decide that this subsection applies to the company.
(2) In deciding whether such a risk exists, the ACMA is to take into account:
(a) the business record of the company; and
(b) the company’s record in situations requiring trust and candour; and
(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
(d) the record in situations requiring trust and candour of each such person; 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
(f) whether a civil penalty order has been made against:
(i) the company; or
(ii) a person referred to in paragraph (c) or (d).
121FD Australia’s national interest
Direction not to allocate licence
(1) If:
(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
(2) If:
(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.
Penalty: 20,000 penalty units.
(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.
(4) Subsection (3) is a civil penalty provision.
(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
(1) A person commits an offence if:
(a) the person has been given a notice under section 121FH; and
(b) the person engages in conduct; and
(c) the person’s conduct contravenes a requirement in the notice.
Penalty: 20,000 penalty units.
(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) In this section:
engage in conduct means:
(a) do an act; or
(b) omit to perform an act.
121FHB Breach of remedial direction—civil penalty provision
(1) A person must comply with a notice under section 121FH.
(2) Subsection (1) is a civil penalty provision.
(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
(1) A person commits an offence if:
(a) the person is an international broadcasting licensee; and
(b) the person engages in conduct; and
(c) the person’s conduct breaches a condition of the licence.
Penalty: 2,000 penalty units.
(2) In this section:
engage in conduct means:
(a) do an act; or
(b) omit to perform an act.
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.
(2) Subsection (1) is a civil penalty provision.
(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
(1) A person commits an offence if:
(a) the person has been given a notice under section 121FJB; and
(b) the person engages in conduct; and
(c) the person’s conduct contravenes a requirement in the notice.
Penalty: 2,000 penalty units.
(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) In this section:
engage in conduct means:
(a) do an act; or
(b) omit to perform an act.
121FJD Breach of remedial direction—civil penalty provision
(1) A person must comply with a notice under section 121FJB.
(2) Subsection (1) is a civil penalty provision.
(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
(1) If:
(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:
(a) written notice of its intention; and
(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
(1) If:
(a) an international broadcasting service is provided under an international broadcasting licence; and
(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
(3) If:
(a) an international broadcasting service is provided under an international broadcasting licence; and
(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
(5) If:
(a) an international broadcasting service is provided under an international broadcasting licence; and
(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;
the ACMA must 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:
(a) either:
(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
(b) the content provider.
(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
(b) the content provider.
(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;
then:
(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