that qualifying expenditure amount, to the extent that it has not been used to acquit an expenditure requirement, is the carried‑over expenditure amount of the service for the relevant year.
(7) A carried‑over expenditure amount for an SVOD reporting year (the expenditure year) cannot be used to acquit an expenditure requirement for an SVOD reporting year that is more than 2 SVOD reporting years after the expenditure year.
121FZJ Civil penalty for failure to acquit expenditure requirement
(1) A provider of an online content service that is a regulated SVOD service for an SVOD reporting year (the current year) contravenes this subsection if, at the end of the current year (and after applying section 121FZI for the current year), the service has:
(a) a carried‑over expenditure requirement, that has not been wholly acquitted, for one SVOD reporting year that is 2 or more SVOD reporting years before the current year; or
(b) carried‑over expenditure requirements, that have not been wholly acquitted, for 2 or more SVOD reporting years that are each 2 or more SVOD reporting years before the current year.
(2) Subsection (1) is a civil penalty provision.
Civil penalty order does not affect acquittal obligation, or prevent further civil penalty orders
(3) To avoid doubt, the making of a civil penalty order against a person in relation to a contravention of subsection (1) (or a contravention of section 205E that relates to a contravention of subsection (1) of this section) that relates to an online content service’s carried‑over expenditure requirement for a particular SVOD reporting year:
(a) does not relieve the service of the obligation to acquit that carried‑over expenditure requirement; and
(b) does not prevent a civil penalty order being made against the person in respect of another contravention of subsection (1) (or section 205E) that:
(i) occurs at the end of an SVOD reporting year other than the current year; and
(ii) relates to the same carried‑over expenditure requirement; and
(c) if the service’s Australian content expenditure requirement for the SVOD reporting year to which the carried‑over expenditure requirement relates is taken into account under subparagraph 205F(5AAB)(c)(ii) and subsection 205F(5AAC) in determining the pecuniary penalty payable by a person—does not prevent that Australian content expenditure requirement being taken into account in relation to another contravention of subsection (1) of this section (or section 205E) by any person.
Subdivision B—Working out expenditure amounts and requirements
121FZK Meaning of qualifying expenditure amount
(1) For the purposes of this Part, an online content service’s qualifying expenditure amount for an SVOD reporting year (the relevant year) is the total expenditure incurred by the provider or providers of the service during the relevant year on programs that:
(a) are eligible Australian programs; and
(b) were:
(i) commissioned as mentioned in subsection (3); or
(ii) acquired by the provider or providers; and
(c) were not made available to the public in Australia, other than by being shown in a cinema, at any time before the expenditure was incurred.
(2) For the purposes of subsection (1), if the service has more than one provider, disregard any payments between the providers of the service.
(3) For the purposes of subparagraph (1)(b)(i), a program was commissioned if one or more of the providers of the service:
(a) produced the program; or
(b) made a material financial contribution to the production of the program before the production of the program was completed.
121FZL Meaning of Australian content expenditure requirement
(1) The Australian content expenditure requirement for a major SVOD service for an SVOD reporting year (the relevant year) is an amount equal to 10% of the service’s total program expenditure for Australia for the relevant year.
(2) However, if an election under subsection 121FZM(1) is in effect for the major SVOD service for the relevant year, the service’s Australian content expenditure requirement for the relevant year is instead an amount equal to 7.5% of the revenue derived by the service from Australia in the relevant year.
Note: Revenue derived by a service from Australia may include, for example, revenue derived from:
(a) paying subscribers in Australia; and
(b) advertising to people in Australia.
(3) The Australian content expenditure requirement for a regulated SVOD service that is not a major SVOD service for an SVOD reporting year is nil for that SVOD reporting year.
121FZM Election of revenue method
(1) The provider or providers of a regulated SVOD service may, by written notice to the ACMA, make an election to have subsection 121FZL(2) apply to the service for a period of 3 SVOD reporting years.
(2) The 3‑year period must be:
(a) the 3‑year period beginning on the first day of the first SVOD reporting year for which the service was a regulated SVOD service; or
(b) a 3‑year period beginning on the day after the end of a previous 3‑year period to which this subsection applies.
(3) A notice under subsection (1):
(a) may only be given within the period of 60 days beginning on the first day of the 3‑year period; and
(b) must be given in the form and manner approved, in writing, by the ACMA; and
(c) if the service has more than one provider—must be given jointly by all providers of the service.
