Schedule 4—Digital television broadcasting
Note: See section 216A.
Part 1—Introduction
1 Simplified outline of this Schedule
National broadcasters who operate a transmitter are subject to restrictions regarding the services that may be transmitted in digital mode using the transmitter.
Owners and operators of broadcasting transmission towers must give digital broadcasters access to the towers for the purposes of installing or maintaining digital transmitters. Applications to the AAT for review of a decision regarding access may be made by the person seeking access, or by the owner or operator of the facility to which access is sought.
2 Definitions
In this Schedule, unless the contrary intention appears:
AAT means the Administrative Appeals Tribunal.
broadcasting transmission tower means:
(a) a tower; or
(b) a pole; or
(c) a mast; or
(d) a similar structure;
used to supply:
(e) a broadcasting service by means of radiocommunications using the broadcasting services bands; or
(f) a datacasting service provided under, and in accordance with the conditions of, a datacasting licence.
coverage area means:
(a) a metropolitan coverage area; or
(b) a regional coverage area.
HDTV digital mode has the meaning given by clause 4A.
HDTV multi‑channelled commercial television broadcasting service has the meaning given by clause 5B.
HDTV multi‑channelled national television broadcasting service has the meaning given by clause 5D.
licence area means a licence area for a commercial television broadcasting licence.
metropolitan coverage area means an area that corresponds to a metropolitan licence area.
metropolitan licence area means a licence area in which is situated the General Post Office of the capital city of:
(a) New South Wales; or
(b) Victoria; or
(c) Queensland; or
(d) Western Australia; or
(e) South Australia;
but does not include the licence area of a commercial television broadcasting licence allocated under section 38C.
national broadcasting service does not include a broadcasting service provided under the Parliamentary Proceedings Broadcasting Act 1946.
national television broadcasting service means a national broadcasting service that provides television programs.
news or current affairs program means any of the following:
(a) a news bulletin;
(b) a sports news bulletin;
(c) a program (whether presenter‑based or not) whose sole or dominant purpose is to provide analysis, commentary or discussion principally designed to inform the general community about social, economic or political issues of current relevance to the general community.
primary commercial television broadcasting service, in relation to a commercial television broadcasting licence, has the meaning given by clause 41G.
primary national television broadcasting service, in relation to a national broadcaster, has the meaning given by clause 41M.
primary satellite national television broadcasting service, in relation to a national broadcaster, has the meaning given by clause 41N.
radiocommunication has the same meaning as in the Radiocommunications Act 1992.
regional coverage area means an area that corresponds to a regional licence area.
regional licence area means a licence area that is not a metropolitan licence area, but does not include the licence area of a commercial television broadcasting licence allocated under section 38C.
remote coverage area means an area that corresponds to a remote licence area.
remote licence area has the meaning given by clause 5.
satellite delivery area means an area that corresponds to the licence area of a commercial television broadcasting licence allocated under section 38C.
SDTV digital mode has the meaning given by clause 4B.
SDTV multi‑channelled commercial television broadcasting service has the meaning given by clause 5A.
SDTV multi‑channelled national television broadcasting service has the meaning given by clause 5C.
television broadcasting service means:
(a) a commercial television broadcasting service; or
(b) a national television broadcasting service.
transmitter licence has the same meaning as in the Radiocommunications Act 1992.
4 Digital mode
For the purposes of this Schedule, a program or service is broadcast or transmitted in digital mode if the program or service is broadcast or transmitted using a digital modulation technique.
4A HDTV digital mode
For the purposes of this Schedule, a television program or a television broadcasting service is broadcast or transmitted in HDTV digital mode if the program or service is broadcast or transmitted in digital mode in a high definition format.
4B SDTV digital mode
For the purposes of this Schedule, a program or a television broadcasting service is broadcast or transmitted in SDTV digital mode if the program or service is broadcast or transmitted in digital mode in a standard definition format.
5 Remote licence area
(1) The ACMA may, by legislative instrument, determine that a specified licence area is a remote licence area for the purposes of this Schedule.
(1A) Subclause (1) does not apply to the licence area of a commercial television broadcasting licence allocated under section 38C.
(2) A determination under this clause has effect accordingly.
5A SDTV multi‑channelled commercial television broadcasting service
For the purposes of this Schedule, a commercial television broadcasting service is a SDTV multi‑channelled commercial television broadcasting service if:
(a) the service is provided by a commercial television broadcasting licensee; and
(b) the service is transmitted in SDTV digital mode:
(i) using multi‑channelling transmission capacity; or
(ii) with the use of a satellite; and
(c) the service is promoted as a service that is distinct from any other commercial television broadcasting service provided by the licensee.
5B HDTV multi‑channelled commercial television broadcasting service
For the purposes of this Schedule, a commercial television broadcasting service is a HDTV multi‑channelled commercial television broadcasting service if:
(a) the service is provided by a commercial television broadcasting licensee; and
(b) the service is transmitted in HDTV digital mode:
(i) using multi‑channelling transmission capacity; or
(ii) with the use of a satellite; and
(c) the service is promoted as a service that is distinct from any other commercial television broadcasting service provided by the licensee.
5C SDTV multi‑channelled national television broadcasting service
(1) For the purposes of this Schedule, a national television broadcasting service is a SDTV multi‑channelled national television broadcasting service if:
(a) the service is provided by:
(i) the Australian Broadcasting Corporation in accordance with section 6 of the Australian Broadcasting Corporation Act 1983; or
(ii) the Special Broadcasting Service Corporation in accordance with section 6 of the Special Broadcasting Service Act 1991; and
(b) the service is transmitted in SDTV digital mode:
(i) using multi‑channelling transmission capacity; or
(ii) with the use of a satellite; and
(c) the service is promoted as a service that is distinct from any other national television broadcasting service provided by the Corporation concerned; and
(d) the Corporation concerned has given the Minister a written notice electing that this subclause apply to the service.
(4) Paragraph (1)(d) does not apply to a national television broadcasting service provided with the use of a satellite.
5D HDTV multi‑channelled national television broadcasting service
For the purposes of this Schedule, a national television broadcasting service is a HDTV multi‑channelled national television broadcasting service if:
(a) the service is provided by:
(i) the Australian Broadcasting Corporation in accordance with section 6 of the Australian Broadcasting Corporation Act 1983; or
(ii) the Special Broadcasting Service Corporation in accordance with section 6 of the Special Broadcasting Service Act 1991; and
(b) the service is transmitted in HDTV digital mode:
(i) using multi‑channelling transmission capacity; or
(ii) with the use of a satellite; and
(c) the service is promoted as a service that is distinct from any other national television broadcasting service provided by the Corporation concerned.
Part 3—ABC/SBS television
36 Digital transmitter not to be used to provide a subscription television broadcasting service etc.
If a national broadcaster holds a transmitter licence that authorises the operation of a transmitter for transmitting national television broadcasting services in digital mode, the national broadcaster must not operate, or permit the operation of, that transmitter to transmit in digital mode:
(a) a commercial broadcasting service that provides radio programs; or
(b) a subscription radio broadcasting service; or
(c) a subscription television broadcasting service; or
(d) a subscription radio narrowcasting service; or
(e) a subscription television narrowcasting service; or
(f) an open narrowcasting radio service; or
(g) an open narrowcasting television service.
Part 4A—Primary television broadcasting services
Division 1—Commercial television broadcasting services
41G Primary commercial television broadcasting service
(2) The ACMA may, by legislative instrument, declare that a specified multi‑channelled commercial television broadcasting service provided by a commercial television broadcasting licensee for the licence area of the licence is the licensee’s primary commercial television broadcasting service in the licence area.
(3) The ACMA must ensure that a declaration under subclause (2) is in force at all times after the licensee commences to provide a multi‑channelled commercial television broadcasting service in the licence area.
Service provided under a section 38C licence
(4) The ACMA may, by legislative instrument, declare that one or more specified multi‑channelled commercial television broadcasting services provided by a commercial television broadcasting licensee whose licence was allocated under section 38C are the licensee’s primary commercial television broadcasting services in the licence area.
(5) The number of services declared under subclause (4) in relation to a particular licensee must not exceed 3.
(6) The ACMA must ensure that a declaration under subclause (4) is in force at all times for the licence area concerned.
Division 2—National television broadcasting services
41M Primary national television broadcasting service
(1) A national broadcaster must, by written notice given to the Minister, declare that a specified multi‑channelled national television broadcasting service provided by the national broadcaster in a specified coverage area is the broadcaster’s primary national television broadcasting service in the coverage area.
(2) The national broadcaster must ensure that a declaration under subclause (1) is in force at all times, for the coverage area concerned.
41N Primary satellite national television broadcasting service
Primary national television broadcasting service
(1) A national broadcaster must, by written notice given to the Minister, declare that a specified multi‑channelled national television broadcasting service provided by the national broadcaster, with the use of a satellite, in a specified satellite delivery area is the broadcaster’s primary satellite national television broadcasting service in the satellite delivery area.
(2) The national broadcaster must ensure that a declaration under subclause (1):
(a) comes into force as soon as practicable after the national broadcaster commences to provide a multi‑channelled national television broadcasting service, with the use of a satellite, in the satellite delivery area; and
(b) is in force at all times after that commencement.
Part 5—Transmitter access regime
42 Simplified outline
The following is a simplified outline of this Part:
• The owner or operator of a broadcasting transmission tower or a designated associated facility must provide:
(a) the holder of a commercial television broadcasting licence; or
(b) a national broadcaster;
with access to the tower or facility.
• The owner or operator of a broadcasting transmission tower must provide:
(a) the holder of a commercial television broadcasting licence; or
(b) a national broadcaster;
with access to the site of the tower.
43 Definitions
In this Part:
ACCC means the Australian Competition and Consumer Commission.
commercial television broadcasting licence does not include a commercial television broadcasting licence allocated under section 38C.
designated associated facility has the meaning given by clause 43A.
facility includes apparatus, equipment, a structure, a line or an electricity cable or wire.
site means:
(a) land; or
(b) a building on land; or
(c) a structure on land.
43A Designated associated facilities
For the purposes of this Part, a designated associated facility means any of the following facilities:
(a) an antenna;
(b) a combiner;
(c) a feeder system;
(d) a facility of a kind specified in the regulations;
where:
(e) the facility is, or is to be, associated with a transmitter; and
(f) the facility is used, or capable of being used, in connection with:
(i) the transmission of a television broadcasting service in digital mode; or
(ii) the provision of datacasting services in digital mode.
44 Extended meaning of access
(1) For the purposes of this Part, giving access to a tower includes replacing the tower with another tower located on the same site and giving access to the replacement tower.
(2) For the purposes of this Part, giving access to a site on which is situated a tower includes replacing the tower with another tower located on the site.
(3) For the purposes of this Part, giving access to a designated associated facility includes:
(a) replacing the facility with another facility located on the same site and giving access to the replacement facility; or
(b) giving access to a service provided by means of the designated associated facility.
45 Access to broadcasting transmission towers
Television broadcasting services in digital mode
(1) The owner or operator of a broadcasting transmission tower must, if requested to do so by the holder of a commercial television broadcasting licence (the access seeker), or a national broadcaster (also the access seeker), give the access seeker access to the tower.
(2) The owner or operator of the broadcasting transmission tower is not required to comply with subclause (1) unless:
(a) the access is provided for the sole purpose of enabling the access seeker to install or maintain a transmitter and/or associated facilities used, or for use, wholly or principally in connection with the transmission of the access seeker’s television broadcasting service or services in digital mode; and
(b) the access seeker gives the owner or operator reasonable notice that the access seeker requires the access.
Compliance not technically feasible
(5) The owner or operator of a broadcasting transmission tower is not required to comply with subclause (1) if there is in force a written certificate issued by the ACMA stating that, in the ACMA’s opinion, compliance with subclause (1) in relation to that tower is not technically feasible.
(6) In determining whether compliance with subclause (1) in relation to a tower is technically feasible, the ACMA must have regard to:
(a) whether compliance is likely to result in significant difficulties of a technical or engineering nature; and
(b) whether compliance is likely to result in a significant threat to the health or safety of persons who operate, or work on, the tower; and
(c) if compliance is likely to have a result referred to in paragraph (a) or (b)—whether there are practicable means of avoiding such a result, including (but not limited to):
(i) changing the configuration or operating parameters of a facility situated on the tower; and
(ii) making alterations to the tower; and
(d) such other matters (if any) as the ACMA considers relevant.
Issue of certificate
(7) If the ACMA receives a request to make a decision about the issue of a certificate under subclause (5), the ACMA must use its best endeavours to make that decision within 10 business days after the request was made.
45A Access to designated associated facilities
(1) This clause applies to a designated associated facility if the facility is situated on, at, in or under:
(a) a broadcasting transmission tower; or
(b) the site on which a broadcasting transmission tower is situated.
Television broadcasting services in digital mode
(2) The owner or operator of the designated associated facility must, if requested to do so by the holder of a commercial television broadcasting licence (the access seeker), or a national broadcaster (also called the access seeker), give the access seeker access to the facility.
