197 Evidence and submissions to be taken into account by ACMA
198 Representation at hearings
199 Reports on hearings
Division 4—General
200 Protection of members and persons giving evidence
201 Protection of panel conducting hearing
202 Non‑compliance with requirement to give evidence
203 Proceedings for defamation not to lie
Part 14—Appeals to the Administrative Review Tribunal
204 Appeals to the Administrative Review Tribunal
205 Notification of decisions to include notification of reasons and appeal rights
Part 14AA—Collection and recovery of interim tax
205AA Simplified outline of this Part
205AB Assessments
205AC When interim tax becomes due and payable
205AD Recovery of interim tax
205AE Refund of overpayment of interim tax
205AF Late payment penalty
205AG Anti‑avoidance
Part 14B—Civil penalties
Division 1—Ancillary contravention of civil penalty provision
205E Ancillary contravention of civil penalty provision
Division 2—Civil penalty orders
205EA Simplified outline
205F Civil penalty orders
205G Who may apply for a civil penalty order
205H 2 or more proceedings may be heard together
205J Time limit for application for an order
205K Civil evidence and procedure rules for civil penalty orders
205L Civil proceedings after criminal proceedings
205M Criminal proceedings during civil proceedings
205N Criminal proceedings after civil proceedings
205P Evidence given in proceedings for a civil penalty order not admissible in criminal proceedings
205PAA Mistake of fact
Part 14C—Injunctions
205PA Simplified outline
205Q Injunctions
205R Interim injunctions
205S Discharge etc. of injunctions
205T Certain limits on granting injunctions not to apply
205U Other powers of the Federal Court unaffected
Part 14D—Enforceable undertakings
205V Simplified outline
205W Acceptance of undertakings
205X Enforcement of undertakings
Part 14E—Infringement notices
205XAA Simplified outline
205XA Formal warning
205Y When an infringement notice can be given
205Z Matters to be included in an infringement notice
205ZA Amount of penalty
205ZB Withdrawal of an infringement notice
205ZC What happens if the penalty is paid
205ZD Effect of this Part on criminal proceedings
205ZE Appointment of authorised infringement notice officer
205ZF Regulations
Part 14F—Grants
205ZG Simplified outline of this Part
205ZH Grants
205ZJ Terms and conditions for grants
205ZK Advisory committee
205ZL Annual report
205ZM Short title of amending Act does not limit the powers conferred by this Part
Part 15—Miscellaneous
206 Broadcasting or datacasting taken to be publication in permanent form
207 Amounts of fees
209 Prosecutions
210 Publication of opinions
211AA Time when a television program is broadcast—certain terrestrial licence areas
211A Time when a television program is broadcast—South Eastern Australia TV3 and Northern Australia TV3 licence areas
212 Special provisions for re‑transmission of programs
212A Self‑help providers
212B Declared self‑help providers and excluded providers
213 Penalties for continuing offences
214 Procedure relating to continuing offences
215 Guidelines relating to ACMA’s enforcement powers etc.
216 Ministerial consultative and advisory bodies
216A Schedule 4 (digital television broadcasting)
216AA Review of taxation arrangements etc.
216C Schedule 6 (datacasting services)
216D Schedule 7 (content services)
216E Schedule 8 (online content services)
217 Regulations
218 Channel sharing
An Act relating to broadcasting services, broadcasting video on demand services, datacasting services, online services and content services, and for related purposes
Part 1—Preliminary
1 Short title
This Act may be cited as the Broadcasting Services Act 1992.
2 Commencement
(1) Section 1, this section, sections 3 and 6 commence on the day on which this Act receives the Royal Assent.
(2) The remaining provisions of this Act commence on a day to be fixed by Proclamation.
(3) If those provisions do not commence under subsection (2) within the period of 6 months beginning on the day on which this Act receives the Royal Assent, those provisions commence on the first day after the end of that period.
