Broadcasting (Charges) Determination 2017

The central concept is that the ACMA recovers its costs of processing applications and preparing opinions by imposing charges on applicants. This is a standard cost recovery mechanism, but the determination contains several nuances.

First, the fixed fees in Part 1 are specific to licence types and are not indexed to inflation or the ACMA’s actual processing time. For example, the $213 fee for renewing a commercial television or radio licence is a flat amount regardless of how simple or complex the renewal is. This creates a cross subsidy: simple renewals may be overcharged relative to cost, while complex ones are undercharged. The determination does not include any provision for the ACMA to waive, reduce, or refund fixed fees.

Second, the hourly rate of $239 per hour (section 10) applies to opinion work and to international broadcasting licence processing. The rate is uniform across all staff providing the service, so no distinction is made between junior and senior officer time. The rate is a blunt instrument: it assumes every hour of ACMA work on a matter has the same marginal cost. There is no cap on the total hours the ACMA may charge for an opinion; an applicant could face a bill far exceeding the fixed fees if the regulator’s process is protracted.

Third, the deposit mechanism for international broadcasting licences (Part 3, items 1 and 2) provides a partial hedge against applicant free riding. The $4,500 deposit must be paid upfront. The ACMA then charges hourly for the actual work. If the work costs less than $4,500, the applicant gets a refund; if more, the applicant must pay the excess by the invoice due date. This creates uncertainty for the applicant, who cannot know the final cost at the time of application. The deposit effectively shifts the risk of under recovery to the applicant while protecting the ACMA from processing unpaid work.

Fourth, the concept of “matter” in Schedule 1 refers to the specific regulatory action listed. The charges are not transferable between matters. An applicant seeking both a licence renewal and an opinion under section 21 would pay the fixed renewal fee (Part 1 item 3) and the hourly rate for the opinion (Part 2 item 1). There is no bundling discount.

Fifth, the definitional framework relies heavily on the Broadcasting Services Act. Section 5(2) of the determination incorporates the definitions from that Act, including the types of licences (commercial radio, commercial television, datacasting, subscription television, international broadcasting). This means a practitioner must cross reference the parent Act to determine what licence type a particular application falls under.

The determination primarily affects any person or entity that applies to the ACMA for a broadcasting licence, licence renewal, or regulatory opinion under the Broadcasting Services Act. This includes:

• Commercial television and radio broadcasters seeking additional licences in one or two station markets (item 1, Part 1). These are typically existing broadcasters in regional areas, not metropolitan operators. The $2,948 fee is the highest fixed charge, reflecting the complexity of assessing market impact.

• Applicants for non broadcasting services bands commercial television or radio licences (item 2, Part 1). This category covers low power or niche services that operate outside the usual broadcasting spectrum bands. The $476 fee is moderate.

• Licensees seeking renewal of a commercial television or radio licence (item 3, Part 1). The $213 fee is the lowest fixed charge, suggesting the ACMA treats renewal applications as relatively straightforward.

• Applicants for subscription television broadcasting licences (item 4, Part 1) at $249.

• Applicants for datacasting licences under Schedule 6 to the Broadcasting Services Act (item 5, Part 1) at $448.

• Persons requesting a formal opinion from the ACMA under section 21 (ownership and control) or section 74 (temporary community broadcasting) of the Broadcasting Services Act. Section 21 opinions are often sought by commercial broadcasters to confirm whether a proposed transaction or structure complies with media ownership limits. Section 74 opinions relate to temporary community licences. The hourly rate of $239 means that anyone seeking a complex opinion faces potentially high, open ended costs.

• Applicants for an international broadcasting licence under section 121FA of the Broadcasting Services Act (Part 3). This affects entities wanting to provide broadcasting services to audiences outside Australia. The deposit is $4,500, and the final charge depends on ACMA hours. This may deter smaller operators who cannot afford the upfront deposit or the uncertainty.

• The Australian public is indirectly affected because the charges are a cost of doing business for broadcasters. Those costs may be passed on to advertisers, subscribers, or taxpayers (if the broadcaster is government funded). However, the amounts are modest relative to typical broadcasting revenue, so the direct consumer impact is likely negligible.

The determination also affects the ACMA itself. It must track hours for opinion and international licence work, issue invoices, and manage refunds under section 11. This imposes an administrative overhead that is not separately recovered.