(3) The owner or operator of the designated associated facility is not required to comply with subclause (2) unless:
(a) the access is provided for the sole purpose of enabling the access seeker to use the facility, or a service provided by means of the facility, wholly or principally in connection with the transmission of the access seeker’s television broadcasting service or services in digital mode; and
(b) the access seeker gives the owner or operator reasonable notice that the access seeker requires the access.
Compliance not technically feasible
(6) The owner or operator of a designated associated facility is not required to comply with subclause (2) if there is in force a written certificate issued by the ACMA stating that, in the ACMA’s opinion, compliance with subclause (2) in relation to that facility is not technically feasible.
(7) In determining whether compliance with subclause (2) in relation to a facility is technically feasible, the ACMA must have regard to:
(a) whether compliance is likely to result in significant difficulties of a technical or engineering nature; and
(b) whether compliance is likely to result in a significant threat to the health or safety of persons who operate, or work on, a facility situated on the site; and
(c) if compliance is likely to have a result referred to in paragraph (a) or (b)—whether there are practicable means of avoiding such a result, including (but not limited to):
(i) changing the configuration or operating parameters of a facility situated on the site; and
(ii) making alterations to a facility situated on the site; and
(d) such other matters (if any) as the ACMA considers relevant.
Issue of certificate
(8) If the ACMA receives a request to make a decision about the issue of a certificate under subclause (6), the ACMA must use its best endeavours to make that decision within 10 business days after the request was made.
Exemptions
(9) The regulations may provide for exemptions from subclause (2).
(10) Regulations made for the purposes of subclause (9) may make provision with respect to a matter by conferring on the ACCC a power to make a decision of an administrative character.
46 Access to sites of broadcasting transmission towers
Television broadcasting services in digital mode
(1) The owner or operator of a broadcasting transmission tower must, if requested to do so by the holder of a commercial television broadcasting licence (the access seeker), or a national broadcaster (also the access seeker), give the access seeker access to a site if:
(a) the tower is situated on the site; and
(b) either:
(i) the site is owned, occupied or controlled by the owner or operator of the tower; or
(ii) the owner or operator of the tower has a right (either conditional or unconditional) to use the site.
(2) The owner or operator of the broadcasting transmission tower is not required to comply with subclause (1) unless:
(a) the access is provided for the sole purpose of enabling the access seeker to install or maintain a transmitter and/or associated facilities used, or for use, wholly or principally in connection with the transmission of the access seeker’s television broadcasting service or services in digital mode; and
(b) the access seeker gives the owner or operator reasonable notice that the access seeker requires the access.
Compliance not technically feasible
(5) The owner or operator of a broadcasting transmission tower is not required to comply with subclause (1) if there is in force a written certificate issued by the ACMA stating that, in the ACMA’s opinion, compliance with subclause (1) in relation to that tower is not technically feasible.
(6) In determining whether compliance with subclause (1) in relation to a site is technically feasible, the ACMA must have regard to:
(a) whether compliance is likely to result in significant difficulties of a technical or engineering nature; and
(b) whether compliance is likely to result in a significant threat to the health or safety of persons who operate, or work on, a facility situated on the site; and
(c) if compliance is likely to have a result referred to in paragraph (a) or (b)—whether there are practicable means of avoiding such a result, including (but not limited to):
(i) changing the configuration or operating parameters of a facility situated on the site; and
(ii) making alterations to a facility situated on the site; and
(d) such other matters (if any) as the ACMA considers relevant.
Issue of certificate
(7) If the ACMA receives a request to make a decision about the issue of a certificate under subclause (5), the ACMA must use its best endeavours to make that decision within 10 business days after the request was made.
47 Terms and conditions of access
Access to towers
(1) The owner or operator of a broadcasting transmission tower must comply with subclause 45(1) on such terms and conditions as are:
(a) agreed between the following parties:
(i) the owner or operator;
(ii) the access seeker (within the meaning of that subclause); or
(b) failing agreement, determined by an arbitrator appointed by the parties.
If the parties fail to agree on the appointment of an arbitrator, the ACCC is to be the arbitrator.
Access to designated associated facilities
(1A) The owner or operator of a designated associated facility must comply with subclause 45A(2) on such terms and conditions as are:
(a) agreed between the following parties:
(i) the owner or operator;
(ii) the access seeker (within the meaning of that subclause); or
(b) failing agreement, determined by an arbitrator appointed by the parties.
If the parties fail to agree on the appointment of an arbitrator, the ACCC is to be the arbitrator.
Access to sites
(2) The owner or operator of a broadcasting transmission tower must comply with subclause 46(1) on such terms and conditions as are:
(a) agreed between the following parties:
(i) the owner or operator;
(ii) the access seeker (within the meaning of that subclause); or
(b) failing agreement, determined by an arbitrator appointed by the parties.
If the parties fail to agree on the appointment of an arbitrator, the ACCC is to be the arbitrator.
Conduct of arbitration
(3) The regulations may make provision for and in relation to the conduct of an arbitration under this clause.
(4) The regulations may provide that, for the purposes of a particular arbitration conducted by the ACCC under this clause, the ACCC may be constituted by a single member, or a specified number of members, of the ACCC. For each such arbitration, that member or those members are to be nominated in writing by the Chair of the ACCC.
(5) Subclause (4) does not, by implication, limit subclause (3).
48 Code relating to access
(1) The ACCC may, by legislative instrument, make a Code setting out conditions that are to be complied with in relation to the provision of access under this Part.
(2) Before making an instrument under subclause (1), the ACCC must consult:
(a) commercial television broadcasting licensees; and
(b) national broadcasters; and
(c) owners and operators of broadcasting transmission towers.
(3) An access seeker must comply with the Code.
(4) The owner or operator of a broadcasting transmission tower must comply with the Code, to the extent to which the Code relates to the provision of access under clause 45 or 46.
(4A) The owner or operator of a designated associated facility must comply with the Code, to the extent to which the Code relates to the provision of access under clause 45A.
49 Arbitration—acquisition of property
(1) This clause applies to a provision of this Part that authorises the conduct of an arbitration (whether by the ACCC or another person).
(2) The provision has no effect to the extent (if any) to which it purports to authorise the acquisition of property if that acquisition:
(a) is otherwise than on just terms; and
(b) would be invalid because of paragraph 51(xxxi) of the Constitution.
(3) In this clause:
acquisition of property has the same meaning as in paragraph 51(xxxi) of the Constitution.
just terms has the same meaning as in paragraph 51(xxxi) of the Constitution.
50 Relationship between this Part and the National Transmission Network Sale Act 1998
Part 3 of the National Transmission Network Sale Act 1998 does not apply in relation to an access seeker seeking access to a broadcasting transmission tower or a site to the extent to which this Part applies in relation to the access seeker seeking access to that tower or site.
Part 10—Review of decisions
62 Review by the AAT
Transmitter access regime
(5) An application may be made to the AAT for a review of a decision of the ACMA to issue a certificate under subclause 45(5), 45A(6) or 46(5).
(6) An application under subclause (5) may only be made by the access seeker concerned.
(7) An application may be made to the AAT for a review of a decision of the ACMA to refuse to issue a certificate under subclause 45(5) or 46(5).
(8) An application under subclause (7) may only be made by the owner or operator of the broadcasting transmission tower concerned.
(9) An application may be made to the AAT for a review of a decision of the ACMA to refuse to issue a certificate under subclause 45A(6).
(10) An application under subclause (9) may only be made by the owner or operator of the designated associated facility concerned.
63 Notification of decisions to include notification of reasons and appeal rights
If the ACMA makes a decision that is reviewable under clause 62, the ACMA is to include in the document by which the decision is notified:
(a) a statement setting out the reasons for the decision; and
(b) a statement to the effect that an application may be made to the AAT for a review of the decision.
Schedule 6—Datacasting services
Note: See section 216C.
Part 1—Introduction
1 Simplified outline
The following is a simplified outline of this Schedule:
• This Schedule sets up a system for regulating the provision of datacasting services.
• A person who provides a designated datacasting service must hold a datacasting licence.
• Datacasting content will be subject to restrictions. Those restrictions are designed to encourage datacasting licensees to provide a range of innovative services that are different to traditional broadcasting services.
• The main restrictions on datacasting content are as follows:
(a) restrictions on the provision of certain genres of television programs;
(b) restrictions on the provision of audio content.
• Datacasting licensees will be allowed to provide the following types of content:
(a) information‑only programs (including matter that enables people to carry out transactions);
(b) educational programs;
(c) interactive computer games;
(d) content in the form of text or still visual images;
(e) Parliamentary broadcasts;
(f) ordinary email;
(g) internet content.
• A group that represents datacasting licensees may develop codes of practice.
• The ACMA has a reserve power to make a standard if there are no codes of practice or if a code of practice is deficient.
• The ACMA may investigate complaints about datacasting licensees.
2 Definitions
(1) In this Schedule, unless the contrary intention appears:
advertising or sponsorship material means advertising or sponsorship material (whether or not of a commercial kind).
Classification Board means the Classification Board established by the Classification (Publications, Films and Computer Games) Act 1995.
compilation program means a program that consists of video clips or other matter edited together to form a structured program, where there is a heavy emphasis on entertainment value.
declared internet carriage service has the meaning given by clause 23B.
designated datacasting service has the meaning given by clause 2A.
designated teletext service means a teletext service provided by a commercial television broadcasting licensee, where:
(a) the licensee provided the service throughout the 2‑year period ending immediately before the commencement of this Schedule; and
(b) the service remains substantially the same as the service provided throughout that 2‑year period.
drama program has the same meaning as in section 103B.
educational program has the meaning given by clause 3.
engage in conduct (except in clause 55 or 56) means:
(a) do an act; or
(b) omit to perform an act.
financial, market or business information bulletin means a bulletin the sole or dominant purpose of which is to provide information, analysis, commentary or discussion in relation to financial, market or business matters.
foreign‑language news or current affairs program has the meaning given by clause 5.
information‑only program has the meaning given by clause 4.
infotainment or lifestyle program means a program the sole or dominant purpose of which is to present factual information in an entertaining way, where there is a heavy emphasis on entertainment value.
interactive computer game means a computer game, where:
(a) the way the game proceeds, and the result achieved at various stages of the game, is determined in response to the decisions, inputs and direct involvement of the player; and
(b) a part of the software that enables end‑users to play the game is under the control of the datacasting licensee concerned.
internet carriage service has the same meaning as in the Online Safety Act 2021, but does not include a service that transmits content that has been copied from the internet, where the content is selected by the datacasting licensee concerned.
music program means a program the sole or dominant purpose of which is to provide:
(a) music with video clips; or
(b) video footage of musical performances;
or both.
news or current affairs program means any of the following:
(a) a news bulletin;
(b) a sports news bulletin;
(c) a program (whether presenter‑based or not) whose sole or dominant purpose is to provide analysis, commentary or discussion principally designed to inform the general community about social, economic or political issues of current relevance to the general community.
ordinary email does not include a posting to a newsgroup.
qualified entity means:
(a) a company that:
(i) is registered under Part 2A.2 of the Corporations Act 2001; and
(ii) has a share capital; or
(b) the Commonwealth, a State or a Territory; or
(c) the Australian Broadcasting Corporation; or
(d) the Special Broadcasting Service Corporation; or
(e) any other body corporate established for a public purpose by a law of the Commonwealth or of a State or Territory.
“reality television” program means a program the sole or dominant purpose of which is to depict actual, contemporary events, people or situations in a dramatic or entertaining way, where there is a heavy emphasis on dramatic impact or entertainment value.
related body corporate has the same meaning as in the Corporations Act 2001.
sports program means a program the sole or dominant purpose of which is to provide:
(a) coverage of one or more sporting events; or
(b) analysis, commentary or discussion in relation to one or more sporting events;
or both, but does not include a sports news bulletin.
transmitter licence has the same meaning as in the Radiocommunications Act 1992.
(2) In determining the meaning of an expression used in a provision of this Act (other than this Schedule), this clause is to be disregarded.
2A Designated datacasting service
(1) For the purposes of this Schedule, a designated datacasting service is a datacasting service that:
(a) is provided by a person who is:
(i) a commercial television broadcasting licensee; or
(ii) a commercial radio broadcasting licensee; or
(iii) a national broadcaster; or
(b) is of a kind specified in an instrument under subclause (2).
(2) The Minister may, by legislative instrument, specify kinds of datacasting services for the purposes of paragraph (1)(b).
3 Educational programs
(1) For the purposes of this Schedule, an educational program is matter, where, having regard to:
(a) the substance of the matter; and
(b) the way in which the matter is advertised or promoted; and
(c) any other relevant matters;
it would be concluded that the sole or dominant purpose of the matter is to assist a person in education or learning, whether or not in connection with a course of study or instruction.
(2) Subclause (1) has effect subject to subclauses (3) and (4).
