Note: Section 42 (disallowance) and Part 4 of Chapter 3 (sunsetting) of the Legislation Act 2003 do not apply to the direction (see regulations made for the purposes of paragraphs 44(2)(b) and 54(2)(b) of that Act).
(8) The ACMA must comply with a direction under subsection (7).
(9) The ACMA must not determine a standard under subsection (1) that has the effect of quantitatively extending the requirements imposed by subsection 121G(1) or (2).
(10) If:
(a) a standard under subsection (1) imposes a quantitative requirement in relation to a particular kind of program transmitted by a commercial television broadcasting licensee; and
(b) the requirement does not substantially correspond to subsection 121G(1) or (2); and
(c) a program of that kind is transmitted on a commercial television broadcasting service provided by the licensee;
the transmission of the program counts for the purposes of meeting the requirement.
Note: The following are examples of a kind of program:
(a) an Australian drama program (within the meaning of the Broadcasting Services (Australian Content) Standard 2005);
(b) a C program (within the meaning of the Children’s Television Standards 2009);
(c) a P program (within the meaning of the Children’s Television Standards 2009).
(11) If a commercial television broadcasting licence is or was allocated under subsection 40(1) on or after 1 January 2007, standards under subsection (1) of this section do not apply to the licensee during:
(a) the calendar year in which the licence is or was allocated; and
(b) any of the next 4 calendar years.
(12) For the purposes of this section, in determining whether a requirement substantially corresponds to subsection 121G(1) or (2), disregard any differences as to:
(a) percentage; or
(b) viewing hours.
123 Development of codes of practice
(1) It is the intention of the Parliament that radio and television industry groups representing:
(a) commercial broadcasting licensees; and
(b) community broadcasting licensees other than providers of services targeted, to a significant extent, to one or more remote Indigenous communities; and
(ba) community broadcasting licensees whose services are targeted, to a significant extent, to one or more remote Indigenous communities; and
(c) providers of subscription broadcasting services; and
(d) providers of subscription narrowcasting services; and
(e) providers of open narrowcasting services;
develop, in consultation with the ACMA and taking account of any relevant research conducted by the ACMA, codes of practice that are to be applicable to the broadcasting operations of each of those sections of the industry.
(1A) For the purposes of a code of practice developed under this section, the licensee who holds the apparatus licence mentioned in subsection 103(2A) of the Radiocommunications Act 1992 is taken to be:
(a) part of the section of the industry referred to in paragraph (1)(b); and
(b) not part of the section of the industry referred to in paragraph (1)(e).
(2) Codes of practice developed for a section of the broadcasting industry may relate to:
(a) preventing the broadcasting of programs that, in accordance with community standards, are not suitable to be broadcast by that section of the industry; and
(b) methods of ensuring that the protection of children from exposure to program material which may be harmful to them is a high priority; and
(c) methods of classifying programs that reflect community standards; and
(d) promoting accuracy and fairness in news and current affairs programs; and
(e) preventing the broadcasting of programs that:
(i) simulate news or events in a way that misleads or alarms the audience; or
(ii) depict the actual process of putting a person into a hypnotic state; or
(iii) are designed to induce a hypnotic state in the audience; or
(iv) use or involve the process known as subliminal perception or any other technique that attempts to convey information to the audience by broadcasting messages below or near the threshold of normal awareness; and
(f) in the case of codes of practice developed by commercial broadcasting licensees—broadcasting time devoted to advertising; and
(g) in the case of codes of practice developed by commercial radio broadcasting licensees—the broadcasting of Australian music; and
(h) methods of:
(i) handling complaints from the public about program content or compliance with codes of practice; and
(ii) reporting to the ACMA on complaints so made; and
(i) captioning of programs for the hearing impaired; and
(j) in the case of codes of practice developed by community broadcasting licensees:
(i) the kinds of sponsorship announcements that may be broadcast by those licensees; or
(ii) the kinds of sponsorship announcements that particular kinds of program may carry; and
(k) in the case of codes of practice developed by subscription broadcasting licensees—dealings with customers of the licensees, including methods of billing, fault repair, privacy and credit management; and
(l) such other matters relating to program content as are of concern to the community.
(3) In developing codes of practice relating to matters referred to in paragraphs (2)(a) and (c), community attitudes to the following matters are to be taken into account:
(a) the portrayal in programs of physical and psychological violence;
(b) the portrayal in programs of sexual conduct and nudity;
(c) the use in programs of offensive language;
(d) the portrayal in programs of the use of drugs, including alcohol and tobacco;
(e) the portrayal in programs of matter that is likely to incite or perpetuate hatred against, or vilifies, any person or group on the basis of ethnicity, nationality, race, gender, sexual orientation, age, religion or physical or mental disability;
(f) such other matters relating to program content as are of concern to the community.