The determination imposes a duty on applicants to pay the specified charges. Section 8 states that the charge for a matter is the amount in column 3 of the relevant item in Schedule 1. Section 9 makes the applicant liable for payment. The timing differs: for fixed fees and the international licence deposit, payment is due when the application is made (section 9(a)); for hourly charges in Part 2 and any additional hourly charge under Part 3, payment is due by the date on the ACMA’s invoice (section 9(b) and (c)).

The applicant’s right is to receive the service for which the charge is paid. If the ACMA fails to process the application or give the opinion, the applicant may have remedies under administrative law, but the determination itself does not create a right to a refund or to compel performance. The only refund mechanism is in section 11(2): where a deposit exceeds the aggregate hourly charges for an international licence application, the ACMA must refund the difference. This is a statutory duty on the ACMA; the applicant has a corresponding right to the refund.

There is no right to a reduced fee for hardship, small business status, or public interest. The determination does not provide for waivers, discounts, or installment payments. The fee schedule is rigid.

Applicants have a right to an invoice for hourly charges under Part 2 and Part 3 (item 2). The due date is specified in the invoice; the determination does not specify a minimum notice period. This gives the ACMA discretion over payment deadlines, which could create cash flow pressure for applicants if invoices are issued with short payment terms.

The ACMA has the right to fix charges under its statutory power (s60(1) ACMA Act). It also has the right to set the hourly rate at $239, which is not linked to any public cost benchmark. The determination does not require the ACMA to justify the rate or to review it periodically. This creates a risk that the rate may become outdated or exceed actual costs.

Applicants have no right to challenge the amount of a charge under the determination itself; any challenge would have to be through judicial review or possibly under the Legislation Act 2003 if the instrument is not properly made. The determination is a legislative instrument registered on the Federal Register of Legislation, so it has the force of law.

The determination does not create its own penalty provisions. It is a charging instrument only. However, non payment of a charge may have consequences under the Broadcasting Services Act and the ACMA Act. The determination does not state what happens if an applicant fails to pay. In practice, the ACMA could refuse to process the application or to issue the licence until the charge is paid. The payment timing in section 9 suggests that for fixed fees and the international licence deposit, payment must accompany the application; if it is not paid, the application may be invalid or not accepted. For hourly charges, payment is due by invoice date; if unpaid, the ACMA could potentially withhold the opinion or licence certificate.

There is no automatic late payment penalty or interest charge in the determination. This means the ACMA has no statutory tool to recover overdue amounts beyond debt recovery action under general law. The ACMA could likely sue for the unpaid charge as a debt due to the Commonwealth, but that would be costly and rare for small amounts.

The ACMA also has powers under the Broadcasting Services Act to suspend or revoke licences for non payment of annual licence fees (which are separate under other provisions), but the determination does not address that. The charges here are application fees, not ongoing annual fees.

If an applicant provides false or misleading information to avoid a charge (e.g., misrepresenting the type of licence to pay a lower fee), that could attract penalties under the Criminal Code (offences against the Commonwealth). But again, the determination itself does not criminalise non payment.

Enforcement is therefore indirect. The main enforcement mechanism is the ACMA’s ability to withhold its services until payment is received. That is a practical deterrent: an applicant cannot get a licence or opinion without paying.

The hourly rate charging creates a potential for disputes about the number of hours billed. The determination gives no right to an itemised timesheet or to challenge excessive billing. The ACMA’s invoice is presumably issued in good faith, but an applicant who disputes hours has no formal review process within the determination. This could lead to disputes escalating to the Commonwealth Ombudsman or judicial review, but that is heavy handed for relatively small sums.

The determination sits within a web of Commonwealth legislation. Its primary interaction is with the Broadcasting Services Act 1992. The charges are for matters arising under that Act: applications for licences under sections 38A, 38B, 40, 46, 96, clause 7 of Schedule 6, and section 121FA; and opinions under sections 21 and 74. Each of those provisions has its own eligibility criteria, time frames, and procedural rules. The determination adds a financial condition but does not alter the substantive requirements.

The determination is made under the ACMA Act 2005, specifically section 60(1). Section 60(1) is a broad charging power: the ACMA may fix charges for its services or for matters in relation to which it incurs expenses under a list of Acts, including the Broadcasting Services Act. The determination must be consistent with the ACMA Act. It does not override any other charging provisions. For example, the Broadcasting Services Act also provides for annual licence fees (e.g., Part 3 Div 3), which are separate and unaffected by this determination.