(4) Despite subsection (1), the provider or providers may not make an election under that subsection if, at the end of the year (the pre‑election year) immediately preceding the 3‑year period, the service had a carried‑over expenditure requirement, that had not been wholly acquitted, for any SVOD reporting year that is 2 or more SVOD reporting years before the pre‑election year.
121FZN Meaning of total program expenditure for Australia
(1) For the purposes of this Part, an online content service’s total program expenditure for Australia for an SVOD reporting year (the relevant year) is the total of the expenditure incurred by the provider or providers of the service in the relevant year on eligible programs that are, or are intended to be, provided on the service in Australia.
(2) Without limiting subsection (1), the service’s total program expenditure for Australia for the relevant year includes expenditure incurred by the provider or providers of the service in the relevant year in commissioning or acquiring eligible Australian programs that are, or are intended to be, provided on the service in Australia.
(3) Without limiting subsection (1), the service’s total program expenditure for Australia for the relevant year includes:
(a) expenditure incurred by the provider or providers of the service in the relevant year in licensing eligible programs that are, or are intended to be, provided on the service in Australia; and
(b) other expenditure incurred by the provider or providers of the service in the relevant year in relation to eligible programs (other than eligible Australian programs) that are, or are intended to be, provided on the service in Australia, to the extent that the expenditure is reasonably attributable to the provision of the programs on the service in Australia; and
(c) amounts that are not covered by paragraph (a) or (b), but would be amounts of expenditure covered by paragraph (a) or (b) if arrangements under which eligible programs (other than eligible Australian programs) are made available to be provided on the service in Australia were entered into at arm’s length.
Division 3—Reporting and information
Subdivision A—Reporting by providers of regulated SVOD services
121FZO Annual reports
(1) The provider or providers of an online content service that is a regulated SVOD service for an SVOD reporting year (the year of the report) must, within 45 days after the end of the year of the report, prepare and give the ACMA a report relating to:
(a) compliance by the service, and the provider or providers of the service, with this Part during the year of the report; and
(b) the service’s qualifying expenditure amount for the year of the report; and
(c) the service’s total program expenditure for Australia for the year of the report; and
(d) the revenue derived by the service from Australia in the year of the report; and
(e) the number of paying subscribers the service has in Australia; and
(f) acquittal of the service’s expenditure requirements.
(2) A report under subsection (1) must:
(a) be given in the form and manner approved, in writing, by the ACMA; and
(b) set out such information as is required by the form.
121FZP Civil penalty for failure to give annual report
(1) A person contravenes this subsection if:
(a) the person is a provider of an online content service that is a regulated SVOD service for an SVOD reporting year; and
(b) a report under section 121FZO in relation to the service for the SVOD reporting year is not given to the ACMA in accordance with that section.
(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.
Designated infringement notice provision
(4) Subsection (1) is a designated infringement notice provision.
Subdivision B—Notification by providers of certain SVOD services
121FZQ Requirement to notify the ACMA of certain SVOD services
(1) A person must notify the ACMA if, at any time in an SVOD reporting year:
(a) the person is a provider of an SVOD service; and
(b) the service has at least 250,000 paying subscribers in Australia; and
(c) the service is not an excluded service for the SVOD reporting year.
(2) A notification under subsection (1):
(a) must be given before the end of 60 days after the first day on which all of paragraphs (1)(a), (b) and (c) apply; and
(b) must be given in the form and manner approved, in writing, by the ACMA; and
(c) must include the name of the service; and
(d) must include:
(i) the name of the person; and
(ii) if the person has an ABN—the person’s ABN; and
(iii) if the person has a principal office in Australia—the address of that principal office; and
(e) must include any other information required by the form in relation to the service, the providers of the service or other bodies corporate related to the providers of the service.
(3) If the service has more than one provider, the requirement for each provider to give a notification under subsection (1) is satisfied if any of the providers gives an equivalent notification.
(4) A form approved under paragraph (2)(b) for a notification under subsection (1) may provide for verification by statutory declaration of information included in the notification.
121FZR Further notifications if circumstances change etc.
(1) A person must notify the ACMA if, at any time in an SVOD reporting year (the notification year):
(a) the person is a provider of an online content service; and
(b) a notifiable circumstance mentioned in subsection (2) or (4) exists in relation to the service.
Notifiable circumstances—changes in SVOD service etc.
