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............................................................. 4
6............................ Interpretation....................................................................... 5
7............................ Interpretation—meaning of control................................... 18
8............................ Interpretation—shareholding interests, voting interests, dividend interests and winding‑up interests 19
8A......................... Captioning taken to be part of program............................. 20
8AA...................... Designated community radio broadcasting licence............ 20
8AB....................... Digital program enhancement content taken to be a radio program 21
8AC....................... Digital radio start‑up day.................................................. 22
8AD...................... Deemed radio broadcasting licence areas.......................... 23
8AE....................... Local content exemption period—regional commercial radio broadcasting licensee 25
8AF....................... Regional racing service radio licence................................ 28
8B.......................... Remote Indigenous community........................................ 29
9............................ Act to bind the Crown...................................................... 29
10.......................... Extension of Act to the external Territories....................... 29
10A....................... Application of the Criminal Code..................................... 29
Part 2—Categories of broadcasting services 31
11.......................... Categories of broadcasting services.................................. 31
11A....................... Dual categorisation of international broadcasting services 31
12.......................... Method of regulating particular services........................... 31
13.......................... National broadcasting services.......................................... 32
14.......................... Commercial broadcasting services.................................... 33
15.......................... Community broadcasting services.................................... 33
16.......................... Subscription broadcasting services................................... 34
17.......................... Subscription narrowcasting services................................. 34
18.......................... Open narrowcasting services............................................ 34
18A....................... International broadcasting services................................... 35
19.......................... ACMA may determine additional criteria or clarify existing criteria 37
21.......................... Requests to ACMA to decide which category a broadcasting service falls into 37
22.......................... Matters to be considered by ACMA................................. 39
Part 3—Planning of the broadcasting services bands 41
23.......................... Planning criteria................................................................ 41
26.......................... Preparation of licence area plans....................................... 41
26AA.................... Compliance with television licence area plan.................... 44
26C........................ Licence area plans not required to deal with certain digital radio broadcasting services 45
26D....................... Licence area plans—how digital radio broadcasting services may be dealt with 46
29.......................... Designation of licence areas.............................................. 47
30.......................... ACMA may determine population figures........................ 47
31.......................... Minister may reserve capacity for national broadcasters or community broadcasters 48
33.......................... Development of technical planning guidelines.................. 48
34.......................... Alternative uses of broadcasting services bands............... 48
Part 4—Commercial television broadcasting licences and commercial radio broadcasting licences 51
Division 1—Allocation of licences 51
36.......................... ACMA to determine system for allocating licences.......... 51
36A....................... Commercial radio broadcasting licences to provide analog or digital commercial radio broadcasting services.......................................................................................... 52
37.......................... When licences must not be allocated................................. 53
37A....................... Limitation on number of commercial television broadcasting licences 53
38.......................... ACMA to advertise for applications for certain licences... 54
38A....................... Additional commercial television licences in single markets 54
38B........................ Additional commercial television licences in 2‑station markets 56
38C........................ Commercial television broadcasting licences—services provided with the use of a satellite 60
39.......................... Additional commercial radio licences in single markets.... 64
40.......................... Allocation of other licences............................................... 67
41.......................... When persons are regarded as suitable............................. 70
Division 2—Services authorised by licences 72
41C........................ Services authorised by commercial television broadcasting licences 72
41CA..................... Services authorised by commercial television broadcasting licences allocated under section 38C 72
41D....................... Services authorised by commercial radio broadcasting licences 78
Division 3—Licence conditions 81
42.......................... Conditions of commercial broadcasting licences............... 81
43.......................... ACMA may impose additional conditions........................ 81
43AA.................... Local news to be provided to section 38C licensees by regional commercial television broadcasting licensees.......................................................................................... 82
43AB..................... Commercial television programs to be provided to section 38C licensees by metropolitan commercial television broadcasting licensees....................................... 85
43AC..................... Commercial television programs to be provided to section 38C licensees by remote terrestrial licensees.......................................................................................... 87
43AD.................... Compensation for acquisition of property......................... 88
43B........................ Local presence—regional commercial radio broadcasting licences 89
43C........................ Local content—regional commercial radio broadcasting licences 90
43D....................... Special licence conditions relating to digital radio commercial broadcasting services 93
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 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
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
53.......................... Limitation on control of commercial television broadcasting licences 100
54.......................... Limitation on control of commercial radio broadcasting licences 100
Division 3—Limitation on directorships 101
55.......................... Limitation on numbers of directorships—television....... 101
56.......................... Limitation on numbers of directorships—radio.............. 101
Division 5—Newspapers associated with licence areas 102
59.......................... Newspapers associated with commercial television or radio broadcasting licence areas 102
Division 5A—Media diversity 105
Subdivision A—Introduction 105
61AA.................... Definitions...................................................................... 105
61AB..................... Unacceptable media diversity situation........................... 107
61AC..................... Points.............................................................................. 107
61AD.................... Statutory control rules..................................................... 110
61AE..................... Shared content test.......................................................... 110
61AF..................... Overlapping licence areas............................................... 111
Subdivision B—Prohibition of transactions that result in an unacceptable media diversity situation coming into existence etc. 111
61AG.................... Prohibition of transactions that result in an unacceptable media diversity situation coming into existence—offence............................................................................ 111
61AH.................... Prohibition of transactions that result in an unacceptable media diversity situation coming into existence—civil penalty............................................................................ 112
61AJ...................... Prior approval of transactions that result in an unacceptable media diversity situation coming into existence etc......................................................................................... 112
61AK..................... Extension of time for compliance with prior approval notice 114
61AL..................... Breach of prior approval notice—offence....................... 116
61AM.................... Breach of prior approval notice—civil penalty................ 116
Subdivision C—Remedial directions 116
61AN.................... Remedial directions—unacceptable media diversity situation.. 116
61AP..................... Extension of time for compliance with remedial direction 120
61AQ.................... Breach of remedial direction—offence............................ 121
61AR..................... Breach of remedial direction—civil penalty.................... 121
Subdivision D—Enforceable undertakings 122
61AS..................... Acceptance of undertakings............................................ 122
61AT..................... Enforcement of undertakings.......................................... 122
Subdivision E—Register of Controlled Media Groups 123
61AU.................... Register of Controlled Media Groups............................. 123
61AV.................... How a media group is to be entered in the Register........ 123
61AW.................... Explanatory notes may be included in the Register......... 124
61AX.................... Continuity of media group.............................................. 124
61AY.................... Initial registration of media groups................................. 124
61AZ..................... Registration of newly‑formed media group.................... 125
61AZA.................. De‑registration of media group that has ceased to exist.. 128
61AZB.................. Registration of change of controller of registered media group 129
61AZC.................. Registration of change of composition of media group... 129
61AZCA............... ACMA must deal with notifications in order of receipt.. 130
61AZD.................. Conditional transactions.................................................. 130
61AZE................... Review and confirmation of entries and alterations etc... 132
61AZF................... Reconsideration of decisions.......................................... 135
61AZG.................. Corrections of clerical errors or obvious defects............. 137
61AZH.................. Regulations..................................................................... 137
Division 5B—Disclosure of cross‑media relationships 138
61BA..................... Definitions...................................................................... 138
61BB..................... Disclosure of cross‑media relationship by commercial television broadcasting licensee 138
61BC..................... Choice of disclosure method—commercial radio broadcasting licensee 140
61BD..................... Disclosure of cross‑media relationship by commercial radio broadcasting licensee—business affairs disclosure method............................................................................ 141
61BE..................... Disclosure of cross‑media relationship by commercial radio broadcasting licensee—regular disclosure method........................................................................................ 142
61BF..................... Disclosure of cross‑media relationship by publisher of newspaper 144
61BG..................... Exception—political communication............................... 145
61BH..................... Matter or material about the business affairs of a broadcasting licensee or newspaper publisher 146
Division 5C—Local news and information requirements for regional commercial radio broadcasting licensees 149
Subdivision A—Introduction 149
61CA..................... Definitions...................................................................... 149
61CAA.................. This Division does not apply in relation to certain licences 150
61CB..................... Trigger event................................................................... 151
61CC..................... What is local?.................................................................. 153
Subdivision B—Minimum service standards for local news and information 153
61CD..................... Licensee must meet minimum service standards for local news and information 153
61CE..................... Minimum service standards for local news and information 155
Subdivision C—Local content statements 157
61CF..................... Licensee must prepare and publish local content statements 157
Subdivision CA—Licensee to inform the ACMA how the licensee will comply with minimum service standards for emergency warnings 159
61CG..................... Licensee to inform the ACMA how the licensee will comply with minimum service standards for emergency warnings......................................................................... 159
Subdivision CB—ACMA’s information‑gathering powers 160
61CH..................... ACMA’s information‑gathering powers........................ 160
Subdivision D—Other local content requirements 160
61CR..................... Minister may direct the ACMA to conduct an investigation about other local content requirements 160
61CS..................... Minister may direct the ACMA to impose licence conditions relating to local content 161
Division 5D—Local programming requirements for regional commercial television broadcasting licensees 162
61CU..................... Definitions...................................................................... 162
61CV..................... Trigger event................................................................... 164
61CW.................... Local programming requirements for regional aggregated commercial television broadcasting licensees........................................................................................ 164
61CX..................... Local programming requirements for regional non‑aggregated commercial television broadcasting licensees........................................................................................ 166
61CY..................... Points system.................................................................. 167
61CYA.................. Modifications relating to designated Western Australian commercial television broadcasting licences 170
61CYB.................. When designated Western Australian commercial television broadcasting licences are under common control........................................................................................ 172
61CZ..................... Local programming determination.................................. 172
61CZA.................. Record‑keeping requirements......................................... 173
61CZB................... Licensee must submit compliance reports....................... 173
61CZC................... Review of local programming requirements................... 174
61CZD.................. Minister may direct the ACMA about the exercise of its powers 175
Division 6—Notification provisions 176
63.......................... Requirement to notify changes in control........................ 176
65A....................... Strict liability offence...................................................... 177
65B........................ Designated infringement notice provision....................... 177
Division 7—Approval of temporary breaches 178
66.......................... Offence for breaches without approval........................... 178
67.......................... Applications for prior approval of temporary breaches... 179
68.......................... Extension of time for compliance with notice................. 180
69.......................... Breach of notice under section 67 to constitute an offence 181
Division 8—Action by the ACMA 182
70.......................... Notices by the ACMA.................................................... 182
71.......................... Extension of time for compliance with notice................. 183
72.......................... Breach of notice under section 70 to constitute an offence 184
Division 9—Special provision for small markets 185
73.......................... Additional licence under section 38A not to result in breach of ownership limits 185
73A....................... Additional licence allocated under section 38B not to result in breach of control rules 185
Division 10—Prior opinions by the ACMA 186
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.................................................................. 186
Division 10A—Register of Foreign Owners of Media Assets 188
Subdivision A—Introduction 188
74A....................... Simplified outline of this Division.................................. 188
74B........................ Definitions...................................................................... 188
74C........................ Foreign stakeholder........................................................ 190
Subdivision B—Register of Foreign Owners of Media Assets 190
74D....................... Register of Foreign Owners of Media Assets................ 190
74E........................ Information to be set out in the Register of Foreign Owners of Media Assets 191
Subdivision C—Notification 192
74F........................ Notification by a person who becomes a foreign stakeholder in an Australian media company 192
74G....................... Notification by a person who ceases to be a foreign stakeholder in an Australian media company 193
74H....................... Notification by a person who is a foreign stakeholder in an Australian media company at the end of a financial year................................................................................. 194
74J......................... Notification by a person who is a foreign stakeholder in an Australian media company at the commencement of this Division............................................................... 195
74K........................ Notification by a person who is a foreign stakeholder in an Australian media company—requirement by the ACMA........................................................................... 196
74L........................ Requirement for executors, administrators and liquidators to give notification 197
74M....................... Person may give the ACMA relevant information.......... 197
Subdivision D—Miscellaneous 198
74N....................... Minister may direct the ACMA about the performance of its functions or the exercise of its powers 198
74P........................ Service of summons, process or notice on corporations incorporated outside Australia 198
74Q....................... Extra‑territorial application.............................................. 199
74R........................ Annual report.................................................................. 199
74S........................ Part 13 not limited........................................................... 199
74T........................ Liability for damages...................................................... 199
74U....................... Review of this Division etc............................................. 200
Division 11—Miscellaneous 201
75.......................... Register of matters under this Part.................................. 201
76.......................... Continuing offences........................................................ 201
77.......................... Part has effect notwithstanding Competition and Consumer Act 202
78.......................... Part not to invalidate appointments................................. 202
Part 6—Community broadcasting licences 203
79.......................... Interpretation................................................................... 203
79A....................... Application..................................................................... 203
80.......................... Allocation of BSB community broadcasting licences..... 203
81.......................... When licences must not be allocated............................... 204
82.......................... Other community broadcasting licences.......................... 204
83.......................... When persons are regarded as suitable........................... 204
84.......................... Allocation of community broadcasting licences.............. 206
84A....................... Designated community radio broadcasting licences to provide analog or digital services 207
85.......................... ACMA not required to allocate community broadcasting licence to any applicant 208
85A....................... Services authorised by designated community radio broadcasting licences 208
86.......................... Conditions of community broadcasting licences............. 210
87.......................... ACMA may impose additional conditions on community broadcasting licences 210
87A....................... Additional conditions on CTV licences.......................... 211
87B........................ Special licence condition relating to digital community radio broadcasting services 213
88.......................... Matters to which conditions may relate........................... 214
89.......................... Duration of community broadcasting licences................ 214
90.......................... Applications for renewal of community broadcasting licences 214
91.......................... ACMA may renew community broadcasting licences.... 216
91A....................... Transfer of community broadcasting licences................. 217
92.......................... Surrender of community broadcasting licences............... 219
Part 6A—Temporary community broadcasting licences 220
92A....................... Interpretation................................................................... 220
92B........................ Temporary community broadcasting licences................. 220
92C........................ Applicants for temporary community broadcasting licences 220
92D....................... When applicants and licensees are regarded as suitable.. 221
92E........................ Criteria for deciding whether to allocate a licence........... 222
92F........................ Licences to accord with alternative planning procedures. 223
92G....................... Licence area, timing conditions and licence period.......... 223
92H....................... Conditions of temporary community broadcasting licences 224
92J......................... ACMA may vary conditions or periods, or impose new conditions 224
92K........................ Duration of temporary community broadcasting licences 225
92L........................ Surrender of temporary community broadcasting licences 225
Part 7—Subscription television broadcasting services 226
Division 1—Allocation of subscription television broadcasting licences 226
95.......................... When subscription television broadcasting licence must not be allocated 226
96.......................... Allocation of other subscription television broadcasting licences 226
97.......................... Requests to Australian Competition and Consumer Commission 227
98.......................... Suitability for allocation of licence.................................. 228
98D....................... Compensation................................................................. 229
Division 2—Conditions of subscription television broadcasting licence 230
99.......................... Conditions applicable to subscription television broadcasting licence 230
100........................ Matters to which conditions may relate........................... 231
Division 2A—Eligible drama expenditure 233
Subdivision A—Introduction 233
103A..................... Simplified outline............................................................ 233
103B...................... Definitions...................................................................... 234
103C...................... Channel providers........................................................... 237
103D..................... Part‑channel providers.................................................... 238
103E...................... Pass‑through providers................................................... 238
103F...................... Part‑pass‑through providers........................................... 239
103G..................... Supply of channel or package......................................... 239
103H..................... Non‑designated pre‑production expenditure not to be counted unless principal photography has commenced........................................................................................ 240
103J....................... Cash‑based accounting—when expenditure is incurred.. 240
103JA.................... When designated script development expenditure is incurred in relation to an eligible drama program etc......................................................................................... 240
103K...................... When expenditure incurred on a new eligible drama program 243
103L...................... ACMA may make determinations about what constitutes program expenditure 243
103M..................... Expenditure to be nominated only once in meeting licence conditions 245
Subdivision B—Channel provider supplies channel 246
103N..................... 10% minimum eligible drama expenditure—channel provider supplies channel 246
103NA.................. Carry‑forward eligible drama expenditure...................... 248
103P...................... Shortfall of eligible drama expenditure—channel provider supplies channel exclusively to licensee 248
103Q..................... Shortfall of eligible drama expenditure—channel provider supplies channel to multiple licensees 250