The determination may intersect with the Legislation Act 2003, which governs the making, registration, and tabling of legislative instruments. The determination is a legislative instrument and must comply with the Federal Register of Legislation obligations. Section 6 references other instruments as in force from time to time, which means that if the Broadcasting Services Act is amended to change the section numbers, the determination’s references remain effective unless the contrary intention appears (via section 5(2) incorporating definitions).

The determination does not interact with state or territory laws, as broadcasting is a Commonwealth matter under section 51(v) of the Constitution. However, if a licence applicant is a state government entity, the charges apply equally. There is no exemption for government bodies.

The determination may also interact with general Commonwealth cost recovery policy and guidelines, such as the Australian Government Charging Framework. The determination does not reference those, but the ACMA would have considered them when setting the rates. The $239 hourly rate is not benchmarked against any published standard.

If an applicant is subject to insolvency or administration, the charges would be a debt payable to the Commonwealth. That debt would have priority under the Bankruptcy Act or Corporations Act in a winding up, but the determination does not address that.

The source text provided is the Broadcasting (Charges) Determination 2017 as originally made. There are no amendment details in the text. The instrument was registered on the Federal Register of Legislation and has likely been amended since 2017, but the source does not show any amending instruments. The determination is expressed to be made under section 60(1) of the ACMA Act, and it replaced earlier determinations. The 2017 version is the starting point.

In the absence of amendment history in the source, a reader must check the Federal Register of Legislation for the current compilation. The determination may have been amended to update the hourly rate (the $239 figure could have been changed by subsequent determinations) or to add or remove items. The note in section 6 about references to other instruments being as in force from time to time suggests that the determination is dynamic in its cross references but static in its own amounts unless separately amended.

The instrument has been in force for over seven years as of 2024. Without amendment, the fixed fees and hourly rate have not kept pace with inflation. In real terms, the fees have declined. This benefits applicants but may mean the ACMA is under recovering costs. The government may have chosen not to index the charges to avoid political backlash.

If the ACMA wishes to change the charges, it must make a new legislative instrument under section 60(1). That new instrument would revoke this one. The absence of amendment history in the provided text suggests the original has survived without change, but that cannot be confirmed without external research.

The source text does not mention any litigation. There are no cases referenced. As a minor charging instrument, it is unlikely to have been directly challenged. Challenges to ACMA fee setting are rare because the amounts are small and the legal basis is clear. A court would give deference to the ACMA’s discretion under section 60(1), provided the charges are not arbitrary or ultra vires.

However, there could be indirect litigation. For example, an applicant refused a licence might argue that the ACMA’s processing was delayed because of non payment of a charge, leading to a challenge to the ACMA’s administrative decisions. That would involve the Administrative Appeals Tribunal or the Federal Court, but the determination itself would not be the subject of the dispute; the issue would be the ACMA’s exercise of discretion.

The only possible ground for challenging a charge under the determination would be if the ACMA applied the wrong item or miscalculated hours. That could be remedied as an administrative error. A broader challenge to the reasonableness of the $239 hourly rate would be difficult; the rate is not required to be proportionate to the service value under the enabling Act.

There is no recorded High Court challenge to the determination. The charging power under section 60(1) of the ACMA Act has been upheld in principle in other contexts, but no specific case law involving this determination has been provided.

Several aspects of the determination could catch out applicants or their advisers.

First, the hourly rate of $239 applies to opinion work under Part 2 and to processing international licence applications under Part 3. The determination does not cap the number of hours. An applicant seeking a section 21 opinion on a complex ownership structure could face a bill of several thousand dollars. There is no estimate or quotation requirement. The ACMA could work for many hours and present a large invoice. The only protection is that the applicant could withdraw the application, but the work already done is still charged.

Second, the timing of payment differs by category. For fixed fees and the international licence deposit, payment must accompany the application (section 9(a)). This means an applicant cannot submit an application and pay later; the application is not complete until the fee is paid. If the applicant inadvertently sends the application without the fee, the ACMA may not process it, and the applicant could lose time.

Third, for international broadcasting licences, the deposit is $4,500, but the final cost may be higher. The applicant must pay the extra by the invoice due date. There is no right to suspend the processing until the extra is paid; the ACMA presumably will not issue the licence until all charges are paid. The applicant has no cap on the additional amount.