(3E) A code of practice referred to in paragraph (2)(i) has no effect to the extent to which it is inconsistent with a standard determined under subsection 130ZZA(1).
(4) If:
(a) a group representing a particular section of the broadcasting industry develops a code of practice to be observed in the conduct of the broadcasting operations of that section of the industry; and
(b) the ACMA is satisfied that:
(i) the code of practice provides appropriate community safeguards for the matters covered by the code; and
(ii) the code is endorsed by a majority of the providers of broadcasting services in that section of the industry; and
(iii) members of the public have been given an adequate opportunity to comment on the code;
the ACMA must include that code in the Register of codes of practice.
(5) To avoid doubt, a reference in this section to broadcasting operations includes a reference to each commercial television broadcasting service provided by a commercial television broadcasting licensee.
(6) To avoid doubt, a reference in this section to broadcasting operations includes a reference to each commercial radio broadcasting service provided by a commercial radio broadcasting licensee.
(7) To avoid doubt, a reference in this section to broadcasting operations includes a reference to each community radio broadcasting service provided by a designated community radio broadcasting licensee.
123B Review by the ACMA—application of code of practice to section 38C licences
Scope
(1) This section applies if:
(a) a code of practice (the original code) is registered under section 123; and
(b) the code applies to the broadcasting operations of commercial television broadcasting licensees.
Review of original code
(2) The ACMA may conduct a review of whether the original code is appropriate in its application to the broadcasting operations of licensees of commercial television broadcasting licences allocated under section 38C.
Request for development of replacement code
(3) If the ACMA:
(a) conducts a review of the original code under subsection (2); and
(b) considers that the original code is not appropriate in its application to the broadcasting operations of licensees of commercial television broadcasting licences allocated under section 38C;
the ACMA may, by written notice given to the industry group that developed the original code:
(c) request the industry group to:
(i) develop another code of practice (the replacement code) that is expressed to replace the original code; and
(ii) give a copy of the replacement code to the ACMA within the period specified in the notice; and
(d) specify particular matters that, in the ACMA’s opinion, should be addressed in the replacement code.
124 ACMA to maintain Register of codes of practice
(1) The ACMA is to maintain a Register in which it includes all codes of practice registered under section 123.
(2) The Register is to be open for public inspection.
(3) The Register may be maintained by electronic means.
125 ACMA may determine program standards where codes of practice fail or where no code of practice developed
(1) If:
(a) the ACMA is satisfied that there is convincing evidence that a code of practice registered under section 123 is not operating to provide appropriate community safeguards for a matter referred to in subsection 123(2) in a particular section of the broadcasting industry; and
(b) the ACMA is satisfied that it should determine a standard in relation to that matter;
the ACMA must, by notice in writing, determine a standard in relation to that matter.
(2) If:
(a) no code of practice has been registered under section 123 for a matter referred to in subsection 123(2) in a particular section of the broadcasting industry; and
(b) the ACMA is satisfied that it should determine a standard in relation to that matter;
the ACMA must, by notice in writing, determine a standard in relation to that matter.
125A ACMA must determine a gambling promotion program standard if directed by the Minister
Ministerial direction
(1) The Minister may, by legislative instrument, give the ACMA a direction to:
(a) determine a gambling promotion program standard that complies with the requirements specified in the direction; and
(b) do so within a period specified in the direction.
(2) The ACMA must comply with a direction under subsection (1).
(3) The ACMA must not determine a gambling promotion program standard unless it does so in accordance with a direction under subsection (1).
Determination of a gambling promotion program standard
(4) The ACMA may, by legislative instrument, determine a standard, to be known as a gambling promotion program standard, prescribing matters required or permitted by this Act to be prescribed by a gambling promotion program standard.
Prohibiting or regulating gambling promotional content
(5) A gambling promotion program standard may make provision for or in relation to prohibiting or regulating the broadcast of gambling promotional content:
(a) on broadcasting services provided by any or all of the following:
(i) commercial television broadcasting licensees;
(ii) commercial radio broadcasting licensees;
(iii) subscription television broadcasting licensees;
(iv) providers of subscription radio narrowcasting services;
(v) providers of subscription television narrowcasting services; and
(b) in conjunction with live coverage of a sporting event.
Note: See also subsection 33(3A) of the Acts Interpretation Act 1901.
Explanatory matter
(6) A gambling promotion program standard may make provision for or in relation to requiring any or all of the following:
(a) commercial television broadcasting licensees;
(b) commercial radio broadcasting licensees;
(c) subscription television broadcasting licensees;
(d) providers of subscription radio narrowcasting services;
(e) providers of subscription television narrowcasting services;
to ensure that, if live coverage of a sporting event is, or is to be, broadcast on a broadcasting service provided by the licensee or provider, explanatory matter that relates to the following is provided by the licensee or provider in a manner specified in the standard:
(f) whether a gambling promotion program standard made for the purposes of subsection (5) applies in relation to that live coverage;
(g) if so, how the gambling promotion program standard applies in relation to that live coverage.
