121FSimplified outline

121F  Simplified outline • Applications may be made to the ACMA for the allocation of international broadcasting licences. • The ACMA may only reject an application for the allocation of an international broadcasting licence to a person if:  (a) the ACMA is not satisfied that the person is an Australian company; or  (b) the ACMA is not satisfied that the person is a suitable applicant; or  (c) the Minister for Foreign Affairs is of the opinion that the international broadcasting service is likely to be contrary to Australia’s national interest. • A licensee must keep records of broadcasts for 90 days. • An international broadcasting licence may only be cancelled if:  (a) the licensee does not commence to provide an international broadcasting service within 2 years; or  (b) the Minister for Foreign Affairs is of the opinion that the international broadcasting service is likely to be contrary to Australia’s national interest. • The ACMA may make declarations (nominated broadcaster declarations) that allow international broadcasting licences and related transmitter licences to be held by different persons, so long as the transmitter licence is held by an Australian company. • If a nominated broadcaster declaration is in force:  (a) the international broadcasting licence may be issued to a company that is not an Australian company; and  (b) the holder of the transmitter licence must keep records of broadcasts for 90 days; and  (c) the holder of the transmitter licence may receive notices on behalf of the holder of the international broadcasting licence. 121FAA  Definitions company means a body corporate. holder, in relation to a nominated broadcaster declaration, means the person who applied for the declaration. nominated broadcaster declaration means a declaration under section 121FLC. transmitter licence has the same meaning as in the Radiocommunications Act 1992. Division 2—Allocation of international broadcasting licences 121FA  Application for international broadcasting licence  (1) A person may apply to the ACMA for a licence to provide an international broadcasting service if no nominated broadcaster declaration is in force in relation to that service.  (1A) If a person is the holder of a nominated broadcaster declaration in relation to an international broadcasting service proposed to be provided by another person (the content provider):  (a) the holder of the declaration may, on behalf of the content provider, apply to the ACMA for a licence authorising the content provider to provide the international broadcasting service; and  (b) if an application is made under paragraph (a)—the content provider is taken to be the applicant for the licence.  (1B) An application under this section may only be made on the basis of one licence per service.  (2) An application under this section must: 121FB  Corporate status and suitability  (1) If the ACMA:  (a) is satisfied that an applicant under subsection 121FA(1) for an international broadcasting licence is registered as a company under Part 2A.2 of the Corporations Act 2001; and  (b) does not decide that subsection 121FC(1) applies to the applicant;  (c) refer the application to the Minister for Foreign Affairs; and  (d) give the Minister for Foreign Affairs a report about whether the proposed international broadcasting service concerned complies with the international broadcasting guidelines.  (2) If the ACMA:  (a) is not satisfied that an applicant under subsection 121FA(1) for an international broadcasting licence is registered as a company under Part 2A.2 of the Corporations Act 2001; or  (b) decides that subsection 121FC(1) applies to an applicant under subsection 121FA(1) for an international broadcasting licence; the ACMA must refuse to allocate an international broadcasting licence to the applicant.  (3) If, under subsection (2), the ACMA refuses to allocate an international broadcasting licence to an applicant, the ACMA must give written notice of the refusal to the applicant.  (4) If an application for an international broadcasting licence is made under subsection 121FA(1), the ACMA must make reasonable efforts to either:  (a) take action under subsection (1) of this section; or  (b) refuse to allocate the licence; within 30 days after the application was made.  (5) If the ACMA:  (a) is satisfied that an applicant under subsection 121FA(1A) for an international broadcasting licence is a company; and  (b) does not decide that subsection 121FC(1) applies to the applicant;  (c) refer the application to the Minister for Foreign Affairs; and  (d) give the Minister for Foreign Affairs a report about whether the proposed international broadcasting service concerned complies with the international broadcasting guidelines.  (6) If the ACMA:  (a) is not satisfied that an applicant under subsection 121FA(1A) for an international broadcasting licence is a company; or  (b) decides that subsection 121FC(1) applies to an applicant under subsection 121FA(1A) for an international broadcasting licence; the ACMA must refuse to allocate an international broadcasting licence to the applicant.  (7) If, under subsection (6), the ACMA refuses to allocate an international broadcasting licence to an applicant, the ACMA must give written notice of the refusal to:  (a) the applicant; and  (b) the holder of the nominated broadcaster declaration concerned.  (8) If an application for an international broadcasting licence is made under subsection 121FA(1A), the ACMA must make reasonable efforts to either:  (a) take action under subsection (5) of this section; or  (b) refuse to allocate the licence; within 30 days after the application was made. 121FC  Unsuitable applicant  (1) The ACMA may, if it is satisfied that allowing a particular company to provide an international broadcasting service under an international broadcasting licence would lead to a significant risk of:  (2) In deciding whether such a risk exists, the ACMA is to take into account:  (c) the business record of each person who is, or would be, if an international broadcasting licence were allocated to the company, in a position to control the licence; and  (e) whether the company, or a person referred to in paragraph (c) or (d), has been convicted of an offence against this Act or the regulations; and 121FD  Australia’s national interest Direction not to allocate licence  (a) an application for an international broadcasting licence is referred to the Minister for Foreign Affairs under subsection 121FB(1) or (5); and  (b) the Minister for Foreign Affairs is of the opinion that the proposed international broadcasting service concerned is likely to be contrary to Australia’s national interest; the Minister for Foreign Affairs may, by written notice given to the ACMA, direct the ACMA not to allocate an international broadcasting licence to the applicant. No objection to allocation of licence  (a) an application for an international broadcasting licence is referred to the Minister for Foreign Affairs under subsection 121FB(1) or (5); and  (b) the Minister for Foreign Affairs is not of the opinion that the proposed international broadcasting service concerned is likely to be contrary to Australia’s national interest; the Minister for Foreign Affairs must, by written notice given to the ACMA, inform the ACMA that he or she has no objection to the allocation of an international broadcasting licence to the applicant. Australia’s national interest  (3) For the purposes of this section, in determining whether a proposed international broadcasting service is likely to be contrary to Australia’s national interest, the Minister for Foreign Affairs must have regard to the likely effect of the proposed service on Australia’s international relations.  (4) For the purposes of this section, in determining whether a proposed international broadcasting service is likely to be contrary to Australia’s national interest, the Minister for Foreign Affairs may have regard to a report given by the ACMA under subsection 121FB(1) or (5). This subsection does not limit the material to which the Minister for Foreign Affairs may have regard. Decision to be made within 60 days  (5) If an application for an international broadcasting licence is referred to the Minister for Foreign Affairs under subsection 121FB(1) or (5), the Minister for Foreign Affairs must make reasonable efforts to either:  (a) direct the ACMA under subsection (1) of this section; or  (b) inform the ACMA under subsection (2) of this section; within 60 days after the referral. Notification  (6) If the Minister for Foreign Affairs directs the ACMA not to allocate an international broadcasting licence to an applicant, the ACMA must give written notice of the direction to:  (a) in all cases—the applicant; and  (b) in the case of an application under subsection 121FA(1A)—the holder of the nominated broadcaster declaration concerned. 121FE  Allocation of licence   If the Minister for Foreign Affairs informs the ACMA under subsection 121FD(2) that he or she has no objection to the allocation of an international broadcasting licence to an applicant, the ACMA must allocate the licence to the applicant. Division 3—Obligations of international broadcasting licensees 121FF  Conditions of international broadcasting licences  (1) Each international broadcasting licence is subject to the following conditions:  (a) the licensee must cause a record of programs broadcast on the international broadcasting service concerned to be made in a form approved in writing by the ACMA;  (b) the licensee must retain in its custody a record so made for a period of 90 days after the broadcast;  (c) the licensee must, without charge, make available to the ACMA, on request, any specified record made by the licensee under paragraph (a) that has been retained by the licensee (whether or not the licensee is, at the time of the request, under an obligation to retain the record).  (2) This section does not apply to an international broadcasting licence if a nominated broadcaster declaration is in force in relation to the international broadcasting service concerned. Note: Corresponding conditions apply to nominated broadcaster declarations—see section 121FLE. Division 4—Remedies 121FG  Prohibition on providing an international broadcasting service without a licence  (1) A person commits an offence if the person:  (a) intentionally provides an international broadcasting service; and  (b) does not have an international broadcasting licence to provide the service, and is reckless as to that fact.  (2) A person who contravenes subsection (1) commits a separate offence in respect of each day (including a day of a conviction for the offence or any later day) during which the contravention continues.  (3) A person must not provide an international broadcasting service if the person does not have a licence to provide that service.  (5) A person who contravenes subsection (3) commits a separate contravention of that subsection in respect of each day (including a day of the making of a relevant civil penalty order or any subsequent day) during which the contravention continues. 121FH  Remedial directions—unlicensed international broadcasting services   If the ACMA is satisfied that a person has breached, or is breaching, subsection 121FG(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 section, or is unlikely to breach that section, in the future. 121FHA  Breach of remedial direction—offence  (a) the person has been given a notice under section 121FH; and  (2) A person who contravenes subsection (1) commits a separate offence in respect of each day (including a day of a conviction for the offence or any later day) during which the contravention continues. 121FHB  Breach of remedial direction—civil penalty provision  (1) A person must comply with a notice under section 121FH.  (3) A person who contravenes subsection (1) commits a separate contravention of that subsection in respect of each day (including a day of the making of a relevant civil penalty order or any subsequent day) during which the contravention continues. 121FJ  Offence for breach of conditions of international broadcasting licence  (a) the person is an international broadcasting licensee; and  (c) the person’s conduct breaches a condition of the licence. 121FJA  Civil penalty provision relating to breach of conditions of international broadcasting licences  (1) An international broadcasting licensee must not breach a condition of the licence.  (3) A person who contravenes subsection (1) commits a separate contravention of that subsection in respect of each day (including a day of the making of a relevant civil penalty order or any subsequent day) during which the contravention continues. 121FJB  Remedial directions—licence conditions  (1) If the ACMA is satisfied that an international broadcasting licensee has breached, or is breaching, a condition of the licence, 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 that condition, or is unlikely to breach that condition, in the future.  (2) The following are examples of the kinds of direction that may be given to a licensee under subsection (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. 121FJC  Breach of remedial direction—offence  (a) the person has been given a notice under section 121FJB; and  (2) A person who contravenes subsection (1) commits a separate offence in respect of each day (including a day of a conviction for the offence or any later day) during which the contravention continues. 121FJD  Breach of remedial direction—civil penalty provision  (1) A person must comply with a notice under section 121FJB.  (3) A person who contravenes subsection (1) commits a separate contravention of that subsection in respect of each day (including a day of the making of a relevant civil penalty order or any subsequent day) during which the contravention continues. 121FK  Cancellation of licence if service does not commence within 2 years  (a) a person has been allocated an international broadcasting licence; and  (b) the person has not commenced to provide the international broadcasting service concerned within 2 years after the allocation of the licence; the ACMA may cancel the licence. Notice of intention to cancel  (2) If the ACMA proposes to cancel a licence under subsection (1), the ACMA must give to the licensee:  (b) a reasonable opportunity to make representations to the ACMA in relation to the proposed cancellation. 121FL  Formal warning, or cancellation or suspension of licence, where service is contrary to Australia’s national interest Formal warning  (b) the Minister for Foreign Affairs is of the opinion that the service is contrary to Australia’s national interest; and  (c) the Minister for Foreign Affairs, by written notice given to the ACMA, directs the ACMA to issue a formal warning to the licensee; the ACMA must issue a formal warning to the licensee. Suspension of licence  (b) the Minister for Foreign Affairs is of the opinion that the service is contrary to Australia’s national interest; and  (c) the Minister for Foreign Affairs, by written notice given to the ACMA, directs the ACMA to suspend the licence for the period specified in the direction; the ACMA must suspend the licence for the period specified in the direction. Cancellation of licence  (b) the Minister for Foreign Affairs is of the opinion that the service is contrary to Australia’s national interest; and  (c) the Minister for Foreign Affairs, by written notice given to the ACMA, directs the ACMA to cancel the licence;  (6) If the Minister for Foreign Affairs proposes to direct the ACMA to cancel an international broadcasting licence, he or she must direct the ACMA to:  (a) give the licensee written notice of his or her intention; and  (b) give the licensee a reasonable opportunity to send a submission to the ACMA in relation to the proposed direction; and  (c) forward any such submission to the Minister for Foreign Affairs. Australia’s national interest  (8) For the purposes of this section, in determining whether an international broadcasting service is contrary to Australia’s national interest, the Minister for Foreign Affairs must have regard to the effect of the service on Australia’s international relations.  (9) For the purposes of this section, in determining whether an international broadcasting service is contrary to Australia’s national interest, the Minister for Foreign Affairs may have regard to a report given by the ACMA under section 121FM. This subsection does not limit the material to which the Minister for Foreign Affairs may have regard. Division 4A—Nominated broadcaster declarations 121FLA  Object of this Division   The main object of this Division is to provide for the making of declarations (nominated broadcaster declarations) that allow the following licences to be held by different persons:  (a) an international broadcasting licence that authorises the provision of an international broadcasting service;  (b) a transmitter licence for a radiocommunications transmitter that is for use for transmitting the international broadcasting service. 121FLB  Applications for nominated broadcaster declarations   If a person (the transmission provider):  (a) is the licensee of a transmitter licence for a transmitter that is used, or intended for use, for transmitting an international broadcasting service; or  (b) proposes to apply for a transmitter licence for a transmitter that is intended for use for transmitting an international broadcasting service; the transmission provider may apply to the ACMA for a nominated broadcaster declaration in relation to the provision of the international broadcasting service by a particular person (the content provider). 121FLC  Making a nominated broadcaster declaration  (1) After considering the application, the ACMA must declare in writing that the provision of the international broadcasting service by the content provider is nominated in relation to the transmitter licence or proposed transmitter licence, if the ACMA is satisfied that:  (i) the content provider holds an international broadcasting licence that authorises the provision of the international broadcasting service; or  (ii) the content provider does not hold such a licence but, if the declaration were made, the transmission provider or another person will, within 60 days after the making of the declaration, apply under subsection 121FA(1A), on behalf of the content provider, for an international broadcasting licence that authorises the provision of the international broadcasting service by the content provider; and  (b) the transmission provider intends to transmit the international broadcasting service on behalf of the content provider; and  (c) the transmission provider is registered as a company under Part 2A.2 of the Corporations Act 2001; and  (d) if the declaration were made, the transmission provider would be in a position to comply with all of the obligations imposed on the transmission provider under section 121FLE.  (2) The ACMA must give a copy of the declaration to:  (a) the transmission provider; and  (3) If the ACMA refuses to make a nominated broadcaster declaration, the ACMA must give written notice of the refusal to:  (a) the transmission provider; and  (4) If an application is made for a nominated broadcaster declaration, the ACMA must make reasonable efforts to:  (a) make the declaration under subsection (1); or  (b) refuse to make the declaration; within 30 days after the application is made.  (5) This Part does not prevent the ACMA from making more than one nominated broadcaster declaration in relation to a particular international broadcasting service, so long as each declaration relates to a different transmitter licence or proposed transmitter licence. 121FLD  Effect of nominated broadcaster declaration   If:  (a) a nominated broadcaster declaration is in force in relation to an international broadcasting service; and  (b) the provision of the international broadcasting service is authorised by an international broadcasting licence; and  (c) the holder of the declaration is the licensee of a transmitter licence that authorises the operation of a transmitter for transmitting the international broadcasting service; and  (d) the licensee of the transmitter licence transmits the international broadcasting service on behalf of the licensee of the international broadcasting licence;  (e) for the purposes of the Radiocommunications Act 1992, the licensee of the international broadcasting licence is taken not to operate the radiocommunications transmitter for any purpose in connection with that transmission; and  (f) for the purposes of this Act:  (i) the licensee of the international broadcasting licence is taken to provide the international broadcasting service; and  (ii) the licensee of the transmitter licence is taken not to provide the international broadcasting service; and  (g) for the purposes of this Act, any programs that are transmitted by the licensee of the transmitter licence on behalf of the licensee of the international broadcasting licence:  (i) are taken to be programs transmitted by the licensee of the international broadcasting licence; and  (ii) are not taken to be programs transmitted by the licensee of the transmitter licence; and  (h) for the purposes of this Part (other than section 121FLG), the ACMA is taken to have given a written notice to the licensee of the international broadcasting licence if the ACMA gives the notice to the licensee of the transmitter licence. 121FLE  Conditions of nominated broadcaster declarations  (1) Each nominated broadcaster declaration is subject to the following conditions:  (a) the holder of the declaration must cause a record of programs broadcast on the international broadcasting service concerned to be made in a form approved in writing by the ACMA;  (b) the holder of the declaration must retain in the holder’s custody a record so made for a period of 90 days after the broadcast;  (c) the holder of the declaration must, without charge, make available to the ACMA, on request, any specified record made by the holder under paragraph (a) that has been retained by the holder (whether or not the holder is, at the time of the request, under an obligation to retain the record).  (2) Subsection (1) does not apply to a nominated broadcaster declaration unless the holder of the declaration is the licensee of a transmitter licence that authorises the operation of a transmitter for transmitting the international broadcasting service concerned. 121FLF  Offence for breach of conditions of nominated broadcaster declaration  (a) the person is the holder of a nominated broadcaster declaration; and  (c) the person’s conduct breaches a condition of the declaration. 121FLG  Revocation of nominated broadcaster declaration  (1) The ACMA must, by writing, revoke a nominated broadcaster declaration relating to the provision of an international broadcasting service by a person (the content provider) if the ACMA is satisfied that:  (a) the holder of the declaration is neither transmitting, nor proposing to transmit, the international broadcasting service on behalf of the content provider; or  (b) the holder of the declaration is involved, or proposes to become involved, in the selection or provision of programs to be transmitted on the international broadcasting service; or  (c) the holder of the declaration is not registered as a company under Part 2A.2 of the Corporations Act 2001.  (2) The ACMA must, by writing, revoke a nominated broadcaster declaration relating to the provision of an international broadcasting service by a person (the content provider) if the ACMA is satisfied that:  (a) at the time the declaration was made, there was no international broadcasting licence that authorised the provision of the international broadcasting service by the content provider; and  (i) no application was made under subsection 121FA(1A) for such a licence within 60 days after the making of the declaration; or  (ii) an application for such a licence was made under subsection 121FA(1A) within 60 days after the making of the declaration, but the application was refused.  (3) The ACMA must, by writing, revoke a nominated broadcaster declaration relating to the provision of an international broadcasting service by a person (the content provider) if:  (a) the holder of the declaration; or  (b) the content provider; gives the ACMA a written notice stating that the holder of the declaration, or the content provider, does not consent to the continued operation of the declaration.  (4) The ACMA must give a copy of the revocation to:  (a) the person who held the declaration; and  (5) A revocation under subsection (1), (2) or (3) takes effect on the date specified in the revocation.  (6) The ACMA must not revoke a nominated broadcaster declaration under subsection (1) or (2) unless the ACMA has first:  (a) given the holder of the declaration a written notice:  (i) setting out a proposal to revoke the declaration; and  (ii) inviting the holder of the declaration to make a submission to the ACMA on the proposal; and  (b) given the content provider a written notice:  (i) setting out a proposal to revoke the declaration; and  (ii) inviting the content provider to make a submission to the ACMA on the proposal; and  (c) considered any submission that was received under paragraph (a) or (b) within the time limit specified in the notice concerned.  (7) A time limit specified in a notice under subsection (6) must run for at least 7 days.  (8) A person must not enter into a contract or arrangement under which the person or another person is:  (a) prevented from giving a notice under subsection (3); or  (b) subject to any restriction in relation to the giving of a notice under subsection (3).  (9) A contract or arrangement entered into in contravention of subsection (8) is void. 121FLH  Cancellation of licence if declaration ceases to be in force and licensee is not an Australian company  (a) a nominated broadcaster declaration ceases to be in force; and  (b) the provision of the international broadcasting service concerned is authorised by an international broadcasting licence; and  (c) 30 days pass, and the ACMA is satisfied that:  (i) the international broadcasting licensee is not registered as a company under Part 2A.2 of the Corporations Act 2001; and  (ii) the international broadcasting licensee has not taken reasonable steps to arrange for the international broadcasting service to be provided by a company that is registered under Part 2A.2 of the Corporations Act 2001;  (a) a nominated broadcaster declaration ceases to be in force; and  (b) the provision of the international broadcasting service concerned is authorised by an international broadcasting licence; and  (c) 90 days pass, and the ACMA is satisfied that the international broadcasting licensee is not registered as a company under Part 2A.2 of the Corporations Act 2001;  (3) The ACMA may, by written notice given to the licensee, determine that paragraph (2)(c) has effect, in relation to the licensee, as if a reference in that paragraph to 90 days were a reference to such greater number of days as is specified in the notice.  (4) The ACMA must not notify a greater number of days under subsection (3) unless it is satisfied that there are exceptional circumstances that warrant the greater number of days. Notice of intention to cancel  (5) If the ACMA proposes to cancel a licence under subsection (1) or (2), the ACMA must give to the licensee:  (b) a reasonable opportunity to make representations to the ACMA in relation to the proposed cancellation. 121FLJ  Register of nominated broadcaster declarations  (1) The ACMA is to maintain a register in which the ACMA includes particulars of all nominated broadcaster declarations currently in force.  (2) The Register may be maintained by electronic means. Division 5—ACMA to assist the Minister for Foreign Affairs 121FM  Report about compliance with international broadcasting guidelines   The Minister for Foreign Affairs may, by written notice given to the ACMA, direct the ACMA to:  (a) prepare a report about whether a specified international broadcasting service complies with the international broadcasting guidelines; and  (b) give the report to the Minister for Foreign Affairs. 121FN  Records of broadcasts   The Minister for Foreign Affairs may, by written notice given to the ACMA, direct the ACMA to:  (a) obtain specified records from an international broadcasting licensee under section 121FF; and  (b) give the records to the Minister for Foreign Affairs. 