Subdivision C—Pass‑through provider supplies channel 253
103R...................... 10% minimum eligible drama expenditure—pass‑through provider supplies channel 253
103RA................... Carry‑forward eligible drama expenditure...................... 255
103S...................... Shortfall of eligible drama expenditure—pass‑through provider supplies channel 256
Subdivision D—Licensee supplies all program material 257
103T...................... 10% minimum eligible drama expenditure—licensee supplies all program material 257
103TA................... Carry‑forward eligible drama expenditure...................... 259
Subdivision E—Part‑channel provider supplies package of programs 260
103U..................... 10% minimum eligible drama expenditure—part‑channel provider supplies package of programs 260
103UA.................. Carry‑forward eligible drama expenditure...................... 261
103V..................... Shortfall of eligible drama expenditure—part‑channel provider supplies a package of programs exclusively to licensee........................................................................... 262
103W..................... Shortfall of eligible drama expenditure—part‑channel provider supplies a package of programs to multiple licensees.......................................................................... 264
Subdivision F—Part‑pass‑through provider supplies package of programs 267
103X..................... 10% minimum eligible drama expenditure—part‑pass‑through provider supplies package of programs 267
103XA.................. Carry‑forward eligible drama expenditure...................... 268
103Y..................... Shortfall of eligible drama expenditure—part‑pass‑through provider supplies package of programs 269
Subdivision G—Licensee supplies part of program material 271
103Z...................... 10% minimum eligible drama expenditure—licensee supplies part of program material 271
103ZAA................ Carry‑forward eligible drama expenditure...................... 272
Subdivision H—Annual returns 273
103ZA................... Licensee to lodge annual return....................................... 273
103ZB................... Channel provider and part‑channel provider to lodge annual return 274
103ZC................... ACMA may inquire into the correctness of an annual return 275
103ZD................... Nominations to be attached to annual returns.................. 275
Subdivision J—Miscellaneous 276
103ZG................... Anti‑avoidance—transactions between persons not at arm’s length 276
103ZH................... Expenditure to be expressed in Australian currency....... 276
Division 6—Miscellaneous 277
113........................ Transfer of subscription television broadcasting licence. 277
114........................ Surrender of subscription television broadcasting licence 277
115........................ Minister may protect the free availability of certain types of programs 277
116........................ Certain arrangements not to result in control or in persons being associates 278
116A..................... Use of additional capacity............................................... 279
116B...................... Application of section 51 of the Competition and Consumer Act 279
Part 8—Subscription broadcasting and narrowcasting class licences 280
117........................ Determination of class licences....................................... 280
118........................ Conditions of class licences............................................ 280
119........................ Matters to which conditions may relate........................... 280
120........................ Variation of class licences............................................... 281
Part 8A—Restrictions on subscription television broadcasting services in regional areas etc. 282
121A..................... Simplified outline............................................................ 282
121B...................... Definitions...................................................................... 282
121C...................... Identical program items................................................... 283
121D..................... Continuity of program items........................................... 283
121E...................... ACMA permission is required to provide certain television services in regional areas 284
Part 8B—International broadcasting licences 286
Division 1—Introduction 286
121F...................... Simplified outline............................................................ 286
121FAA................ Definitions...................................................................... 287
Division 2—Allocation of international broadcasting licences 288
121FA................... Application for international broadcasting licence........... 288
121FB................... Corporate status and suitability....................................... 288
121FC................... Unsuitable applicant........................................................ 290
121FD................... Australia’s national interest............................................. 291
121FE.................... Allocation of licence....................................................... 293
Division 3—Obligations of international broadcasting licensees 294
121FF.................... Conditions of international broadcasting licences........... 294
Division 4—Remedies 295
121FG................... Prohibition on providing an international broadcasting service without a licence 295
121FH................... Remedial directions—unlicensed international broadcasting services 295
121FHA................ Breach of remedial direction—offence............................ 296
121FHB................ Breach of remedial direction—civil penalty provision.... 296
121FJ.................... Offence for breach of conditions of international broadcasting licence 296
121FJA................. Civil penalty provision relating to breach of conditions of international broadcasting licences 297
121FJB.................. Remedial directions—licence conditions......................... 297
121FJC.................. Breach of remedial direction—offence............................ 298
121FJD................. Breach of remedial direction—civil penalty provision.... 298
121FK................... Cancellation of licence if service does not commence within 2 years 298
121FL.................... Formal warning, or cancellation or suspension of licence, where service is contrary to Australia’s national interest............................................................................ 299
Division 4A—Nominated broadcaster declarations 302
121FLA................. Object of this Division.................................................... 302
121FLB................. Applications for nominated broadcaster declarations...... 302
121FLC................. Making a nominated broadcaster declaration.................. 302
121FLD................. Effect of nominated broadcaster declaration.................... 304
121FLE................. Conditions of nominated broadcaster declarations.......... 305
121FLF................. Offence for breach of conditions of nominated broadcaster declaration 305
121FLG................. Revocation of nominated broadcaster declaration........... 306
121FLH................. Cancellation of licence if declaration ceases to be in force and licensee is not an Australian company 308
121FLJ.................. Register of nominated broadcaster declarations.............. 309
Division 5—ACMA to assist the Minister for Foreign Affairs 310
121FM.................. Report about compliance with international broadcasting guidelines 310
121FN................... Records of broadcasts..................................................... 310
Division 6—Miscellaneous 311
121FP.................... International broadcasting guidelines.............................. 311
121FQ................... Surrender of international broadcasting licences............. 311
121FR................... Complaints about international broadcasting services..... 311
121FS.................... Statements about decisions of the Minister for Foreign Affairs 311
Part 9—Content rules, program standards and codes of practice 313
121G..................... Australian content—transmission quota......................... 313
121H..................... Australian content: transmission quota for regional/remote commercial television broadcasting licensees........................................................................................ 317
122........................ Program standards for children’s programs and Australian content 320
123........................ Development of codes of practice................................... 322
123B...................... Review by the ACMA—application of code of practice to section 38C licences 326
124........................ ACMA to maintain Register of codes of practice........... 327
125........................ ACMA may determine program standards where codes of practice fail or where no code of practice developed........................................................................................ 327
125A..................... ACMA must determine a gambling promotion program standard if directed by the Minister 328
126........................ Consultation on standards............................................... 334
127........................ Notification of determination or variation or revocation of standards 334
128........................ Standards and codes to be amendable by the Parliament. 335
129........................ Limitation of ACMA’s power in relation to standards... 335
130........................ Application of the Competition and Consumer Act........ 336
Part 9A—Technical standards 337
130A..................... Technical standards for digital transmission—television etc. 337
130AA.................. Technical standards for digital transmission—radio etc.. 339
130AB................... Technical standards relating to the operation of multiplex transmitters 340
130AC................... Technical standards for digital transmission of television services provided with the use of a satellite 340
130B...................... Technical standards for domestic digital reception equipment—television etc. 341
130BA................... Technical standards for domestic digital reception equipment—radio etc. 343
130BB................... Technical standards for domestic digital reception equipment—television services provided with the use of a satellite............................................................................ 346
Part 9B—Industry codes and industry standards 350
Division 1—Simplified outline 350
130C...................... Simplified outline............................................................ 350
Division 2—Interpretation 351
130D..................... Industry codes................................................................ 351
130E...................... Industry standards.......................................................... 351
130F...................... Industry activities............................................................ 351
130G..................... Sections of the industry.................................................. 353
130H..................... Participants in a section of the industry........................... 353
Division 3—General principles relating to industry codes and industry standards 354
130J....................... Statement of regulatory policy........................................ 354
130K...................... Examples of matters that may be dealt with by industry codes and industry standards 354
130L...................... Industry codes and industry standards not to deal with certain matters 355
Division 4—Industry codes 356
130M..................... Registration of industry codes........................................ 356
130N..................... ACMA may request codes............................................. 357
130P...................... Publication of notice where no body or association represents a section of the industry 358
130Q..................... Replacement of industry codes....................................... 359
Division 5—Industry standards 360
130R...................... ACMA may determine an industry standard if a request for an industry code is not complied with 360
130S...................... ACMA may determine industry standard where no industry body or association formed 361
130T...................... ACMA may determine industry standards—total failure of industry codes 362
130U..................... ACMA may determine industry standards—partial failure of industry codes 363
130V..................... Compliance with industry standards............................... 365
130W..................... Formal warnings—breach of industry standards............ 365
130X..................... Variation of industry standards....................................... 365
130Y..................... Revocation of industry standards.................................... 366
Division 6—Register of industry codes and industry standards 367
130ZA................... ACMA to maintain Register of industry codes and industry standards 367
Part 9C—Access to commercial television broadcasting services provided with the use of a satellite 368
130ZBA................ Simplified outline............................................................ 368
130ZB................... Objectives of conditional access scheme—South Eastern Australia TV3 licence area and Northern Australia TV3 licence area............................................................. 368
130ZBB................. Objectives of conditional access scheme—Western Australia TV3 licence area 373
130ZC................... Registration of conditional access scheme developed by representative body or association 377
130ZCAA............. ACMA may invite representative body or association to develop a revised conditional access scheme 379
130ZCAB.............. ACMA may request development of replacement conditional access scheme 380
130ZCA................ Registration of conditional access scheme formulated by the ACMA 381
130ZD................... Replacement of conditional access scheme..................... 384
130ZE.................... ACMA to maintain register of conditional access schemes 384
130ZF.................... ACMA may direct a scheme administrator to issue a reception certificate etc. 385
130ZFA................. Adequate reception......................................................... 388
130ZG................... Applicable terrestrial digital commercial television broadcasting services 389
130ZH................... Declared service‑deficient areas...................................... 390
Part 9D—Captioning 393
Division 1—Introduction 393
130ZJ.................... Simplified outline............................................................ 393
130ZK................... Definitions...................................................................... 393
130ZKA................ Definition of channel provider....................................... 397
130ZKB................. Definition of part‑channel provider............................... 397
130ZKC................. Supply of channel or package......................................... 398
130ZL.................... Designated viewing hours.............................................. 398
130ZM.................. This Part does not apply to foreign language programs.. 398
130ZN................... This Part does not apply to programs that consist wholly of music 399
130ZO................... Captioning service provided for part of program............ 399
130ZP.................... Multiple subscription television services provided by licensee 399
130ZQ................... Television service provided in a period........................... 400
Division 2—Captioning obligations of commercial television broadcasting licensees and national broadcasters 401
130ZR................... Captioning obligations—basic rule................................. 401
130ZS.................... Captioning obligations—special rules for multi‑channelled services 404
130ZUA................ Exemption orders and target reduction orders—unjustifiable hardship 406
130ZUAA............. Effect of target reduction order....................................... 411
130ZUB................ Certain breaches to be disregarded.................................. 413
Division 3—Captioning obligations of subscription television licensees 415
130ZV................... Annual captioning targets—subscription television licensees 415
130ZVA................ Categories for subscription television movie services..... 418
130ZW.................. Categories for subscription television general entertainment services 419
130ZX................... Exemptions—certain subscription television services provided before 1 July 2022 421
130ZY................... Exemption orders and target reduction orders—unjustifiable hardship 427
130ZYA................ Effect of target reduction order....................................... 431
130ZZ.................... Captioning services for repeats of television programs... 432
130ZZAA.............. Captioning services for simultaneously transmitted television programs 432
130ZZAB.............. Certain breaches to be disregarded.................................. 433
Division 4—Captioning standards 434
130ZZA................. Captioning standards...................................................... 434
Division 5—Emergency warnings 436
130ZZB................. Emergency warnings...................................................... 436
Division 6—Reports and record‑keeping 438
130ZZC................. Annual compliance reports............................................. 438
130ZZD................. Record‑keeping............................................................... 439
Division 7—Review of this Part etc. 441
130ZZE................. Review of this Part etc.................................................... 441
Part 10—Remedies for breaches of licensing provisions 442
Division 1—Offences for providing unlicensed services 442
131........................ Prohibition on providing a commercial television broadcasting service without a licence 442
132........................ Prohibition on providing a subscription television broadcasting service without a licence 442
133........................ Prohibition on providing a commercial radio broadcasting service without a licence 442
134........................ Prohibition on providing a community television broadcasting service without a licence 442
135........................ Prohibition on providing a community radio broadcasting service without a licence 443
136........................ Continuing offences........................................................ 443
Division 1A—Civil penalty provisions relating to unlicensed services 444
136A..................... Prohibition on providing a commercial television broadcasting service without a licence 444
136B...................... Prohibition on providing a subscription television broadcasting service without a licence 444
136C...................... Prohibition on providing a commercial radio broadcasting service without a licence 444
136D..................... Prohibition on providing a community television broadcasting service without a licence 444
136E...................... Prohibition on providing a community radio broadcasting service without a licence 445
136F...................... Continuing breaches....................................................... 445
Division 2—Action by ACMA where a person provides a service without a licence 446
137........................ Remedial directions—unlicensed services...................... 446
138........................ Breach of remedial direction—offences.......................... 446
138A..................... Breach of remedial direction—civil penalty provision.... 447
Division 3—Action in relation to breaches by licensees 448
139........................ Offence for breach of conditions of licences and class licences 448
140........................ Continuing offences........................................................ 450
140A..................... Civil penalty provisions relating to breach of conditions of licences and class licences 450
141........................ Remedial directions—licence conditions, class licences and codes of practice 451
142........................ Breach of remedial direction—offences.......................... 454
142A..................... Breach of remedial direction—civil penalty provision.... 455
143........................ Suspension and cancellation........................................... 456
Division 4—Action in relation to class licences 458
144........................ Application to Federal Court........................................... 458
Part 10A—Anti‑hoarding rules 459
Division 1—Introduction 459
146A..................... Simplified outline............................................................ 459
146B...................... Definitions...................................................................... 460
146C...................... Designated events and designated series of events......... 462
146CA................... When event or series is eligible for delayed televising in the Central‑Western time zones 462
146D..................... Program suppliers........................................................... 463
Division 2—Commercial television broadcasting licensees 466
146E...................... Anti‑hoarding rule—licensees........................................ 466
146F...................... Anti‑hoarding rule—program suppliers.......................... 467
146G..................... What constitutes an offer to transfer rights to televise live events 469
146H..................... Offers to transfer rights to televise live events................ 469
146J....................... Contracts to acquire rights to televise live events must authorise the transfer of the rights 470
146K...................... Simultaneous events in a series....................................... 471
146KA................... Delayed televising in the Central‑Western time zones..... 472
Division 3—National broadcasters 475
146L...................... Anti‑hoarding rule.......................................................... 475
146M..................... What constitutes an offer to transfer rights to televise live events 476
146N..................... Offers to transfer rights to televise live events................ 477
146P...................... Contracts to acquire rights to televise live events must authorise the transfer of the rights 477
146Q..................... Simultaneous events in a series....................................... 478
146R...................... Delayed televising in the Central‑Western time zones..... 478
Part 11—Complaints to the ACMA 481
Division 1—Complaints relating to action under licences and class licences 481
147........................ Complaints relating to offences or breach of licence conditions 481
148........................ Complaints under codes of practice................................ 481
149........................ Investigation of complaints by the ACMA..................... 482
Division 2—Complaints relating to national broadcasting services or datacasting services provided by the ABC or SBS 483
150........................ Complaints relating to national broadcasting services or datacasting services provided by the ABC or SBS........................................................................................ 483
151........................ Investigation of complaints relating to the ABC or SBS by the ACMA 484
152........................ Action by ACMA where complaint justified.................. 484
153........................ ACMA may report to Minister on results of recommendation 484
Part 13—Information gathering by the ACMA 485
Division 1—Introduction 485
168........................ Obtaining of information by the ACMA........................ 485
169........................ Decision‑making by the ACMA not limited to matters discovered by investigation or hearing 485
Division 2—Investigations 486
170........................ Investigations by the ACMA.......................................... 486
171........................ Minister may direct ACMA to conduct an investigation. 486
172........................ ACMA may call for written submissions from the public 486
173........................ Notice requiring appearance for examination.................. 487
174........................ Examination on oath or affirmation................................. 487
175........................ Examination to take place in private................................ 487
176........................ Record to be made of examination.................................. 488
177........................ Production of documents for inspection......................... 488
178........................ Report on investigation................................................... 488
179........................ Publication of report....................................................... 489
180........................ Person adversely affected by report to be given opportunity to comment 489
Division 3—Hearings 490
182........................ Power to hold hearings................................................... 490
183........................ Minister may direct ACMA to hold a hearing................ 490
184........................ Procedure for conduct of hearings.................................. 490
185........................ ACMA may direct holding of conference....................... 490
186........................ Hearings to be informal, quick and economical.............. 491
187........................ Hearings to be in public except in exceptional cases....... 491
188........................ Public notice of hearings................................................. 491
189........................ Confidential material not to be published........................ 491
190........................ Directions as to private hearings..................................... 492
191........................ Constitution of ACMA for conduct of hearings............. 492
192........................ Presiding member........................................................... 492
193........................ Reconstitution of hearing panel....................................... 492
194........................ Exercise of powers in relation to conduct of hearing...... 493
195........................ Summons to give evidence or produce documents......... 493
196........................ Written submissions may be made to hearing................. 493
197........................ Evidence and submissions to be taken into account by ACMA 493