Record‑keeping
(7) A gambling promotion program standard may make provision for or in relation to requiring any or all of the following:
(a) commercial television broadcasting licensees;
(b) commercial radio broadcasting licensees;
(c) subscription television broadcasting licensees;
(d) providers of subscription radio narrowcasting services;
(e) providers of subscription television narrowcasting services;
to ensure that, if live coverage of a sporting event is, or is to be, broadcast on a broadcasting service provided by the licensee or provider, the licensee or provider will:
(f) make records that:
(i) are of a kind or kinds specified in the standard; and
(ii) are sufficient to enable compliance by the licensee or provider with a gambling promotion program standard made for the purposes of subsection (5) or (6) to be readily ascertained; and
(g) retain those records for the period ascertained in accordance with the first‑mentioned standard; and
(h) make those retained records available to the ACMA on request.
Note: See also subsection 33(3A) of the Acts Interpretation Act 1901.
(8) For the purposes of subparagraph (7)(f)(i), each of the following is an example of a kind of record:
(a) a written record;
(b) an audio record;
(c) an audio‑visual record.
Accidental or incidental broadcast of gambling promotional content
(9) A gambling promotion program standard does not apply in relation to the broadcasting of gambling promotional content on a broadcasting service if:
(a) the gambling promotional content is broadcast as an accidental or incidental accompaniment to the broadcasting of other matter; and
(b) the licensee or provider of the broadcasting service does not receive any direct or indirect benefit (whether financial or not) for broadcasting the gambling promotional content (in addition to any direct or indirect benefit that the licensee or provider receives for broadcasting the other matter).
Live coverage of a sporting event
(10) For the purposes of this section, if:
(a) live coverage of a sporting event is broadcast on a broadcasting service; and
(b) there is an unscheduled break in the sporting event;
any matter broadcast on the service during the break is taken to be live coverage of the sporting event.
Gambling promotional content broadcast in conjunction with live coverage of a sporting event
(11) For the purposes of this section, gambling promotional content (other than a commentator betting odds promotion or a representative venue‑based promotion) is broadcast on a broadcasting service in conjunction with live coverage of a sporting event if, and only if, the content is broadcast on the service during the period:
(a) beginning 5 minutes before the scheduled start of the sporting event; and
(b) ending 5 minutes after the conclusion of the sporting event.
(12) However, if coverage of the sporting event is delayed, this section has effect as if there were a corresponding delay to the period mentioned in subsection (11).
(13) For the purposes of this section, gambling promotional content that consists of a commentator betting odds promotion or a representative venue‑based promotion is broadcast on a broadcasting service in conjunction with live coverage of a sporting event if, and only if, the promotion is broadcast on the service during the period:
(a) beginning 30 minutes before the scheduled start of the sporting event; and
(b) ending 30 minutes after the conclusion of the sporting event.
(14) However, if coverage of the sporting event is delayed, this section has effect as if there were a corresponding delay to the period mentioned in subsection (13).
Administrative decisions
(15) A gambling promotion program standard may make provision for or in relation to a particular matter by empowering the ACMA to make decisions of an administrative character.
This section does not limit section 125
(16) This section does not limit the operation of section 125.
Implied freedom of political communication
(17) The provisions of:
(a) this section; and
(b) a gambling promotion program standard;
have no effect to the extent (if any) that their operation would infringe any constitutional doctrine of implied freedom of political communication.
(18) Subsection (17) does not limit the application of section 15A of the Acts Interpretation Act 1901 to this Act.
Acquisition of property
(19) The provisions of:
(a) this section; and
(b) a gambling promotion program standard;
have no effect to the extent (if any) to which their operation would result in an acquisition of property (within the meaning of paragraph 51(xxxi) of the Constitution) from a person otherwise than on just terms (within the meaning of that paragraph).
Sporting event
(20) Subclause 19(1) of Schedule 8 applies in relation to this section in a corresponding way to the way in which it applies in relation to that Schedule.
(21) Online content service provider rules made for the purposes of subclause 19(2) of Schedule 8 apply in relation to this section in a corresponding way to the way in which they apply in relation to that Schedule.
(22) Online content service provider rules made for the purposes of subclause 19(3) of Schedule 8 apply in relation to this section in a corresponding way to the way in which they apply in relation to that Schedule.
Scheduled start of a sporting event
(23) Online content service provider rules made for the purposes of clause 22 of Schedule 8 apply in relation to this section in a corresponding way to the way in which they apply in relation to that Schedule.