A Bill for an Act to amend the Broadcasting Services Act 1992, and for related purposes
The Parliament of Australia enacts:
1 Short title
This Act is the Broadcasting Services Amendment (Healthy Kids Advertising) Act 2023.
2 Commencement
(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.
| Commencement information |
| Column 1 | Column 2 | Column 3 |
| Provisions | Commencement | Date/Details |
| 1. The whole of this Act | The day after the day on which the Consolidated Revenue Fund is appropriated under an Act to the Department in which this Act is administered for payment for the purposes of this Act. | |
Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.
(2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.
3 Schedules
Legislation that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.
Schedule 1—Amendments
Broadcasting Services Act 1992
1 After paragraph 3(1)(j)
Insert:
(jaa) to protect individuals (including, in particular, children) from exposure to unhealthy food marketing content; and
2 Subsection 6(1)
Insert:
unhealthy food marketing content has the meaning given by subsection 130AAA(1).
3 After Part 9
Insert:
Part 9AA—Unhealthy food marketing content
130AAA Definitions
(1) In this Part:
content means content:
(a) whether in the form of text; or
(b) whether in the form of data; or
(c) whether in the form of speech, music or other sounds; or
(d) whether in the form of visual images (animated or otherwise); or
(e) whether in any other form; or
(f) whether in any combination of forms.
relevant COAG guidance means the document titled “National interim guide to reduce children’s exposure to unhealthy food and drink promotion” published by the COAG Health Council in 2018.
unhealthy food means a food or drink product that:
(a) falls within a food or drink category not recommended for promotion by the relevant COAG guidance; or
(b) is of a kind determined by the Minister under subsection (2) to be unhealthy food.
unhealthy food marketing content means advertising, sponsorship or promotional content that gives publicity to, or otherwise promotes or is intended to promote:
(a) unhealthy food; or
(b) the whole or part of a trade mark that relates to unhealthy food;
(c) a domain name or URL that relates to unhealthy food;
(d) any words, abbreviations, initials or numbers that are closely associated with unhealthy food (whether also closely associated with other kinds of services or products).
(2) The Minister may, by legislative instrument, determine food and drink products that are unhealthy food.
130AAB References to time
In this Part a reference to time is a reference to the legal time where the end‑user of the broadcasting service is located.
130AAC Prohibition on broadcasting unhealthy food marketing content at certain times
Application of section
(1) This section applies to the following persons (a relevant broadcaster):
(a) a national broadcaster;
(b) a commercial television broadcasting licensee;
(c) a commercial radio broadcasting licensee;
(d) a community television broadcasting licensee;
(e) a community radio broadcasting licensee;
(f) a subscription television broadcasting licensee;
(g) a person providing any of the following under a class licence:
(i) a subscription radio broadcasting service;
(ii) a subscription television narrowcasting service;
(iii) a subscription radio narrowcasting service;
(iv) an open narrowcasting television service;
(v) an open narrowcasting radio service;
(vi) a datacasting services.
Prohibition
(2) A relevant broadcaster must not broadcast unhealthy food marketing content in the period beginning at 6:00 am and ending at 9:30 pm.
Note: For compliance by relevant broadcasters, see clauses 7 to 11 of Schedule 2.
Exception
(3) Subclause (2) does not apply if:
(a) the unhealthy food marketing content is broadcast as an accidental or incidental accompaniment to the broadcasting of other content; and
(b) the relevant broadcaster does not receive any direct or indirect benefit (whether financial or not) for broadcasting the unhealthy food marketing content (in addition to any direct or indirect benefit that the relevant broadcaster receives for broadcasting the other content).
Implied freedom of political communication
(4) This section has no effect to the extent (if any) that its operation would infringe any constitutional doctrine of implied freedom of political communication.
(5) Subsection (4) does not limit the application of section 15A of the Acts Interpretation Act 1901 to this Act.
Acquisition of property
(6) This section has no effect to the extent (if any) to which its operation would result in an acquisition of property (within the meaning of paragraph 51(xxxi) of the Constitution) from a person otherwise than on just terms (within the meaning of that paragraph).
Interaction with other laws
(7) This section applies despite any other law of the Commonwealth.
130AAD Review of this Part etc.
(1) Before the end of the period of 4 years after the commencement of this section, the ACMA must conduct a review of the operation of:
(a) this Part; and
(b) Part 3A of Schedule 8; and
(c) any other related provisions.
(2) In conducting the review, the ACMA must make provision for public consultation.
(3) The ACMA must give the Minister a report of the review.
(4) The Minister must cause copies of a report under subsection (3) to be tabled in each House of the Parliament within 15 sittings days of that House after receiving the report.
4 Paragraph 150(2)(a)
After “breached”, insert “Part 9AA (which deals with unhealthy food marketing content) or”.
5 Subsections 205F(4) and (5)
After “subclause”, insert “23A(1), 23B(1),”.
6 After subsection 205F(5B)
Insert:
(5BA) The pecuniary penalty payable by a person in respect of:
(a) a contravention of subclause 23A(1) or 23B(1) of Schedule 8; or
(b) a contravention of subsection 205E(1) that relates to a contravention of subclause 23A(1) or 23B(1) of Schedule 8;
must not exceed:
(c) if the person is a body corporate and carries on a relevant business—the greater of the following:
(i) 5% of the annual turnover of the person’s relevant business for the 12‑month period ending at the end of the month in which the contravention occurred, or began to occur;
(ii) 2,000 penalty units; or
(d) if the person is not a body corporate—400 penalty units.
