(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).
Determination has effect
(5) A determination under subsection (3) or (4) has effect accordingly.
Determination is not a legislative instrument
(6) A determination under subsection (3) or (4) is not a legislative instrument.
The ACMA must publish determination
(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).
Determination has effect
(4) A determination under subsection (2) or (3) has effect accordingly.
Determination is not a legislative instrument
(5) A determination under subsection (2) or (3) is not a legislative instrument.
The ACMA must publish determination
(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
(b) either:
(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.
Determination has effect
(8) A determination under subsection (4), (5), (6) or (7) has effect accordingly.
Determination is not a legislative instrument
(9) A determination under subsection (4), (5), (6) or (7) is not a legislative instrument.
The ACMA must publish determination
(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.
Determination has effect
(7) A determination under this section has effect accordingly.
Determination is not a legislative instrument
(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.
Determination has effect
(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.
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.
(6) If:
(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;