ACMA determinations
(3) The ACMA may, by legislative instrument, make a determination providing that, for the purposes of this Schedule, specified matter is taken to be an educational program.
(4) The ACMA may, by legislative instrument, make a determination providing that, for the purposes of this Schedule, specified matter is taken not to be an educational program.
(5) A determination under subclause (3) or (4) has effect accordingly.
Note: For specification by class, see subsection 13(3) of the Legislation Act 2003.
4 Information‑only programs
(1) For the purposes of this Schedule, an information‑only program is matter the sole or dominant purpose of which is to:
(a) provide factual information, or directly‑related comment, about any of a wide range of matters, including but not limited to any of the following:
(i) products;
(ii) services;
(iii) community activities;
(iv) domestic or household matters;
(v) private recreational pursuits or hobbies;
(vi) legal rights, obligations or responsibilities;
(vii) first aid, health or safety matters;
(viii) emergencies or natural disasters;
(ix) rural matters;
(x) travel matters;
(xi) crime prevention matters; or
(b) enable and/or facilitate the carrying out and/or completion of transactions;
or both, where there is not a significant emphasis on dramatic impact or entertainment.
(2) Subclause (1) has effect subject to subclauses (3) and (4).
ACMA determinations
(3) The ACMA may, by legislative instrument, make a determination providing that, for the purposes of this Schedule, specified matter is taken to be an information‑only program.
(4) The ACMA may, by legislative instrument, make a determination providing that, for the purposes of this Schedule, specified matter is taken not to be an information‑only program.
(5) A determination under subclause (3) or (4) has effect accordingly.
Note: For specification by class, see subsection 13(3) of the Legislation Act 2003.
Definitions
(8) In this clause:
community activity means:
(a) a meeting, event, performance or other activity that can be attended by:
(i) the public; or
(ii) a section of the public; or
(iii) members of a particular club, society or organisation; or
(b) the activity of visiting an institution, a tourist attraction or other place;
whether on payment of a charge or otherwise.
product includes real property.
services means any services, benefits, rights, privileges or facilities that are capable of being provided, granted or conferred:
(a) in trade or commerce; or
(b) by a government or government authority; or
(c) in any other way.
transactions includes:
(a) commercial transactions; and
(b) banking transactions; and
(c) insurance transactions; and
(d) dealings about employment matters; and
(e) dealings with governments and government authorities.
5 Foreign‑language news or current affairs programs
(1) For the purposes of this Schedule, a foreign‑language news or current affairs program means a news or current affairs program that is wholly in a language other than English.
(2) For the purposes of subclause (1), disregard minor and infrequent uses of the English language.
(3) For the purposes of subclause (1), disregard any English language subtitles or captioning.
6 Datacasting content is taken not to be a television program or a radio program etc.
For the purposes of this Act (other than Divisions 1 and 2 of Part 3 of this Schedule) and any other law of the Commonwealth (other than the Tobacco Advertising Prohibition Act 1992), if a datacasting service is provided under, and in accordance with the conditions of, a datacasting licence:
(a) any matter provided on that service is taken not to be a television program or a radio program; and
(b) any matter provided on that service is taken not to be broadcast or televised; and
(c) that service is taken not to be a broadcasting service, a television service or a radio service.
Part 2—Datacasting licences
7 Allocation of datacasting licence
(1) The ACMA may allocate a datacasting licence to a person, on written application by the person.
(2) Applications must:
(a) be in accordance with a form approved in writing by the ACMA; and
(b) be accompanied by the application fee determined in writing by the ACMA.
8 When datacasting licence must not be allocated
(1) A datacasting licence is not to be allocated to an applicant if:
(a) the applicant is not a qualified entity; or
(b) the ACMA decides that subclause 9(1) applies to the applicant.
(2) The ACMA may refuse to allocate a datacasting licence to an applicant if a datacasting licence held by the applicant, or by a related body corporate of the applicant, was cancelled at any time during the previous 12 months.
(3) Paragraph (1)(b) does not require the ACMA to consider the application of clause 9 in relation to an applicant before allocating a licence to the applicant.
9 Unsuitable applicant
(1) The ACMA may, if it is satisfied that allowing a particular person to provide a datacasting service under a datacasting licence would lead to a significant risk of:
(a) an offence against this Act or the regulations being committed; or
(aa) a breach of a civil penalty provision occurring; or
(b) a breach of the conditions of the licence occurring;
decide that this subclause applies to the person.
(2) In deciding whether such a risk exists, the ACMA is to take into account:
(a) the business record of the person; and
(b) the person’s record in situations requiring trust and candour; and
(c) the business record of each person who would be, if a datacasting licence were allocated to the first‑mentioned person, in a position to control the licence; and
(d) the record in situations requiring trust and candour of each such person; and
(e) whether the first‑mentioned person, or a person referred to in paragraph (c) or (d), has been convicted of an offence against this Act or the regulations; and
(f) whether a civil penalty order has been made against:
(i) the first‑mentioned person; or
(ii) a person referred to in paragraph (c) or (d).
(3) This clause does not affect the operation of Part VIIC of the Crimes Act 1914 (which includes provisions that, in certain circumstances, relieve persons from the requirement to disclose spent convictions and require persons aware of such convictions to disregard them).
10 Transfer of datacasting licences
(1) A datacasting licensee may transfer the licence to another qualified entity.
(2) A transferee of a datacasting licence must, within 7 days after the transfer, notify the ACMA of the transfer.
Penalty: 50 penalty units.
(2A) Subclause (2) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
(3) A notification must be in accordance with a form approved in writing by the ACMA.
11 Surrender of datacasting licences
A datacasting licensee may, by written notice given to the ACMA, surrender the licence.
12 ACMA to maintain Register of datacasting licences
(1) The ACMA is to maintain a Register in which the ACMA includes:
(a) particulars of datacasting licences; and
(b) such information about transmitter licences as the ACMA determines.
(2) The Register may be maintained by electronic means.
(3) The Register is to be made available for inspection on the internet.
Part 3—Conditions of datacasting licences
Division 1—Genre conditions
13 Category A television programs
(1) For the purposes of this Division, each of the following television programs is a category A television program:
(a) a drama program;
(c) a sports program;
(d) a music program;
(e) an infotainment or lifestyle program;
(f) a documentary program;
(g) a “reality television” program;
(h) a children’s entertainment program;
(i) a light entertainment or variety program;
(j) a compilation program;
(k) a quiz or games program;
(l) a comedy program;
(m) a program that consists of a combination of any or all of the above programs.
(2) Subclause (1) has effect subject to subclauses (3), (4) and (5).
(3) For the purposes of this Division, neither of the following television programs is a category A television program:
(a) an information‑only program;
(b) an educational program.
ACMA genre determinations
(4) The ACMA may, by legislative instrument, make a determination providing that, for the purposes of this Division, a specified television program or specified matter is taken to be a category A television program covered by a specified paragraph of subclause (1).
(5) The ACMA may, by legislative instrument, make a determination providing that, for the purposes of this Division, a specified television program or specified matter is taken not to be a category A television program covered by a specified paragraph of subclause (1).
(6) A determination under subclause (4) or (5) has effect accordingly.
Note: For specification by class, see subsection 13(3) of the Legislation Act 2003.
14 Condition relating to category A television programs
(1) Each datacasting licence is subject to the condition that the licensee will not transmit matter that, if it were broadcast on a commercial television broadcasting service, would be:
(a) a category A television program; or
(b) an extract from a category A television program.
(2) The condition set out in subclause (1) does not prevent the licensee from transmitting an extract from a category A television program, so long as:
(a) the extract is not longer than 10 minutes; and
(c) the extract is not combined with one or more other extracts from category A television programs in such a way that the extracts together constitute the whole or a majority of a particular category A television program; and
(d) having regard to:
(i) the nature of the extract; and
(ii) the circumstances in which the extract is provided;
it would be concluded that the licensee did not intend that the extract be combined with one or more other extracts from category A television programs in such a way that the extracts together constitute the whole or a majority of a particular category A television program.
(3) A reference in subclause (2) to a category A television program is a reference to matter that is covered by subclause (1) because of paragraph (1)(a).
(4) A reference in subclause (2) to an extract from a category A television program is a reference to matter that is covered by subclause (1) because of paragraph (1)(b).
(5) If, because of subclause (2) of this clause, a datacasting licensee can transmit matter without breaching the condition set out in subclause (1) of this clause, the condition set out in subclause 16(1) does not prevent the licensee from transmitting that matter.
15 Category B television programs
(1) For the purposes of this Division, each of the following television programs is a category B television program:
(a) a news or current affairs program;
(b) a financial, market or business information bulletin;
(c) a weather bulletin;
(d) a bulletin or program that consists of a combination of any or all of the above bulletins or programs.
(2) Subclause (1) has effect subject to subclauses (3), (4) and (5).
(3) For the purposes of this Division, none of the following television programs is a category B television program:
(a) an information‑only program;
(b) an educational program;
(c) a foreign‑language news or current affairs program.
ACMA genre determinations
(4) The ACMA may, by legislative instrument, make a determination providing that, for the purposes of this Division, a specified television program or specified matter is taken to be a category B television program covered by a specified paragraph of subclause (1).
(5) The ACMA may, by legislative instrument, make a determination providing that, for the purposes of this Division, a specified television program or specified matter is taken not to be a category B television program covered by a specified paragraph of subclause (1).
(6) A determination under subclause (4) or (5) has effect accordingly.
Note: For specification by class, see subsection 13(3) of the Legislation Act 2003.
16 Condition relating to category B television programs
(1) Each datacasting licence is subject to the condition that the licensee will not transmit matter that, if it were broadcast on a commercial television broadcasting service, would be:
(a) a category B television program; or
(b) an extract from a category B television program.
(2) The condition set out in subclause (1) does not prevent the licensee from transmitting a bulletin, or program, (whether presenter‑based or not), so long as:
(a) the bulletin or program is not longer than 10 minutes; and
(b) if:
(i) an earlier bulletin or program covered by subclause (1) was transmitted by the licensee; and
(ii) the content of the first‑mentioned bulletin or program differs in any respect from the content of the earlier bulletin or program;
the interval between the start of the transmission of the earlier bulletin or program and the start of the transmission of the first‑mentioned bulletin or program is at least 30 minutes; and
(c) the bulletin or program is not combined with one or more other bulletins or programs in such a way that the bulletins or programs together constitute a bulletin or program longer than 10 minutes; and
(d) having regard to:
(i) the nature of the bulletin or program; and
(ii) the circumstances in which the bulletin or program is provided;
it would be concluded that the licensee did not intend that the bulletin or program be combined with one or more other bulletins or programs in such a way that the bulletins or programs together constitute a bulletin or program longer than 10 minutes.
(3) The condition set out in subclause (1) does not prevent the licensee from transmitting a bulletin or program, so long as:
(a) the bulletin or program is not a presenter‑based bulletin or program; and
(b) one of the following applies:
(i) the bulletin or program consists of a single item of news (including a single item of sports news);
(ii) the bulletin or program is a financial, market or business information bulletin or program that deals with a single topic;
(iia) the bulletin or program is a compilation of items, the subject of which is the same or directly related, and is not longer than 10 minutes;
(iii) the bulletin or program is a weather bulletin or program; and
(c) the bulletin or program can only be accessed by an end‑user who makes a selection from an on‑screen menu.
(4) In this clause:
presenter‑based bulletin or program means a bulletin or program that consists of, or includes, a combination of:
(a) introductory or closing segments, or both, spoken by a host, or an anchor presenter, who is visible on the screen; and
(b) video images (whether or not with accompanying sound).
(5) If, because of subclause (2) or (3) of this clause, a datacasting licensee can transmit matter without breaching the condition set out in subclause (1) of this clause, the condition set out in subclause 14(1) does not prevent the licensee from transmitting that matter.
17 Genre conditions do not apply to Parliamentary proceedings etc.
The conditions set out in clauses 14 and 16 do not prevent a datacasting licensee from transmitting live matter that consists of:
(a) the proceedings of, or the proceedings of a committee of, a Parliament; or
(b) the proceedings of a court or tribunal in Australia; or
(c) the proceedings of an official inquiry or Royal Commission in Australia; or
(d) a hearing conducted by a body established for a public purpose by a law of the Commonwealth or of a State or Territory.
18 Genre conditions do not apply to matter that consists of no more than text or still visual images etc.
(1) The conditions set out in clauses 14 and 16 do not prevent a datacasting licensee from transmitting matter that consists of no more than:
(a) text; or
(b) text accompanied by associated sounds; or
(c) still visual images; or
(d) still visual images accompanied by associated sounds; or
(e) any combination of matter covered by the above paragraphs; or
(f) any combination of:
(i) matter that is covered by any of the above paragraphs (the basic matter); and
(ii) animated images (with or without associated sounds);
where:
(iii) having regard to the substance of the animated images, it would be concluded that the animated images are ancillary or incidental to the basic matter; or
(iv) the animated images consist of advertising or sponsorship material.
(2) In determining the meaning of the expressions television or television program, when used in a provision of this Act, subclause (1) is to be disregarded.