198........................ Representation at hearings.............................................. 494
199........................ Reports on hearings........................................................ 494
Division 4—General 495
200........................ Protection of members and persons giving evidence...... 495
201........................ Protection of panel conducting hearing........................... 495
202........................ Non‑compliance with requirement to give evidence........ 495
203........................ Proceedings for defamation not to lie.............................. 497
Part 14—Appeals to the Administrative Appeals Tribunal 498
204........................ Appeals to the Administrative Appeals Tribunal............ 498
205........................ Notification of decisions to include notification of reasons and appeal rights 506
Part 14AA—Collection and recovery of interim tax 507
205AA.................. Simplified outline of this Part......................................... 507
205AB................... Assessments................................................................... 507
205AC................... When interim tax becomes due and payable.................... 508
205AD.................. Recovery of interim tax................................................... 509
205AE................... Refund of overpayment of interim tax............................ 509
205AF................... Late payment penalty...................................................... 509
205AG.................. Anti‑avoidance................................................................ 510
Part 14B—Civil penalties 512
Division 1—Ancillary contravention of civil penalty provision 512
205E...................... Ancillary contravention of civil penalty provision.......... 512
Division 2—Civil penalty orders 513
205EA................... Simplified outline............................................................ 513
205F...................... Civil penalty orders......................................................... 513
205G..................... Who may apply for a civil penalty order......................... 516
205H..................... 2 or more proceedings may be heard together................. 516
205J....................... Time limit for application for an order............................ 516
205K...................... Civil evidence and procedure rules for civil penalty orders 517
205L...................... Civil proceedings after criminal proceedings.................. 517
205M..................... Criminal proceedings during civil proceedings............... 517
205N..................... Criminal proceedings after civil proceedings.................. 517
205P...................... Evidence given in proceedings for a civil penalty order not admissible in criminal proceedings 518
205PAA................ Mistake of fact................................................................ 518
Part 14C—Injunctions 520
205PA................... Simplified outline............................................................ 520
205Q..................... Injunctions...................................................................... 520
205R...................... Interim injunctions.......................................................... 521
205S...................... Discharge etc. of injunctions........................................... 521
205T...................... Certain limits on granting injunctions not to apply.......... 521
205U..................... Other powers of the Federal Court unaffected................ 522
Part 14D—Enforceable undertakings 523
205V..................... Simplified outline............................................................ 523
205W..................... Acceptance of undertakings............................................ 523
205X..................... Enforcement of undertakings.......................................... 524
Part 14E—Infringement notices 525
205XAA............... Simplified outline............................................................ 525
205XA.................. Formal warning.............................................................. 525
205Y..................... When an infringement notice can be given...................... 525
205Z...................... Matters to be included in an infringement notice............. 526
205ZA................... Amount of penalty.......................................................... 526
205ZB................... Withdrawal of an infringement notice............................. 527
205ZC................... What happens if the penalty is paid................................. 527
205ZD................... Effect of this Part on criminal proceedings..................... 528
205ZE.................... Appointment of authorised infringement notice officer... 528
205ZF.................... Regulations..................................................................... 529
Part 14F—Grants 530
205ZG................... Simplified outline of this Part......................................... 530
205ZH................... Grants............................................................................. 530
205ZJ.................... Terms and conditions for grants..................................... 531
205ZK................... Advisory committee........................................................ 532
205ZL.................... Annual report.................................................................. 533
205ZM.................. Short title of amending Act does not limit the powers conferred by this Part 533
Part 15—Miscellaneous 534
206........................ Broadcasting or datacasting taken to be publication in permanent form 534
207........................ Amounts of fees............................................................. 534
209........................ Prosecutions................................................................... 534
210........................ Publication of opinions................................................... 534
211AA.................. Time when a television program is broadcast—certain terrestrial licence areas 535
211A..................... Time when a television program is broadcast—South Eastern Australia TV3 and Northern Australia TV3 licence areas.................................................................... 536
212........................ Special provisions for re‑transmission of programs....... 538
212A..................... Self‑help providers......................................................... 540
212B...................... Declared self‑help providers and excluded providers..... 542
213........................ Penalties for continuing offences.................................... 543
214........................ Procedure relating to continuing offences....................... 543
215........................ Guidelines relating to ACMA’s enforcement powers etc. 543
216........................ Ministerial consultative and advisory bodies.................. 545
216A..................... Schedule 4 (digital television broadcasting).................... 545
216AA.................. Review of taxation arrangements etc............................... 545
216C...................... Schedule 6 (datacasting services).................................... 546
216D..................... Schedule 7 (content services).......................................... 546
216E...................... Schedule 8 (online content services)............................... 546
217........................ Regulations..................................................................... 546
218........................ Channel sharing.............................................................. 546
Schedule 1—Control and ownership of company interests 548
Part 1—Introduction 548
1............................ Control—general............................................................ 548
Part 2—When person is in a position to exercise control 550
2............................ When person is in a position to exercise control............. 550
3............................ When person is in a position to exercise control of a newspaper 552
4............................ Special provisions for authorised lenders....................... 553
Part 3—Deemed control 557
5............................ Explanation of examples................................................. 557
6............................ The 15% rule.................................................................. 557
7............................ Application of method through chain of companies........ 557
Part 4—Tracing of ownership 558
8............................ Tracing of ownership...................................................... 558
Schedule 2—Standard conditions 560
Part 1—Interpretation 560
1............................ Definitions...................................................................... 560
2............................ Interpretation—certain things do not amount to broadcasting of advertisements 565
Part 2—Special conditions 567
3............................ Broadcasting of political or controversial material.......... 567
3A......................... Broadcasting of election advertisements......................... 567
3B.......................... Broadcasting of referendum advertisements................... 568
4............................ Identification of certain political matter........................... 569
5............................ Records of matter broadcast............................................ 570
Part 3—Commercial television broadcasting licences 573
Division 1—General 573
7............................ Conditions of commercial television broadcasting licences 573
Division 2—Licences allocated under section 38C 578
7A......................... Common conditions........................................................ 578
7B.......................... Conditions about the provision of primary commercial television broadcasting services 578
7C.......................... Conditions about the provision of non‑primary commercial television broadcasting services 582
7D......................... Condition about the provision of local news services..... 586
7E.......................... Exemption—provision of new commercial television broadcasting services not technically feasible 586
7F.......................... Exemption—commercial television broadcasting services with the same program content 587
7G......................... Delay in commencement of new commercial television broadcasting services 589
7J........................... Program content.............................................................. 590
7L.......................... Definitions...................................................................... 590
Part 4—Commercial radio broadcasting licences 592
8............................ Standard conditions of commercial radio broadcasting licences 592
Part 5—Community broadcasting licences 596
9............................ Conditions applicable to services provided under community broadcasting licences 596
Part 6—Subscription television broadcasting licences 600
10.......................... Conditions applicable to subscription television broadcasting licences 600
Part 7—Services provided under class licences 603
11.......................... Conditions applicable to broadcasting services provided under class licences 603
An Act relating to broadcasting services, datacasting services, online services and content services, and for related purposes
Part 1—Preliminary
1 Short title
This Act may be cited as the Broadcasting Services Act 1992.
2 Commencement
(1) Section 1, this section, sections 3 and 6 commence on the day on which this Act receives the Royal Assent.
(2) The remaining provisions of this Act commence on a day to be fixed by Proclamation.
(3) If those provisions do not commence under subsection (2) within the period of 6 months beginning on the day on which this Act receives the Royal Assent, those provisions commence on the first day after the end of that period.
3 Objects of this Act
(1) The objects of this Act are:
(a) to promote the availability to audiences throughout Australia of a diverse range of radio and television services offering entertainment, education and information; and
(aa) to promote the availability to audiences and users throughout Australia of a diverse range of datacasting services; and
(b) to provide a regulatory environment that will facilitate the development of a broadcasting industry in Australia that is efficient, competitive and responsive to audience needs; and
(ba) to provide a regulatory environment that will facilitate the development of a datacasting industry in Australia that is efficient, competitive and responsive to audience and user needs; and
(c) to encourage diversity in control of the more influential broadcasting services; and
(e) to promote the role of broadcasting services in developing and reflecting a sense of Australian identity, character and cultural diversity; and
(ea) to promote the availability to audiences throughout Australia of television and radio programs about matters of local significance; and
(f) to promote the provision of high quality and innovative programming by providers of broadcasting services; and
(fa) to promote the provision of high quality and innovative content by providers of datacasting services; and
(g) to encourage providers of commercial and community broadcasting services to be responsive to the need for a fair and accurate coverage of matters of public interest and for an appropriate coverage of matters of local significance; and
(h) to encourage providers of broadcasting services to respect community standards in the provision of program material; and
(hb) to ensure online content service providers respect community standards in relation to gambling promotional content; and
(i) to encourage the provision of means for addressing complaints about broadcasting services; and
(ia) to provide a means for addressing complaints about gambling promotional content provided on online content 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
(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:
gambling promotional content has the same meaning as in Schedule 8.
online content service has the same meaning as in Schedule 8.
online content service provider has the same meaning as in Schedule 8.
4 Regulatory policy
(1) The Parliament intends that different levels of regulatory control be applied across the range of broadcasting services, datacasting services and online content services according to the degree of influence that different types of broadcasting services, datacasting services and online content services are able to exert in shaping community views in Australia.
(2) The Parliament also intends that broadcasting services and datacasting services in Australia be regulated in a manner that, in the opinion of the ACMA:
(a) enables public interest considerations to be addressed in a way that does not impose unnecessary financial and administrative burdens on providers of broadcasting services and datacasting services; and
(b) will readily accommodate technological change; and
(c) encourages:
(i) the development of broadcasting technologies and datacasting technologies, and their application; and
(ii) the provision of services made practicable by those technologies to the Australian community.
(3AB) The Parliament also intends that gambling promotional content provided on online content services be regulated in a manner that:
(a) enables public interest considerations in relation to gambling promotional content to be addressed in a way that does not impose unnecessary financial and administrative burdens on the providers of online content services; and
(b) will readily accommodate technological change; and
(c) encourages the provision of online content services to the Australian community; and
(d) encourages the development of technologies relating to online content services.
(3A) This section does not apply to Part 8B (which deals with international broadcasting services).
(4) In this section:
gambling promotional content has the same meaning as in Schedule 8.
online content service has the same meaning as in Schedule 8.
online content service provider has the same meaning as in Schedule 8.
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 and the online content service industry; and
(b) confers on the ACMA a range of functions and powers that are to be used in a manner that, in the opinion of the ACMA, will:
(i) produce regulatory arrangements that are stable and predictable; and
(ii) deal effectively with breaches of the rules established by this Act.
(2) Where it is necessary for the ACMA to use any of the powers conferred on it by this Act to deal with a breach of this Act or the regulations, the Parliament intends that the ACMA use its powers, or a combination of its powers, in a manner that, in the opinion of the ACMA, is commensurate with the seriousness of the breach concerned.
(3) This section does not, by implication, limit the functions and powers of:
(b) the Australian Competition and Consumer Commission; or
(c) any other body or person who has regulatory responsibilities in relation to the internet industry.
(4) In this section:
online content service has the same meaning as in Schedule 8.
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: 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.
child: without limiting who is a child of a person for the purposes of this Act, someone is the child of a person if he or she is a child of the person within the meaning of the Family Law Act 1975.
civil penalty order means an order under subsection 205F(1).
civil penalty provision means a provision declared by this Act to be a civil penalty provision.
class licence means a class licence determined by the ACMA under section 117.
commercial broadcasting service has the meaning given by section 14.
commercial radio broadcasting licence means a licence under Part 4 to provide:
(a) in the case of a licence allocated under subsection 40(1)—a commercial radio broadcasting service; or
(b) in any other case—the commercial radio broadcasting service or services that, under section 41D, are authorised by the licence.
commercial radio broadcasting service means a commercial broadcasting service that provides radio programs.
commercial television broadcasting licence means a licence under Part 4 to provide:
(aa) in the case of a licence allocated under section 38C—the commercial television broadcasting services that, under section 41CA, are authorised by the licence; or
(a) in the case of a licence allocated under subsection 40(1)—a commercial television broadcasting service; or
(b) in any other case—the commercial television broadcasting services that, under section 41C, are authorised by the licence.
commercial television broadcasting service means a commercial broadcasting service that provides television programs.
community broadcasting licence means:
(a) a community radio broadcasting licence; or
(b) a community television broadcasting licence.
community broadcasting service has the meaning given by section 15.
community radio broadcasting licence means:
(a) a licence under Part 6 to provide:
(i) in the case of a licence allocated under subsection 82(1)—a community radio broadcasting service; or
(ii) in the case of a designated community radio broadcasting licence—the community radio broadcasting service or services that, under section 85A, are authorised by the licence; or
(iii) in any other case—a community radio broadcasting service; or
(b) a licence under Part 6A to provide a community radio broadcasting service.
community radio broadcasting service means a community broadcasting service that provides radio programs.
community television broadcasting licence means a licence under Part 6 or 6A to provide a community broadcasting service that provides television programs.
company interests, in relation to a person who has a shareholding interest, a voting interest, a dividend interest or a winding‑up interest in a company, means the percentage of that interest or, if the person has 2 or more of those interests, whichever of those interests has the greater or greatest percentage.
conditional access scheme means a scheme that sets out rules relating to access to services provided under a commercial television broadcasting licence allocated under section 38C.
constitutional corporation means a corporation to which paragraph 51(xx) of the Constitution applies.
control includes control as a result of, or by means of, trusts, agreements, arrangements, understandings and practices, whether or not having legal or equitable force and whether or not based on legal or equitable rights.
CTV licence means a community broadcasting licence under Part 6 to provide a service that provides television programs but is not targeted, to a significant extent, to one or more remote Indigenous communities.
datacasting licence means a licence under Schedule 6 to provide a datacasting service.
datacasting service means a service that delivers content:
(a) whether in the form of text; or
(b) whether in the form of data; or
(c) whether in the form of speech, music or other sounds; or
(d) whether in the form of visual images (animated or otherwise); or
(e) whether in any other form; or
(f) whether in any combination of forms;
to persons having equipment appropriate for receiving that content, where the delivery of the service uses the broadcasting services bands.
de facto partner of a person has the meaning given by the Acts Interpretation Act 1901.
designated community radio broadcasting licence has the meaning given by section 8AA.
designated infringement notice provision means a provision declared by this Act to be a designated infringement notice provision.
digital commercial radio broadcasting service means a commercial radio broadcasting service that is transmitted using a digital modulation technique.
digital community radio broadcasting service means a community radio broadcasting service that is transmitted using a digital modulation technique.
digital national radio broadcasting service means a national radio broadcasting service that is transmitted using a digital modulation technique.
digital program enhancement content, in relation to a radio program, means content:
(a) in the form of text; or
(b) in the form of still visual images; or
(c) if a form is specified in a legislative instrument made by the Minister—in that form; or
(d) in any combination of the above forms;
where:
(e) the content is transmitted using a digital modulation technique; and
(f) both the content and the radio program are intended to be received by the same reception equipment; and
(g) if:
(i) the reception equipment is capable of receiving both the content and the radio program; and
(ii) the reception equipment is set to receive the radio program;
the reception equipment will also receive the content.
digital radio 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.
evidential burden, in relation to a matter, means the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist.
Federal Court means the Federal Court of Australia.
foundation digital radio multiplex transmitter licence has the same meaning as in the Radiocommunications Act 1992.
gambling promotion program standard means a standard determined by the ACMA under section 125A.
infringement notice means an infringement notice under section 205Y.
interim tax means tax imposed by the Commercial Broadcasting (Tax) Act 2017.
international broadcasting guidelines means guidelines in force under section 121FP.
international broadcasting licence means a licence to provide an international broadcasting service.
international broadcasting service has the meaning given by section 18A.
legislature of a Territory means:
(a) the Legislative Assembly for the Australian Capital Territory; or
(b) the Legislative Assembly of the Northern Territory; or
(c) such other Territory legislative bodies as are prescribed.
licence means a 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.
local content exemption period has the meaning given by section 8AE.
member means a member of the ACMA.
Minister for Foreign Affairs means the Minister administering the Diplomatic Privileges and Immunities Act 1967.
multiplex capacity has the same meaning as in Division 4B of Part 3.3 of the Radiocommunications Act 1992.
national broadcaster means the provider of a national broadcasting service referred to in paragraph 13(1)(a) or (b).
national broadcasting service has the meaning given by section 13.
national radio broadcasting service means a national broadcasting service that provides radio programs.
near relative, in relation to a person, means:
(a) a parent, step‑parent, child, stepchild, grandparent, grandchild, brother or sister of the person; or
(b) the spouse of the first‑mentioned person.
newspaper means a newspaper that is in the English language and is published on at least 4 days in each week, but does not include a publication if less than 50% of its circulation is by way of sale.
offence against this Act includes an offence against section 136.1 or 137.1 of the Criminal Code that relates to this Act.
open narrowcasting radio service means an open narrowcasting service that provides radio programs.
open narrowcasting service has the meaning given by section 18.
open narrowcasting television service means an open narrowcasting service that provides television programs.
overlap area, in relation to a licence area part of which is within another licence area, means the area of overlap between the 2 licence areas.
parent: without limiting who is a parent of a person for the purposes of this Act, someone is the parent of a person if the person is his or her child because of the definition of child in this section.
Parliament means:
(a) the Parliament of the Commonwealth; or
(b) a State Parliament; or
(c) the legislature of a Territory.
political party means an organisation whose objects or activities include the promotion of the election of candidates endorsed by it to a Parliament.
population of Australia means the Australian population determined by the ACMA under section 30.
primary commercial television broadcasting service, in relation to a commercial television broadcasting licence, has the same meaning as in Schedule 4.
program, in relation to a broadcasting service, means:
(a) matter the primary purpose of which is to entertain, to educate or to inform an audience; or
(b) advertising or sponsorship matter, whether or not of a commercial kind.
program standards means standards determined by the ACMA relating to the content or delivery of programs, and includes a gambling promotion program standard.