121FP  International broadcasting guidelines  (1) The ACMA must, by legislative instrument, formulate guidelines relating to international broadcasting services.  (2) To avoid doubt, international broadcasting guidelines may deal with matters other than Australia’s national interest. 121FQ  Surrender of international broadcasting licences  (1) An international broadcasting licensee may, by notice in writing given to the ACMA, surrender the licence. 121FR  Complaints about international broadcasting services  (1) It is not a function of the ACMA to monitor and investigate complaints concerning international broadcasting services.  (2) However, if an international broadcasting service also falls into another category of broadcasting services, this section does not prevent the ACMA from performing its function of monitoring and investigating complaints about the service in the service’s capacity as a service that falls into that other category. 121FS  Statements about decisions of the Minister for Foreign Affairs  (a) the Minister for Foreign Affairs makes a decision under subsection 121FD(1) or 121FL(3) or (5); and  (b) a person is entitled to make an application to the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) under section 5 of the Administrative Decisions (Judicial Review) Act 1977 in relation to the decision; the person may, by written notice given to the Minister for Foreign Affairs, request the Minister for Foreign Affairs to give the person a written statement setting out the reasons for the decision.  (2) If a person makes a request under subsection (1) in relation to a decision, the Minister for Foreign Affairs must either:  (a) as soon as practicable, and in any event within 28 days, after receiving the request:  (i) prepare a written statement setting out the reasons for the decision; and  (ii) give the statement to the person; or  (i) as soon as practicable, and in any event within 28 days, after receiving the request, prepare a statement about the decision; and  (ii) cause a copy of the statement to be laid before each House of the Parliament within 15 sitting days of that House after the completion of the preparation of the statement. Part 8C—Australian content requirements for subscription video on demand services 121FT  Simplified outline of this Part This Part requires providers of certain major subscription video on demand services (SVOD services) to ensure minimum levels of expenditure on new eligible Australian programs. Major SVOD services are SVOD services that have at least 1 million paying subscribers in Australia, and satisfy certain other requirements. Services that predominantly provide user‑generated content, or that have limited appeal in Australia, are excluded. To be an eligible Australian program, a program must be a drama program, a children’s program, a documentary, an arts program or an educational program, and must be an Australian or New Zealand program. A major SVOD service must acquit its Australian content expenditure requirement using qualifying expenditure on eligible Australian programs. A major SVOD service’s Australian content expenditure requirement is a percentage of its total program expenditure for Australia, although a service can elect to instead have its Australian content expenditure requirement be based on its total revenue derived from Australia. An expenditure requirement can be carried over for 2 years. If it remains unacquitted after 2 years, the providers of the service may be liable for a civil penalty, and the unacquitted expenditure requirement continues to carry over to further years. Excess qualifying expenditure amounts can also be carried over, for up to 2 years. Providers of certain SVOD services that are regulated under this Part must give annual reports to the ACMA. Providers of certain SVOD services that have at least 250,000 paying subscribers in Australia must also give notifications to the ACMA. The ACMA has various powers for administering this Part and monitoring compliance with this Part, including powers to give class exemptions. 121FU  Definitions ABN has the same meaning as in the A New Tax System (Australian Business Number) Act 1999. acquiring, in relation to a program, includes acquiring rights in relation to the program. Note: For example, acquiring a licence to make a program available in Australia. acquitted: for when an expenditure requirement is acquitted, see subsection 121FZI(2). arts program means a program whose subject matter wholly or substantially comprises material relating to the visual arts, design, literature, the performing arts or music. Australian content expenditure requirement, of an SVOD service for an SVOD reporting year, has the meaning given by section 121FZL. Australian Content Standard means:  (a) the Broadcasting Services (Australian Content and Children’s Television) Standards 2020 as in force from time to time; or  (b) if the standard mentioned in paragraph (a) is not in force, but there is in force another standard that is a successor (whether immediate or not) to the standard mentioned in paragraph (a)—that other standard as in force from time to time. Australian/New Zealand program has the same meaning as in the Australian Content Standard. Australian official co‑production has the same meaning as in the Australian Content Standard. Australian program has the same meaning as in the Australian Content Standard. carried‑over expenditure amount, for an online content service for an SVOD reporting year, has the meaning given by subsection 121FZI(6). carried‑over expenditure requirement, for an online content service for an SVOD reporting year, has the meaning given by subsection 121FZI(5). children’s program means a program produced for children 15 years or younger. documentary means a program that is a creative treatment of actuality, other than:  (a) a news program; or  (b) a sports program; or  (c) a magazine program; or  (d) an infotainment or light entertainment program; or  (e) a “reality television” program (within the meaning of Schedule 6). drama program means:  (a) a program that has a fully scripted screenplay in which the dramatic elements of character, theme and plot are introduced and developed to form a narrative structure; or  (b) a program that has:  (i) a partially scripted screenplay in which the dramatic elements of character, theme and plot are introduced and developed to form a narrative structure; and  (ii) actors delivering improvised dialogue that is based on a script outline or outlines developed by a writer or writers; or  (c) a program that has actors delivering improvised dialogue that is based on a script outline or outlines:  (i) developed by a writer or writers; and  (ii) in which the dramatic elements of character, theme and plot are introduced and developed to form a narrative structure; and includes:  (d) a fully scripted sketch comedy program; and  (e) an animated drama; and  (f) a dramatised documentary;  (g) a program that involves the incidental use of actors; or  (h) advertising or sponsorship matter (whether or not of a commercial kind). educational program has the same meaning as in Schedule 6. eligible Australian program has the meaning given by section 121FW. eligible program has the meaning given by section 121FV. excluded service, for an SVOD reporting year, has the meaning given by section 121FZ. expenditure, in relation to a program, means:  (a) expenditure incurred in acquiring the program; or  (b) expenditure incurred in producing or commissioning the program; or  (c) pre‑production expenditure incurred in relation to the program; or  (d) expenditure incurred by way of the making of an investment in the program; and includes nil expenditure. expenditure amount, for an online content service for an SVOD reporting year, means:  (a) a qualifying expenditure amount of the service for the SVOD reporting year; or  (b) a carried‑over expenditure amount of the service for the SVOD reporting year. expenditure requirement, for an online content service for an SVOD reporting year, means:  (a) an Australian content expenditure requirement of the service for the SVOD reporting year; or  (b) a carried‑over expenditure requirement of the service for the SVOD reporting year. major SVOD service has the meaning given by section 121FY. news 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. New Zealand program has the same meaning as in the Australian Content Standard. paying subscriber, in relation to an online content service, means a person who pays a subscription fee (however described, and whether periodical or otherwise) to use the online content service (including where the fee is paid to use a set of services that includes the online content service and other services, whether the other services are online content services or not). program, in relation to an online content service, has the same meaning as that term has in subsection 6(1) in relation to a broadcasting service. provider, in relation to an online content service, has the meaning given by section 121FZC. qualifying expenditure amount, of an online content service for an SVOD reporting year, has the meaning given by section 121FZK. regulated SVOD service has the meaning given by section 121FZA. 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; SVOD reporting year means:  (a) if this Part commences in January, February, March, April, May or June—the financial year in which this Part commences, and each later financial year; or  (b) otherwise—the calendar year in which this Part commences, and each later calendar year. SVOD service (short for Subscription Video On Demand service) has the meaning given by section 121FX. total program expenditure for Australia, of an online content service for an SVOD reporting year, has the meaning given by section 121FZN. wholly acquitted: an expenditure requirement has been wholly acquitted when it has been reduced to nil under subsection 121FZI(2). 