18A Genre conditions do not apply to advertising or sponsorship material
The conditions set out in clauses 14 and 16 do not prevent a datacasting licensee from transmitting advertising or sponsorship material.
19 Genre conditions do not apply to interactive computer games
(1) The conditions set out in clauses 14 and 16 do not prevent a datacasting licensee from providing an interactive computer game.
(2) In determining the meaning of the expressions television or television program, when used in a provision of this Act, subclause (1) is to be disregarded.
20 Genre conditions do not apply to internet carriage services or ordinary email
(1) The conditions set out in clauses 14 and 16 do not apply to:
(a) the transmission of so much of a datacasting service as consists of an internet carriage service (other than a declared internet carriage service); or
(b) the transmission of ordinary email.
(2) In determining the meaning of the expressions television or television program, when used in a provision of this Act, subclause (1) is to be disregarded.
20AA Genre conditions do not apply to certain content copied from the internet
(1) The conditions set out in clauses 14 and 16 do not apply to the transmission of matter if:
(a) the matter is content that has been copied from the internet; and
(b) the content is selected by the datacasting licensee concerned; and
(c) there is in force an exemption order under subclause 27A(1) in relation to the transmission of the matter.
(2) In determining the meaning of the expressions television or television program, when used in a provision of this Act, subclause (1) is to be disregarded.
Division 2—Audio content condition
21 Audio content condition
(1) Each datacasting licence is subject to the condition that the licensee will not transmit matter that, if it were broadcast on a commercial radio broadcasting service, would be a designated radio program.
Designated radio program
(2) For the purposes of this clause, a designated radio program is a radio program other than:
(a) an information‑only program; or
(b) an educational program; or
(c) a foreign‑language news or current affairs program.
(3) Subclause (2) has effect subject to subclauses (4) and (5).
ACMA determinations
(4) The ACMA may, by legislative instrument, make a determination providing that, for the purposes of this clause, a specified radio program or specified matter is taken to be a designated radio program.
(5) The ACMA may, by legislative instrument, make a determination providing that, for the purposes of this clause, a specified radio program or specified matter is taken not to be a designated radio program.
(6) A determination under subclause (4) or (5) has effect accordingly.
Note: For specification by class, see subsection 13(3) of the Legislation Act 2003.
Condition does not apply to incidental or background audio content
(8A) The condition set out in subclause (1) does not apply to the transmission of audio content that is incidental to, or provided as background to, matter displayed on the screen.
Condition does not apply to internet carriage services
(9) The condition set out in subclause (1) does not apply to the transmission of so much of a datacasting service as consists of an internet carriage service (other than a declared internet carriage service).
Condition does not apply to certain content copied from the internet
(10) The condition set out in subclause (1) does not apply to the transmission of matter if:
(a) the matter is content that has been copied from the internet; and
(b) the content is selected by the datacasting licensee concerned; and
(c) there is in force an exemption order under subclause 27A(1) in relation to the transmission of the matter.
22 Audio content condition does not apply to Parliamentary proceedings etc.
The condition set out in clause 21 does not prevent a datacasting licensee from transmitting live audio content that consists of:
(a) the proceedings of, or the proceedings of a committee of, a Parliament; or
(b) the proceedings of a court or tribunal in Australia; or
(c) the proceedings of an official inquiry or Royal Commission in Australia; or
(d) a hearing conducted by a body established for a public purpose by a law of the Commonwealth or of a State or Territory.
23 Audio content condition does not apply to matter that consists of no more than text or still visual images etc.
(1) The condition set out in clause 21 does not prevent a datacasting licensee from transmitting matter that consists of no more than:
(a) text; or
(b) text accompanied by associated sounds; or
(c) still visual images; or
(d) still visual images accompanied by associated sounds; or
(e) any combination of matter covered by the above paragraphs; or
(f) any combination of:
(i) matter that is covered by any of the above paragraphs (the basic matter); and
(ii) animated images (with or without associated sounds);
where:
(iii) having regard to the substance of the animated images, it would be concluded that the animated images are ancillary or incidental to the basic matter; or
(iv) the animated images consist of advertising or sponsorship material.
(2) In determining the meaning of the expressions radio or radio program, when used in a provision of this Act, subclause (1) is to be disregarded.
23A Audio content condition does not apply to advertising or sponsorship material
The condition set out in clause 21 does not prevent a datacasting licensee from transmitting advertising or sponsorship material.
Division 2A—Genre conditions: anti‑avoidance
23B Anti‑avoidance—declared internet carriage services
(1) If:
(a) the whole or a part of a datacasting service provided under a datacasting licence consists of an internet carriage service; and
(b) one or more persons enter into, begin to carry out, or carry out, a scheme; and
(c) the ACMA is of the opinion that the person, or any of the persons, who entered into, began to carry out, or carried out, the scheme did so for the sole or dominant purpose of avoiding the application to the licensee of Division 1 or 2;
the ACMA may, by writing, determine that, for the purposes of the application of this Schedule to the licensee, the internet carriage service is a declared internet carriage service.
(2) The person, or any of the persons, referred to in paragraphs (1)(b) and (c) may be the licensee.
(3) A determination under subclause (1) has effect accordingly.
(4) In this clause:
scheme means:
(a) any agreement, arrangement, understanding, promise or undertaking, whether express or implied and whether or not enforceable, or intended to be enforceable, by legal proceedings; or
(b) any scheme, plan, proposal, action, course of action or course of conduct, whether there are 2 or more parties or only one party involved.
Division 3—Other conditions
24 General conditions
(1) Each datacasting licence is subject to the following conditions:
(a) the licensee will comply with the requirements of clauses 3, 3A, 3B, 4 and 5 of Schedule 2 (as modified by subclause (4) of this clause);
(b) the licensee will not, in contravention of the Tobacco Advertising Prohibition Act 1992, transmit a tobacco advertisement within the meaning of that Act;
(c) the licensee will comply with standards applicable to the licence under clause 31;
(ca) the licensee will comply with any standards under section 130A (which deals with technical standards for digital transmission);
(d) the licensee will not use the datacasting service in the commission of an offence against another Act or a law of a State or Territory;
(e) the licensee will not transmit datacasting content that has been classified as RC or X 18+ by the Classification Board;
(f) the licensee will not transmit datacasting content that has been classified R 18+ by the Classification Board unless:
(i) the content has been modified as mentioned in paragraph 28(4)(b); or
(ii) access to the program is subject to a restricted access system (within the meaning of clause 27);
(g) the licensee will comply with subsection 130V(1) (which deals with industry standards);
(h) if the whole or a part of the datacasting service consists of an internet carriage service—the licensee will comply with a service provider rule (within the meaning of the Online Safety Act 2021) that is applicable to the licensee in relation to the internet carriage service;
(i) the licensee will not use the part of the radiofrequency spectrum covered by paragraph (b) of the definition of broadcasting services bands in subsection 6(1) to provide a datacasting service under the licence.
(2) The conditions set out in paragraphs (1)(a), (c), (e) and (f) do not apply in relation to:
(a) the transmission of so much of a datacasting service as consists of an internet carriage service; or
(b) the transmission of ordinary email.
(3) The condition set out in paragraph (1)(b) does not apply in relation to the transmission of ordinary email.
(4) Clauses 3, 3A, 3B, 4 and 5 of Schedule 2 apply to datacasting services provided under datacasting licences in a corresponding way to the way in which those clauses apply to broadcasting services, and, in particular, those clauses have effect as if:
(a) a reference in those clauses to a person providing broadcasting services under a class licence included a reference to a person who is a datacasting licensee; and
(b) a reference in those clauses to a broadcasting service included a reference to a datacasting service; and
(c) a reference in those clauses to broadcast included a reference to provide on a datacasting service; and
(d) subclause 4(2) of Schedule 2 were not applicable to political matter provided under a datacasting licence, where the political matter consists of no more than:
(i) text; or
(ii) still visual images; or
(iii) any combination of matter covered by the above subparagraphs; and
(e) clause 4 of Schedule 2 also provided that, if a datacasting licensee provides on a datacasting service, at the request of another person, political matter that consists of no more than:
(i) text; or
(ii) still visual images; or
(iii) any combination of matter covered by the above subparagraphs;
the licensee must also cause to be displayed to end‑users the required particulars in relation to the political matter in a form approved in writing by the ACMA.
(5) Subclause (4) does not apply to:
(a) the transmission of so much of a datacasting service as consists of an internet carriage service; or
(b) the transmission of ordinary email.
25 Suitability condition
(1) Each datacasting licence is subject to the condition that the licensee will remain a suitable licensee.
(2) For the purposes of this clause, a person is a suitable licensee if the ACMA has not decided that subclause (3) applies to the person.
(3) The ACMA may, if it is satisfied that allowing a particular person to provide, or continue to provide, datacasting services under a datacasting licence would lead to a significant risk of:
(a) an offence against this Act or the regulations being committed; or
(b) a breach of the conditions of the licence occurring;
decide that this subclause applies to the person.
(4) In deciding whether such a risk exists, the ACMA is to take into account:
(a) the business record of the person; and
(b) the person’s record in situations requiring trust and candour; and
(c) the business record of each person who is in a position to control the licence; and
(d) the record in situations requiring trust and candour of each such person; and
(e) whether the first‑mentioned person, or a person referred to in paragraph (c) or (d), has been convicted of an offence against this Act or the regulations.
(5) This clause does not affect the operation of Part VIIC of the Crimes Act 1914 (which includes provisions that, in certain circumstances, relieve persons from the requirement to disclose spent convictions and require persons aware of such convictions to disregard them).
26 Additional conditions imposed by the ACMA
(1) The ACMA may, by written notice given to a datacasting licensee:
(a) impose an additional condition on the licence; or
(b) vary or revoke a condition of the licence imposed under this clause.
(2) If the ACMA proposes to vary or revoke a condition or to impose a new condition, the ACMA must:
(a) give to the licensee written notice of its intention; and
(b) give to the licensee a reasonable opportunity to make representations to the ACMA in relation to the proposed action; and
(c) make the proposed changes available on the internet.
(3) Action taken under subclause (1) must not be inconsistent with conditions set out in:
(a) clause 14; or
(b) clause 16; or
(c) clause 21; or
(d) clause 24; or
(e) clause 25.
(4) Conditions of datacasting licences varied or imposed by the ACMA must be relevant to the datacasting services to which those licences relate.
(5) Without limiting the range of conditions that may be imposed, the ACMA may impose a condition on a datacasting licensee:
(a) requiring the licensee to comply with a code of practice that is applicable to the licensee; or
(b) designed to ensure that a breach of a condition by the licensee does not recur.
ACMA to maintain Register of conditions
(6) The ACMA is to maintain a register in which it includes particulars of:
(a) conditions imposed under this clause; and
(b) variations of conditions under this clause; and
(c) revocations of conditions under this clause.
(7) The Register may be maintained by electronic means.
(8) The Register is to be made available for inspection on the internet.
27 Restricted access system
(1) The ACMA may, by legislative instrument, declare that a specified access‑control system is a restricted access system for the purposes of this Division. A declaration under this subclause has effect accordingly.
Note: For specification by class, see subsection 13(3) of the Legislation Act 2003.
(2) In making an instrument under subclause (1), the ACMA must have regard to:
(a) the objective of protecting children from exposure to matter that is unsuitable for children; and
(b) such other matters (if any) as the ACMA considers relevant.
Division 4—Exemption orders for content copied from the internet
27A Exemption orders in relation to content copied from the internet
(1) If the ACMA is satisfied that:
(a) matter is proposed to be transmitted by a datacasting licensee; and
(b) the matter is content that is proposed to be copied from the internet; and
(c) the content is proposed to be selected by the datacasting licensee; and
(d) if it were assumed that clause 20AA and subclause 21(10) had not been enacted:
(i) any breach of the conditions set out in clauses 14 and 16 and subclause 21(1) that would arise from the transmission of the matter would be of a minor, infrequent or incidental nature; or
(ii) the transmission of the matter would not be contrary to the purpose of clauses 14, 16 and 21;
the ACMA may, by writing, make an exemption order in relation to the transmission of the matter.
(2) If the ACMA receives a request from a datacasting licensee to make an exemption order in relation to the transmission of matter by the licensee, the ACMA must use its best endeavours to make that decision within 28 days after the request was made.
Part 4—Codes of practice
28 Development of codes of practice
(1) The Parliament intends that:
(a) a group that the ACMA is satisfied represents datacasting licensees should develop codes of practice that are to be applicable to the datacasting operations of datacasting licensees; and
(b) those codes of practice should be developed:
(i) in consultation with the ACMA; and
(ii) taking account of any relevant research conducted by the ACMA.
