(2) If the operation of this Act (other than section 43AA, section 43AB or section 43AC) would result in the acquisition of property from a person otherwise than on just terms, the Commonwealth is liable to pay compensation of a reasonable amount to the person in respect of the acquisition.
(3) If the Commonwealth and the person do not agree on the amount of the compensation, the person may institute proceedings in the Federal Court of Australia for the recovery from the Commonwealth of such reasonable amount of compensation as the Court determines.
Division 2—Conditions of subscription television broadcasting licence
99 Conditions applicable to subscription television broadcasting licence
(1) The conditions set out in Part 6 of Schedule 2 apply to the provision by a subscription television broadcasting licensee of a subscription television broadcasting service.
(2) The ACMA may, by notice in writing given to a subscription television broadcasting licensee, specify additional conditions to which the licence is subject or vary or revoke a condition imposed under this subsection.
(4) If the ACMA proposes to impose a new condition or to vary or revoke a condition, the ACMA must:
(a) give to the licensee written notice of its intention; and
(b) give to the licensee a reasonable opportunity to make representations to the ACMA in relation to the proposed action; and
(c) publish the proposed changes in the Gazette.
(5) This section does not allow the ACMA to vary or revoke a condition set out in Part 6 of Schedule 2.
(6) If the ACMA varies or revokes a condition or imposes a new condition, the ACMA must publish the variation, the fact of the revocation or the new condition, as the case may be, in the Gazette.
(7) Action taken under this section must not be inconsistent with:
(a) determinations and clarifications under section 19; or
(b) conditions set out in Part 6 of Schedule 2.
100 Matters to which conditions may relate
(1) Conditions of a subscription television broadcasting licence must be relevant to subscription television broadcasting services.
(2) Without limiting the range of conditions that may be imposed, the ACMA may impose a condition:
(a) requiring a licensee to comply with a code of practice that is applicable to the licensee; or
(b) designed to ensure that a breach of a condition by a subscription television broadcasting licensee does not recur; or
(c) designed to ensure compliance with the film classification system provided for by the Classification (Publications, Films and Computer Games) Act 1995.
(3) The ACMA must impose conditions on satellite subscription television broadcasting licences:
(a) designed to ensure that the domestic reception equipment used by each satellite subscription television broadcasting licensee is accessible by other satellite broadcasting services; and
(b) designed to ensure that each satellite subscription television broadcasting licensee that has a subscriber management system provides access to that system to other satellite subscription television broadcasting licensees at a fair price.
(4) The Minister may direct the ACMA to impose a condition under this section designed to ensure that subscription television broadcasting licensees adequately involve Australian industry in the provision of services under those licences.
(4A) Conditions under subsection (4) may be different for different classes of licensees.
(5) The ACMA must impose a condition on all subscription television broadcasting licences requiring each licensee to make available, as an option, domestic reception equipment on a rental basis.
(6) The ACMA must impose a condition on all non‑satellite subscription television broadcasting licences requiring that, if a licensee rents domestic reception equipment to a consumer, the rental agreement must allow the consumer to terminate the agreement on giving one month’s written notice to the licensee.
Division 2A—Eligible drama expenditure
Subdivision A—Introduction
103A Simplified outline
The following is a simplified outline of this Division:
• This Division requires subscription television broadcasting licensees to ensure the maintenance of minimum levels of expenditure on new eligible drama programs.
• An eligible drama program is a drama program that is an Australian program, an Australian/New Zealand program, a New Zealand program or an Australian official co‑production.
• If a licensee provides a subscription TV drama service, expenditure on new eligible drama programs for each financial year must be at least 10% of total program expenditure.
• If a channel provider supplies a channel that is televised on a subscription TV drama service, the 10% expenditure requirement is calculated by reference to the expenditure incurred by the channel provider.
• If a channel provider supplies a channel that is televised on a subscription TV drama service and the 10% expenditure requirement is not met for a particular financial year, the shortfall will have to be made up in the next financial year.
• If expenditure on new eligible drama programs for a financial year exceeds the 10% expenditure requirement, the excess expenditure may be carried forward to the next financial year.
• Licensees and channel providers are required to lodge annual returns about their program expenditure.
103B Definitions
In this Division:
acquiring, in relation to a drama program, includes acquiring rights in relation to the program.