(2) For the purposes of paragraph (1)(b), if the online content service:
(a) is an SVOD service; and
(b) has at least 250,000 paying subscribers in Australia; and
(c) is not an excluded service for the notification year;
each of the following is a notifiable circumstance in relation to the service:
(d) a person starts or stops being a provider of the service (other than as a result of a determination by the ACMA under subsection 121FZC(4), (5), (6) or (7));
(e) information previously notified to the ACMA in relation to the service under section 121FZQ or this section is no longer correct, or no longer complete;
(f) the service is a major SVOD service for the notification year, but was not a major SVOD service for the immediately preceding SVOD reporting year;
(g) the service is not a major SVOD service for the notification year, but was a major SVOD service for the immediately preceding SVOD reporting year;
(h) any other circumstance specified by the ACMA under subsection (3).
(3) For the purposes of paragraph (2)(h), the ACMA may, by legislative instrument, determine that specified circumstances are notifiable circumstances in relation to online content services to which subsection (2) applies.
Notifiable circumstances—online content service ceases to be covered by other notification requirements
(4) For the purposes of paragraph (1)(b), if the online content service has, at any time in an SVOD reporting year, been an SVOD service that:
(a) had at least 250,000 paying subscribers in Australia; and
(b) was not an excluded service for that SVOD reporting year;
but ceases to be such an SVOD service, that cessation is a notifiable circumstance in relation to the service.
Requirements for notification
(5) A notification under subsection (1):
(a) must be given before the end of 60 days after the notifiable circumstance began to exist; and
(b) must be given in the form and manner approved, in writing, by the ACMA; and
(c) must include the name of the service; and
(d) must include any other information required by the form in relation to the notifiable circumstance.
(6) If the service has more than one provider, the requirement for each provider to give a notification under subsection (1) is satisfied if any of the providers gives an equivalent notification.
(7) A form approved under paragraph (5)(b) for a notification under subsection (1) may provide for verification by statutory declaration of information included in the notification.
121FZS Penalty for failing to notify the ACMA
(1) A person contravenes this section if:
(a) the person is a provider of an online content service; and
(b) the person is required to give the ACMA a notification under subsection 121FZQ(1) or 121FZR(1); and
(c) the person does not comply with the requirement in accordance with subsection 121FZQ(2) or 121FZR(5), as the case requires; and
(d) if the service has more than one provider—no other provider gives the ACMA an equivalent notification.
(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.
(4) Subsection (1) is a designated infringement notice provision.
Subdivision C—Information‑gathering
121FZT The ACMA may obtain information and documents
Scope
(1) This section applies to a person who is a provider of an SVOD service if the ACMA has reason to believe that the person has information or a document that is relevant to the operation of this Part.
The ACMA may require information or documents
(2) The ACMA may, by written notice given to the person, require the person to do any of the following:
(a) to give to the ACMA, within the period and in the manner and form specified in the notice, any such information;
(b) to produce to the ACMA, within the period and in the manner specified in the notice, any such documents;
(c) to make copies of any such documents and to produce to the ACMA, within the period and in the manner specified in the notice, those copies.
(3) A person must comply with a requirement under subsection (2).
Civil penalty provision
(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.
Designated infringement notice provision
(6) Subsection (3) is a designated infringement notice provision.
Requirements for notice
(7) A period specified under paragraph (2)(a), (b) or (c) must not be shorter than 14 days after the notice is given.
121FZU Copies of documents
(1) The ACMA may inspect a document or copy produced under section 121FZT and may make and retain copies of, or take and retain extracts from, such a document.
(2) The ACMA may retain possession of a copy of a document produced in accordance with a requirement covered by paragraph 121FZT(2)(c).
Division 4—Miscellaneous
121FZV Expenditure and revenue to be expressed in Australian currency
(1) For the purposes of this Part, expenditure and revenue are to be expressed in Australian currency.
(2) For the purposes of this Part, if expenditure is incurred or revenue is derived otherwise than in Australian currency, the expenditure or revenue is to be expressed in Australian currency at a rate equal to the average, over the SVOD reporting year in which the expenditure is incurred or the revenue is derived, of the exchange rate that is applicable to the expenditure or revenue.
121FZW Anti‑avoidance—transactions between persons not at arm’s length
(1) If:
(a) a person has incurred expenditure in connection with a transaction where the parties to the transaction are not dealing with each other at arm’s length in relation to the transaction; and
(b) apart from this section, the expenditure is counted for the purposes of the application of this Part; and
(c) the amount of the expenditure is greater or less than is reasonable;
the ACMA may, by writing, determine that the amount of the expenditure is taken, for the purposes of the application of this Part in relation to the parties to the transaction, to be the amount that would have been reasonable if the parties were dealing with each other at arm’s length.
Determination has effect
(2) A determination under subsection (1) has effect accordingly.
Determination is not a legislative instrument
(3) A determination under subsection (1) is not a legislative instrument.