for the additional subscription TV drama services for each month of operation during the shortfall year.

subscribers of first licensee means the sum of the monthly subscriber numbers for the first subscription TV drama service for each month of operation during the shortfall year.

Subdivision C—Pass‑through provider supplies channel

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

(1) If:

(a) a licensee provides a subscription TV drama service; and

(b) a person is a pass‑through provider in relation to the subscription TV drama service because the person supplies a channel;

it is a condition of the licence that, for each financial year of operation, the sum of:

(d) the licensee’s carry‑forward eligible drama expenditure in relation to the subscription TV drama service;

equals or exceeds 10% of the licensee’s total program expenditure in relation to the channel.

(2) In this section:

licensee’s carry‑forward eligible drama expenditure, in relation to the subscription TV drama service, means the licensee’s carry‑forward eligible drama expenditure (within the meaning of subsection 103RA(2)) for the financial year.

licensee’s new eligible drama expenditure, in relation to the subscription TV drama service, means the sum of:

(a) so much of the total expenditure incurred by the licensee during the financial year on new eligible drama programs as the licensee nominates for the purposes of the application of subsection (1) in relation to the subscription TV drama service; and

(b) so much of the total expenditure incurred by the pass‑through provider during the financial year on new eligible drama programs as the licensee nominates for the purposes of the application of subsection (1) in relation to the subscription TV drama service.

licensee’s total program expenditure, in relation to the channel, means the total expenditure incurred by the licensee during the financial year in respect of the supply by the pass‑through provider of the channel.

(2A) The licensee is not entitled to nominate, under the definition of licensee’s new eligible drama expenditure in subsection (2), so much of the designated script development expenditure incurred by the licensee and/or the pass‑through provider during the financial year as exceeds 10% of the licensee’s new eligible drama expenditure in relation to the subscription TV drama service.

(3) If:

(a) the licensee nominates the whole or a part of particular expenditure under paragraph (a) of the definition of licensee’s new eligible drama expenditure in subsection (2); and

(b) the whole or part, as the case may be, of the expenditure is attributable to a new eligible drama program on which expenditure was incurred by the pass‑through provider;

that new eligible drama program is to be disregarded in determining the expenditure that may be nominated by the licensee under paragraph (b) of that definition.

(4) Division 3 of Part 10 (which deals with breaches of conditions) does not apply to the condition set out in subsection (1).

Note: If the sum of the licensee’s new eligible drama expenditure and the licensee’s carry‑forward eligible drama expenditure is less than 10% of the licensee’s total program expenditure, the shortfall will have to be made up in the next financial year—see section 103S.

103RA Carry‑forward eligible drama expenditure

(1) This section applies if:

(a) a licensee provides a subscription TV drama service; and

(b) a person is a pass‑through provider in relation to the subscription TV drama service because the person supplies a channel; and

(c) the licensee’s new eligible drama expenditure (within the meaning of section 103R) in relation to the subscription TV drama service for a financial year exceeds 10% of the licensee’s total program expenditure (within the meaning of section 103R) in relation to the channel for the financial year.

(2) For the purposes of section 103R, the licensee’s carry‑forward eligible drama expenditure in relation to the subscription TV drama service for the next following financial year is so much of the excess expenditure as the licensee nominates for the purposes of the application of this subsection in relation to the subscription TV drama service.

(3) Paragraph (1)(c) does not apply to so much of the licensee’s new eligible drama expenditure (within the meaning of section 103R) in relation to the subscription TV drama service as was incurred before 1 January 2006.

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

(1) This section applies if:

(a) a licensee provides a subscription TV drama service; and

(b) a person is a pass‑through provider in relation to the subscription TV drama service because the person supplies a channel; and

(i) the licensee’s new eligible drama expenditure (within the meaning of section 103R) in relation to the subscription TV drama service for a particular financial year (the shortfall year); and

(ii) the licensee’s carry‑forward eligible drama expenditure (within the meaning of section 103R) in relation to the subscription TV drama service for the shortfall year;

is less than 10% of the licensee’s total program expenditure (within the meaning of section 103R) in relation to the channel for the shortfall year.

Shortfall amount to be made up next financial year

(2) It is a condition of the licensee’s licence that, for the next financial year

Federal Register of Legislation - Australian Government

Primary content

Broadcasting Services Act 1992