Australian Content Standard means:
(a) the Broadcasting Services (Australian Content) Standard 2005 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.
carry‑forward eligible drama expenditure provision means:
(a) subsection 103NA(2); or
(b) subsection 103RA(2); or
(c) subsection 103TA(2); or
(d) subsection 103UA(2); or
(e) subsection 103XA(2); or
(f) subsection 103ZAA(2).
channel means a continuous stream of programs.
channel provider has the meaning given by section 103C.
designated script development expenditure, in relation to a program, means expenditure incurred in developing the screenplay or a script outline for the program, where:
(a) the program is a drama program; and
(b) the expenditure is incurred by a person (the first person) under a contract with another person who is not a director, officer or employee of the first person; and
(c) the writer, or each of the writers, involved in developing the screenplay or script outline is:
(i) a citizen or permanent resident of Australia; or
(ii) a citizen or permanent resident of New Zealand; and
(d) the producer of the program is:
(i) a citizen or permanent resident of Australia; or
(ii) a citizen or permanent resident of New Zealand; and
(e) the expenditure is paid before the commencement of principal photography for the program; and
(f) the expenditure is paid on or after 1 January 2006.
For the purposes of paragraph (d), producer has the same meaning as in the Australian Content Standard.
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;
but does not include:
(g) a program that involves the incidental use of actors; or
(h) advertising or sponsorship matter (whether or not of a commercial kind).
eligible drama program means:
(a) a drama program that is an Australian program (within the meaning of the Australian Content Standard); or
(b) a drama program that is an Australian/New Zealand program (within the meaning of the Australian Content Standard); or
(c) a drama program that is a New Zealand program (within the meaning of the Australian Content Standard); or
(d) a drama program that is an Australian official co‑production (within the meaning of the Australian Content Standard).
expenditure, in relation to a program or program material, means:
(a) expenditure incurred in acquiring the program or program material; or
(b) expenditure incurred in producing the program or program material; or
(c) pre‑production expenditure incurred in relation to the program or program material; or
(d) expenditure incurred by way of the making of an investment in the program or program material;
and includes nil expenditure.
Note: Section 103H sets out a special rule for non‑designated pre‑production expenditure.
financial year means:
(a) the financial year beginning on 1 July 1999; or
(b) a later financial year.
incidental matter means:
(a) advertising or sponsorship matter (whether or not of a commercial kind); or
(b) a program promotion; or
(c) an announcement; or
(d) a hosting; or
(e) any other interstitial program.
licensee means a subscription television broadcasting licensee.
new, in relation to an eligible drama program, has the meaning given by section 103K.
non‑designated pre‑production expenditure means pre‑production expenditure other than designated script development expenditure.
part‑channel provider has the meaning given by section 103D.
part‑pass‑through provider has the meaning given by section 103F.
pass‑through provider has the meaning given by section 103E.
pre‑production expenditure, in relation to a program or program material, means:
(a) expenditure incurred in developing the screenplay or a script outline for the program or program material; or
(b) any other expenditure incurred by way of pre‑production costs for the program or program material.
program material does not include advertising or sponsorship matter (whether or not of a commercial kind).
subscription TV drama service means a subscription television broadcasting service devoted predominantly to drama programs.
103C Channel providers
For the purposes of this Division, a channel provider, in relation to a subscription TV drama service provided by a licensee, is a person who:
(a) packages a channel (which may include programs produced by the person); and
(b) supplies the licensee with the channel; and
(c) carries on a business in Australia, by means of a principal office or of a branch, that involves the supply of the channel;
where, apart from any breaks for the purposes of the transmission of incidental matter, the channel is televised by the licensee on the subscription TV drama service.
103D Part‑channel providers
For the purposes of this Division, a part‑channel provider, in relation to a subscription TV drama service provided by a licensee, is a person who:
(a) assembles a package of programs (which may include programs produced by the person); and
(b) supplies the licensee with the package; and
(c) carries on a business in Australia, by means of a principal office or of a branch, that involves the supply of the package;
where:
(d) the package consists predominantly of drama programs; and
(e) the package constitutes a significant proportion of the program material that is televised by the licensee on the subscription TV drama service; and
(f) there is neither:
(i) a channel provider; nor
(ii) a pass‑through provider;
in relation to the subscription TV drama service.