Fourth, the definition of “hourly rate” in section 10 uses “for each completed hour” and “part of an hour” at the same proportion. The ACMA could charge for each person providing the service. If multiple ACMA staff work on a matter, each hour could be charged. The determination does not say the rate is per matter; it says “for each person providing a service”. So if two officers each spend 30 minutes, that is one hour total but could be billed as two half hours = one hour at $239, or potentially as two separate charges? The text is ambiguous: “for each person providing a service or matter to which the rate applies” - it could mean the rate is per person per hour. That would allow the ACMA to charge $239 per hour for each staff member, so two staff each working one hour would be $478. A reader should not assume the hourly rate is a single rate per application; it is per person.

Fifth, the determination does not include a sunset clause or review date. It remains in force until revoked. Applicants cannot rely on the charges being stable; the ACMA could amend the determination at any time.

Sixth, there is no provision for refunds of fixed fees if the application is withdrawn or refused. The deposit refund mechanism under section 11(2) applies only to international licence applications and only if hourly charges are less than the deposit. If the ACMA refuses an international licence application after doing some work, the hourly charges could exceed the deposit, and the applicant must pay the excess. If the ACMA refuses early and the hourly charges are less than the deposit, the applicant gets the difference back. But the applicant never gets the deposit back in full unless no work is done, which is unlikely.

Seventh, cross referencing is required. The determination uses expressions defined in the Broadcasting Services Act. For example, “commercial television broadcasting licence” is defined in section 6 of that Act. If the Broadcasting Services Act is amended, the meaning may change without an amendment to the determination. Section 5(2) says expressions have the same meaning as in the Broadcasting Services Act; that operates dynamically.

Compliance with this determination is straightforward for applicants: pay the correct charge at the correct time. However, the specifics require attention.

Step 1: Identify the correct item in Schedule 1 that matches the application or opinion sought. For an application for a new commercial radio licence under section 40 of the Broadcasting Services Act, the charge is $476 (item 2, Part 1). For a renewal under section 46, the charge is $213 (item 3, Part 1). For an opinion under section 74, the charge is at the hourly rate (item 2, Part 2). For an international broadcasting licence, the applicant must pay a $4,500 deposit (item 1, Part 3) and then be prepared for additional hourly charges.

Step 2: Ensure the payment accompanies the application for fixed fees and the international licence deposit. Payment methods are not specified in the determination; the ACMA will have its own payment procedures (likely electronic funds transfer or credit card). Paying before or on the same day as submission is critical. The ACMA may reject an application that does not include the fee.

Step 3: For hourly rate charges, the applicant does not pay upfront but must pay by the due date on the ACMA invoice. The applicant should request an itemised invoice if one is not provided, though the determination does not require itemisation. The applicant should keep records of the hours the ACMA claims, as there is no statutory right to dispute.

Step 4: For international licence applications, the applicant must pay the deposit when applying. After processing, the ACMA will calculate hourly charges. If the total is less than $4,500, the applicant should receive a refund. If more, the applicant must pay the additional amount by the invoice due date. The applicant should monitor the ACMA’s billing process and ensure that the hourly rate is applied correctly (i.e., $239 per hour per person).

Step 5: Maintain documentation of all payments and communications with the ACMA. If a dispute arises over the amount of hourly charges, the applicant must rely on general administrative law remedies; the determination provides no internal review mechanism.

Step 6: Review any changes to the determination. The provided text is the 2017 version, but the ACMA may have updated the fees or added new matters. Check the Federal Register of Legislation for the current compilation. Also monitor amendments to the Broadcasting Services Act that could affect the definition of licence types.

Step 7: Consider the economic impact of the charges. For a marginal broadcaster, a $2,948 fee for an additional television licence in a small market could be significant relative to potential revenue. An applicant may wish to budget for the fee and for any hourly charges that could arise from opinion work. If the hourly charges are likely to be high, the applicant could negotiate with the ACMA in advance to try to cap the scope of work, but the determination does not require the ACMA to agree.

Compliance is essentially administrative: pay the right amount at the right time. The determination does not impose ongoing obligations; the charges are one off per application or opinion. Therefore, the main compliance risk is misidentifying the charge or missing a payment deadline. For law firms advising clients, the key is to flag the charges early in the application process and to ensure the client provides funds for the deposit or fixed fee before the application is lodged. For international licence clients, the uncertainty of hourly charges should be communicated clearly.