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 commercial radio broadcasting licence means a commercial radio broadcasting licence the licence area of which is neither:
(a) a licence area in which is situated the General Post Office of the capital city of any of the following States:
(i) New South Wales;
(ii) Victoria;
(iii) Queensland;
(iv) Western Australia;
(v) South Australia; nor
(b) the licence area known as Western Suburbs Sydney RA1.
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
(c) clause 28 of Schedule 6.
remote area service radio licence means a regional commercial radio broadcasting licence the licence area of which is:
(a) Remote Commercial Radio Service Central Zone RA1; or
(b) Remote Commercial Radio Service North East Zone RA1; or
(c) Remote Commercial Radio Service Western Zone RA1.
remote Indigenous community has the meaning given by section 8B.
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.
transmitter licence has the same meaning as in the Radiocommunications Act 1992.
(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.
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.
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
(c) the application of:
(i) any other provision of this Act; or
(ii) any other provision of the Radiocommunications Act 1992; or
(iii) any other law of the Commonwealth;
to digital commercial radio broadcasting services;
the licence area known as Western Suburbs Sydney RA1 is taken to be the same as the commercial radio broadcasting licence area in which is situated the General Post Office of Sydney.
Hobart RA2 and Hobart RA4
(2) For the purposes of:
(a) sections 8AA and 8AC of this Act; and
(b) the definition of designated BSA radio area in section 5 of the Radiocommunications Act 1992; and
(c) paragraph 9C(1)(i) and subparagraph 9C(1)(j)(ii) of the Radiocommunications Act 1992; and
(d) the application of:
(i) any other provision of this Act; or
(ii) any other provision of the Radiocommunications Act 1992; or
(iii) any other law of the Commonwealth;
to digital community radio broadcasting services;
the licence areas known as Hobart RA2 and Hobart RA4 are taken to be the same as the commercial radio broadcasting licence area in which is situated the General Post Office of Hobart.
Other licence areas
(3) The ACMA may, by legislative instrument, determine that, for the purposes of:
(a) sections 8AA and 8AC of this Act; and
(b) the definition of designated BSA radio area in section 5 of the Radiocommunications Act 1992; and
(c) paragraph 9C(1)(i) and subparagraph 9C(1)(j)(ii) of the Radiocommunications Act 1992; and
(d) the application of:
(i) any other provision of this Act; or
(ii) any other provision of the Radiocommunications Act 1992; or
(iii) any other law of the Commonwealth;
to digital community radio broadcasting services;
a specified licence area of a community radio broadcasting licence is taken to be the same as a specified licence area of a commercial radio broadcasting licence.
(4) The Minister may, by legislative instrument, give the ACMA a direction about the exercise of the power conferred by subsection (3).
(5) The ACMA must comply with a direction under subsection (4).
8AE Local content exemption period—regional commercial radio broadcasting licensee
(1) For the purposes of this Act, a local content exemption period, for the licensee of a regional commercial radio broadcasting licence, is:
(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 licensee;
that period; or
(b) if:
(i) paragraph (a) does not apply; and
(ii) the ACMA, by legislative instrument, specifies 2 periods in relation to one or more specified regional commercial radio broadcasting licensees; and
(iii) the periods, in aggregate, do not exceed 5 weeks; and
(iv) the licensees specified in the instrument consist of or include the licensee;
each of those periods; or
(c) if:
(i) neither paragraph (a) nor (b) applies; and
(ii) the ACMA, by legislative instrument, specifies a period; and
(iii) the period does not exceed 5 weeks;
that period; or
(d) if:
(i) none of paragraphs (a), (b) or (c) apply; and
(ii) the ACMA, by legislative instrument, specifies 2 periods; and
(iii) the periods, in aggregate, do not exceed 5 weeks;
each of those periods; or
(e) if:
(i) none of paragraphs (a), (b), (c) or (d) apply; and
(ii) the licensee, by written notice given to the ACMA, specifies a period; and
(iii) the period does not exceed 5 weeks;
that period; or
(f) if:
(i) none of paragraphs (a), (b), (c), (d) or (e) apply; and
(ii) the licensee, by written notice given to the ACMA, specifies 2 periods; and
(iii) the periods, in aggregate, do not exceed 5 weeks;
each of those periods; or
(g) if none of paragraphs (a), (b), (c), (d), (e) or (f) apply—the 5‑week period beginning on the second Sunday in December each financial year.
(2) A period specified under subsection (1) may be:
(a) a period that occurs only once; or
(b) a recurring period.
Notice given to the ACMA—requirements
(3) A notice under paragraph (1)(e) or (f) must be given to the ACMA at least 21 days before the earlier of:
(a) the start of the next local content exemption period that, disregarding the notice, would be applicable to the licensee giving the notice; and
(b) whichever of the following times is applicable:
(i) in the case of a notice under paragraph (1)(e)—the start of the period specified in the notice;
(ii) in the case of a notice under paragraph (1)(f)—the start of the earlier of the periods specified in the notice.
(4) A regional commercial radio broadcasting licensee may only give the ACMA one notice under subsection (1) each financial year.
(5) A notice given to the ACMA under subsection (1) cannot be varied.
(6) If:
(a) a regional commercial radio broadcasting licensee gives the ACMA a notice under subsection (1) (the earlier notice) in a financial year; and
(b) the licensee gives the ACMA another notice under subsection (1) (the later notice) in a later financial year; and
(c) the later notice is expressed to replace the earlier notice;
the earlier notice is taken to cease to be in force when the later notice is given.
(7) If a notice given to the ACMA under subsection (1) (the original notice) by a regional commercial radio broadcasting licensee is in force, the licensee may, by written notice to the ACMA, revoke the original notice, so long as the notice of revocation is not given during a period specified in the original notice.
(8) If a regional commercial radio broadcasting licensee gives the ACMA a notice under subsection (1), the licensee must publish the notice on its website.
(9) If:
(a) a regional commercial radio broadcasting licensee gives the ACMA a revocation notice under subsection (7); and
(b) the revocation results in paragraph (1)(g) applying to the licensee;
the licensee must publish the revocation notice on its website.
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, where the following conditions are satisfied in relation to a broadcasting service provided under the licence:
(a) the broadcasting service is promoted, on the broadcasting service:
(i) as a broadcasting service of interest mainly to persons involved in horse racing, harness racing or greyhound racing; or
(ii) using the phrase “racing radio service”;
(b) the racing content percentage, in relation to the broadcasting service, is 60% or more for each day, other than Christmas Day and Good Friday;
(c) if, on a particular day, content other than racing content is broadcast on the broadcasting service—a significant proportion of that content is:
(i) relevant to horse racing, harness racing or greyhound racing; or
(ii) of interest mainly to persons involved in horse racing, harness racing or greyhound racing.
(2) For the purposes of this section, racing content percentage means the percentage worked out using the following formula:
(3) For the purposes of this section, racing content means content that consists of:
(a) coverage of a horse race, a harness race or a greyhound race; or
(b) information directly related to horse racing, harness racing or greyhound racing, including:
(i) selections; and
(ii) scratchings; and
(iii) betting information; and
(iv) track conditions; or
(c) other material that is broadcast during an hour, so long as that material:
(i) is broadcast between 2 races of a kind referred to in paragraph (a); and
(ii) is not broadcast for more than 15 minutes of the hour.
8B Remote Indigenous community
An Indigenous community is a remote Indigenous community for the purposes of this Act if the ACMA so determines by legislative instrument.
9 Act to bind the Crown
This Act binds the Crown in right of the Commonwealth, of each of the States, of the Australian Capital Territory and of the Northern Territory, but nothing in this Act renders the Crown liable to be prosecuted for an offence.
10 Extension of Act to the external Territories
This Act extends to all the external Territories.
10A Application of the Criminal Code
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.
Part 2—Categories of broadcasting services
11 Categories of broadcasting services
The following categories of broadcasting services are broadcasting services to which this Act relates:
(a) national broadcasting services;
(b) commercial broadcasting services;
(c) community broadcasting services;
(d) subscription broadcasting services;
(e) subscription narrowcasting services;
(f) open narrowcasting services;
(fa) international broadcasting services.
11A Dual categorisation of international broadcasting services
An international broadcasting service may also fall into another category of broadcasting services.
12 Method of regulating particular services
(1) Commercial broadcasting services, community broadcasting services, subscription television broadcasting services and international broadcasting services require individual licences.
(2) Other broadcasting services (other than national broadcasting services) are to be provided under the relevant class licence.
Dual categorisation of international broadcasting services
(3) An international broadcasting service that also falls into the category of commercial broadcasting services requires both:
(a) an international broadcasting licence; and
(b) either:
(i) a commercial radio broadcasting licence; or
(ii) a commercial television broadcasting licence.
(4) An international broadcasting service that also falls into the category of community broadcasting services requires both:
(a) an international broadcasting licence; and
(b) a community broadcasting licence.
(5) An international broadcasting service that also falls into the category of subscription television broadcasting services requires both:
(a) an international broadcasting licence; and
(b) a subscription television broadcasting licence.
(6) Both of the following rules apply to an international broadcasting service that also falls into a category of broadcasting services covered by subsection (2):
(a) the service requires an international broadcasting licence;
(b) the service is to be provided under the relevant class licence.
13 National broadcasting services
(1) National broadcasting services are:
(a) broadcasting services provided by the Australian Broadcasting Corporation in accordance with section 6 of the Australian Broadcasting Corporation Act 1983; or
(b) broadcasting services provided by the Special Broadcasting Service Corporation in accordance with section 6 of the Special Broadcasting Service Act 1991; or
(c) broadcasting services provided under the Parliamentary Proceedings Broadcasting Act 1946.
(2) National broadcasting services do not include subscription broadcasting services or subscription or open narrowcasting services provided by the Australian Broadcasting Corporation or the Special Broadcasting Service Corporation.
(3) Subsection (2) does not apply to services specified by the Minister 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
(c) that are usually funded by advertising revenue; and
(d) that are operated for profit or as part of a profit‑making enterprise; and
(e) that comply with any determinations or clarifications under section 19 in relation to commercial broadcasting services.
(2) For the purposes of the application of subsection (1) to a broadcasting service provided under a licence allocated under section 38C, assume that there is no conditional access system that relates to the broadcasting service.
15 Community broadcasting services
Community broadcasting services are broadcasting services that:
(a) are provided for community purposes; and
(b) are not operated for profit or as part of a profit‑making enterprise; and
(c) that provide programs that:
(i) are able to be received by commonly available equipment; and
(ii) are made available free to the general public; and
(d) comply with any determinations or clarifications under section 19 in relation to community broadcasting services.
16 Subscription broadcasting services
Subscription broadcasting services are broadcasting services that:
(a) provide programs that, when considered in the context of the service being provided, appear to be intended to appeal to the general public; and
(b) are made available to the general public but only on payment of subscription fees (whether periodical or otherwise); and
(c) comply with any determinations or clarifications under section 19 in relation to subscription broadcasting services.
17 Subscription narrowcasting services
Subscription narrowcasting services are broadcasting services:
(a) whose reception is limited:
(i) by being targeted to special interest groups; or
(ii) by being intended only for limited locations, for example, arenas or business premises; or
(iii) by being provided during a limited period or to cover a special event; or
(iv) because they provide programs of limited appeal; or
(v) for some other reason; and
(b) that are made available only on payment of subscription fees (whether periodical or otherwise); and
(c) that comply with any determinations or clarifications under section 19 in relation to subscription narrowcasting services.
18 Open narrowcasting services
(1) Open narrowcasting services are broadcasting services:
(a) whose reception is limited:
(i) by being targeted to special interest groups; or
(ii) by being intended only for limited locations, for example, arenas or business premises; or
(iii) by being provided during a limited period or to cover a special event; or
(iv) because they provide programs of limited appeal; or
(v) for some other reason; and
(b) that comply with any determinations or clarifications under section 19 in relation to open narrowcasting services.
(1A) A HDTV multi‑channelled commercial television broadcasting service (within the meaning of Schedule 4) is not an open narrowcasting service.
(1AA) A SDTV multi‑channelled commercial television broadcasting service (within the meaning of Schedule 4) is not an open narrowcasting service.
(1B) A HDTV multi‑channelled national television broadcasting service (within the meaning of Schedule 4) is not an open narrowcasting service.
(2) A SDTV multi‑channelled national television broadcasting service (within the meaning of Schedule 4) is not an open narrowcasting service.
(3) A digital commercial radio broadcasting service is not an open narrowcasting service.
(4) A digital community radio broadcasting service is not an open narrowcasting service.
(5) A digital national radio broadcasting service is not an open narrowcasting service.
18A International broadcasting services
(1) International broadcasting services are broadcasting services that are targeted, to a significant extent, to audiences outside Australia, where:
(a) the means of delivering the services involves the use of a radiocommunications transmitter in Australia (whether alone or in combination with any other means); and
(b) the services comply with any determinations or clarifications under section 19 in relation to international broadcasting services.
(2) A broadcasting service is not an international broadcasting service if the broadcasting service is:
(a) provided by the Australian Broadcasting Corporation in accordance with section 6 of the Australian Broadcasting Corporation Act 1983; or
(b) provided by the Special Broadcasting Service Corporation in accordance with section 6 of the Special Broadcasting Service Act 1991; or
(c) an exempt broadcasting service (as defined by subsection (3)).
(3) For the purposes of this section, a broadcasting service is an exempt broadcasting service if:
(a) the service delivers only programs packaged outside Australia (which may include programs produced in Australia); and
(b) all relevant programming decisions are made outside Australia; and
(c) the service is transmitted from a place outside Australia to an earth station in Australia for the sole purpose of being immediately re‑transmitted to a satellite; and
(d) the satellite is a means of delivering the service (whether alone or in combination with any other means).
(4) The references in this section to localities do not, by implication, affect the application of paragraph 21(1)(b) of the Acts Interpretation Act 1901 and section 10 of this Act to a provision of this Act that deals with a category of broadcasting services other than international broadcasting services.
(5) In this section:
Australia includes the external Territories.
radiocommunications transmitter has the same meaning as in the Radiocommunications Act 1992.
19 ACMA may determine additional criteria or clarify existing criteria
(1) The ACMA may, by 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
(c) the accessibility of those services, including:
(i) whether those services are encrypted; and
(ii) whether their availability is otherwise restricted, whether because of the high cost of the equipment required to receive those services, the controlled supply of that equipment or otherwise; and
(iii) whether their comprehensibility is otherwise restricted; and
(d) the duration and frequency of the provision of those services, including whether those services are provided for a set period only; and
(e) the nature of the audience to which those services are targeted; and
(f) the nature of the programs being provided by those services, including:
(i) the level of interest in the subject matter of those programs; and
(ii) whether those programs are directed at a specialised audience; and
(iii) the social and cultural impact of those programs; and
(g) such other matters as the ACMA thinks fit.
Part 3—Planning of the broadcasting services bands
23 Planning criteria
In performing functions under this Part, the ACMA is to promote the objects of this Act including the economic and efficient use of the radiofrequency spectrum, and is to have regard to:
(a) demographics; and
(b) social and economic characteristics within the licence area, within neighbouring licence areas and within Australia generally; and
(c) the number of existing broadcasting services and the demand for new broadcasting services within the licence area, within neighbouring licence areas and within Australia generally; and
(d) developments in technology; and
(e) technical restraints relating to the delivery or reception of broadcasting services; and
(f) the demand for radiofrequency spectrum for services other than broadcasting services; and
(g) such other matters as the ACMA considers relevant.
26 Preparation of licence area plans
(1) The ACMA must, by legislative instrument, prepare licence area plans that determine the number and characteristics, including technical specifications, of broadcasting services that are to be available in particular areas of Australia with the use of the broadcasting services bands.
(1A) To the extent to which a licence area plan prepared under subsection (1) deals with:
(a) digital commercial radio broadcasting services; or
(b) digital community radio broadcasting services; or
(c) digital national radio broadcasting services;
the licence area plan is not required to determine the technical specifications of those services.
Television licence area plans
(1B) The ACMA may, by legislative instrument, prepare licence area plans that:
(a) specify the channels that are to be available in particular areas of Australia to provide the following services:
(i) commercial television broadcasting services;
(ii) national television broadcasting services;
(iii) other television broadcasting services;
with the use of the broadcasting services bands; and
(b) allot, or empower the ACMA to allot, those channels to:
(i) particular commercial television broadcasting licensees; or
(ii) particular national broadcasters; or
(iii) particular providers of television broadcasting services (other than commercial television broadcasting licensees or national broadcasters);
as the case requires; and
(c) determine the characteristics, including technical specifications, of the transmission of each of the following services:
(i) commercial television broadcasting services;
(ii) national television broadcasting services;
(iii) other television broadcasting services;
using those channels; and
(d) determine, or empower the ACMA to determine, any technical limitations on the use of a particular channel that the ACMA considers should be applicable; and
(e) determine, or empower the ACMA to determine, whether the use of a particular channel depends on any event or circumstances that the ACMA considers should be applicable.
(1C) A licence area plan prepared under subsection (1B) is to be known as a television licence area plan.
(1D) A television licence area plan may allot, or empower the ACMA to allot, different channels to:
(a) a particular commercial television broadcasting licensee; or
(b) a particular national broadcaster; or
(c) a particular provider of a television broadcasting service (other than a commercial television broadcasting licensee or a national broadcaster);
for different periods.
