(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
(1) A person commits an offence if:
(a) the person is the holder of a nominated broadcaster declaration; and
(b) the person engages in conduct; and
(c) the person’s conduct breaches a condition of the declaration.
Penalty: 2,000 penalty units.
(2) In this section:
engage in conduct means:
(a) do an act; or
(b) omit to perform an act.
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
(b) either:
(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
(b) the content provider.
(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
(1) If:
(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;
the ACMA must cancel the licence.
(2) If:
(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;
the ACMA must cancel the licence.
(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:
(a) written notice of its intention; and
(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.
(3) The Register is to be made available for inspection on the internet.
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.
Division 6—Miscellaneous
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
(1) If:
(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
(b) both:
(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
Division 1—Introduction
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
In this Part:
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;
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).
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.
online content service has the same meaning as in Schedule 8.
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;