3 Objects of this Act
(1) The objects of this Act are:
(a) to promote the availability to audiences throughout Australia of a diverse range of radio and television services offering entertainment, education and information; and
(aa) to promote the availability to audiences and users throughout Australia of a diverse range of datacasting services; and
(b) to provide a regulatory environment that will facilitate the development of a broadcasting industry in Australia that is efficient, competitive and responsive to audience needs; and
(ba) to provide a regulatory environment that will facilitate the development of a datacasting industry in Australia that is efficient, competitive and responsive to audience and user needs; and
(c) to encourage diversity in control of the more influential broadcasting services; and
(e) to promote the role of broadcasting services in developing and reflecting a sense of Australian identity, character and cultural diversity; and
(ea) to promote the availability to audiences throughout Australia of television and radio programs about matters of local significance; and
(eb) to promote the free availability to audiences throughout Australia of television coverage of events of national importance and cultural significance; and
(ec) to ensure the development, production and provision of Australian programs by subscription video on demand services; and
(f) to promote the provision of high quality and innovative programming by providers of broadcasting services; and
(fa) to promote the provision of high quality and innovative content by providers of datacasting services; and
(g) to encourage providers of commercial and community broadcasting services to be responsive to the need for a fair and accurate coverage of matters of public interest and for an appropriate coverage of matters of local significance; and
(h) to encourage providers of broadcasting services to respect community standards in the provision of program material; and
(ha) to promote access to certain broadcasting services and broadcasting video on demand services that are made available free to Australian audiences and users; and
(hb) to ensure online content service providers respect community standards in relation to gambling promotional content; and
(i) to encourage the provision of means for addressing complaints about broadcasting services; and
(ia) to provide a means for addressing complaints about gambling promotional content provided on online content services; and
(j) to ensure that providers of broadcasting services place a high priority on the protection of children from exposure to program material which may be harmful to them; and
(ja) to ensure that international broadcasting services are not provided contrary to Australia’s national interest; and
(n) to ensure the maintenance and, where possible, the development of diversity, including public, community and indigenous broadcasting, in the Australian broadcasting system in the transition to digital broadcasting.
(2) In this section:
broadcasting video on demand services has the same meaning as in Part 9E.
gambling promotional content has the same meaning as in Schedule 8.
online content service has the same meaning as in Schedule 8.
online content service provider has the same meaning as in Schedule 8.
subscription video on demand service has the same meaning as SVOD service has in Part 8C.
4 Regulatory policy
(1) The Parliament intends that different levels of regulatory control be applied across the range of broadcasting services, broadcasting video on demand services, datacasting services and online content services according to the degree of influence that different types of broadcasting services, broadcasting video on demand services, datacasting services and online content services are able to exert in shaping community views in Australia.
(2) The Parliament also intends that broadcasting services, broadcasting video on demand services and datacasting services in Australia be regulated in a manner that, in the opinion of the ACMA:
(a) enables public interest considerations to be addressed in a way that does not impose unnecessary financial and administrative burdens on providers of broadcasting services, broadcasting video on demand services and datacasting services; and
(b) will readily accommodate technological change; and
(c) encourages:
(i) the development of broadcasting technologies, broadcasting video on demand technologies and datacasting technologies, and their application; and
(ii) the provision of services made practicable by those technologies to the Australian community.
(3AB) The Parliament also intends that gambling promotional content provided on online content services be regulated in a manner that:
(a) enables public interest considerations in relation to gambling promotional content to be addressed in a way that does not impose unnecessary financial and administrative burdens on the providers of online content services; and
(b) will readily accommodate technological change; and
(c) encourages the provision of online content services to the Australian community; and
(d) encourages the development of technologies relating to online content services.
(3A) This section does not apply to Part 8B (which deals with international broadcasting services).
(4) In this section:
broadcasting video on demand service has the same meaning as in Part 9E.
gambling promotional content has the same meaning as in Schedule 8.
online content service has the same meaning as in Schedule 8.
online content service provider has the same meaning as in Schedule 8.
5 Role of the ACMA
(1) In order to achieve the objects of this Act in a way that is consistent with the regulatory policy referred to in section 4, the Parliament:
(a) charges the ACMA with responsibility for monitoring the broadcasting industry, the broadcasting video on demand industry, the datacasting industry and the online content service industry; and
(b) confers on the ACMA a range of functions and powers that are to be used in a manner that, in the opinion of the ACMA, will:
(i) produce regulatory arrangements that are stable and predictable; and
(ii) deal effectively with breaches of the rules established by this Act.