(1E) A television licence area plan may allot, or empower the ACMA to allot, 2 or more channels to:
(a) a particular commercial television broadcasting licensee; or
(b) a particular national broadcaster; or
(c) a particular provider of a television broadcasting service (other than a commercial television broadcasting licensee or a national broadcaster).
(1G) A television licence area plan does not need to identify a particular television broadcasting service by name.
(1M) Section 23 has effect as if a function or power conferred on the ACMA by a television licence area plan were a function conferred on the ACMA by this section.
Variation
(2) The ACMA may, by legislative instrument, vary a licence area plan.
Ministerial direction
(8) The Minister may, by legislative instrument, direct the ACMA about the exercise of its powers to make or vary a licence area plan for a particular area.
(9) The ACMA must comply with a direction under subsection (8).
Legislative instruments
(11) If a determination made by the ACMA under a television licence area plan is in writing, the determination is not a legislative instrument.
Definitions
(13) In this section:
national television broadcasting service has the same meaning as in Schedule 4.
television broadcasting service means a broadcasting service that provides television programs.
Note: For designation of licence areas, see section 29.
26AA Compliance with television licence area plan
(1) If:
(a) a television licence area plan is applicable to the transmission of one or more commercial television broadcasting services in a particular area; and
(b) those services are provided under a particular commercial television broadcasting licence;
the licensee must not transmit any of those commercial television broadcasting services in that area otherwise than in accordance with the television licence area plan.
(2) If:
(a) a television licence area plan is applicable to the transmission of one or more national television broadcasting services in a particular area; and
(b) those services are provided by a particular national broadcaster;
the national broadcaster must not transmit any of those national television broadcasting services in that area otherwise than in accordance with the television licence area plan.
(3) If:
(a) a television licence area plan is applicable to the transmission of one or more television broadcasting services in a particular area; and
(b) those services are not provided:
(i) under a commercial television broadcasting licence; or
(ii) by a national broadcaster;
the provider of those television broadcasting services must not transmit any of those services in that area otherwise than in accordance with the television licence area plan.
(4) In this section:
national television broadcasting service has the same meaning as in Schedule 4.
television broadcasting service means a broadcasting service that provides television programs.
26C Licence area plans not required to deal with certain digital radio broadcasting services
Commercial radio broadcasting services
(1) If:
(a) a commercial radio broadcasting licence was in force immediately before the digital radio start‑up day for the licence area; and
(b) the licence authorises the licensee to provide digital commercial radio broadcasting services in the licence area;
the relevant licence area plan is not required to deal with those services.
Community radio broadcasting services
(3) If:
(a) a designated community radio broadcasting licence was in force immediately before the digital radio start‑up day for the licence; and
(b) the licence authorises the licensee to provide digital community radio broadcasting services in the licence area;
the relevant licence area plan is not required to deal with those services.
26D Licence area plans—how digital radio broadcasting services may be dealt with
(1) This section applies if a licence area plan deals with:
(a) digital commercial radio broadcasting services; or
(b) digital community radio broadcasting services; or
(c) digital national radio broadcasting services.
(2) The licence area plan is not required to identify:
(a) individual digital commercial radio broadcasting services; or
(b) individual digital community radio broadcasting services; or
(c) individual digital national radio broadcasting services.
(3) It is sufficient if the licence area plan deals collectively with:
(a) the digital commercial radio broadcasting services; and
(b) the digital community radio broadcasting services; and
(c) the digital national radio broadcasting services;
that, from time to time, are, or are to be, transmitted under the digital radio multiplex transmitter licence or licences issued, or to be issued, in relation to the area concerned.
29 Designation of licence areas
(1) Before allocating a new commercial television broadcasting licence, commercial radio broadcasting licence or community broadcasting licence (other than a temporary community broadcasting licence) that is a broadcasting services bands licence, the ACMA is to designate one of the areas referred to in whichever of subsection 26(1) or (1B) is applicable as the licence area of the licence.
(2) If the ACMA varies a licence area plan, the ACMA may vary the designation of the relevant licence areas.
(3) This section does not apply to a licence allocated under section 38C.
30 ACMA may determine population figures
(1) The ACMA may, by notice in writing, determine the licence area population of a licence area.
(2) The ACMA may, by notice in writing, determine a number that is to be the population of Australia for the purposes of this Act.
(3) In making a determination, the ACMA is to have regard to the most recently published census count prepared by the Australian Statistician.
(4) The ACMA is to make a new determination of the licence area population of a licence area if the licence area is changed.
(5) The ACMA is to specify, in a determination of the licence area population of a licence area:
(a) the percentage of the population of Australia constituted by that licence area population; and
(b) the percentage of that licence area population that is attributable to an overlap area.
31 Minister may reserve capacity for national broadcasters or community broadcasters
(1) The Minister may, 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.
(2A) If a determination made under subsection (1) determines that a part or parts of the radiofrequency spectrum concerned is or are available for allocation to temporary broadcasting licensees for a period, the ACMA may also specify, in the determination, the maximum number of temporary community broadcasting licences that may be allocated to part or parts of the spectrum for the period.
(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
(c) an additional commercial television broadcasting licence can be allocated for the licence area; and
(ca) the ACMA, by notice published in the Gazette, invites:
(i) the existing licensees to give the ACMA a joint written notice under paragraph (d); and
(ii) each existing licensee to give the ACMA a written notice under paragraph (e);
during the period specified in the notice;
then, within the period specified in the paragraph (ca) notice:
(d) the existing licensees may give the ACMA a joint written notice stating that:
(i) a company specified in the notice (the joint‑venture company) will apply for an additional commercial television broadcasting licence for the licence area; and
(ii) the joint‑venture company is jointly owned by the existing licensees; and
(iii) the joint‑venture company is registered as a company under Part 2A.2 of the Corporations Act 2001 and has a share capital; or
(e) each existing licensee may give the ACMA a written notice stating that the licensee will apply separately for an additional commercial television broadcasting licence for the licence area.
(1A) A notice under paragraph (1)(ca) is not a legislative instrument.
Application by joint‑venture company
(2) If a notice is given under paragraph (1)(d), the joint‑venture company may, within 12 months after the notice is given, apply in writing to the ACMA for an additional commercial television broadcasting licence for the licence area.
Separate applications by existing licensees
(3) If an existing licensee gives a notice under paragraph (1)(e), the licensee may, within 12 months after the notice is given, apply in writing to the ACMA for an additional commercial television broadcasting licence for the licence area.
Allocation of additional licence to joint‑venture company
(5) As soon as practicable after receiving an application under subsection (2), the ACMA must allocate an additional commercial television broadcasting licence to the joint‑venture company for the licence area, so long as the ACMA is satisfied that the joint‑venture company is jointly owned by the existing licensees.
Allocation of additional licence to existing licensee
(6) If the ACMA has received applications from both of the existing licensees under subsection (3), the ACMA must allocate an additional commercial television broadcasting licence to one of those licensees for the licence area in accordance with a price‑based system determined under subsection (10).
(7) If:
(a) each existing licensee gives a notice under paragraph (1)(e); and
(b) by the end of the 12‑month period beginning at the time when the notice is given:
(i) the ACMA has received an application from only one existing licensee (the first licensee) under subsection (3); and
(ii) the ACMA has not received a notice from the other existing licensee stating that it will not be applying under subsection (3);
the ACMA must, as soon as practicable after the end of that 12‑month period, allocate an additional commercial television broadcasting licence to the first licensee for the licence area.
(8) If:
(a) each existing licensee gives a notice under paragraph (1)(e); and
(b) before the end of the 12‑month period beginning at the time when the notice is given, the ACMA receives:
(i) an application from one existing licensee (the first licensee) under subsection (3); and
(ii) a notice from the other existing licensee stating that it will not be applying under subsection (3);
the ACMA must, as soon as practicable after both have been received, allocate an additional commercial television broadcasting licence to the first licensee for the licence area.
(9) If only one existing licensee gives a notice under paragraph (1)(e), then, as soon as practicable after receiving an application under subsection (3) from that licensee, the ACMA must allocate an additional commercial television broadcasting licence to that licensee for the licence area.
Price‑based system for allocating licences where separate applications have been received
(10) The ACMA may determine in writing a price‑based system for allocating commercial television broadcasting licences under subsection (6).
(11) The Minister may give specific directions to the ACMA for the purpose of a determination.
(12) Directions may be to include in a determination specified reserve prices for licences, and those reserve prices may be different for licences in different licence areas.
(13) If a commercial television broadcasting licence is allocated under subsection (6), the ACMA must, unless the allocation system adopted was public, publish in the Gazette:
(a) the name of the successful applicant; and
(b) the amount that the applicant agreed to pay to the Commonwealth for the allocation of the licence.
Amalgamation of licence areas in some cases
(14) The ACMA may, by 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
(c) a statement specifying how details of:
(i) the licence area for the licence; and
(ii) the eligibility requirements; and
(iii) the conditions that will apply to the licence;
may be obtained.
(22) The applications closing date must be the 90th day after the day of publication of the first advertisement under subsection (17) that describes the contravention or cancellation concerned.
(23) If:
(a) in response to an advertisement under subsection (17), the ACMA receives one or more applications for a licence; and
(b) the applications were received on or before the applications closing date specified in the advertisement; and
(c) the ACMA is satisfied that one or more of the applicants meets the eligibility requirements;
the ACMA must:
(d) allocate the licence to one of the applicants referred to in paragraph (c); and
(e) do so within 90 days after the applications closing date.
(24) Subsection (23) has effect subject to section 37.
Restrictions on transfer of licences
(25) During the period of 2 years after the date of allocation of a licence under this section, any attempt by any person to transfer the licence is of no effect.
Definitions
(26) In this section:
wholly‑owned subsidiary has the same meaning as in the Corporations Act 2001.
39 Additional commercial radio licences in single markets
Conditions for allocation of additional licence
(1) If:
(a) a particular licence area is the licence area of only one commercial radio broadcasting licence (the parent licence) that is in force; and
(b) a service is being provided under the parent licence; and
(c) the licence area for the parent licence does not have an excessive overlap area, as determined under subsection (5); and
(d) the licensee requests the ACMA, in writing, to allocate to the licensee, for the same licence area, another commercial radio broadcasting licence that is a broadcasting services bands licence; and
(e) in the opinion of the ACMA, suitable broadcasting services bands spectrum is available for providing another commercial radio broadcasting service in the same licence area;
the ACMA must allocate an additional licence to the applicant for the same licence area as soon as practicable.
Time limit for applications
(2) An application under subsection (1) must be made within 60 days after:
(a) the commencement of this section; or
(b) the time when paragraphs (1)(a), (b) and (c) are first satisfied in relation to the parent licence;
whichever is later.
(3) If the conditions in paragraphs (1)(a), (b), (c) and (e) are not all satisfied at the time when the application is made, but at a later time they are all satisfied, then the ACMA is under an obligation at that later time to allocate the additional licence (unless the application has been withdrawn).
Matters that ACMA must take into account
(4) The matters that the ACMA must take into account in forming an opinion for the purposes of paragraph (1)(e) include the following:
(b) any relevant plan under section 26;
(c) any relevant capacity that has been reserved under section 31.
Excessive overlap area
(5) The licence area for the parent licence has an excessive overlap area if:
(a) more than 30% of the licence area population of the licence area of the parent licence is attributable to an area that overlaps with the licence area of another commercial radio broadcasting licence; and
(b) at least one of the following situations exists:
(i) more than 30% of the licence area population of the licence area of that other licence is also attributable to the area that overlaps with the licence area of the parent licence;
(ii) more than one commercial radio broadcasting licence is in force with the same licence area as that other licence.
Technical specifications for additional licence
(6) The ACMA must make a determination in writing setting out the technical specifications that apply to the additional licence. The ACMA is not required to make the determination if a plan under section 26 applies to the licence area of the additional licence.
(7) For the purposes of this Act and section 109 of the Radiocommunications Act 1992, the technical specifications are taken to have been determined under section 26 of this Act.
Fee for additional licence
(8) On allocation of the additional licence, the applicant must pay to the ACMA a fee determined by the ACMA. The fee must not be more than the amount that, in the opinion of the ACMA, represents the costs (including planning costs) incurred by the ACMA in allocating the additional licence.
Licence conditions
(9) On the allocation of the additional licence, it becomes a condition of both the parent licence and the additional licence that the licensee will continue to provide services under those licences for at least 2 years after the date of allocation of the additional licence.
Restrictions on transfer of licences
(10) During the period of 2 years after the date of allocation of the additional licence, any attempt by any person to transfer either the parent licence or the additional licence is of no effect unless both of those licences are transferred at the same time by the same person to the same transferee.
Section 37 restrictions apply
(11) This section has effect subject to section 37.
Section 29 does not apply in some cases
(12) If the licence area of the parent licence is not provided for under a licence area plan under section 26, then section 29 does not apply to the allocation of the additional licence.
40 Allocation of other licences
(1) The ACMA may allocate to a person, on application in writing by the person, a commercial television broadcasting licence or a commercial radio broadcasting licence that is not a licence referred to in subsection 36(1).
(1A) Licences under subsection (1) are to be allocated on the basis of one licence per service.
(2) Before allocating a licence referred to in subsection (1), the ACMA is to designate a particular area in Australia as the licence area of the licence.
(3) Applications must:
(a) be in accordance with a form approved in writing by the ACMA; and
(b) be accompanied by the application fee determined in writing by the ACMA.
(4) If the ACMA makes a decision under subsection (1) or (2), the ACMA must publish in the Gazette details of the allocation or the designation of a licence area.
Referral of application to the Minister
(5) Before allocating a commercial television broadcasting licence under subsection (1), the ACMA must refer the application to the Minister.
(6) If an application for a commercial television broadcasting licence is referred to the Minister under subsection (5), the ACMA must not make a decision about the application until the Minister:
(a) gives a direction under subsection (7) in relation to the application; or
(b) gives a notice under subsection (9) in relation to the application.
(7) If:
(a) an application for a commercial television broadcasting licence is referred to the Minister under subsection (5); and
(b) the Minister is of the opinion that the proposed commercial television broadcasting service is likely to be contrary to the public interest;
the Minister must, by written notice given to the ACMA, direct the ACMA not to allocate the licence to the applicant.
(8) The ACMA must comply with a direction under subsection (7).
(9) If:
(a) an application for a commercial television broadcasting licence is referred to the Minister under subsection (5); and
(b) the Minister is not of the opinion that the proposed commercial television broadcasting service is likely to be contrary to the public interest;
the Minister must, by written notice given to the ACMA, inform the ACMA that he or she has no objection to the allocation of the licence to the applicant.
Minister may request additional information
(10) If an application is referred to the Minister under subsection (5), and the Minister considers that additional information is required before the Minister can decide whether to:
(a) give a direction under subsection (7) in relation to the application; or
(b) give a notice under subsection (9) in relation to the application;
the Minister may, by written notice given to the applicant within 30 days after the day on which the application is referred to the Minister, request the applicant to provide that information.
(11) If the Minister requests additional information under subsection (10), the Minister must give the ACMA a copy of the request.
Decision to be made within 60 days
(12) If the Minister does not, within 60 days after the day on which:
(a) an application is referred to the Minister under subsection (5); or
(b) if the Minister requests additional information under subsection (10)—that additional information is received;
do either of the following:
(c) give a direction under subsection (7) in relation to the application;
(d) give a notice under subsection (9) in relation to the application;
then the Minister is taken to have given a notice under subsection (9) in relation to the application.
Licence condition
(13) If the ACMA allocates a commercial television broadcasting licence under subsection (1), the licence is subject to the condition that the licensee may only provide the commercial television broadcasting service concerned in digital mode (within the meaning of Schedule 4).
41 When persons are regarded as suitable
(1) For the purposes of this Part, a company is a suitable licensee or a suitable applicant for a licence if the ACMA has not decided that subsection (2) applies to the company.
(2) The ACMA may, if it is satisfied that allowing a particular company to provide or continue to provide commercial broadcasting services under a licence would lead to a significant risk of:
(a) an offence against this Act or the regulations being committed; or
(aa) a breach of a civil penalty provision occurring; or
(b) a breach of the conditions of the licence occurring;
decide that this subsection applies to the company.
(3) In deciding whether such a risk exists, the ACMA is to take into account:
(a) the business record of the company; and
(b) the company’s record in situations requiring trust and candour; and
(c) the business record of each person who is, or would be, if a licence were allocated to the applicant, in a position to control the licence; and
(d) the record in situations requiring trust and candour of each such person; and
(e) whether the company, or a person referred to in paragraph (c) or (d), has been convicted of an offence against this Act or the regulations; and
(f) whether a civil penalty order has been made against:
(i) the company; or
(ii) a person referred to in paragraph (c) or (d).
(4) This section does not affect the operation of Part VIIC of the Crimes Act 1914 (which includes provisions that, in certain circumstances, relieve persons from the requirement to disclose spent convictions and require persons aware of such convictions to disregard them).
Division 2—Services authorised by licences
41C Services authorised by commercial television broadcasting licences
(1) A commercial television broadcasting licence for a licence area authorises the licensee to provide the following services in the licence area:
(a) one or more HDTV multi‑channelled commercial television broadcasting services;
(b) one or more SDTV multi‑channelled commercial television broadcasting services.