Content of codes of practice
(2) Codes of practice may relate to:
(a) preventing the transmission of matter that, in accordance with community standards, is not suitable to be transmitted by datacasting licensees; and
(b) methods of ensuring that the protection of children from exposure to datacasting content which may be harmful to them is a high priority; and
(c) methods of classifying datacasting content that reflect community standards; and
(d) promoting accuracy and fairness in datacasting content that consists of news or current affairs; and
(e) preventing the transmission of datacasting content that:
(i) simulates news or events in a way that misleads or alarms end‑users; or
(ii) depicts the actual process of putting a person into a hypnotic state; or
(iii) is designed to induce a hypnotic state in end‑users; or
(iv) uses or involves the process known as subliminal perception or any other technique that attempts to convey information to end‑users by transmitting messages below or near the threshold of normal awareness; and
(f) datacasting content that consists of:
(i) advertising; or
(ii) sponsorship announcements; and
(g) methods of:
(i) handling complaints from the public about datacasting content or compliance with codes of practice; and
(ii) reporting to the ACMA on complaints so made; and
(h) in a case where there are customers of datacasting licensees—dealings with those customers, including methods of billing, fault repair, privacy and credit management; and
(i) such other matters relating to datacasting content as are of concern to the community.
Classification etc.
(3) In developing codes of practice relating to matters referred to in paragraphs (2)(a) and (c), community attitudes to the following matters are to be taken into account:
(a) the portrayal in datacasting content of physical and psychological violence;
(b) the portrayal in datacasting content of sexual conduct and nudity;
(c) the use in datacasting content of offensive language;
(d) the portrayal in datacasting content of the use of drugs, including alcohol and tobacco;
(e) the portrayal in datacasting content of matter that is likely to incite or perpetuate hatred against, or vilifies, any person or group on the basis of ethnicity, nationality, race, gender, sexual orientation, age, religion or physical or mental disability;
(f) such other matters relating to datacasting content as are of concern to the community.
(4) In developing codes of practice referred to in paragraph (2)(a), (b) or (c), the group that the ACMA is satisfied represents datacasting licensees must ensure that:
(a) for the purpose of classifying films—those codes apply the film classification system administered by the Classification Board; and
(b) those codes provide for methods of modifying films having particular classifications under that system so that the films are suitable to be transmitted; and
(c) those codes provide for the provision of advice to consumers on the reasons for films receiving a particular classification; and
(d) for the purpose of classifying interactive computer games—those codes apply the computer games classification system administered by the Classification Board; and
(e) those codes provide for the provision of advice to consumers on the reasons for interactive computer games receiving a particular classification; and
(f) for the purpose of classifying content (other than films or interactive computer games)—those codes apply the film classification system administered by the Classification Board in a corresponding way to the way in which that system applies to films; and
(g) those codes provide for methods of modifying content (other than films or interactive computer games) having particular classifications under that system (as correspondingly applied) so that the content is suitable to be transmitted; and
(h) those codes provide for the provision of advice to consumers on the reasons for content (other than films or interactive computer games) receiving a particular classification.
(5) In developing codes of practice referred to in paragraph (2)(a) or (b), the group that the ACMA is satisfied represents datacasting licensees must ensure that films classified as “M” or “MA 15+” do not portray material that goes beyond the previous “AO” classification criteria.
Registration of codes of practice
(6) If:
(a) the group that the ACMA is satisfied represents datacasting licensees develops a code of practice to be observed in the conduct of the datacasting operations of those licensees; and
(b) the ACMA is satisfied that:
(i) the code of practice provides appropriate community safeguards for the matters covered by the code; and
(ii) the code is endorsed by a majority of datacasting licensees; and
(iii) members of the public have been given an adequate opportunity to comment on the code;
the ACMA must include that code in the Register of codes of practice.
Interactive computer game
(7) In this clause:
interactive computer game includes a computer game within the meaning of the Classification (Publications, Films and Computer Games) Act 1995.
30 ACMA to maintain Register of codes of practice
(1) The ACMA is to maintain a Register in which it includes all codes of practice registered under clause 28.
(2) The Register may be maintained by electronic means.
(3) The Register is to be made available for inspection on the internet.
31 ACMA may determine standards where codes of practice fail or where no code of practice developed
(1) If:
(a) the ACMA is satisfied that there is convincing evidence that a code of practice registered under clause 28 is not operating to provide appropriate community safeguards for a matter referred to in subclause 28(2) in relation to the datacasting operations of datacasting licensees; and
(b) the ACMA is satisfied that it should determine a standard in relation to that matter;
the ACMA must, by legislative instrument, determine a standard in relation to that matter.
(2) If:
(a) no code of practice has been registered under clause 28 for a matter referred to in subclause 28(2); and
(b) the ACMA is satisfied that it should determine a standard in relation to that matter;
the ACMA must, by legislative instrument, determine a standard in relation to that matter.
32 Consultation on standards
The ACMA must, before determining, varying or revoking a standard, seek public comment on the proposed standard or the variation or revocation.
33 Notification of determination or variation or revocation of standards
(1) If the ACMA determines or varies or revokes a standard, the ACMA must publish a notice stating:
(a) that the standard has been determined, varied or revoked; and
(b) the places where copies of the standard or of the variation or revocation can be accessed.
(2) A notice under subclause (1) must be published:
(a) on the ACMA’s website; and
(b) in one or more other forms that are readily accessible by the public.
Example: Publication in a form mentioned in paragraph (b) could be publication on a website other than the ACMA’s website.
34 Limitation of ACMA’s power in relation to standards
(1) The ACMA must not determine a standard that requires that, before datacasting content is transmitted, the datacasting content, or a sample of the datacasting content, be approved by the ACMA or by a person or body appointed by the ACMA.
(2) However, the ACMA may determine such a standard in relation to datacasting content for children.
35 This Part does not apply to internet carriage services or ordinary email
This Part does not apply to:
(a) the transmission of so much of a datacasting service as consists of an internet carriage service; or
(b) the transmission of ordinary email.
35A This Part does not apply to the ABC or SBS
For the purposes of this Part, the Australian Broadcasting Corporation and the Special Broadcasting Service Corporation are taken not to be datacasting licensees.
Note: If the Australian Broadcasting Corporation or the Special Broadcasting Service Corporation is otherwise a datacasting licensee, it is a duty of the Board of the Corporation to develop a code of practice that relates to the service provided under the licence. See paragraph 8(1)(e) of the Australian Broadcasting Corporation Act 1983 and paragraph 10(1)(j) of the Special Broadcasting Service Act 1991.
Part 5—Complaints to the ACMA about datacasting services
36 Complaints about offences or breach of licence conditions
(1) If a person believes that a datacasting licensee has:
(a) committed an offence against this Act or the regulations; or
(b) breached a condition of the datacasting licence;
the person may make a complaint to the ACMA about the matter.
(2) If a person believes that another person is providing a designated datacasting service without a datacasting licence that authorises the provision of that service, the first‑mentioned person may make a complaint to the ACMA about the matter.
37 Complaints under codes of practice
(1) If:
(a) a person has made a complaint to a datacasting licensee about a matter relating to:
(i) datacasting content; or
(ii) compliance with a code of practice that applies to the datacasting operations of datacasting licensees and that is included in the Register of codes of practice; and
(b) if there is a relevant code of practice relating to the handling of complaints of that kind—the complaint was made in accordance with that code of practice; and
(c) either:
(i) the person has not received a response within 60 days after making the complaint; or
(ii) the person has received a response within that period but considers that response to be inadequate;
the person may make a complaint to the ACMA about the matter.
(2) This clause does not apply to:
(a) the transmission of so much of a datacasting service as consists of an internet carriage service; or
(b) the transmission of ordinary email.
(3) Also, this clause does not apply if the datacasting licensee is the Australian Broadcasting Corporation or the Special Broadcasting Service Corporation.
Note: Sections 150 to 153 deal with complaints about a datacasting service provided by the Australian Broadcasting Corporation or the Special Broadcasting Service Corporation.
38 Investigation of complaints by the ACMA
The ACMA may investigate the complaint if the ACMA thinks that it is desirable to do so.
Part 8—Remedies for breaches of licensing provisions
Division 1—Providing a designated datacasting service without a licence
49 Prohibition on providing a designated datacasting service without a licence
(1) A person commits an offence if the person:
(a) intentionally provides a designated datacasting service; and
(b) does not have a datacasting licence to provide the service.
Penalty: 20,000 penalty units.
(2) A person who contravenes subclause (1) 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.
(3) A person must not provide a designated datacasting service if the person does not have a datacasting licence to provide that service.
(4) Subclause (3) is a civil penalty provision.
(5) A person who contravenes subclause (3) commits a separate contravention of that subclause in respect of each day (including a day of the making of a relevant civil penalty order or any subsequent day) during which the contravention continues.
Note 1: For exemptions for broadcasters, see clause 51.
Note 2: For exemptions for designated teletext services, see clause 51A.
50 Remedial directions—unlicensed datacasting services
(1) If the ACMA is satisfied that a person has breached, or is breaching, subclause 49(3), the ACMA may, by written notice given to the person, direct the person to take action directed towards ensuring that the person does not breach that subclause, or is unlikely to breach that subclause, in the future.
Note 1: For exemptions for broadcasters, see clause 51.
Note 2: For exemptions for designated teletext services, see clause 51A.
Offence
(2) A person commits an offence if:
(a) the person has been given a notice under subclause (1); and
(b) the person engages in conduct; and
(c) the person’s conduct contravenes a requirement in the notice.
Penalty: 20,000 penalty units.
(3) A person who contravenes subclause (2) commits a separate offence in respect of each day (including a day of a conviction for the offence or any subsequent day) during which the contravention continues.
Civil penalty
(4) A person must comply with a notice under subclause (1).
(5) Subclause (4) is a civil penalty provision.
(6) A person who contravenes subclause (4) commits a separate contravention of that subclause in respect of each day (including a day of the making of a relevant civil penalty order or any subsequent day) during which the contravention continues.
Definition
(7) In this clause:
engage in conduct means:
(a) do an act; or
(b) omit to perform an act.
51 Exemption for broadcasting licensees etc.
(1) Clauses 49 and 50 do not apply to the provision of a broadcasting service under, and in accordance with the conditions of:
(a) a licence allocated by the ACMA under this Act (other than this Schedule); or
(b) a class licence.
(2) Clauses 49 and 50 do not apply to the provision of a national broadcasting service.
51A Exemption for designated teletext services
Clauses 49 and 50 do not apply to the provision of a designated teletext service.
Division 2—Breaches of licence conditions
52 Offence for breach of conditions
(1) A person commits an offence if:
(a) the person is a datacasting licensee; and
(b) the person intentionally engages in conduct; and
(c) the person’s conduct breaches a condition of the licence set out in clause 14, 16, 21 or 24.
Penalty: 2,000 penalty units.
(2) A person who contravenes subclause (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.
52A Civil penalty provision relating to breach of conditions of datacasting licences
(1) A datacasting licensee must not breach a condition of the licence set out in clause 14, 16, 21 or 24.
(2) Subclause (1) is a civil penalty provision.
(3) A person who contravenes subclause (1) commits a separate contravention of that subclause in respect of each day (including a day of the making of a relevant civil penalty order or any subsequent day) during which the contravention continues.
53 Remedial directions—breach of conditions
(1) If a datacasting licensee has breached, or is breaching, a condition of the licence (other than the condition set out in clause 25), the ACMA may, by written notice given to the licensee, direct the licensee to take action directed towards ensuring that the licensee does not breach the condition, or is unlikely to breach the condition, in the future.
(2) The following are examples of the kinds of direction that may be given to a licensee under subclause (1):
(a) a direction that the licensee implement effective administrative systems for monitoring compliance with a condition of the licence;
(b) a direction that the licensee implement a system designed to give the licensee’s employees, agents and contractors a reasonable knowledge and understanding of the requirements of a condition of the licence, in so far as those requirements affect the employees, agents or contractors concerned.
(3) A person is not required to comply with a notice under subclause (1) until the end of the period specified in the notice. That period must be reasonable.
(4) A person commits an offence if:
(a) a person has been given a notice under subclause (1); and
(b) the person intentionally engages in conduct; and
(c) the person’s conduct contravenes a requirement in the notice.
Penalty: 20,000 penalty units.
(5) A person who contravenes subclause (4) 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.
(6) A person must comply with a notice under subclause (1).
(7) Subclause (6) is a civil penalty provision.
(8) A person who contravenes subclause (6) commits a separate contravention of that subclause in respect of each day (including a day of the making of a relevant civil penalty order or any subsequent day) during which the contravention continues.
54 Suspension and cancellation
(1) If a person who is a datacasting licensee:
(a) fails to comply with a notice under clause 53; or
(b) breaches a condition of the licence;
the ACMA may, by written notice given to the person:
(c) suspend the licence for such period, not exceeding 3 months, as is specified in the notice; or
(d) cancel the licence.
(2) If a datacasting licence is suspended because of a breach of a condition set out in clause 14, 16 or 21, the ACMA may take such action, by way of suspending one or more datacasting licences held by:
(a) the licensee; or
(b) a related body corporate of the licensee;
as the ACMA considers necessary to ensure that the same, or a substantially similar, datacasting service is not transmitted by the licensee or the related body corporate, as the case may be, during the period of suspension.