121FV  Meaning of eligible program  (1) For the purposes of this Part, a program is an eligible program if the program is any of the following:  (a) a drama program;  (b) a children’s program;  (c) a documentary;  (d) an arts program;  (e) an educational program.  (2) However, a program is not an eligible program to the extent that the program is:  (a) a news program; or  (b) a sports program; or  (c) advertising or sponsorship matter (whether or not of a commercial kind).  (3) The ACMA may, by writing, determine that a specified program is, and is taken always to have been, an eligible program despite subsection (1) or (2).  (4) The ACMA may, by writing, determine that a specified program is not, and is taken never to have been, an eligible program despite subsection (1).  (5) A determination under subsection (3) or (4) has effect accordingly.  (6) A determination under subsection (3) or (4) is not a legislative instrument.  (7) The ACMA must publish a copy of a determination under subsection (3) or (4) on the ACMA’s website. 121FW  Meaning of eligible Australian program  (1) For the purposes of this Part, a program is an eligible Australian program if:  (a) the program is an eligible program; and  (b) the program is any of the following:  (i) an Australian program;  (ii) a New Zealand program;  (iii) an Australian/New Zealand program;  (iv) an Australian official co‑production.  (2) The ACMA may, by writing, determine that a specified program is, and is taken always to have been, an eligible Australian program despite subsection (1).  (3) The ACMA may, by writing, determine that a specified program is not, and is taken never to have been, an eligible Australian program despite subsection (1).  (4) A determination under subsection (2) or (3) has effect accordingly.  (5) A determination under subsection (2) or (3) is not a legislative instrument.  (6) The ACMA must publish a copy of a determination under subsection (2) or (3) on the ACMA’s website. 121FX  Meaning of SVOD service   For the purposes of this Part, an online content service is an SVOD service if:  (a) the service has any number of paying subscribers in Australia; and  (b) a catalogue of audiovisual content is available on demand through the service to those paying subscribers; and  (c) the primary purpose, or a significant purpose, of the service is to provide audiovisual content on demand to those paying subscribers. Note: An online content service that does not have paying subscribers in Australia, but derives its revenue from one‑off transactions or advertising, is not an SVOD service. 121FY  Meaning of major SVOD service  (1) For the purposes of this Part, an online content service is a major SVOD service for an SVOD reporting year (the relevant year) if the service passes all the following tests in relation to the relevant year:  (a) the SVOD service test in subsection (3);  (b) the program test in subsection (4);  (c) the paying subscriber test in subsection (5).  (2) Despite subsection (1), the service is not a major SVOD service for the relevant year if the service is an excluded service for the relevant year. SVOD service test  (3) The service passes the SVOD service test if, at any time in the relevant year, the service is an SVOD service. Program test  (4) The service passes the program test if, at any time in the relevant year when the service is an SVOD service, a part (other than a part that is merely incidental) of the audiovisual content provided on the service that is likely to appeal to the public, or a section of the public, in Australia consists of eligible programs. Paying subscriber test  (5) The service passes the paying subscriber test if, at any time in the relevant year when the service is an SVOD service, the service has at least 1 million paying subscribers in Australia. 121FZ  Meaning of excluded service   For the purposes of this Part, an online content service is an excluded service for an SVOD reporting year (the relevant year) if, during the relevant year:  (a) the audiovisual content provided by the service was predominantly user‑generated content; or  (b) the service’s appeal to the public in Australia was limited because the service:  (i) was targeted to special interest groups; or  (ii) was intended only for limited locations, for example, arenas or business premises; or  (iii) was provided during a limited period or to cover a special event; or  (iv) predominantly provided programs of limited appeal. 121FZA  Meaning of regulated SVOD service  (1) An online content service is a regulated SVOD service for any SVOD reporting year for which the service is a major SVOD service.  (2) An online content service that is a regulated SVOD service for an SVOD reporting year continues to be a regulated SVOD service for each successive SVOD reporting year (even if the service becomes an excluded service or ceases to be a major SVOD service or an SVOD service) until the service ceases, under section 121FZB, to be a regulated SVOD service. Note: A regulated SVOD service that is no longer a major SVOD service must acquit any expenditure requirements carried over from when it was a major SVOD service, but does not incur further expenditure requirements.  (3) To avoid doubt, an online content service that ceases to be a regulated SVOD service under section 121FZB may become a regulated SVOD service again at a later time. 121FZB  When an online content service ceases to be a regulated SVOD service   An online content service ceases to be a regulated SVOD service at the end of an SVOD reporting year if:  (a) the service was not a major SVOD service for the SVOD reporting year; and  (i) the service does not have an expenditure requirement for any SVOD reporting year; or  (ii) all expenditure requirements that the service has for any SVOD reporting year have been wholly acquitted. 121FZC  Meaning of provider of an online content service  (1) For the purposes of this Part and subject to this section, a provider of an online content service is a person who:  (a) is a constitutional corporation; and  (b) provides the online content service.  (2) For the purposes of this Part and subject to subsections (4), (5) and (6), 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.  (3) For the purposes of this Part and subject to subsections (4), (5) and (6), 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. Determinations by the ACMA  (4) The ACMA may, by writing, determine that, for the purposes of this Part, a specified person that is a constitutional corporation (and no other person) is a provider of a specified online content service.  (5) The ACMA may, by writing, determine that, for the purposes of this Part, each of one or more specified persons that are constitutional corporations (and no other persons) are providers of a specified online content service.  (6) The ACMA may, by writing, determine that, for the purposes of this Part, each of one or more specified persons that are constitutional corporations is a provider of a specified online content service, without limiting the application of subsection (1) to any other person.  (7) The ACMA may, by writing, determine that, for the purposes of this Part, each of one or more specified persons is not a provider of a specified online content service.  (8) A determination under subsection (4), (5), (6) or (7) has effect accordingly.  (9) A determination under subsection (4), (5), (6) or (7) is not a legislative instrument.  (10) The ACMA must publish a copy of a determination under subsection (4), (5), (6) or (7) on the ACMA’s website. 121FZD  Class exemptions from this Part  (1) The ACMA may, by legislative instrument, determine that online content services included in a specified class of online content services are exempt from this Part.  (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 this Part.  (3) A determination under subsection (1) or (2) may be:  (a) unconditional; or  (b) subject to such conditions (if any) as are specified in the determination. 121FZE  Cash‑based accounting—when expenditure is incurred   For the purposes of this Part:  (a) if the whole of an item of expenditure is paid at a particular time—the expenditure is incurred when the expenditure is paid; and  (b) if different parts of an item of expenditure are paid at different times—each part is incurred when the part is paid. 121FZF  ACMA may make determinations about expenditure and revenue Qualifying expenditure amounts  (1) The ACMA may, by writing, determine that, for the purposes of this Part, specified amounts of expenditure are taken to be qualifying expenditure amounts of a specified online content service for an SVOD reporting year.  (2) The ACMA may, by writing, determine that, for the purposes of this Part, specified amounts of expenditure are taken not to be qualifying expenditure amounts of a specified online content service for an SVOD reporting year. Total program expenditure for Australia  (3) The ACMA may, by writing, determine that, for the purposes of this Part, specified amounts of expenditure are taken to be total program expenditure for Australia of a specified online content service for an SVOD reporting year.  (4) The ACMA may, by writing, determine that, for the purposes of this Part, specified amounts of expenditure are taken not to be total program expenditure for Australia of a specified online content service for an SVOD reporting year. Revenue derived by an online content service from Australia  (5) The ACMA may, by writing, determine that, for the purposes of this Part, specified amounts are taken to be revenue derived by a specified online content service from Australia in an SVOD reporting year.  (6) The ACMA may, by writing, determine that, for the purposes of this Part, specified amounts are taken not to be revenue derived by a specified online content service from Australia in an SVOD reporting year.  (7) A determination under this section has effect accordingly.  (8) A determination under this section is not a legislative instrument. 121FZG  ACMA may make determinations about classes of expenditure and revenue Expenditure incurred, or not incurred, on programs  (1) The ACMA may, by legislative instrument, determine that, for the purposes of this Part, expenditure in a specified class of expenditure is taken to be incurred on a program.  (2) The ACMA may, by legislative instrument, determine that, for the purposes of this Part, expenditure in a specified class of expenditure is taken not to be incurred on a program. Expenditure incurred, or not incurred, on eligible programs  (3) The ACMA may, by legislative instrument, determine that, for the purposes of this Part, expenditure in a specified class of expenditure is taken to be incurred on an eligible program.  (4) The ACMA may, by legislative instrument, determine that, for the purposes of this Part, expenditure in a specified class of expenditure is taken not to be incurred on an eligible program. Qualifying expenditure amounts  (5) The ACMA may, by legislative instrument, determine that, for the purposes of this Part, amounts of expenditure in a specified class of expenditure are taken to be qualifying expenditure amounts of an online content service for an SVOD reporting year.  (6) The ACMA may, by legislative instrument, determine that, for the purposes of this Part, amounts of expenditure in a specified class of expenditure are taken not to be qualifying expenditure amounts of an online content service for an SVOD reporting year. Total program expenditure for Australia  (7) The ACMA may, by legislative instrument, determine that, for the purposes of this Part, expenditure in a specified class of expenditure is taken to be total program expenditure for Australia of an online content service for an SVOD reporting year.  (8) The ACMA may, by legislative instrument, determine that, for the purposes of this Part, expenditure in a specified class of expenditure is taken not to be total program expenditure for Australia of an online content service for an SVOD reporting year. Revenue derived by an online content service from Australia  (9) The ACMA may, by legislative instrument, determine that, for the purposes of this Part, amounts in a specified class of amounts are taken to be revenue derived by an online content service from Australia in an SVOD reporting year.  (10) The ACMA may, by legislative instrument, determine that, for the purposes of this Part, amounts in a specified class of amounts are taken not to be revenue derived by an online content service from Australia in an SVOD reporting year.  (11) A determination under this section has effect accordingly. Determination to be general in nature  (12) A determination under this section must be general in nature. 121FZH  Extraterritorial application   This Part extends to acts, omissions, matters and things outside Australia. Division 2—Australian content expenditure requirement Subdivision A—Acquittal of expenditure requirements 121FZI  Acquittal of expenditure requirements  (1) For each SVOD reporting year that an online content service is a regulated SVOD service, the following expenditure requirements are to be acquitted in accordance with this section:  (a) the service’s Australian content expenditure requirement (if any) for the SVOD reporting year (the relevant year);  (b) any carried‑over expenditure requirement the service has for an SVOD reporting year before the relevant year that has not already been acquitted. Note 1: For a service’s Australian content expenditure requirement, see section 121FZL. Note 2: Australian content expenditure requirements that are not acquitted in the SVOD reporting year in which they are incurred become carried‑over expenditure requirements (see subsection (5) of this section), and can be acquitted in the 2 following SVOD reporting years. If a carried‑over expenditure requirement is not acquitted by the end of the second such SVOD reporting year, the provider or providers of the service may be liable for a civil penalty (see section 121FZJ), and the carried‑over expenditure requirement continues to carry over to further SVOD reporting years (and may give rise to liability for further civil penalties). Note 3: Australian content expenditure requirements are acquitted using qualifying expenditure amounts (see section 121FZK). If a regulated SVOD service has some or all of a qualifying expenditure amount left after acquitting any outstanding Australian content expenditure requirements, it can carry over the remaining qualifying expenditure amount for up to 2 further SVOD reporting years (see subsections (6) and (7) of this section).  (2) An expenditure requirement is acquitted by reducing the expenditure requirement (but not below nil) by:  (a) the service’s qualifying expenditure amount (if any) for the relevant year; and  (b) any carried‑over expenditure amount the service has from an SVOD reporting year before the relevant year (subject to the time limit in subsection (7)); to the extent that each expenditure amount has not already been used to acquit an expenditure requirement. Expenditure requirements and amounts to be dealt with in order  (3) If the service has expenditure requirements for 2 or more SVOD reporting years, an expenditure requirement for an earlier year is to be acquitted before an expenditure requirement for a later year.  (4) If the service has expenditure amounts for 2 or more SVOD reporting years that have not already been used to acquit an expenditure requirement, an expenditure amount for an earlier year is to be used to acquit an expenditure requirement before an expenditure amount for a later year. Carry‑over of expenditure requirements and amounts  (5) If, after applying subsection (2) to each expenditure requirement, the service has an Australian content expenditure requirement for the relevant year that is more than nil, the amount of that expenditure requirement is the carried‑over expenditure requirement of the service for the relevant year.  (a) the service has a qualifying expenditure amount for the relevant year; and  (b) after applying subsection (2) to each expenditure requirement, some or all of the qualifying expenditure amount for the relevant year has not been used to acquit an expenditure requirement; that qualifying expenditure amount, to the extent that it has not been used to acquit an expenditure requirement, is the carried‑over expenditure amount of the service for the relevant year.  (7) A carried‑over expenditure amount for an SVOD reporting year (the expenditure year) cannot be used to acquit an expenditure requirement for an SVOD reporting year that is more than 2 SVOD reporting years after the expenditure year. 121FZJ  Civil penalty for failure to acquit expenditure requirement  (1) A provider of an online content service that is a regulated SVOD service for an SVOD reporting year (the current year) contravenes this subsection if, at the end of the current year (and after applying section 121FZI for the current year), the service has:  (a) a carried‑over expenditure requirement, that has not been wholly acquitted, for one SVOD reporting year that is 2 or more SVOD reporting years before the current year; or  (b) carried‑over expenditure requirements, that have not been wholly acquitted, for 2 or more SVOD reporting years that are each 2 or more SVOD reporting years before the current year. Civil penalty order does not affect acquittal obligation, or prevent further civil penalty orders  (3) To avoid doubt, the making of a civil penalty order against a person in relation to a contravention of subsection (1) (or a contravention of section 205E that relates to a contravention of subsection (1) of this section) that relates to an online content service’s carried‑over expenditure requirement for a particular SVOD reporting year:  (a) does not relieve the service of the obligation to acquit that carried‑over expenditure requirement; and  (b) does not prevent a civil penalty order being made against the person in respect of another contravention of subsection (1) (or section 205E) that:  (i) occurs at the end of an SVOD reporting year other than the current year; and  (ii) relates to the same carried‑over expenditure requirement; and  (c) if the service’s Australian content expenditure requirement for the SVOD reporting year to which the carried‑over expenditure requirement relates is taken into account under subparagraph 205F(5AAB)(c)(ii) and subsection 205F(5AAC) in determining the pecuniary penalty payable by a person—does not prevent that Australian content expenditure requirement being taken into account in relation to another contravention of subsection (1) of this section (or section 205E) by any person. Subdivision B—Working out expenditure amounts and requirements 121FZK  Meaning of qualifying expenditure amount  (1) For the purposes of this Part, an online content service’s qualifying expenditure amount for an SVOD reporting year (the relevant year) is the total expenditure incurred by the provider or providers of the service during the relevant year on programs that:  (a) are eligible Australian programs; and  (b) were:  (i) commissioned as mentioned in subsection (3); or  (ii) acquired by the provider or providers; and  (c) were not made available to the public in Australia, other than by being shown in a cinema, at any time before the expenditure was incurred.  (2) For the purposes of subsection (1), if the service has more than one provider, disregard any payments between the providers of the service.  (3) For the purposes of subparagraph (1)(b)(i), a program was commissioned if one or more of the providers of the service:  (a) produced the program; or  (b) made a material financial contribution to the production of the program before the production of the program was completed. 121FZL  Meaning of Australian content expenditure requirement  (1) The Australian content expenditure requirement for a major SVOD service for an SVOD reporting year (the relevant year) is an amount equal to 10% of the service’s total program expenditure for Australia for the relevant year.  (2) However, if an election under subsection 121FZM(1) is in effect for the major SVOD service for the relevant year, the service’s Australian content expenditure requirement for the relevant year is instead an amount equal to 7.5% of the revenue derived by the service from Australia in the relevant year. Note: Revenue derived by a service from Australia may include, for example, revenue derived from: (a) paying subscribers in Australia; and (b) advertising to people in Australia.  (3) The Australian content expenditure requirement for a regulated SVOD service that is not a major SVOD service for an SVOD reporting year is nil for that SVOD reporting year. 121FZM  Election of revenue method  (1) The provider or providers of a regulated SVOD service may, by written notice to the ACMA, make an election to have subsection 121FZL(2) apply to the service for a period of 3 SVOD reporting years.  (2) The 3‑year period must be:  (a) the 3‑year period beginning on the first day of the first SVOD reporting year for which the service was a regulated SVOD service; or  (b) a 3‑year period beginning on the day after the end of a previous 3‑year period to which this subsection applies.  (3) A notice under subsection (1):  (a) may only be given within the period of 60 days beginning on the first day of the 3‑year period; and  (c) if the service has more than one provider—must be given jointly by all providers of the service.  (4) Despite subsection (1), the provider or providers may not make an election under that subsection if, at the end of the year (the pre‑election year) immediately preceding the 3‑year period, the service had a carried‑over expenditure requirement, that had not been wholly acquitted, for any SVOD reporting year that is 2 or more SVOD reporting years before the pre‑election year. 121FZN  Meaning of total program expenditure for Australia  (1) For the purposes of this Part, an online content service’s total program expenditure for Australia for an SVOD reporting year (the relevant year) is the total of the expenditure incurred by the provider or providers of the service in the relevant year on eligible programs that are, or are intended to be, provided on the service in Australia.  (2) Without limiting subsection (1), the service’s total program expenditure for Australia for the relevant year includes expenditure incurred by the provider or providers of the service in the relevant year in commissioning or acquiring eligible Australian programs that are, or are intended to be, provided on the service in Australia.  (3) Without limiting subsection (1), the service’s total program expenditure for Australia for the relevant year includes:  (a) expenditure incurred by the provider or providers of the service in the relevant year in licensing eligible programs that are, or are intended to be, provided on the service in Australia; and  (b) other expenditure incurred by the provider or providers of the service in the relevant year in relation to eligible programs (other than eligible Australian programs) that are, or are intended to be, provided on the service in Australia, to the extent that the expenditure is reasonably attributable to the provision of the programs on the service in Australia; and  (c) amounts that are not covered by paragraph (a) or (b), but would be amounts of expenditure covered by paragraph (a) or (b) if arrangements under which eligible programs (other than eligible Australian programs) are made available to be provided on the service in Australia were entered into at arm’s length. Division 3—Reporting and information Subdivision A—Reporting by providers of regulated SVOD services 121FZO  Annual reports  (1) The provider or providers of an online content service that is a regulated SVOD service for an SVOD reporting year (the year of the report) must, within 45 days after the end of the year of the report, prepare and give the ACMA a report relating to:  (a) compliance by the service, and the provider or providers of the service, with this Part during the year of the report; and  (b) the service’s qualifying expenditure amount for the year of the report; and  (c) the service’s total program expenditure for Australia for the year of the report; and  (d) the revenue derived by the service from Australia in the year of the report; and  (e) the number of paying subscribers the service has in Australia; and  (f) acquittal of the service’s expenditure requirements.  (2) A report under subsection (1) must:  (a) be given in the form and manner approved, in writing, by the ACMA; and 121FZP  Civil penalty for failure to give annual report  (1) A person contravenes this subsection if:  (a) the person is a provider of an online content service that is a regulated SVOD service for an SVOD reporting year; and  (b) a report under section 121FZO in relation to the service for the SVOD reporting year is not given to the ACMA in accordance with that section.  (3) A person who contravenes subsection (1) commits a separate contravention of that subsection in respect of each day (including a day of the making of a relevant civil penalty order or any subsequent day) during which the contravention continues. Subdivision B—Notification by providers of certain SVOD services 121FZQ  Requirement to notify the ACMA of certain SVOD services  (1) A person must notify the ACMA if, at any time in an SVOD reporting year:  (a) the person is a provider of an SVOD service; and  (b) the service has at least 250,000 paying subscribers in Australia; and  (c) the service is not an excluded service for the SVOD reporting year.  (2) A notification under subsection (1):  (a) must be given before the end of 60 days after the first day on which all of paragraphs (1)(a), (b) and (c) apply; and  (c) must include the name of the service; and  (d) must include:  (i) the name of the person; and  (ii) if the person has an ABN—the person’s ABN; and  (iii) if the person has a principal office in Australia—the address of that principal office; and  (e) must include any other information required by the form in relation to the service, the providers of the service or other bodies corporate related to the providers of the service.  (3) If the service has more than one provider, the requirement for each provider to give a notification under subsection (1) is satisfied if any of the providers gives an equivalent notification.  (4) A form approved under paragraph (2)(b) for a notification under subsection (1) may provide for verification by statutory declaration of information included in the notification. 121FZR  Further notifications if circumstances change etc.  (1) A person must notify the ACMA if, at any time in an SVOD reporting year (the notification year):  (a) the person is a provider of an online content service; and  (b) a notifiable circumstance mentioned in subsection (2) or (4) exists in relation to the service. Notifiable circumstances—changes in SVOD service etc.  (2) For the purposes of paragraph (1)(b), if the online content service:  (a) is an SVOD service; and  (b) has at least 250,000 paying subscribers in Australia; and  (c) is not an excluded service for the notification year; each of the following is a notifiable circumstance in relation to the service:  (d) a person starts or stops being a provider of the service (other than as a result of a determination by the ACMA under subsection 121FZC(4), (5), (6) or (7));  (e) information previously notified to the ACMA in relation to the service under section 121FZQ or this section is no longer correct, or no longer complete;  (f) the service is a major SVOD service for the notification year, but was not a major SVOD service for the immediately preceding SVOD reporting year;  (g) the service is not a major SVOD service for the notification year, but was a major SVOD service for the immediately preceding SVOD reporting year;  (h) any other circumstance specified by the ACMA under subsection (3).  (3) For the purposes of paragraph (2)(h), the ACMA may, by legislative instrument, determine that specified circumstances are notifiable circumstances in relation to online content services to which subsection (2) applies. Notifiable circumstances—online content service ceases to be covered by other notification requirements  (4) For the purposes of paragraph (1)(b), if the online content service has, at any time in an SVOD reporting year, been an SVOD service that:  (a) had at least 250,000 paying subscribers in Australia; and  (b) was not an excluded service for that SVOD reporting year; but ceases to be such an SVOD service, that cessation is a notifiable circumstance in relation to the service. Requirements for notification  (5) A notification under subsection (1):  (a) must be given before the end of 60 days after the notifiable circumstance began to exist; and  (c) must include the name of the service; and  (d) must include any other information required by the form in relation to the notifiable circumstance.  (6) If the service has more than one provider, the requirement for each provider to give a notification under subsection (1) is satisfied if any of the providers gives an equivalent notification.  (7) A form approved under paragraph (5)(b) for a notification under subsection (1) may provide for verification by statutory declaration of information included in the notification. 121FZS  Penalty for failing to notify the ACMA  (1) A person contravenes this section if:  (a) the person is a provider of an online content service; and  (b) the person is required to give the ACMA a notification under subsection 121FZQ(1) or 121FZR(1); and  (c) the person does not comply with the requirement in accordance with subsection 121FZQ(2) or 121FZR(5), as the case requires; and  (d) if the service has more than one provider—no other provider gives the ACMA an equivalent notification.  (3) A person who contravenes subsection (1) commits a separate contravention of that subsection in respect of each day (including a day of the making of a relevant civil penalty order or any subsequent day) during which the contravention continues. Subdivision C—Information‑gathering 121FZT  The ACMA may obtain information and documents  (1) This section applies to a person who is a provider of an SVOD service if the ACMA has reason to believe that the person has information or a document that is relevant to the operation of this Part. The ACMA may require information or documents  (c) to make copies of any such documents and to produce to the ACMA, within the period and in the manner specified in the notice, those copies.  (5) A person who contravenes subsection (3) commits a separate contravention of that subsection in respect of each day (including a day of the making of a relevant civil penalty order or any subsequent day) during which the contravention continues. 121FZU  Copies of documents  (1) The ACMA may inspect a document or copy produced under section 121FZT and may make and retain copies of, or take and retain extracts from, such a document.  (2) The ACMA may retain possession of a copy of a document produced in accordance with a requirement covered by paragraph 121FZT(2)(c). 121FZV  Expenditure and revenue to be expressed in Australian currency  (1) For the purposes of this Part, expenditure and revenue are to be expressed in Australian currency.  (2) For the purposes of this Part, if expenditure is incurred or revenue is derived otherwise than in Australian currency, the expenditure or revenue is to be expressed in Australian currency at a rate equal to the average, over the SVOD reporting year in which the expenditure is incurred or the revenue is derived, of the exchange rate that is applicable to the expenditure or revenue. 121FZW  Anti‑avoidance—transactions between persons not at arm’s length  (a) a person has incurred expenditure in connection with a transaction where the parties to the transaction are not dealing with each other at arm’s length in relation to the transaction; and  (b) apart from this section, the expenditure is counted for the purposes of the application of this Part; and  (c) the amount of the expenditure is greater or less than is reasonable; the ACMA may, by writing, determine that the amount of the expenditure is taken, for the purposes of the application of this Part in relation to the parties to the transaction, to be the amount that would have been reasonable if the parties were dealing with each other at arm’s length.  (2) A determination under subsection (1) has effect accordingly.  (3) A determination under subsection (1) is not a legislative instrument. 121FZX  The ACMA may make determinations about online content services etc.  (1) The purpose of this section is to provide for the ACMA to make determinations dealing with any of the following circumstances or events that would otherwise affect the operation of this Part:  (a) the nature, ownership or structure of online content services;  (b) changes in the nature, ownership or structure of online content services;  (c) temporary cessations of online content services;  (d) online content services being combined with other services (whether the other services are online content services or not);  (e) online content services splitting into separate services (whether all of the separate services are online content services or not);  (f) any other circumstances or events, involving online content services, that could result in:  (i) qualifying expenditure amounts not being available to be used by the entities or online content services to which the amounts are reasonably attributable; or  (ii) expenditure requirements not being required to be acquitted by the entities or online content services to which the expenditure requirements are reasonably attributable.  (2) The ACMA may, by writing, determine that this Part is to operate, in relation to one or more specified online content services, in a way that reduces, eliminates or otherwise addresses the effect of specified circumstances or events of a kind mentioned in subsection (1).  (3) Without limiting subsection (2), the kinds of determinations that the ACMA may make include the following:  (a) a determination that a change in an online content service (including a change in the nature, ownership, structure or providers of the online content service) does not affect the continuity of the online content service;  (b) a determination that an online content service is, at or after a specified time or for a specified period, taken to be, or not to be, the same online content service as a particular online content service at a specified time or for a specified period;  (c) a determination that 2 or more online content services are taken to be a single online content service;  (d) a determination that specified parts of an online content service are taken to be separate online content services;  (e) a determination that an online content service is taken to be, or not to be, a major SVOD service for one or more specified SVOD reporting years;  (f) a determination that an online content service is taken to be, or not to be, a regulated SVOD service for one or more specified SVOD reporting years;  (g) a determination that specified expenditure is taken to have been incurred, or not to have been incurred, by a specified online content service;  (h) a determination that specified revenue is taken to have been derived, or not to have been derived, by a specified online content service.  (4) A determination under subsection (2):  (a) may have effect on, at or after a specified time (which may be before the determination is made), or for a specified period (which may begin before the determination is made); and  (b) may relate to circumstances that existed, or an event that occurred, before the commencement of this Part.  (5) A determination under subsection (2) that has effect before the determination is made does not result in:  (a) a person being liable for a civil penalty order in relation to a contravention of subsection 121FZJ(1) for a current year (within the meaning of that subsection) that ends before the determination is made; or  (b) a person being liable for a civil penalty order in relation to a contravention of subsection 121FZP(1) or 121FZS(1) that occurs before the determination is made.  (6) A determination under subsection (2) has effect accordingly.  (7) A determination under subsection (2) is not a legislative instrument. 121FZY  Review of this Part Review of this Part  (1) The Minister must cause a review to be conducted of:  (a) the operation, effectiveness and implications of:  (i) this Part; and  (ii) the remaining provisions of this Act to the extent to which they relate to this Part; and  (b) whether any changes could be made to this Part, or the provisions mentioned in subparagraph (a)(ii), in order to improve the operation and effectiveness of this Part or those provisions.  (2) The review must commence as soon as practicable after the end of the 4 year period starting on the day that this Part commences.  (3) The persons undertaking the review must give the Minister a written report of the review. The report must not include information that is commercially sensitive.  (4) The Minister must cause copies of the report to be tabled in each House of the Parliament within 15 sittings days of that House after receiving the report. 121FZZ  Minister may request report  (1) The Minister may, by written notice given to the ACMA, request the ACMA to:  (a) prepare a report about any one or more of the following:  (i) SVOD services;  (ii) expenditure by SVOD services on eligible Australian programs;  (iii) the acquittal of expenditure requirements by SVOD services;  (iv) access to eligible Australian programs by users of SVOD services;  (v) developments in the SVOD service industry; and