Licences allocated under section 38C or subsection 40(1)
(2) This section does not apply to a commercial television broadcasting licence allocated under section 38C or subsection 40(1).
Definitions
(3) In this section:
HDTV multi‑channelled commercial television broadcasting service has the same meaning as in Schedule 4.
SDTV multi‑channelled commercial television broadcasting service has the same meaning as in Schedule 4.
41CA Services authorised by commercial television broadcasting licences allocated under section 38C
Authorised services
(1) A licence allocated under section 38C authorises the licensee to provide the following commercial television broadcasting services in the licence area:
(b) if:
(i) a commercial television broadcasting licensee (a related terrestrial licensee) for a related terrestrial licence area provides a SDTV multi‑channelled commercial television broadcasting service in the related terrestrial licence area; and
(ii) the service is not the primary commercial television broadcasting service provided by the related terrestrial licensee;
a SDTV multi‑channelled commercial television broadcasting service the program content of which is the same, or substantially the same, as the service provided by the related terrestrial licensee;
(c) if:
(i) a commercial television broadcasting licensee (a related terrestrial licensee) for a related terrestrial licence area provides a SDTV multi‑channelled commercial television broadcasting service in the related terrestrial licence area; and
(ii) the service is the primary commercial television broadcasting service provided by the related terrestrial licensee;
a commercial television broadcasting service the program content of which is the same, or substantially the same, as the service provided by the related terrestrial licensee;
(e) if:
(i) a commercial television broadcasting licensee (a metropolitan licensee) for a metropolitan licence area provides a SDTV multi‑channelled commercial television broadcasting service in the metropolitan licence area; and
(ii) the service is not the primary commercial television broadcasting service provided by the metropolitan licensee;
a SDTV multi‑channelled commercial television broadcasting service the program content of which is the same, or substantially the same, as the service provided by the metropolitan licensee;
(f) if:
(i) a commercial television broadcasting licensee (a metropolitan licensee) for a metropolitan licence area provides a SDTV multi‑channelled commercial television broadcasting service in the metropolitan licence area; and
(ii) the service is the primary commercial television broadcasting service provided by the metropolitan licensee;
a commercial television broadcasting service the program content of which is the same, or substantially the same, as the service provided by the metropolitan licensee;
(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:
(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 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:
(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 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
(c) ignore any program the broadcasting of which in any jurisdiction in the licence area could result in the licensee:
(i) committing an offence; or
(ii) becoming liable to a civil penalty; or
(iii) breaching an order or direction of a court; or
(iv) being in contempt of court; and
(d) ignore a program broadcast in circumstances specified in the regulations.
(3) In determining, for the purposes of:
(a) paragraph (1)(c); or
(b) paragraph (1)(f); or
(c) paragraph (1)(fb); 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
(c) Queensland; or
(d) Western Australia; or
(e) South Australia;
but does not include the licence area of a commercial television broadcasting licence allocated under section 38C.
related terrestrial licence area:
(a) in relation to a licence allocated under section 38C for the South Eastern Australia TV3 licence area—means a licence area mentioned in column 3 of item 1 of the table in subsection 38C(1); or
(b) in relation to a licence allocated under section 38C for the Northern Australia TV3 licence area—means a licence area mentioned in column 3 of item 2 of the table in subsection 38C(1); or
(c) in relation to a licence allocated under section 38C for the Western Australia TV3 licence area—means a licence area mentioned in column 3 of item 3 of the table in subsection 38C(1).
SDTV multi‑channelled commercial television broadcasting service has the same meaning as in Schedule 4.
41D Services authorised by commercial radio broadcasting licences
Licences in force immediately before the commencement of this section
(1) If:
(a) a commercial radio broadcasting licence was in force immediately before the commencement of this section; and
(b) the licence authorised the licensee to provide an analog commercial radio broadcasting service in the licence area;
then, during the period:
(c) beginning at the start of the day on which this section commences; and
(d) ending immediately before the digital radio start‑up day for the licence area;
the licence is taken to authorise the licensee to provide that service in the licence area.
Licences allocated on or after the commencement of this section
(2) If:
(a) a commercial radio broadcasting licence is allocated on or after the commencement of this section but before the digital radio start‑up day for the licence area; and
(b) the licence is allocated as a licence to provide an analog commercial radio broadcasting service in the licence area;
then, during the period:
(c) beginning at the start of the day on which the licence is allocated; and
(d) ending immediately before the digital radio start‑up day for the licence area;
the licence is taken to authorise the licensee to provide that service in the licence area.
Licences in force immediately before the digital radio start‑up day for the licence area
(3) If:
(a) a commercial radio broadcasting licence was in force immediately before the digital radio start‑up day for the licence area; and
(b) the licence authorised the licensee to provide an analog commercial radio broadcasting service in the licence area;
then, on and after the digital radio start‑up day for the licence area, the licence is taken to authorise the licensee to provide the following services in the licence area:
(c) the analog commercial radio broadcasting service;
(d) one or more digital commercial radio broadcasting services.
Licences allocated on or after digital radio start‑up day for the licence area
(4) If:
(a) a commercial radio broadcasting licence is allocated on or after the digital radio start‑up day for the licence area; and
(b) the licence is allocated as a licence to provide an analog commercial radio broadcasting service in the licence area;
the licence is taken to authorise the licensee to provide that service in the licence area.
(5) If:
(a) a commercial radio broadcasting licence is allocated on or after the digital radio start‑up day for the licence area; and
(b) the licence is allocated as a licence to provide digital commercial radio broadcasting services in the licence area;
the licence is taken to authorise the licensee to provide one or more digital commercial radio broadcasting services in the licence area.
Subsection 40(1) licences
(7) This section does not apply to a commercial radio broadcasting licence allocated under subsection 40(1).
Division 3—Licence conditions
42 Conditions of commercial broadcasting licences
(1) Each commercial television broadcasting licence is subject to:
(a) the conditions set out in Division 1 of Part 3 of Schedule 2; and
(b) such other conditions as are imposed under section 43.
(1A) Each commercial television broadcasting licence allocated under section 38C is also subject to the conditions set out in Division 2 of Part 3 of Schedule 2.
(2) Each commercial radio broadcasting licence is subject to:
(a) the conditions set out in Part 4 of Schedule 2; and
(b) such other conditions as are imposed under section 43.
43 ACMA may impose additional conditions
(1) The ACMA may, by notice in writing given to a commercial television broadcasting licensee or a commercial radio broadcasting licensee, vary or revoke a condition of the licence or impose an additional condition on the licence.
(2) If the ACMA proposes to vary or revoke a condition or to impose a new condition, the ACMA must:
(a) give to the licensee written notice of its intention; and
(b) give to the licensee a reasonable opportunity to make representations to the ACMA in relation to the proposed action; and
(c) publish the proposed changes in the Gazette.
(3) This section does not allow the ACMA to vary or revoke a condition set out in Part 3 or 4 of Schedule 2.
(4) If the ACMA varies or revokes a condition or imposes a new condition, the ACMA must publish the variation, the fact of the revocation or the new condition, as the case may be, in the Gazette.
(5) Action taken under subsection (1) must not be inconsistent with:
(a) determinations and clarifications under section 19; or
(b) conditions set out in Part 3 or 4 of Schedule 2.
43AA Local news to be provided to section 38C licensees by regional commercial television broadcasting licensees
(1) A commercial television broadcasting licence for a regional licence area is subject to the condition that, if:
(a) the licensee broadcasts a local news program in the licence area; and
(aa) the licensee has not previously broadcast the program in the licence area; and
(b) the licence area is wholly or partly included in the licence area of a licence allocated under section 38C;
the licensee of the regional commercial television broadcasting licence must:
(c) provide the local news program to the licensee of the section 38C licence for broadcast by the section 38C licensee; and
(d) do so:
(i) simultaneously with the broadcast of the program by the licensee of the regional commercial television broadcasting licence; or
(ii) as soon as practicable after the broadcast of the program by the licensee of the regional commercial television broadcasting licence.
(2) A program must be provided under subsection (1) by transmitting it in digital mode (within the meaning of Schedule 4).
(3) If:
(a) apart from this subsection, a commercial television broadcasting licensee for a regional licence area (the regional licensee) is required by subsection (1) to provide a program to the licensee of a commercial television broadcasting licence allocated under section 38C; and
(b) the regional licensee believes, on reasonable grounds, that the broadcasting of a part of the program in any jurisdiction in the licence area of the section 38C licence could result in the section 38C licensee:
(i) committing an offence; or
(ii) becoming liable to a civil penalty; or
(iii) breaching an order or direction of a court; or
(iv) being in contempt of court;
subsection (1) has effect as if the program did not include that part of the program.
(3A) If:
(a) apart from this subsection, a commercial television broadcasting licensee for a regional licence area (the regional licensee) is required by subsection (1) to provide a program to the licensee of a commercial television broadcasting licence allocated under section 38C; and
(b) the regional licensee believes, on reasonable grounds, that the broadcasting of the program in any jurisdiction in the licence area of the section 38C licence could result in the section 38C licensee:
(i) committing an offence; or
(ii) becoming liable to a civil penalty; or
(iii) breaching an order or direction of a court; or
(iv) being in contempt of court;
subsection (1) does not apply to the program.
(3B) A commercial television broadcasting licence for a regional licence area is subject to the condition that, if:
(a) the licensee broadcasts a local news program in the licence area on 2 or more occasions; and
(b) the licence area is wholly or partly included in the licence area of a licence allocated under section 38C;
the licensee of the regional commercial television broadcasting licence will take reasonable steps to ensure that the licensee of the regional commercial television broadcasting licence does not, on more than one occasion, provide the program to the section 38C licensee for broadcast by the section 38C licensee.
(6) This section does not apply to a commercial television broadcasting licence allocated under subsection 40(1).
(7) In this section:
local news program means:
(a) a program that consists solely of local news and/or local weather information; or
(b) a program:
(i) that consists primarily of local news and/or local weather information; and
(ii) the remainder of which consists of other news and/or other weather information;
but does not include:
(c) a short segment, or a headline update, that is broadcast for the sole or primary purpose of promoting another program; or
(d) a short segment, or a headline update, that repeats news content that has previously been broadcast by the licensee concerned.
metropolitan licence area means a licence area in which is situated the General Post Office of the capital city of:
(a) New South Wales; or
(b) Victoria; or
(c) Queensland; or
(d) Western Australia; or
(e) South Australia;
but does not include the licence area of a commercial television broadcasting licence allocated under section 38C.
regional licence area means a licence area that is not a metropolitan licence area, but does not include:
(a) the licence area of a commercial television broadcasting licence allocated under section 38C; or
(b) a licence area specified in column 3 of the table in subsection 38C(1).
43AB Commercial television programs to be provided to section 38C licensees by metropolitan commercial television broadcasting licensees
Programs to be provided by metropolitan licensees
(1) A commercial television broadcasting licence for a metropolitan licence area is subject to the condition that, if:
(a) the licensee (the metropolitan licensee) broadcasts a program in a metropolitan licence area on either of the following services (a metropolitan service):
(i) a HDTV multi‑channelled commercial television broadcasting service;
(ii) a SDTV multi‑channelled commercial television broadcasting service; and
(b) before the program is broadcast, a section 38C licensee requests the metropolitan licensee to provide the section 38C licensee with the programs broadcast on the metropolitan service;
the metropolitan licensee must:
(c) provide the program to the section 38C licensee for broadcast by the section 38C licensee; and
(d) do so:
(i) simultaneously with the broadcast of that program on the metropolitan service; or
(ii) as soon as practicable after the broadcast of that program on the metropolitan service.
HDTV digital mode or SDTV digital mode
(2) A program must be provided under subsection (1) by transmitting it:
(a) if subparagraph (1)(a)(i) applies—in HDTV digital mode (within the meaning of Schedule 4); or
(b) if subparagraph (1)(a)(ii) applies—in SDTV digital mode (within the meaning of Schedule 4).
Definitions
(4) In this section:
HDTV multi‑channelled commercial television broadcasting service has the same meaning as in Schedule 4.
metropolitan licence area means a licence area in which is situated the General Post Office of the capital city of:
(a) New South Wales; or
(b) Victoria; or
(c) Queensland; or
(d) Western Australia; or
(e) South Australia;
but does not include the licence area of a commercial television broadcasting licence allocated under section 38C.
SDTV multi‑channelled commercial television broadcasting service has the same meaning as in Schedule 4.
section 38C licensee means the licensee of a commercial television broadcasting licence allocated under section 38C.
43AC Commercial television programs to be provided to section 38C licensees by remote terrestrial licensees
Scope
(1) This section applies if the licence area of a commercial television broadcasting licence (the remote terrestrial licence) is a related terrestrial licence area of a licence allocated under section 38C.
Programs to be provided by remote terrestrial licensees
(2) The remote terrestrial licence is subject to the condition that, if the licensee broadcasts a program in the related terrestrial licence area on either of the following services (a remote terrestrial service):
(a) a HDTV multi‑channelled commercial television broadcasting service;
(b) a SDTV multi‑channelled commercial television broadcasting service;
the licensee of the remote terrestrial licence must:
(c) provide the program to the section 38C licensee for broadcast by the section 38C licensee; and
(d) do so:
(i) simultaneously with the broadcast of that program on the remote terrestrial service; or
(ii) as soon as practicable after the broadcast of that program on the remote terrestrial service.
HDTV digital mode or SDTV digital mode
(3) A program must be provided under subsection (2) by transmitting it:
(a) if paragraph (2)(a) applies—in HDTV digital mode (within the meaning of Schedule 4); or
(b) if paragraph (2)(b) applies—in SDTV digital mode (within the meaning of Schedule 4).
Definitions
(5) In this section:
HDTV multi‑channelled commercial television broadcasting service has the same meaning as in Schedule 4.
related terrestrial licence area:
(a) in relation to a licence allocated under section 38C for the South Eastern Australia TV3 licence area—means a licence area mentioned in column 3 of item 1 of the table in subsection 38C(1); or
(b) in relation to a licence allocated under section 38C for the Northern Australia TV3 licence area—means a licence area mentioned in column 3 of item 2 of the table in subsection 38C(1); or
(c) in relation to a licence allocated under section 38C for the Western Australia TV3 licence area—means a licence area mentioned in column 3 of item 3 of the table in subsection 38C(1).
SDTV multi‑channelled commercial television broadcasting service has the same meaning as in Schedule 4.
section 38C licensee means the licensee of a commercial television broadcasting licence allocated under section 38C.
43AD Compensation for acquisition of property
(1) If the operation of:
(b) section 43AA; or
(c) section 43AB; or
(d) section 43AC;
in relation to the provision of a program to the licensee of a commercial television broadcasting licence would result in an acquisition of property from a person otherwise than on just terms, the licensee is liable to pay a reasonable amount of compensation to the person.
(2) If the licensee and the person do not agree on the amount of the compensation, the person may institute proceedings in a court of competent jurisdiction for the recovery from the licensee of such reasonable amount of compensation as the court determines.
(3) In this section:
acquisition of property has the same meaning as in paragraph 51(xxxi) of the Constitution.
just terms has the same meaning as in paragraph 51(xxxi) of the Constitution.
43B Local presence—regional commercial radio broadcasting licences
(1A) The ACMA must ensure that, at all times after the commencement of Schedule 2 to the Broadcasting Services Amendment (Regional Commercial Radio) Act 2012, there is in force under section 43 a condition that has the effect of requiring that, if a trigger event for a regional commercial radio broadcasting licence occurs after the commencement of that Schedule, then, throughout the 24‑month period beginning when the trigger event occurs, the licensee must maintain at least the existing level of local presence.
Note: A trigger event cannot occur in relation to a regional commercial radio broadcasting licence that was allocated under subsection 40(1): see section 50A.
(2) The condition must define existing level of local presence for the purposes of the condition.
(3) The definition must deal with:
(a) staffing levels; and
(b) studios and other production facilities.
(4) Subsection (3) does not limit subsection (2).
(4A) The condition does not apply to a regional commercial radio broadcasting licence that is:
(a) a remote area service radio licence; or
(b) a regional racing service radio licence.
(5) To avoid doubt, this section does not create any obligations under subsection 43(2) that would not exist apart from this section.
(6) Subsection 43(5) does not apply to the condition.
(7) This section does not limit the powers conferred on the ACMA by section 43 to impose, vary or revoke other conditions.
(8) The Minister may give the ACMA a written direction about the fulfilment of the obligation imposed on the ACMA by this section.
(9) The ACMA must comply with a direction under subsection (8).
(10) In this section:
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 regional commercial radio broadcasting licensee to broadcast material on a business day included in a local content exemption period for the licensee.
Material of local significance
(2) The condition must define material of local significance for the purposes of the condition. If a regional commercial radio broadcasting licensee is required to comply with section 61CD, the definition of material of local significance must be broad enough to cover material that the licensee must broadcast in order to comply with that section.
Exclusion of certain licences
(2A) The condition does not apply to a regional commercial radio broadcasting licence that is:
(a) a remote area service radio licence; or
(b) a regional racing service radio licence; or
(c) allocated under subsection 40(1).