(3) If a datacasting licence is cancelled because of a breach of a condition set out in clause 14, 16 or 21, the ACMA may take such action, by way of cancelling one or more datacasting licences held by:
(a) the licensee; or
(b) a related body corporate of the licensee;
as the ACMA considers necessary to ensure that the same, or a substantially similar, datacasting service is not transmitted by the licensee or the related body corporate, as the case may be, at a time after the cancellation.
(4) If the ACMA proposes to take action against a person under subclause (1), (2) or (3), the ACMA must give to the person:
(a) written notice of its intention; and
(b) a reasonable opportunity to make representations to the ACMA in relation to the proposed action.
55 Injunctions
Restraining injunctions
(1) If a person who is a datacasting licensee has engaged, is engaging or is proposing to engage, in any conduct in contravention of a condition of the licence (other than a condition set out in clause 25), the Federal Court may, on the application of the ACMA, grant an injunction:
(a) restraining the person from engaging in the conduct; and
(b) if, in the court’s opinion, it is desirable to do so—requiring the person to do something.
(2) If a person has engaged, is engaging or is proposing to engage, in any conduct in contravention of clause 49, the Federal Court may, on the application of the ACMA, grant an injunction:
(a) restraining the person from engaging in the conduct; and
(b) if, in the court’s opinion, it is desirable to do so—requiring the person to do something.
Performance injunctions
(3) If:
(a) a person who is a datacasting licensee has refused or failed, or is refusing or failing, or is proposing to refuse or fail, to do an act or thing; and
(b) the refusal or failure was, is or would be a contravention of a condition of the licence (other than a condition set out in clause 25);
the Federal Court may, on the application of the ACMA, grant an injunction requiring the person to do that act or thing.
56 Federal Court’s powers relating to injunctions
Grant of interim injunction
(1) If an application is made to the Federal Court for an injunction under clause 55, the court may, before considering the application, grant an interim injunction restraining a person from engaging in conduct of a kind referred to in that clause.
No undertakings as to damages
(2) The Federal Court is not to require an applicant for an injunction under clause 55, as a condition of granting an interim injunction, to give any undertakings as to damages.
Discharge etc. of injunctions
(3) The Federal Court may discharge or vary an injunction granted under clause 55.
Certain limits on granting injunctions do not apply
(4) The power of the Federal Court under clause 55 to grant an injunction restraining a person from engaging in conduct of a particular kind may be exercised:
(a) if the court is satisfied that the person has engaged in conduct of that kind—whether or not it appears to the court that the person intends to engage again, or to continue to engage, in conduct of that kind; or
(b) if it appears to the court that, if an injunction is not granted, it is likely that the person will engage in conduct of that kind—whether or not the person has previously engaged in conduct of that kind and whether or not there is an imminent danger of substantial damage to any person if the person engages in conduct of that kind.
(5) The power of the Federal Court under clause 55 to grant an injunction requiring a person to do an act or thing may be exercised:
(a) if the court is satisfied that the person has refused or failed to do that act or thing—whether or not it appears to the court that the person intends to refuse or fail again, or to continue to refuse or fail, to do that act or thing; or
(b) if it appears to the court that, if an injunction is not granted, it is likely that the person will refuse or fail to do that act or thing—whether or not the person has previously refused or failed to do that act or thing and whether or not there is an imminent danger of substantial damage to any person if the person refuses or fails to do that act or thing.
Other powers of the court unaffected
(6) The powers conferred on the Federal Court under clause 55 are in addition to, and not instead of, any other powers of the court, whether conferred by this Act or otherwise.
57 Stay of proceedings relating to additional licence conditions, remedial directions and suspension/cancellation decisions
(1) For the purposes of this clause, an eligible decision is:
(a) a decision under clause 26 to impose or vary a condition of a datacasting licence; or
(b) a decision to give a direction under clause 53 (which deals with remedial directions); or
(c) a decision to suspend or cancel a datacasting licence under clause 54.
(2) An order must not be made under paragraph 15(1)(a) or 15A(1)(a) of the Administrative Decisions (Judicial Review) Act 1977 in relation to an eligible decision if:
(a) the order has the effect of suspending the operation of the eligible decision for more than 3 months; or
(b) the order and any previous order or orders made under the paragraph concerned have the combined effect of suspending the operation of the eligible decision for more than 3 months.
(3) An order must not be made under paragraph 15(1)(b) or 15A(1)(b) of the Administrative Decisions (Judicial Review) Act 1977 in relation to an eligible decision if:
(a) the order has the effect of staying particular proceedings under the eligible decision for more than 3 months; or
(b) the order and any previous order or orders made under the paragraph concerned have the combined effect of staying particular proceedings under the eligible decision for more than 3 months.
(4) If:
(a) a person applies to the Federal Court under subsection 39B(1) of the Judiciary Act 1903 for a writ or injunction in relation to an eligible decision; and
(b) an order could be made staying, or otherwise affecting the operation or implementation of, the eligible decision pending the finalisation of the application;
such an order must not be made if:
(c) the order has the effect of staying, or otherwise affecting the operation or implementation of, the eligible decision for more than 3 months; or
(d) the order and any previous order or orders covered by paragraph (b) have the combined effect of staying, or otherwise affecting the operation or implementation of, the eligible decision for more than 3 months.
(5) If:
(a) a person applies to the Administrative Appeals Tribunal for review of an eligible decision; and
(b) an order could be made under subsection 41(2) of the Administrative Appeals Tribunal Act 1975 staying, or otherwise affecting the operation or implementation of, the eligible decision;
such an order must not be made if:
(c) the order has the effect of staying, or otherwise affecting the operation or implementation of, the eligible decision for more than 3 months; or
(d) the order and any previous order or orders covered by paragraph (b) have the combined effect of staying, or otherwise affecting the operation or implementation of, the eligible decision for more than 3 months.
Part 9—Review of decisions
58 Review by the Administrative Appeals Tribunal
An application may be made to the Administrative Appeals Tribunal for a review of a decision set out in the second column of the table made under the provision of this Schedule set out in the third column, but such an application may only be made by the person described in the fourth column.
| Reviewable decisions |
| Item | Decision | Provision | Person who may apply |
| 1 | refusal to allocate datacasting licence | clause 7 or 8 | the applicant |
| 2 | that a person is not a suitable applicant | subclause 9(1) | the person |
| 2A | that an internet carriage service is a declared internet carriage service | subclause 23B(1) | the licensee |
| 3 | that a person is not a suitable licensee | subclause 25(3) | the licensee |
| 4 | Variation of datacasting licence conditions or imposition of new conditions | subclause 26(1) | the licensee |
| 4A | refusal to make an exemption order | clause 27B | the licensee |
| 5 | refusal to include a code of practice in the Register | subclause 28(6) | the relevant industry group |
| 8 | to give or vary, or to refuse to revoke, a direction | clause 53 | the licensee |
| 9 | suspension or cancellation of datacasting licence | clause 54 | the licensee |
59 Notification of decisions to include notification of reasons and appeal rights
If the ACMA makes a decision that is reviewable under clause 58, the ACMA is to include in the document by which the decision is notified:
(a) a statement setting out the reasons for the decision; and
(b) a statement to the effect that an application may be made to the Administrative Appeals Tribunal for a review of the decision.
Schedule 7—Content services definitions
Note: See section 216D.
1 Purpose of this Schedule
The purpose of this Schedule is to enable:
(a) other Acts; and
(b) other provisions of this Act;
to define certain expressions as having the same meaning as in this Schedule.
2 Definitions
In this Schedule:
access includes:
(a) access that is subject to a pre‑condition (for example, the use of a password); and
(b) access by way of push technology; and
(c) access by way of a standing request.
adult chat service means a chat service where, having regard to any or all of the following:
(a) the name of the chat service;
(b) the way in which the chat service is advertised or promoted;
(c) the reputation of the chat service;
it would be concluded that the majority of the content accessed by end‑users of the chat service is reasonably likely to be content that is class 1 material or content that is class 2 material covered by paragraph 107(1)(a), (b), (c), (d) or (e) of the Online Safety Act 2021.
carriage service has the same meaning as in the Telecommunications Act 1997.
class 1 material has the same meaning as in the Online Safety Act 2021.
class 2 material has the same meaning as in the Online Safety Act 2021.
commercial content service means a content service that:
(a) is operated for profit or as part of a profit‑making enterprise; and
(b) is provided to the public but only on payment of a fee (whether periodical or otherwise).
content means content:
(a) whether in the form of text; or
(b) whether in the form of data; or
(c) whether in the form of speech, music or other sounds; or
(d) whether in the form of visual images (animated or otherwise); or
(e) whether in any other form; or
(f) whether in any combination of forms.
content service means:
(a) a service that delivers content to persons having equipment appropriate for receiving that content, where the delivery of the service is by means of a carriage service; or
(b) a service that allows end‑users to access content using a carriage service;
but does not include:
(c) a licensed broadcasting service; or
(d) a national broadcasting service; or
(e) a re‑transmitted broadcasting service; or
(f) a licensed datacasting service; or
(g) a re‑transmitted datacasting service; or
(h) an exempt Parliamentary content service; or
(i) an exempt court/tribunal content service; or
(j) an exempt official‑inquiry content service; or
(k) an exempt point‑to‑point content service; or
(l) an exempt internet directory service; or
(m) an exempt internet search engine service; or
(n) a service that enables end‑users to communicate, by means of voice calls, with other end‑users; or
(o) a service that enables end‑users to communicate, by means of video calls, with other end‑users; or
(p) a service that enables end‑users to communicate, by means of email, with other end‑users; or
(q) an instant messaging service that:
(i) enables end‑users to communicate with other end‑users; and
(ii) is not an adult chat service; or
(r) an SMS service that:
(i) enables end‑users to communicate with other end‑users; and
(ii) is not an adult chat service; or
(s) an MMS service that:
(i) enables end‑users to communicate with other end‑users; and
(ii) is not an adult chat service; or
(t) a service that delivers content by fax; or
(u) an exempt data storage service; or
(v) an exempt back‑up service; or
(x) a service specified in the regulations.
Note 1: SMS is short for short message service.
Note 2: MMS is short for multimedia message service.
Note 3: For specification by class, see subsection 13(3) of the Legislation Act 2003.
content service provider means a person who provides a content service.
Note: See clause 5.
court/tribunal proceedings means words spoken and acts done in the course of, or for purposes of or incidental to, the transacting of the business of a court or a tribunal, and includes:
(a) evidence given before the court or tribunal; and
(b) a document presented or submitted to the court or tribunal; and
(c) a document issued or published by, or with the authority of, the court or tribunal.
exempt back‑up service means a back‑up service, where each end‑user’s access is restricted to the end‑user’s backed‑up content.
exempt court/tribunal content service means a service to the extent to which it delivers, or provides access to, content that consists of court/tribunal proceedings.
exempt data storage service means a data storage service, where each end‑user’s access is restricted to the end‑user’s stored content.
exempt internet directory service means an internet directory service that:
(a) does not specialise in providing links to, or information about, websites that specialise in content that is class 1 material or content that is class 2 material covered by paragraph 107(1)(a), (b), (c), (d) or (e) of the Online Safety Act 2021; and
(b) is not a service specified in the regulations; and
(c) complies with such other requirements (if any) as are specified in the regulations.
Note: For specification by class, see subsection 13(3) of the Legislation Act 2003.
exempt internet search engine service means an internet search engine service that:
(a) does not specialise in providing links to, or information about, websites that specialise in content that is class 1 material or content that is class 2 material covered by paragraph 107(1)(a), (b), (c), (d) or (e) of the Online Safety Act 2021; and
(b) is not a service specified in the regulations; and
(c) complies with such other requirements (if any) as are specified in the regulations.
Note: For specification by class, see subsection 13(3) of the Legislation Act 2003.
exempt official‑inquiry content service means a service to the extent to which it delivers, or provides access to, content that consists of official‑inquiry proceedings.
exempt Parliamentary content service means a service to the extent to which it delivers, or provides access to, content that consists of Parliamentary proceedings.
exempt point‑to‑point content service means a service that:
(a) delivers content by:
(i) email; or
(ii) instant messaging; or
(iii) SMS; or
(iv) MMS;
where the content is produced or packaged by the provider of the service; and
(b) does not specialise in content that is content that is class 1 material or content that is class 2 material covered by paragraph 107(1)(a), (b), (c), (d) or (e) of the Online Safety Act 2021; and
(c) is not an adult chat service; and
(d) is not provided on payment of a fee (whether periodical or otherwise); and
(e) is not a service specified in the regulations; and
(f) complies with such other requirements (if any) as are specified in the regulations.
Note 1: SMS is short for short message service.
Note 2: MMS is short for multimedia message service.