(2) Where it is necessary for the ACMA to use any of the powers conferred on it by this Act to deal with a breach of this Act or the regulations, the Parliament intends that the ACMA use its powers, or a combination of its powers, in a manner that, in the opinion of the ACMA, is commensurate with the seriousness of the breach concerned.
(3) This section does not, by implication, limit the functions and powers of:
(b) the Australian Competition and Consumer Commission; or
(c) any other body or person who has regulatory responsibilities in relation to the internet industry.
(4) In this section:
broadcasting video on demand service has the same meaning as in Part 9E.
online content service has the same meaning as in Schedule 8.
6 Interpretation
(1) In this Act, unless the contrary intention appears:
ACMA means the Australian Communications and Media Authority.
ACNC type of entity means an entity that meets the description of a type of entity in column 1 of the table in subsection 25‑5(5) of the Australian Charities and Not‑for‑profits Commission Act 2012.
amount paid on shares, in relation to a company, includes an amount treated by the company as having been so paid.
analog commercial radio broadcasting service means a commercial radio broadcasting service that is transmitted using an analog modulation technique.
analog community radio broadcasting service means a community radio broadcasting service that is transmitted using an analog modulation technique.
anti‑siphoning event means an event, or an event of a kind, that is specified in the anti‑siphoning list. For this purpose, disregard subsections 146V(2) and (4).
associate, in relation to a person in relation to control of a licence or a newspaper, or control of a company in relation to a licence or a newspaper, means:
(a) the person’s spouse or a parent, child, brother or sister of the person; or
(b) a partner of the person or, if a partner of the person is a natural person, a spouse or a child of a partner of the person; or
(c) if the person or another person who is an associate of the person under another paragraph receives benefits or is capable of benefiting under a trust—the trustee of the trust; or
(d) a person (whether a company or not) who:
(i) acts, or is accustomed to act; or
(ii) under a contract or an arrangement or understanding (whether formal or informal) is intended or expected to act;
in accordance with the directions, instructions or wishes of, or in concert with, the first‑mentioned person or of the first‑mentioned person and another person who is an associate of the first‑mentioned person under another paragraph; or
(e) if the person is a company—another company if:
(i) the other company is a related body corporate of the person for the purposes of the Corporations Act 2001; or
(ii) the person, or the person and another person who is an associate of the person under another paragraph, are in a position to exercise control of the other company;
but persons are not associates if the ACMA is satisfied that they do not act together in any relevant dealings relating to that company, licence or newspaper, and neither of them is in a position to exert influence over the business dealings of the other in relation to that company, licence or newspaper.
Note: See also subsection (3).
associate member means an associate member of the ACMA.
authorised infringement notice officer means:
(a) the Chair of the ACMA; or
(b) a member of the staff of the ACMA appointed under section 205ZE.
broadcasting service means a service that delivers television programs or radio programs to persons having equipment appropriate for receiving that service, whether the delivery uses the radiofrequency spectrum, cable, optical fibre, satellite or any other means or a combination of those means, but does not include:
(a) a service (including a teletext service) that provides no more than data, or no more than text (with or without associated still images); or
(b) a service that makes programs available on demand on a point‑to‑point basis, including a dial‑up service; or
(c) a service, or a class of services, that the Minister determines, under subsection (2), not to fall within this definition.
broadcasting services bands means:
(a) that part of the radiofrequency spectrum that is designated under subsection 31(1) of the Radiocommunications Act 1992 as being primarily for broadcasting purposes; and
(b) that part of the radiofrequency spectrum that is designated under subsection 31(1A) of the Radiocommunications Act 1992 as being partly for the purpose of digital radio broadcasting services.
broadcasting services bands licence means a commercial television broadcasting licence, a commercial radio broadcasting licence or a community broadcasting licence that uses the broadcasting services bands as a means of delivering broadcasting services.
census count means a census count of the Australian population published by the Australian Statistician.
CER Trade in Services Protocol:
(a) means the Protocol on Trade in Services to the Australia New Zealand Closer Economic Relations Trade Agreement (being that Protocol as in force from time to time); and