(5BB) For the purposes of subsection (5BA), a reference to a person’s relevant business is a reference to so much of any business carried on by the person as involves or is associated with the manufacture or sale of unhealthy food.
7 After paragraph 7(1)(b) of Schedule 2
Insert:
(baa) the licensee will comply with subsection 130AAC(2) (prohibition on broadcasting unhealthy food marketing content);
8 After paragraph 8(1)(b) of Schedule 2
Insert:
(baa) the licensee will comply with subsection 130AAC(2) (prohibition on broadcasting unhealthy food marketing content);
9 After paragraph 9(1)(c) of Schedule 2
Insert:
(caaa) the licensee will comply with subsection 130AAC(2) (prohibition on broadcasting unhealthy food marketing content);
10 After paragraph 10(1)(b) of Schedule 2
Insert:
(baa) the licensee will comply with subsection 130AAC(2) (prohibition on broadcasting unhealthy food marketing content);
11 After paragraph 11(1)(b) of Schedule 2
Insert:
(baaa) the person will comply with subsection 130AAC(2) (prohibition on broadcasting unhealthy food marketing content);
12 Clause 1 of Schedule 8
Omit:
• The ACMA may give a remedial direction to an online content service provider if the provider contravenes the online content service provider rules.
substitute:
• This Schedule also regulates unhealthy food marketing content provided on an online content service.
• An online content service provider may commit an offence or be liable to a civil penalty if they provide unhealthy food marketing content on an online content service.
• A person who pays, or commits to paying, for unhealthy food marketing content to be provided on an online content service may also commit an offence or be liable to a civil penalty.
• The ACMA may give a remedial direction to an online content service provider if the provider contravenes the online content service provider rules or if unhealthy food marketing content is provided in contravention of the prohibitions relating to unhealthy food marketing content.
13 Clause 2 of Schedule 8
Insert:
unhealthy food marketing content has the meaning given by subsection 130AAA(1).
14 After Part 3 of Schedule 8
Insert:
Part 3A—Unhealthy food marketing content
23A Prohibition—providing unhealthy food marketing content
(1) A person contravenes this subclause if:
(a) the person is an online content service provider; and
(b) the person provides content on an online content service; and
(c) the content can be accessed by end‑users in Australia; and
(d) the content is unhealthy food marketing content.
(2) Subclause (1) does not apply if:
(a) the unhealthy food marketing content is provided as an accidental or incidental accompaniment to the provision of other content; and
(b) the provider of the online content service does not receive any direct or indirect benefit (whether financial or not) for providing the unhealthy food marketing content (in addition to any direct or indirect benefit that the provider receives for providing the other content).
(3) A person commits an offence if the person contravenes subclause (1).
Penalty: 2,000 penalty units
(4) Subclause (1) is a civil penalty provision.
(5) A person who contravenes subsection (1):
(a) commits a separate offence (for the purposes of subsection (3)); and
(b) commits a separate contravention (for the purposes of subsection (4));
in respect of each day (including, as applicable, a day of a conviction for the offence, or the day of the making of a relevant civil penalty order, or any later day) during which the contravention continues.
23B Prohibition—paying for unhealthy food marketing content
(1) A person contravenes this subclause if:
(a) the person pays, or commits to paying, for the provision of content on an online content service; and
(b) the content is provided on the online content service; and
(c) the content can be accessed by end‑users in Australia; and
(d) the content is unhealthy food marketing content.
(2) For the purposes of paragraph (1)(a), a reference to paying includes providing any consideration (whether financial or not).
(3) Subclause (1) does not apply if:
(a) the unhealthy food marketing content is provided as an accidental or incidental accompaniment to the provision of other content; and
(b) the provider of the online content service does not receive any direct or indirect benefit (whether financial or not) for providing the unhealthy food marketing content (in addition to any direct or indirect benefit that the provider receives for providing the other content).
(4) A person commits an offence if the person contravenes subclause (1).
Penalty: 2,000 penalty units.
(5) Subclause (1) is a civil penalty provision.
(6) A person who contravenes subsection (1):
(a) commits a separate offence (for the purposes of subsection (4)); and
(b) commits a separate contravention (for the purposes of subsection (5));
in respect of each day (including, as applicable, a day of a conviction for the offence, or the day of the making of a relevant civil penalty order, or any later day) during which the contravention continues.
15 Clause 24 of Schedule 8 (heading)
Omit “—online content service provider rules”.
16 After subclause 24(1) of Schedule 8
Insert:
(1A) If a person has reason to believe that a provision of Part 3A of this Schedule has been contravened, the person may make a complaint to the ACMA about the matter.
17 Clause 26 of Schedule 8 (heading)
Omit “—online content service provider rules”.
18 At the end of subclause 26(1) of Schedule 8
Add “or a provision of Part 3A of this Schedule”.
19 Subclauses 26(2) and (3) of Schedule 8
After “the online content service provider rules” (wherever occurring), insert “or the provisions of Part 3A of this Schedule”.
20 Application provision
The amendments made by items 7 to 11 of this Schedule apply, on and after the commencement of this item, in relation to a licence regardless of when the licence was allocated.