Note 3: For specification by class, see subsection 13(3) of the Legislation Act 2003.
licensed broadcasting service means a broadcasting service provided in accordance with:
(a) a licence allocated by the ACMA under this Act; or
(b) a class licence determined by the ACMA under this Act.
licensed datacasting service means a datacasting service provided by the holder of a datacasting licence that authorises the provision of that service.
official‑inquiry proceedings means words spoken and acts done in the course of, or for purposes of or incidental to, the transacting of the business of:
(a) a Royal Commission; or
(b) an official inquiry;
and includes:
(c) evidence given before the Royal Commission or official inquiry; and
(d) a document presented or submitted to the Royal Commission or official inquiry; and
(e) a document issued or published by, or with the authority of, the Royal Commission or official inquiry.
Parliamentary proceedings means words spoken and acts done in the course of, or for purposes of or incidental to, the transacting of the business of:
(a) a Parliament; or
(b) a legislature; or
(c) a committee of a Parliament or legislature;
and includes:
(d) evidence given before the Parliament, legislature or committee; and
(e) a document presented or submitted to the Parliament, legislature or committee; and
(f) a document issued or published by, or with the authority of, the Parliament, legislature or committee.
re‑transmitted broadcasting service has the meaning given by clause 12.
re‑transmitted datacasting service has the meaning given by clause 13.
service includes a website or a distinct part of a website.
voice call includes:
(a) if a voice call is not practical for a particular end‑user with a disability—a call that is equivalent to a voice call; and
(b) a call that involves a recorded or synthetic voice.
5 Content service provider
(1) For the purposes of this Schedule, a person does not provide a content service merely because the person supplies a carriage service that enables content to be delivered or accessed.
(2) For the purposes of this Schedule, a person does not provide a content service merely because the person provides a billing service, or a fee collection service, in relation to a content service.
7 When content service is provided to the public etc.
(1) For the purposes of this Schedule, a content service is provided to the public if, and only if, the service is provided to at least one person outside the immediate circle of the person who provides the service.
(2) For the purposes of this Schedule, a content service that is provided to the public is taken to be different from a content service that is not provided to the public, even if the content provided by the services is identical.
9 Services supplied by way of a voice call or video call
If a service is supplied by way of:
(a) a voice call made using a carriage service; or
(b) a video call made using a carriage service;
the service is taken, for the purposes of this Schedule, to be a content service that allows end‑users to access the relevant content using the carriage service.
12 Re‑transmitted broadcasting services
(1) For the purposes of this Schedule, a service is a re‑transmitted broadcasting service if the service does no more than:
(a) re‑transmit programs that have been previously transmitted by a licensed broadcasting service; or
(b) re‑transmit programs that have been previously transmitted by a national broadcasting service.
(2) In determining whether a service is a re‑transmitted broadcasting service:
(a) ignore any changes to the format in which the programs are transmitted; and
(b) ignore any advertising or sponsorship matter; and
(c) ignore such other matters (if any) as are specified in the regulations.
13 Re‑transmitted datacasting services
(1) For the purposes of this Schedule, a service is a re‑transmitted datacasting service if the service does no more than re‑transmit datacasting content that has been previously transmitted by a licensed datacasting service.
(2) In determining whether a service is a re‑transmitted datacasting service:
(a) ignore any changes to the format in which the datacasting content is transmitted; and
(b) ignore any advertising or sponsorship matter; and
(c) ignore such other matters (if any) as are specified in the regulations.
17 Extended meaning of use
Unless the contrary intention appears, a reference in this Schedule to the use of a thing is a reference to the use of the thing either:
(a) in isolation; or
(b) in conjunction with one or more other things.
Schedule 8—Online content services
Note: See section 216E.
Part 1—Introduction
1 Simplified outline of this Schedule
• The ACMA may make online content service provider rules about gambling promotional content provided on an online content service in conjunction with live coverage of a sporting event.
• The ACMA may exempt an online content service, or an online content service provider, from the online content service provider rules.
• If an online content service provider contravenes the online content service provider rules, the provider may become liable to pay a civil penalty.
• The ACMA may give a remedial direction to an online content service provider if the provider contravenes the online content service provider rules.
2 Definitions
In this Schedule:
access includes:
(a) access that is subject to a pre‑condition (for example, the use of a password); and
(b) access by way of push technology; and
(c) access by way of a standing request.
account includes:
(a) a free account; and
(b) a pre‑paid account; and
(c) anything that may reasonably be regarded as the equivalent of an account.
Australia, when used in a geographical sense, includes all the external Territories.
bet includes wager.
commentator betting odds promotion means gambling promotional content to the extent to which it consists of the provision of betting odds (however described) by a commentator.
conclusion, in relation to a sporting event, has a meaning affected by clause 23.
content means content:
(a) whether in the form of text; or
(b) whether in the form of data; or
(c) whether in the form of speech, music or other sounds; or
(d) whether in the form of visual images (animated or otherwise); or
(e) whether in any other form; or
(f) whether in any combination of forms.
coverage means coverage that involves either or both of the following:
(a) animated visual images;
(b) audio.
exempt online simulcast service has the meaning given by clause 4.
gambling promotional content means:
(a) advertising content; or
(b) sponsorship content; or
(c) promotional content;
that relates to a gambling service.
gambling service has the meaning given by clause 18.
gambling service provider means a person who provides a gambling service.
game includes an electronic game.
geographical link to Australia has the meaning given by clause 5.
immediate circle has the same meaning as in the Telecommunications Act 1997.
in conjunction with, when used in relation to live coverage of a sporting event, has the meaning given by clause 21.
internet carriage service has the same meaning as in the Online Safety Act 2021.
live, in relation to coverage of a sporting event, means:
(a) live (within the ordinary meaning of that expression); or
(b) delayed, so long as the coverage:
(i) is provided as if it were live (within the ordinary meaning of that expression); and
(ii) begins no later than the conclusion of the sporting event.
lottery includes an electronic lottery.
online content service has the meaning given by clause 3.
online content service provider means a person who provides an online content service.
Note: See clause 6.
online content service provider rules means rules made under clause 11.
provided on an online content service has the meaning given by clause 7.
provided to the public, in relation to a service, has the meaning given by clause 8.
representative venue‑based promotion means gambling promotional content to the extent to which it consists of:
(a) visual images (whether animated or otherwise) of a representative of a gambling service provider; or
(b) speech of a representative of a gambling service provider;
where those visual images, or that speech, as the case may be, gives the impression that the representative is at, or around, the venue of a sporting event.
scheduled start, in relation to a sporting event, has a meaning affected by clause 22.
service includes a website.
Note: See also clause 17.
sporting event has a meaning affected by clause 19.
ticket includes an electronic ticket.
using has a meaning affected by clause 9.
voice call includes:
(a) if a voice call is not practical for a particular end‑user with a disability—a call that is equivalent to a voice call; and
(b) a call that involves a recorded or synthetic voice.
3 Online content service
(1) For the purposes of this Schedule, online content service means:
(a) a service that delivers content to persons having equipment appropriate for receiving that content, where the delivery of the service is by means of an internet carriage service; or
(b) a service that allows end‑users to access content using an internet carriage service;
where the service:
(c) is provided to the public (whether on payment of a fee or otherwise); and
(d) has a geographical link to Australia;
but does not include a service to the extent to which it is:
(e) an exempt online simulcast service; or
(f) an exempt Parliamentary content service (within the meaning of Schedule 7); or
(g) an exempt court/tribunal content service (within the meaning of Schedule 7); or
(h) an exempt official‑inquiry content service (within the meaning of Schedule 7); or
(i) a service that enables end‑users to communicate, by means of voice calls, with other end‑users; or
(j) a service that enables end‑users to communicate, by means of video calls, with other end‑users; or
(k) a service that enables end‑users to communicate, by means of email, with other end‑users; or
(l) an instant messaging service that enables end‑users to communicate with other end‑users; or
(m) an SMS service that enables end‑users to communicate with other end‑users; or
(n) an MMS service that enables end‑users to communicate with other end‑users; or
(o) a service that delivers content by fax; or
(p) an exempt data storage service (within the meaning of Schedule 7); or
(q) an exempt back‑up service (within the meaning of Schedule 7); or
(r) a service determined under subclause (2).
Note 1: SMS is short for short message service.
Note 2: MMS is short for multimedia message service.
(2) The ACMA may, by legislative instrument, determine one or more services for the purposes of paragraph (1)(r).
4 Exempt online simulcast service
(1) For the purposes of this Schedule, exempt online simulcast service means a service, or a part of a service, that is provided to end‑users using an internet carriage service, and that:
(a) does no more than provide a stream of content that is identical to the stream of programs transmitted on:
(i) a commercial television broadcasting service provided under a commercial television broadcasting licence; or
(ii) a commercial radio broadcasting service provided under a commercial radio broadcasting licence; or
(iii) a subscription television broadcasting service provided under a subscription television broadcasting licence; or
(iv) a subscription radio narrowcasting service; or
(v) a subscription television narrowcasting service; or
(vi) a broadcasting service provided by the Special Broadcasting Service Corporation; and
(b) provides that stream of content simultaneously, or almost simultaneously, with the transmission of that stream of programs.
(2) For the purposes of subclause (1), in determining whether a stream of content is identical to a stream of programs, disregard any differences that are attributable to the technical characteristics of the provision or transmission (for example, video resolution or sound quality).
(3) For the purposes of subclause (1), in determining whether a stream of content is identical to a stream of programs, disregard the presence or absence of:
(a) a watermark‑type logo; or
(b) a watermark‑type insignia;
that is not gambling promotional content.
5 Geographical link to Australia
(1) For the purposes of this Schedule, a service has a geographical link to Australia if an ordinary reasonable person would conclude that:
(a) the service is targeted at individuals who are physically present in Australia; or
(b) any of the content provided on the service is likely to appeal to the public, or a section of the public, in Australia.
(2) For the purposes of this clause, content is provided on a service if the content is:
(a) delivered by the service; or
(b) accessible to end‑users using the service.
6 Online content service provider
(1) For the purposes of this Schedule, a person does not provide an online content service merely because the person supplies an internet carriage service that enables content to be delivered or accessed.
(2) For the purposes of this Schedule, a person does not provide an online content service merely because the person provides a billing service, or a fee collection service, in relation to an online content service.
7 When content is provided on an online content service
(1) For the purposes of this Schedule, content is provided on an online content service if the content is:
(a) delivered by the online content service; or
(b) accessible to end‑users using the online content service.
(2) For the purposes of this Schedule, content is provided on an online content service to an end‑user if the content is:
(a) delivered to the end‑user by the online content service; or
(b) accessible to the end‑user using the online content service.
8 When a service is provided to the public etc.
(1) For the purposes of this Schedule, a service is provided to the public if, and only if, the service is provided to at least one person outside the immediate circle of the person who provides the service.
(2) For the purposes of this Schedule, a service that is provided to the public is taken to be different from a service that is not provided to the public, even if the content provided on the services is identical.
9 Extended meaning of using
A reference in this Schedule to using a thing is a reference to using the thing either:
(a) in isolation; or
(b) in conjunction with one or more other things.
10 Extra‑territorial application
This Schedule extends to acts, omissions, matters and things outside Australia.
Part 2—Online content service provider rules
11 Online content service provider rules
The ACMA may, by legislative instrument, make rules (the online content service provider rules) prescribing matters required or permitted by this Act to be prescribed by the online content service provider rules.
12 Administrative decisions
The online content service provider rules may make provision for or in relation to a particular matter by empowering the ACMA to make decisions of an administrative character.
Part 3—Gambling promotional content
Division 1—Online content service provider rules relating to gambling promotional content
13 Gambling promotional content
Prohibiting or regulating gambling promotional content
(1) The online content service provider rules may make provision for or in relation to prohibiting or regulating gambling promotional content provided on online content services in conjunction with live coverage of a sporting event.
Note: See also subsection 33(3A) of the Acts Interpretation Act 1901.
Explanatory content
(2) The online content service provider rules may make provision for or in relation to requiring online content services providers to ensure that, if:
(a) the provider provides an online content service; and
(b) content that consists of live coverage of a sporting event is, or is to be, provided on the service;
explanatory content that relates to the following is provided on the service:
(c) whether online content service provider rules made for the purposes of subclause (1) apply in relation to that live coverage;
(d) if so, how those rules apply in relation to that live coverage.
Record‑keeping
(3) The online content service provider rules may make provision for or in relation to requiring online content service providers to ensure that, if:
(a) the provider provides an online content service; and
(b) content that consists of live coverage of a sporting event is, or is to be, provided on the service;
the provider will:
(c) make records that:
(i) are of a kind or kinds specified in those rules; and
(ii) are sufficient to enable compliance by the provider with online content service provider rules made for the purposes of subclause (1) or (2) to be readily ascertained; and
(d) retain those records for the period ascertained in accordance with the first‑mentioned rules; and
(e) make those retained records available to the ACMA on request.
Note: See also subsection 33(3A) of the Acts Interpretation Act 1901.
(4) For the purposes of subparagraph (3)(c)(i), each of the following is an example of a kind of record:
(a) a written record;
(b) an audio record;
(c) an audio‑visual record.