Applicable number
(3) For the purposes of the application of subsection (1) to a regional commercial radio broadcasting licence, the applicable number is:
(a) 4.5; or
(b) if the Minister, by legislative instrument, declares that another number is the applicable number for regional commercial radio broadcasting licences generally—the other number; or
(c) if:
(i) the Minister, by legislative instrument, declares that another number is the applicable number for a specified class of regional commercial radio broadcasting licences; and
(ii) the regional commercial radio broadcasting licence is included in that class;
the other number.
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 most recent determination under which the person was not in breach of the condition remained in force.
Sunset
(4A) Subsection (4) ceases to have effect at the end of 5 years after the commencement of Schedule 4 of the Broadcasting Legislation Amendment (2021 Measures No. 1) Act 2021.
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.
43D Special licence conditions relating to digital radio commercial broadcasting services
Scope
(1) This section applies to a commercial radio broadcasting licence (the first licence) if:
(a) the first licence authorises the licensee to provide one or more digital commercial radio broadcasting services; and
(b) the first licence was not allocated under subsection 40(1).
Transmission by multiplex transmitter
(2) The first licence is subject to the condition that the licensee must not provide a digital commercial radio broadcasting service under the first licence unless:
(a) the service is transmitted using a multiplex transmitter; and
(b) the operation of the multiplex transmitter is authorised by a digital radio multiplex transmitter licence.
Use of more than one‑ninth of multiplex capacity
(3) If there is only one digital radio multiplex transmitter licence for the licence area of the first licence, the first licence is subject to the condition that the licensee of the first licence must not use more than one‑ninth of multiplex capacity under the digital radio multiplex transmitter licence for the purpose of providing, under the first licence, a digital commercial radio broadcasting service that passes the shared content test in relation to an analog commercial radio broadcasting service provided under:
(a) the first licence; or
(b) another commercial radio broadcasting licence that has the same licence area as the first licence.
(4) If there are 2 or more digital radio multiplex transmitter licences for the licence area of the first licence, the first licence is subject to the condition that the licensee of the first licence must not use more than the designated fraction of the total multiplex capacities under those digital radio multiplex transmitter licences for the purpose of providing, under the first licence, a digital commercial radio broadcasting service that passes the shared content test in relation to an analog commercial radio broadcasting service provided under:
(a) the first licence; or
(b) another commercial radio broadcasting licence that has the same licence area as the first licence.
(5) For the purposes of subsection (4), the designated fraction of the total multiplex capacities under those digital radio multiplex transmitter licences is as follows:
Shared content test
(6) For the purposes of subsections (3) and (4), a digital commercial radio broadcasting service passes the shared content test at a particular time in relation to an analog commercial radio broadcasting service if:
(a) the program content of at least 50% of the total number of hours of programs broadcast by the first‑mentioned service during daytime/evening hours during the 6‑month period ending at that time;
were the same as:
(b) the program content of at least 50% of the total number of hours of programs broadcast by the other service during daytime/evening hours during the 6‑month period ending at that time.
(7) For the purposes of subsection (6), ignore the following:
(a) advertising or sponsorship material (whether or not of a commercial kind);
(b) a promotion for a radio program or a radio broadcasting service;
(c) any digital program enhancement content in relation to a radio program;
(d) community information material or community promotional material;
(e) a news break or weather bulletin;
(f) any other similar material.
Definitions
(8) In this section:
category 1 digital radio multiplex transmitter licence has the same meaning as in the Radiocommunications Act 1992.
category 2 digital radio multiplex transmitter licence has the same meaning as in the Radiocommunications Act 1992.
daytime/evening hours means the hours:
(a) beginning at 6 am each day; and
(b) ending at midnight on the same day.
digital radio multiplex transmitter licence means:
(a) a category 1 digital radio multiplex transmitter licence; or
(b) a category 2 digital radio multiplex transmitter licence.
44 Matters to which conditions may relate
(1) Conditions of commercial television broadcasting licences and commercial radio broadcasting licences must be relevant to the broadcasting services to which those licences relate.
(2) Without limiting the range of conditions that may be imposed, the ACMA may impose a condition on a commercial television broadcasting licensee or a commercial radio broadcasting licensee:
(a) requiring the licensee to comply with a code of practice that is applicable to the licensee; or
(b) designed to ensure that a breach of a condition by the licensee does not recur.
Division 4—General provisions
45 Duration of licences
(1) Subject to Part 10, commercial television broadcasting licences (other than commercial television broadcasting licences allocated under section 38C) and commercial radio broadcasting licences remain in force for 5 years.
(2) A commercial television broadcasting licence allocated under section 38C remains in force for 10 years.
(3) Subsection (2) has effect subject to:
(a) subsection 38C(15); and
(b) Part 10.
46 Applications for renewal
(1) The ACMA may renew a commercial television broadcasting licence or a commercial radio broadcasting licence if:
(a) the licensee makes an application for renewal of the licence, in accordance with a form approved in writing by the ACMA, at least 20 weeks but not more than one year before the licence is due to expire; and
(b) the application is accompanied by the renewal fee determined in writing by the ACMA.
(2) If the ACMA receives an application for renewal, the ACMA must notify in the Gazette the fact that the application has been made.
47 ACMA to renew licences unless it is aware of special circumstances
(1) Subject to subsection (2), if the ACMA receives an application under section 46, the ACMA must, by notice in writing given to the licensee, renew the licence for a period of 5 years.
(2) The ACMA must refuse to renew a licence if the ACMA decides that subsection 41(2) applies to the licensee.
(3) The ACMA is not required to conduct an investigation or a hearing into whether a licence should be renewed.
48 Transfer of commercial broadcasting licences
A commercial television broadcasting licensee or a commercial radio broadcasting licensee may transfer the licence to another person.
49 Surrender of commercial broadcasting licences
A commercial television broadcasting licensee or a commercial radio broadcasting licensee may, by notice in writing given to the ACMA, surrender the licence.
Part 5—Control of commercial broadcasting licences
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.
52 Changes in licence area populations not to put persons in breach of this Part
(1) 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 provisions continue to apply to the person as if the most recent determination under which the person was not in breach of the provision remained in force.
(2) This section ceases to have effect at the end of 5 years after the commencement of Schedule 4 of the Broadcasting Legislation Amendment (2021 Measures No. 1) Act 2021.
52A Newspapers—additional constitutional basis
(1) Without limiting its effect apart from this section, this Act (other than Division 10A) also has effect as provided by this section.
(2) This Act (other than Division 10A) also has the effect it would have if each reference in this Part (other than Division 10A) 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
53 Limitation on control of commercial television broadcasting licences
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.
Division 3—Limitation on directorships
55 Limitation on numbers of directorships—television
(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.
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 media diversity situation has the meaning given by section 61AB.
61AB Unacceptable media diversity situation
Metropolitan licence area
(1) For the purposes of this Division, an unacceptable media diversity situation exists in relation to a metropolitan licence area of a commercial radio broadcasting licence if the number of points in the licence area is less than 5.
Regional licence area
(2) For the purposes of this Division, an unacceptable media diversity situation exists in relation to a regional licence area of a commercial radio broadcasting licence if the number of points in the licence area is less than 4.
61AC Points
(1) Use the table to work out the number of points in the licence area of a commercial radio broadcasting licence (the first radio licence area):
| Points |
| Item | This ... | is worth ... |
| 1 | a group of 2 or more media operations, where: (a) a person is in a position to exercise control of each of those media operations; and (b) each of those media operations complies with the statutory control rules; and (c) if a commercial television broadcasting licence is in the group—more than 50% of the licence area population of the first radio licence area is attributable to the licence area of the commercial television broadcasting licence; and (d) if a commercial radio broadcasting licence is in the group—the first radio licence area is the same as, or is entirely within, the licence area of the commercial radio broadcasting licence; and (e) if a newspaper is in the group—the newspaper is associated with the first radio licence area | 1 point. |
| 2 | a commercial radio broadcasting licence, where: (a) the licence complies with the statutory control rules; and (b) the first radio licence area is the same as, or is entirely within, the licence area of the licence; and (c) item 1 does not apply to the licence | 1 point. |
| 3 | a newspaper, where: (a) the newspaper complies with the statutory control rules; and (b) the newspaper is associated with the first radio licence area; and (c) item 1 does not apply to the newspaper | 1 point. |
| 4 | a group of 2 or more commercial television broadcasting licences, where: (a) each of those licences complies with the statutory control rules; and (b) more than 50% of the licence area population of the first radio licence area is attributable to the licence area of each of those commercial television broadcasting licences; and (c) the primary commercial television broadcasting service to which those commercial television broadcasting licences relate pass the shared content test in relation to each other; and (d) item 1 does not apply to any of those commercial television broadcasting licences | 1 point. |
| 5 | a commercial television broadcasting licence, where: (a) the licence complies with the statutory control rules; and (b) more than 50% of the licence area population of the first radio licence area is attributable to the licence area of the commercial television broadcasting licence; and (c) none of the commercial television broadcasting services provided under the licence passes the shared content test in relation to any of the commercial television broadcasting services provided under another commercial television broadcasting licence, where more than 50% of the licence area population of the first radio licence area is attributable to the licence area of the other commercial television broadcasting licence; and (d) item 1 does not apply to the first‑mentioned licence | 1 point. |
(2) If, apart from this subsection, all the media operations in a group of media operations mentioned in an item of the table are also in one or more other groups mentioned in an item of the table, then, for the purposes of subsection (1), ignore the existence of:
(a) if one of the groups has the highest number of media operations—the remaining group or groups; or
(b) if 2 or more of the groups have an equal highest number of media operations:
(i) all but one of the groups that have an equal highest number of media operations; and
(ii) the remaining group or groups; or
(c) if the groups have an equal number of media operations—all but one of those groups.
61AD Statutory control rules
For the purposes of this Division, a media operation complies with the statutory control rules if, and only if:
(a) no person is in breach of a prohibition in Division 2 or 3 that relates directly or indirectly to the media operation; or
(b) a person is in breach of a prohibition in Division 2 or 3 that relates directly or indirectly to the media operation, but the ACMA has approved the breach under section 67.
Note: Section 67 is about approval of temporary breaches.
61AE Shared content test
(1) For the purposes of this Division, a commercial television broadcasting service passes the shared content test at a particular time in relation to another commercial television broadcasting service if:
(a) the program content of at least 50% of the total number of hours of programs broadcast by the first‑mentioned service during daytime/evening hours during the 6‑month period ending at that time;
were the same as:
(b) the program content of at least 50% of the total number of hours of programs broadcast by the other service during daytime/evening hours during the 6‑month period ending at that time.
(2) For the purposes of subsection (1), ignore the following:
(a) advertising or sponsorship material (whether or not of a commercial kind);
(b) a promotion for a television program or a television broadcasting service;
(c) community information material or community promotional material;
(d) a news break or weather bulletin;
(e) any other similar material.
61AF Overlapping licence areas
Section 51 does not apply to this Division.
Note: Section 51 is about overlapping licence areas.
Subdivision B—Prohibition of transactions that result in an unacceptable media diversity situation coming into existence etc.
61AG Prohibition of transactions that result in an unacceptable media diversity situation coming into existence—offence
A person commits an offence if:
(a) one or more transactions take place on or after the commencement day; and
(b) the transactions have the result that:
(i) an unacceptable media diversity situation comes into existence in relation to the licence area of a commercial radio broadcasting licence; or
(ii) if an unacceptable media diversity situation already exists in relation to the licence area of a commercial radio broadcasting licence—there is a reduction in the number of points in the licence area; and
(c) the person was:
(i) a party to the transactions; or
(ii) in a position to prevent the transactions taking place; and
(d) the ACMA has not approved the transactions under section 61AJ.
Penalty: 20,000 penalty units.
61AH Prohibition of transactions that result in an unacceptable media diversity situation coming into existence—civil penalty
(1) This section applies if:
(a) one or more transactions take place on or after the commencement day; and
(b) the transactions have the result that:
(i) an unacceptable media diversity situation comes into existence in relation to the licence area of a commercial radio broadcasting licence; or
(ii) if an unacceptable media diversity situation already exists in relation to the licence area of a commercial radio broadcasting licence—there is a reduction in the number of points in the licence area; and
(c) the ACMA has not approved the transactions under section 61AJ.
(2) A person must not be:
(a) a party to the transactions; or
(b) in a position to prevent the transactions taking place.
(3) Subsection (2) is a civil penalty provision.
61AJ Prior approval of transactions that result in an unacceptable media diversity situation coming into existence etc.
(1) A person may, before a transaction takes place that would place a person in breach of section 61AG or 61AH, make an application to the ACMA for an approval of the transaction.
(2) An application is to be made in accordance with a form approved in writing by the ACMA.
(3) If the ACMA considers that additional information is required before the ACMA can make a decision on an application, the ACMA may, by written notice given to the applicant within 30 days after receiving the application, request the applicant to provide that information.
(4) If, after receiving an application, the ACMA is satisfied that:
(a) if the transaction took place, it would place a person in breach of section 61AG or 61AH; and
(b) either:
(i) the applicant; or
(ii) another person;
will take action, within a period of not longer than 2 years, to ensure that:
(iii) an unacceptable media diversity situation does not exist in relation to the licence area concerned; or
(iv) if an unacceptable media diversity situation already exists in relation to the licence area concerned—there is not a reduction in the number of points in the licence area concerned;
the ACMA may, by written notice given to the applicant:
(c) approve the transaction; and
(d) if subparagraph (b)(i) applies—specify a period within which action must be taken by the applicant to ensure that:
(i) an unacceptable media diversity situation does not exist in relation to the licence area concerned; or
(ii) if an unacceptable media diversity situation already exists in relation to the licence area concerned—there is not a reduction in the number of points in the licence area concerned; and
(e) if subparagraph (b)(ii) applies—inform the applicant accordingly.
(5) The period specified in the notice must be at least one month, but not longer than 2 years.
(6) The ACMA may specify in a notice given to an applicant the action that the ACMA considers the applicant must take to ensure that:
(a) an unacceptable media diversity situation does not exist in relation to the licence area concerned; or
(b) if an unacceptable media diversity situation already exists in relation to the licence area concerned—there is not a reduction in the number of points in the licence area concerned.
(7) In deciding whether to approve a transaction, the ACMA may have regard to:
(a) any relevant undertakings that:
(i) have been accepted by the ACMA under section 61AS; and
(ii) have not been withdrawn or cancelled; and
(b) such other matters (if any) as the ACMA considers relevant.
(8) If the ACMA refuses to approve a transaction, the ACMA must give written notice of the refusal to the applicant.
(9) The ACMA must deal with applications under subsection (1) in order of receipt.
(10) If the ACMA receives an application under subsection (1), the ACMA must use its best endeavours to make a decision on the application within 45 days after receipt of the application.
61AK Extension of time for compliance with prior approval notice
(1) A person who has been given a notice under section 61AJ may, within 3 months before the end of the period specified in the notice but not less than one month before the end of that period, apply in writing to the ACMA for an extension of that period.
(2) The ACMA may grant an extension if it is of the opinion that an extension is appropriate in all the circumstances.
(3) If the ACMA considers that additional information is required before the ACMA can make a decision on an application, the ACMA may, by written notice given to the applicant within 30 days after receiving the application, request the applicant to provide that information.
(4) The ACMA must not grant more than one extension, and the period of any extension must not exceed:
(a) the period originally specified in the notice; or
(b) one year;
whichever is the lesser period.
(5) In deciding whether to grant an extension to an applicant, the ACMA is to have regard to:
(a) the endeavours that the applicant made in attempting to comply with the notice; and
(b) the difficulties that the applicant experienced in attempting to comply with the notice;
but the ACMA must not have regard to any financial disadvantage that compliance with the notice may cause.
(6) If the ACMA does not, within 45 days after:
(a) receiving the application; or
(b) if the ACMA has requested further information—receiving that further information;
extend the period or refuse to extend the period originally specified in the notice, the ACMA is to be taken to have extended that period by:
(c) the period originally specified in the notice; or
(d) one year;
whichever is the lesser period.
(7) If the ACMA refuses to approve an application made under subsection (1), the ACMA must give written notice of the refusal to the applicant.
61AL Breach of prior approval notice—offence
(1) A person commits an offence if:
(a) the person has been given a notice under section 61AJ; and
(b) the person engages in conduct; and
(c) the person’s conduct contravenes a requirement in the notice.
Penalty: 20,000 penalty units.
(2) A person who contravenes subsection (1) commits a separate offence in respect of each day (including a day of a conviction for the offence or any later day) during which the contravention continues.
61AM Breach of prior approval notice—civil penalty
(1) A person must comply with a notice under section 61AJ.
(2) Subsection (1) is a civil penalty provision.
(3) A person who contravenes subsection (1) commits a separate contravention of that subsection in respect of each day (including a day of the making of a relevant civil penalty order or any later day) during which the contravention continues.
Subdivision 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
(c) the original decision was set aside or revoked; and
(d) after the original decision was set aside or revoked, the ACMA entered another registrable media group in relation to that licence area in the Register; and
(e) after that other group was entered in the Register, the Administrative Appeals Tribunal or a court made a decision the effect of which was to restore or affirm the original decision;
subsection (4) does not prevent the ACMA from giving a direction under subsection (1) to a registered controller of that other group that would have the effect of requiring the registered controller to cease to be in a position to exercise control of any media operation in that other group.