103E Pass‑through providers
For the purposes of this Division, a pass‑through provider, in relation to a subscription TV drama service provided by a licensee, is a person who:
(a) packages a channel (which may include programs produced by the person); and
(b) supplies the licensee with the channel; and
(c) does not carry on a business in Australia, by means of a principal office or of a branch, that involves the supply of the channel;
where, apart from any breaks for the purposes of the transmission of incidental matter, the channel is televised by the licensee on the subscription TV drama service.
103F Part‑pass‑through providers
For the purposes of this Division, a part‑pass‑through provider, in relation to a subscription TV drama service provided by a licensee, is a person who:
(a) assembles a package of programs (which may include programs produced by the person); and
(b) supplies the licensee with the package; and
(c) does not carry on a business in Australia, by means of a principal office or of a branch, that involves the supply of the package;
where:
(d) the package consists predominantly of drama programs; and
(e) the package constitutes a significant proportion of the program material that is televised by the licensee on the subscription TV drama service; and
(f) there is neither:
(i) a channel provider; nor
(ii) a pass‑through provider;
in relation to the subscription TV drama service.
103G Supply of channel or package
For the purposes of this Division, a person is taken to have supplied a channel, or a package of programs, to a licensee if the channel or package, as the case may be, is supplied to the licensee by the person:
(a) directly; or
(b) indirectly through one or more interposed persons.
103H Non‑designated pre‑production expenditure not to be counted unless principal photography has commenced
For the purposes of this Division, non‑designated pre‑production expenditure is not to be counted unless principal photography has commenced for the program or program material concerned.
103J Cash‑based accounting—when expenditure is incurred
(1) For the purposes of this Division:
(a) if the whole of an item of expenditure (other than non‑designated pre‑production 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 (other than non‑designated pre‑production expenditure) are paid at different times—each part is incurred when the part is paid.
(2) For the purposes of this Division:
(a) if the whole of an item of non‑designated pre‑production expenditure is paid at a particular time—the expenditure is incurred at whichever is the later of the following times:
(i) the time when the expenditure is paid;
(ii) the commencement of principal photography for the program or program material concerned; and
(b) if different parts of an item of non‑designated pre‑production expenditure are paid at different times—each part is incurred at whichever is the later of the following times:
(i) the time when the part is paid;
(ii) the commencement of principal photography for the program or program material concerned.
103JA When designated script development expenditure is incurred in relation to an eligible drama program etc.
(1) If:
(a) during a financial year, a person incurs designated script development expenditure in relation to a drama program; and
(b) principal photography did not commence for the program before the end of the financial year;
this Division has effect, in relation to that expenditure, as if the drama program were an eligible drama program.
Recoupment of expenditure incurred by a person—program is not produced as an eligible drama program
(2) If:
(a) during a financial year (the first financial year), a person incurred designated script development expenditure in relation to a drama program; and
(b) principal photography did not commence for the program before the end of the first financial year; and
(c) principal photography commences for the program during a later financial year; and
(d) when principal photography commences for the program, the drama program is not an eligible drama program; and
(e) the person nominated the whole or a part of the designated script development expenditure for the purposes of the application of a particular provision of this Division in relation to a subscription TV drama service;
then, for the purposes of the application of this Division to the subscription TV drama service, the total expenditure incurred by the person during the later financial year on new eligible drama programs is taken to be reduced (but not below zero) by the amount of the whole or the part, as the case may be, of the expenditure referred to in paragraph (e).
Recoupment of expenditure incurred by a pass‑through provider—program is not produced as an eligible drama program
(3) If:
(a) during a financial year (the first financial year), a person incurred designated script development expenditure in relation to a drama program; and
(b) the person is a pass‑through provider in relation to a subscription TV drama service because the person supplies a channel; and
(c) principal photography did not commence for the program before the end of the first financial year; and
(d) principal photography commences for the program during a later financial year; and
(e) when principal photography commences for the program, the drama program is not an eligible drama program; and
(f) the licensee who provided the subscription TV drama service nominated the whole or a part of the designated script development expenditure for the purposes of the application of a particular provision of this Division in relation to the subscription TV drama service;