End‑user physically present in Australia
(5) Online content service provider rules made for the purposes of subclause (1) or (2) do not apply in relation to content provided on an online content service to an end‑user unless the end‑user is physically present in Australia.
14 Accidental or incidental provision of gambling promotional content
The online content service provider rules do not apply in relation to the provision of gambling promotional content on an online content service if:
(a) the gambling promotional content is provided as an accidental or incidental accompaniment to the provision of other content; and
(b) the provider of the online content service does not receive any direct or indirect benefit (whether financial or not) for providing the gambling promotional content (in addition to any direct or indirect benefit that the provider receives for providing the other content).
15 Individual exemptions from online content service provider rules
(1) The ACMA may, by writing, determine that a specified online content service is exempt from online content service provider rules made for the purposes of subclause 13(1) or (2).
(2) The ACMA may, by writing, determine that a specified online content service is exempt from one or more specified provisions of online content service provider rules made for the purposes of subclause 13(1) or (2).
(3) The ACMA may, by writing, determine that a specified online content service provider is exempt from online content service provider rules made for the purposes of subclause 13(1) or (2).
(4) The ACMA may, by writing, determine that a specified online content service provider is exempt from one or more specified provisions of online content service provider rules made for the purposes of subclause 13(1) or (2).
Decision‑making criteria
(5) In deciding whether to make a determination under subclause (1) or (2) in relation to an online content service, the ACMA must have regard to:
(a) whether the online content service is a small online content service; and
(b) whether a failure to make the determination would be likely to have a substantial adverse effect on the financial circumstances of the provider of the online content service; and
(c) the likely impact of a failure to make the determination on the quantity and quality of content provided on the online content service; and
(d) such other matters (if any) as the ACMA considers relevant.
(6) In deciding whether to make a determination under subclause (3) or (4) in relation to an online content service provider, the ACMA must have regard to:
(a) whether the online content services provided by the provider are small online content services; and
(b) whether a failure to make the determination would be likely to have a substantial adverse effect on the financial circumstances of the provider; and
(c) the likely impact of a failure to make the determination on the quantity and quality of the content provided on the online content services provided by the provider; and
(d) such other matters (if any) as the ACMA considers relevant.
Small online content service
(7) For the purposes of this clause, in determining whether an online content service is a small online content service, the ACMA must have regard to:
(a) if the service has accounts for end‑users—the number of accounts that are held by end‑users who are ordinarily resident in Australia; and
(b) if the service does not have accounts for end‑users—the number of end‑users who are ordinarily resident in Australia; and
(c) such other matters (if any) as the ACMA considers relevant.
(8) For the purposes of paragraphs (7)(a) and (b), the ACMA may make such assumptions and estimates as the ACMA considers reasonable.
(9) The ACMA may publish on the ACMA’s website a statement that explains the ACMA’s approach to the administration of subclauses (7) and (8).
(10) A statement under subclause (9) is not a legislative instrument.
Other matters
(11) A determination under this clause may be:
(a) unconditional; or
(b) subject to such conditions (if any) as are specified in the determination.
(12) If the ACMA makes a determination under subclause (1), (2), (3) or (4), the ACMA must publish a copy of the determination on the ACMA’s website.
(13) Subsection 13(3) of the Legislation Act 2003 does not apply to subclause (1), (2), (3) or (4).
(14) A determination made under subclause (1), (2), (3) or (4) is not a legislative instrument.
16 Class exemptions from online content service provider rules
(1) The ACMA may, by legislative instrument, determine that online content services included in a specified class of online content services are exempt from online content service provider rules made for the purposes of subclause 13(1) or (2).
(2) The ACMA may, by legislative instrument, determine that online content services included in a specified class of online content services are exempt from one or more specified provisions of online content service provider rules made for the purposes of subclause 13(1) or (2).
(3) The ACMA may, by legislative instrument, determine that online content service providers included in a specified class of online content service providers are exempt from online content service provider rules made for the purposes of subclause 13(1) or (2).
(4) The ACMA may, by legislative instrument, determine that online content service providers included in a specified class of online content service providers are exempt from one or more specified provisions of online content service provider rules made for the purposes of subclause 13(1) or (2).
(5) A determination under this clause may be:
(a) unconditional; or
(b) subject to such conditions (if any) as are specified in the determination.
Division 2—Interpretive provisions
17 When a part of an online content service is taken to be an online content service in its own right
(1) For the purposes of the application of this Schedule to a sporting event, if content that consists of live coverage of the sporting event is, or is to be, provided on a distinct part of an online content service (the overall online content service):
(a) that part is taken to be an online content service in its own right; and
(b) that part is taken not to be included in the overall online content service.
(2) For the purposes of subclause (1), it is immaterial whether:
(a) gambling promotional content; or
(b) any other content;
is, or is to be, provided on that part.
18 Gambling service
For the purposes of this Schedule, gambling service means:
(a) a service for the placing, making, receiving or acceptance of bets; or
(b) a service the sole or dominant purpose of which is to introduce individuals who wish to make or place bets to individuals who are willing to receive or accept those bets; or
(c) a service for the conduct of a lottery; or
(d) a service for the supply of lottery tickets; or
(e) a service for the conduct of a game, where:
(i) the game is played for money or anything else of value; and
(ii) the game is a game of chance or of mixed chance and skill; and
(iii) a customer of the service gives or agrees to give consideration to play or enter the game; or
(f) a gambling service (within the ordinary meaning of that expression) that is not covered by any of the above paragraphs.
19 Sporting event
(1) Each of the following is taken to be a sporting event for the purposes of this Schedule:
(a) the Summer Olympic Games;
(b) the Winter Olympic Games;
(c) the Commonwealth Games;
(d) any similar games.
(2) The online content service provider rules may provide that a specified thing is taken to be a sporting event for the purposes of this Schedule.
(3) The online content service provider rules may provide that a specified thing is taken not to be a sporting event for the purposes of this Schedule.
(4) The following are examples of things that may be specified in the online content service provider rules made for the purposes of subclause (2) or (3):
(a) a match;
(b) a series of matches;
(c) a race;
(d) a series of races;
(e) a stage;
(f) a time trial;
(g) a qualification session;
(h) a tournament;
(i) a round.
(5) For the purposes of this clause, thing includes a series of things.
20 Live coverage of a sporting event
For the purposes of this Schedule, if:
(a) content that consists of live coverage of a sporting event is provided on an online content service; and
(b) there is an unscheduled break in the sporting event;
any content provided on the service during the break is taken to be content that consists of live coverage of the sporting event.
21 Gambling promotional content provided in conjunction with live coverage of a sporting event
(1) For the purposes of this Schedule, gambling promotional content (other than a commentator betting odds promotion or a representative venue‑based promotion) is provided on an online content service in conjunction with live coverage of a sporting event if, and only if, the content is provided on the service during the period:
(a) beginning 5 minutes before the scheduled start of the sporting event; and
(b) ending 5 minutes after the conclusion of the sporting event.
(2) However, if coverage of the sporting event is delayed, this clause has effect as if there were a corresponding delay to the period mentioned in subclause (1).
(3) For the purposes of this Schedule, gambling promotional content that consists of a commentator betting odds promotion or a representative venue‑based promotion is provided on an online content service in conjunction with live coverage of a sporting event if, and only if, the promotion is provided on the service during the period:
(a) beginning 30 minutes before the scheduled start of the sporting event; and
(b) ending 30 minutes after the conclusion of the sporting event.
(4) However, if coverage of the sporting event is delayed, this clause has effect as if there were a corresponding delay to the period mentioned in subclause (3).
22 Scheduled start of a sporting event
The online content service provider rules may provide that, for the purposes of the application of this Schedule to a specified sporting event, scheduled start has the meaning given by the online content service provider rules.
Note: For specification by class, see subsection 13(3) of the Legislation Act 2003.
23 Conclusion of a sporting event
The online content service provider rules may provide that, for the purposes of the application of this Schedule to a specified sporting event, conclusion has the meaning given by the online content service provider rules.
Note: For specification by class, see subsection 13(3) of the Legislation Act 2003.
Part 4—Complaints
24 Complaints to ACMA—online content service provider rules
(1) If a person has reason to believe that an online content service provider has contravened the online content service provider rules, the person may make a complaint to the ACMA about the matter.
(2) The ACMA may conduct an investigation into the complaint if it thinks that it is desirable to do so, but is not required to conduct an investigation.
Note: One of the ACMA’s functions is to monitor compliance with the online content service provider rules.
Part 5—Enforcement
25 Compliance with the online content service provider rules
(1) An online content service provider must not contravene the online content service provider rules.
Civil penalty provision
(2) Subclause (1) is a civil penalty provision.
(3) An online content service provider who contravenes subclause (1) commits a separate contravention of that subclause in respect of each day (including a day of the making of a relevant civil penalty order or any subsequent day) during which the contravention continues.
Designated infringement notice provision
(4) Subclause (1) is a designated infringement notice provision.
26 Remedial directions—breach of the online content service provider rules
Scope
(1) This clause applies if an online content service provider has contravened, or is contravening, the online content service provider rules.
Remedial directions
(2) The ACMA may give the provider a written direction requiring the provider to take specified action directed towards ensuring that the provider does not contravene the online content service provider rules, or is unlikely to contravene the online content service provider rules, in the future.
Note: For variation and revocation, see subsection 33(3) of the Acts Interpretation Act 1901.
(3) The following are examples of the kinds of direction that may be given to an online content service provider under subclause (2):
(a) a direction that the provider implement effective administrative systems for monitoring compliance with the online content service provider rules;
(b) a direction that the provider implement a system designed to give the provider’s employees, agents and contractors a reasonable knowledge and understanding of the requirements of the online content service provider rules, in so far as those requirements affect the employees, agents or contractors concerned.
(4) An online content service provider must not contravene a direction under subclause (2).
Civil penalty provision
(5) Subclause (4) is a civil penalty provision.
(6) An online content service provider who contravenes subclause (4) commits a separate contravention of that subclause in respect of each day (including a day of the making of a relevant civil penalty order or any subsequent day) during which the contravention continues.
Notice
(7) For the purposes of this Act and the Australian Communications and Media Authority Act 2005, a direction under subclause (2) is taken to be a notice under this Schedule.
Part 6—Miscellaneous
27 Minister may direct the ACMA about the exercise of its powers
(1) The Minister may, by legislative instrument, give the ACMA a direction about the exercise of the powers conferred on the ACMA by this Schedule (other than Part 4 or 5).
(2) The ACMA must comply with a direction under subclause (1).
28 Service of notices by electronic means
Paragraphs 9(1)(d) and (2)(d) of the Electronic Transactions Act 1999 do not apply to:
(a) a notice under this Schedule; or
(b) a notice under any other provision of this Act, so far as that provision relates to this Schedule.
Note: Paragraphs 9(1)(d) and (2)(d) of the Electronic Transactions Act 1999 deal with the consent of the recipient of information to the information being given by way of electronic communication.
29 Service of summons, process or notice on corporations incorporated outside Australia
Scope
(1) This clause applies to:
(a) a summons or process in any proceedings under, or connected with, this Schedule; or
(b) a notice under this Schedule; or
(c) a notice under any other provision of this Act, so far as that provision relates to this Schedule;
where:
(d) the summons, process or notice, as the case may be, is required to be served on, or given to, a body corporate incorporated outside Australia; and
(e) the body corporate does not have a registered office or a principal office in Australia; and
(f) the body corporate has an agent in Australia.
Service
(2) The summons, process or notice, as the case may be, is taken to have been served on, or given to, the body corporate if it is served on, or given to, the agent.
(3) Subclause (2) has effect in addition to section 28A of the Acts Interpretation Act 1901.
Note: Section 28A of the Acts Interpretation Act 1901 deals with the service of documents.
30 This Schedule does not limit Part 9 of the Online Safety Act 2021
This Schedule does not limit the operation of Part 9 of the Online Safety Act 2021.
32 Implied freedom of political communication
(1) The provisions of:
(a) this Schedule; and
(b) the online content service provider rules;
have no effect to the extent (if any) that their operation would infringe any constitutional doctrine of implied freedom of political communication.
(2) Subclause (1) does not limit the application of section 15A of the Acts Interpretation Act 1901 to this Act.
33 Acquisition of property
The provisions of:
(a) this Schedule; and
(b) the online content service provider rules;
have no effect to the extent (if any) to which their operation would result in an acquisition of property (within the meaning of paragraph 51(xxxi) of the Constitution) from a person otherwise than on just terms (within the meaning of that paragraph).
34 Concurrent operation of State and Territory laws
It is the intention of the Parliament that this Schedule is not to apply to the exclusion of a law of a State or Territory to the extent to which that law is capable of operating concurrently with this Schedule.
35 Schedule not to affect performance of State or Territory functions
A power conferred by this Schedule must not be exercised in such a way as to prevent the exercise of the powers, or the performance of the functions, of government of a State, the Northern Territory or the Australian Capital Territory.