(5) A direction under subsection (1) must specify a period within which the person must comply with the direction.
(6) The period must not be longer than 2 years.
(6A) If:
(a) the ACMA gives a direction under subsection (1) in the circumstances referred to in subsection (4C); and
(b) subsection (8) does not apply;
the period specified in the direction must be 2 years.
(7) If the ACMA is satisfied that the person:
(a) acted in good faith; and
(b) took reasonable precautions, and exercised due diligence, to avoid:
(i) the unacceptable media diversity situation coming into existence; or
(ii) if the unacceptable media diversity situation already existed—a reduction in the number of points in the licence area concerned;
the period specified in the direction must be 2 years.
(8) If the ACMA is satisfied that the person acted flagrantly in breach of section 61AG or 61AH, the period specified in the direction must be one month.
(9) The Parliament recognises that, if a period of one month is specified in a direction, the person to whom the direction is given or another person may be required to dispose of shares or interests in shares in a way, or otherwise make arrangements, that could cause the person a considerable financial disadvantage. Such a result is seen as necessary in order to discourage flagrant breaches of sections 61AG and 61AH.
61AP Extension of time for compliance with remedial direction
(1) A person who has been given a direction under section 61AN may, within 3 months before the end of the period specified in the direction but not less than one month before the end of that period, apply in writing to the ACMA for an extension of that period.
(2) An application for an extension cannot be made if the period specified in the direction was one month.
(3) In the case of a direction under section 61AN, the ACMA may grant an extension if it is of the opinion that:
(a) an unacceptable media diversity situation is likely to cease to exist in the licence area concerned within 3 months after the end of the period specified in the direction under section 61AN; and
(b) the applicant acted in good faith; and
(c) an extension is appropriate in all the circumstances.
(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;
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; and
(b) the person engages in conduct; and
(c) the person’s conduct contravenes a requirement in the direction.
Penalty: 20,000 penalty units.
(2) A person who contravenes subsection (1) commits a separate offence in respect of each day (including a day of a conviction for the offence or any later day) during which the contravention continues.
61AR Breach of remedial direction—civil penalty
(1) A person must comply with a direction under section 61AN.
(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 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.
(2) The undertaking must be expressed to be an undertaking under this section.
(3) The person may withdraw or vary the undertaking at any time, but only with the consent of the ACMA.
(4) The ACMA may, by written notice given to the person, cancel the undertaking.
(5) The ACMA may publish the undertaking on its website.
61AT Enforcement of undertakings
(1) If:
(a) a person has given an undertaking under section 61AS; and
(b) the undertaking has not been withdrawn or cancelled; and
(c) the ACMA considers that the person has breached the undertaking;
the ACMA may apply to the Federal Court for an order under subsection (2).
(2) If the Federal Court is satisfied that the person has breached the undertaking, the court may make any or all of the following orders:
(a) an order directing the person to comply with the undertaking;
(b) an order directing the person to pay to the ACMA, on behalf of the Commonwealth, an amount up to the amount of any financial benefit that the person has obtained directly or indirectly and that is reasonably attributable to the breach;
(c) any order that the court considers appropriate directing the person to compensate any other person who has suffered loss or damage as a result of the breach;
(d) any other order that the court considers appropriate.
Subdivision 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
(c) there is no increase in the number of media operations that remain in the group.
61AY Initial registration of media groups
(1) If the ACMA is satisfied that a particular media group was a registrable media group in relation to the licence area of a commercial radio broadcasting licence at the start of 1 February 2007, the ACMA must enter the group in the Register.
(2) For the purposes of subsection (1), the ACMA may rely on one or more notifications given, or purportedly given, under Division 6 on or after 1 February 2007.
(3) If the ACMA relies on a notification or notifications given, or purportedly given, under Division 6, the ACMA must make the relevant entry within 2 business days after receiving the notification or the last of the notifications.
(4) If the ACMA makes an entry under subsection (1), the ACMA is to include in the Register a note to the effect that the entry is unconfirmed.
(5) An entry under subsection (1) is taken to have been made at the start of 1 February 2007.
61AZ Registration of newly‑formed media group
(1) If:
(a) the ACMA is satisfied that:
(i) a registrable media group has come into existence on or after 1 February 2007; and
(ii) the media group is not already entered in the Register; and
(b) the ACMA is satisfied that the coming into existence of the media group does not have the result that:
(i) an unacceptable media diversity situation comes into existence in relation to the licence area of a commercial radio broadcasting licence; or
(ii) if an unacceptable media diversity situation already exists in relation to the licence area of a commercial radio broadcasting licence—there is a reduction in the number of points in the licence area;
the ACMA must enter the group in the Register.
(2) For the purposes of subsection (1), the ACMA may rely on one or more notifications given, or purportedly given, under Division 6 on or after 1 February 2007.
(3) If the ACMA relies on a notification or notifications given, or purportedly given, under Division 6, the ACMA must make the relevant entry within 2 business days after receiving the notification or the last of the notifications.
(4) If the ACMA makes an entry under subsection (1), the ACMA is to include in the Register a note to the effect that the entry is unconfirmed.
Register frozen while ACMA reconsideration is pending or AAT/court proceedings are pending
(5) If:
(a) the ACMA makes a decision under this Subdivision in connection with a registrable media group in relation to the licence area of a commercial radio broadcasting licence; and
(b) any of the following subparagraphs applies:
(i) in the case of a decision under subsection 61AZE(1)—a person applies to the ACMA for a reconsideration of the decision;
(ii) in the case of a decision under section 61AZF—a person applies to the Administrative Appeals Tribunal for a review of the decision;
(iii) in any case—a person applies to a court for an order of review, a writ of mandamus or prohibition, or an injunction, in relation to the decision;
then:
(c) despite subsection (1), the ACMA must not enter any other registrable media group in relation to that licence area in the Register under that subsection during the period (the pending period) when that application has not been finalised unless the ACMA is satisfied that, assuming that the decision were not to be set aside or revoked, the coming into existence of the media group does not have the result that:
(i) an unacceptable media diversity situation comes into existence in relation to the licence area of a commercial radio broadcasting licence; or
(ii) if an unacceptable media diversity situation already exists in relation to the licence area of a commercial radio broadcasting licence—there is a reduction in the number of points in the licence area; and
(d) if the ACMA is satisfied that another registrable media group in relation to that licence area has come into existence during the pending period—subsection (3) has effect, in relation to the other registrable media group, as if the relevant notification, or the last of the relevant notifications, as the case may be, had been received on the first day after the end of the pending period.
(6) For the purposes of subsection (5), an application for reconsideration of a decision is taken not to have been finalised during the period of 28 days beginning on:
(a) if, because of the operation of subsection 61AZF(9), the decision is taken to be affirmed—the day on which the decision is taken to have been affirmed; or
(b) in any other case—the day on which the decision on the reconsideration is notified to the person concerned.
(7) For the purposes of subsection (5), if:
(a) a person applied to the Administrative Appeals Tribunal for a review of a decision; and
(b) the Administrative Appeals Tribunal makes a decision on the application;
the application is taken not to have been finalised during the period of 28 days beginning on the day on which the decision mentioned in paragraph (b) is made.
(8) For the purposes of subsection (5), if:
(a) a person applied to the Administrative Appeals Tribunal for a review of a decision; and
(b) the Administrative Appeals Tribunal made a decision on the application; and
(c) a person appeals from the decision to the Federal Court; and
(d) the Court makes a decision on the appeal;
the application is taken not to have been finalised during the period of 28 days beginning on the day on which the decision mentioned in paragraph (d) is made.
(9) For the purposes of subsection (5), if:
(a) a person applied to a court for an order of review, a writ of mandamus or prohibition, or an injunction, in relation to a decision; and
(b) the court makes a decision on the application;
the application is taken not to have been finalised during the period of 28 days beginning on the day on which the decision mentioned in paragraph (b) is made.
(10) For the purposes of subsection (5), if:
(a) a person applied to a court for an order of review, a writ of mandamus or prohibition, or an injunction, in relation to a decision; and
(b) the court made a decision on the application; and
(c) the decision became the subject of an appeal; and
(d) the court or another court makes a decision on the appeal; and
(e) the decision mentioned in paragraph (d) could be the subject of an appeal;
the application is taken not to have been finalised during the period of 28 days beginning on the day on which the decision mentioned in paragraph (d) is made.
(11) The regulations may provide that, in specified circumstances, an application is taken, for the purposes of subsection (5), not to have been finalised during a period ascertained in accordance with the regulations.
(12) The regulations may extend the 28‑day period referred to in subsection (6), (7), (8), (9) or (10).
61AZA De‑registration of media group that has ceased to exist
(1) If the ACMA is satisfied that a registered media group has ceased to exist on or after 1 February 2007, the ACMA must remove the group’s entry from the Register.
(2) For the purposes of subsection (1), the ACMA may rely on one or more notifications given, or purportedly given, under Division 6 on or after 1 February 2007.
(3) If the ACMA relies on a notification or notifications given, or purportedly given, under Division 6, the ACMA must remove the relevant entry within 2 business days after receiving the notification or the last of the notifications.
(4) If, under subsection (1), the ACMA removes a group’s entry from the Register, the ACMA must include in the Register a note to the effect that the removal is unconfirmed.
61AZB Registration of change of controller of registered media group
(1) If the ACMA is satisfied that:
(a) a person who is not a registered controller of a registered media group has become a controller of the group on or after 1 February 2007; or
(b) a registered controller of a registered media group has ceased to be a controller of the group on or after 1 February 2007;
the ACMA must:
(c) if paragraph (a) applies—alter the group’s entry in the Register by adding the name of the controller concerned; or
(d) if paragraph (b) applies—alter the group’s entry in the Register by omitting the name of the controller concerned.
(2) For the purposes of subsection (1), the ACMA may rely on one or more notifications given, or purportedly given, under Division 6 on or after 1 February 2007.
(3) If the ACMA relies on a notification or notifications given, or purportedly given, under Division 6, the ACMA must make the relevant alteration within 2 business days after receiving the notification or the last of the notifications.
(4) If the ACMA makes an alteration under subsection (1), the ACMA must include in the Register a note to the effect that the alteration is unconfirmed.
61AZC Registration of change of composition of media group
(1) If the ACMA is satisfied that:
(a) one or more of the media operations in a registered media group have ceased to be in that group on or after 1 February 2007; and
(b) the group continues in existence;
the ACMA must alter the group’s entry in the Register by omitting the name or names of the media operations referred to in paragraph (a).
(2) For the purposes of subsection (1), the ACMA may rely on one or more notifications given, or purportedly given, under Division 6 on or after 1 February 2007.
(3) If the ACMA relies on a notification or notifications given, or purportedly given, under Division 6, the ACMA must make the relevant alteration within 2 business days after receiving the notification or the last of the notifications.
(4) If the ACMA makes an alteration under subsection (1), the ACMA is to include in the Register a note to the effect that the alteration is unconfirmed.
61AZCA ACMA must deal with notifications in order of receipt
(1) For the purposes of sections 61AY, 61AZ, 61AZA, 61AZB and 61AZC, the ACMA must deal with notifications given, or purportedly given, under Division 6 in order of receipt.
(2) Subsection (1) has effect subject to subsection 61AZ(5).
61AZD Conditional transactions
Entry of media group
(1) If:
(a) a person is a party to a proposed transaction; and
(b) the proposed transaction is subject to the condition that the ACMA enters a proposed media group in the Register; and
(c) the person requests the ACMA to assume, for the purposes of this Subdivision, that the proposed transaction:
(i) had been completed; and
(ii) were not subject to that condition; and
(d) the ACMA is satisfied that:
(i) the parties to the proposed transaction are acting in good faith; and
(ii) if the media group were to be entered in the Register on the basis of the assumption mentioned in paragraph (c)—the proposed transaction will be completed within 5 business days after the making of the relevant entry in the Register;
then, for the purposes of this Subdivision, the ACMA may make the assumption mentioned in paragraph (c).
Removal of entry of media group
(2) If:
(a) a person is a party to a proposed transaction; and
(b) the proposed transaction is subject to the condition that the ACMA removes a media group’s entry from the Register; and
(c) the person requests the ACMA to assume, for the purposes of this Subdivision, that the proposed transaction:
(i) had been completed; and
(ii) were not subject to that condition; and
(d) the ACMA is satisfied that:
(i) the parties to the proposed transaction are acting in good faith; and
(ii) if the media group’s entry were to be removed from the Register on the basis of the assumption mentioned in paragraph (c)—the proposed transaction will be completed within 5 business days after the removal of the relevant entry from the Register;
then, for the purposes of this Subdivision, the ACMA may make the assumption mentioned in paragraph (c).
Alteration of entry of media group
(3) If:
(a) a person is a party to a proposed transaction; and
(b) the proposed transaction is subject to the condition that the ACMA alters a media group’s entry in the Register; and
(c) the person requests the ACMA to assume, for the purposes of this Subdivision, that the proposed transaction:
(i) had been completed; and
(ii) were not subject to that condition; and
(d) the ACMA is satisfied that:
(i) the parties to the proposed transaction are acting in good faith; and
(ii) if the media group’s entry in the Register were to be altered on the basis of the assumption mentioned in paragraph (c)—the proposed transaction will be completed within 5 business days after the making of the relevant alteration in the Register;
then, for the purposes of this Subdivision, the ACMA may make the assumption mentioned in paragraph (c).
Requests
(4) A request under subsection (1), (2) or (3) must be:
(a) in a form approved in writing by the ACMA; and
(b) accompanied by such information as the ACMA requires.
(5) An approved form of a request may provide for verification by statutory declaration of information accompanying requests.
61AZE Review and confirmation of entries and alterations etc.
Review
(1) If the ACMA:
(a) enters a media group in the Register under subsection 61AY(1) or 61AZ(1); or
(b) removes a media group’s entry from the Register under subsection 61AZA(1); or
(c) makes an alteration to a media group’s entry in the Register under subsection 61AZB(1) or 61AZC(1);
the ACMA must review the entry, removal or alteration, and make a decision:
(d) confirming the relevant entry, removal or alteration; or
(e) cancelling the relevant entry, removal or alteration.
Confirmation
(2) If the ACMA confirms the relevant entry, removal or alteration, the ACMA must remove from the Register the note stating that the entry, removal or alteration is unconfirmed.
Cancellation
(3) If the ACMA cancels an entry, the ACMA must:
(a) remove the entry from the Register; and
(b) remove from the Register the note stating that the entry is unconfirmed.
(4) If the ACMA cancels the removal of an entry, the ACMA must:
(a) restore the entry to the Register; and
(b) remove from the Register the note stating that the removal is unconfirmed.
(5) If the ACMA cancels an alteration, the ACMA must:
(a) reverse the alteration; and
(b) remove from the Register the note stating that the alteration is unconfirmed.
ACMA not required to rely on notifications
(6) To avoid doubt, in exercising its powers under subsection (1), the ACMA is not required to rely on a notification given, or purportedly given, under Division 6.
Conditional transactions
(7) If:
(a) under subsection (1), the ACMA reviews an entry or alteration; and
(b) the entry or alteration was made on the assumption that a proposed transaction had been completed (see section 61AZD); and
(c) the ACMA is not satisfied that the proposed transaction was completed within 5 business days after the making of the entry or alteration;
the ACMA must make a decision under subsection (1) cancelling the entry or alteration.
(8) If:
(a) under subsection (1), the ACMA reviews a removal of an entry; and
(b) the removal was done on the assumption that a proposed transaction had been completed (see section 61AZD); and
(c) the ACMA is not satisfied that the proposed transaction was completed within 5 business days after the removal;
the ACMA must make a decision under subsection (1) to cancel the removal.
ACMA may request additional information
(9) If:
(a) under subsection (1), the ACMA reviews an entry, removal or alteration; and
(b) the ACMA considers that additional information is required before the ACMA can make a decision under subsection (1);
the ACMA may, within 14 days after the relevant entry, removal or alteration, by written notice given to a person, request the person to provide that information.
Deadline
(10) If the ACMA does not, within 28 days after:
(a) doing whichever of the following is applicable:
(i) entering a media group in the Register under subsection 61AY(1) or 61AZ(1);
(ii) removing a media group’s entry from the Register under subsection 61AZA(1);
(iii) making an alteration to a media group’s entry in the Register under subsection 61AZB(1) or 61AZC(1); or
(b) if the ACMA has requested further information—receiving that further information;
make a decision under subsection (1):
(c) confirming the relevant entry, removal or alteration; or
(d) cancelling the relevant entry, removal or alteration;
the ACMA is taken to have made a decision under subsection (1) at the end of that 28‑day period confirming the relevant entry, removal or alteration.
61AZF Reconsideration of decisions
Applications for reconsideration of decisions
(1) A person:
(a) whose interests are affected by a decision under subsection 61AZE(1); and
(b) who is dissatisfied with the decision;
may apply to the ACMA for the ACMA to reconsider the decision.
(2) The application must:
(a) be in a form approved in writing by the ACMA; and
(b) set out the reasons for the application.
(3) The application must be made within 7 days after the taking of the action required by subsection 61AZE(2), (3), (4) or (5) to give eff