If a person believes that a media content service provider to whom section 146W applies has breached the civil penalty provision in subsection (2) of that section, the person may make a complaint to the ACMA about the matter.
Note: Section 146W deals with anti‑siphoning restrictions in relation to persons who provide media content services, other than commercial television broadcasting licensees and national broadcasters.
149B Investigation of complaints by the ACMA
The ACMA may investigate the complaint if the ACMA thinks that it is desirable to do so.
Division 2—Complaints relating to national broadcasting services or datacasting services provided by the ABC or SBS
150 Complaints relating to national broadcasting services or datacasting services provided by the ABC or SBS
(1) If:
(a) a person has made a complaint to the Australian Broadcasting Corporation or the Special Broadcasting Service Corporation on the ground that the Corporation has, in providing a national broadcasting service or a datacasting service, acted contrary to a code of practice developed by the Corporation and notified to the ACMA; and
(b) either:
(i) the person has not received a response within 60 days after making the complaint; or
(ii) the person has received a response within that period but considers that response to be inadequate;
the person may make a complaint to the ACMA about the matter.
(2) If:
(a) a person has made a complaint to the Australian Broadcasting Corporation or the Special Broadcasting Service Corporation on the ground that the Corporation has breached Part 9D (which deals with captioning); and
(b) either:
(i) the person has not received a response within 30 days after making the complaint; or
(ii) the person has received a response within that period but considers that response to be inadequate;
the person may make a complaint to the ACMA about the matter.
151 Investigation of complaints relating to the ABC or SBS by the ACMA
The ACMA may investigate the complaint if the ACMA thinks that it is desirable to do so.
152 Action by ACMA where complaint justified
(1) If, having investigated a complaint, the ACMA is satisfied that:
(a) the complaint was justified; and
(b) the ACMA should take action under this section to encourage the Australian Broadcasting Corporation or the Special Broadcasting Service Corporation to comply with the relevant code of practice;
the ACMA may, by notice in writing given to the Australian Broadcasting Corporation or the Special Broadcasting Service Corporation, recommend that it take action to comply with the relevant code of practice and take such other action in relation to the complaint as is specified in the notice.
(2) That other action may include broadcasting or otherwise publishing an apology or retraction.
153 ACMA may report to Minister on results of recommendation
(1) If:
(a) the ACMA has made a recommendation to the Australian Broadcasting Corporation or the Special Broadcasting Service Corporation under section 152; and
(b) the Australian Broadcasting Corporation or the Special Broadcasting Service Corporation, as the case may be, does not, within 30 days after the recommendation was given, take action that the ACMA considers to be appropriate;
the ACMA may give the Minister a written report on the matter.
(2) The Minister must cause a copy of the report to be laid before each House of the Parliament within 7 sitting days of that House after the day on which he or she received the report.
Part 13—Information gathering by the ACMA
Division 1—Introduction
168 Obtaining of information by the ACMA
(1) In informing itself on any matter relevant to its broadcasting, content and datacasting functions (as defined in the Australian Communications and Media Authority Act 2005), the ACMA:
(a) may consult with such persons, bodies and groups as it thinks fit, and may form consultative committees for that purpose; and
(b) may conduct investigations and hold hearings; and
(c) may otherwise inform itself in any manner it thinks fit.
(2) Subject to any directions by the Minister under this Part, the procedure that the ACMA adopts in informing itself on any matter relevant to those functions is to be that which the ACMA considers:
(a) will be the quickest and most economical in the circumstances; and
(b) will also promote the due administration of this Act.
169 Decision‑making by the ACMA not limited to matters discovered by investigation or hearing
In making a decision on any matter relating to the functions referred to in subsection 168(1), the ACMA is not limited to a consideration of material made available through an investigation or hearing conducted in relation to the matter, but may take into account such other matters as it considers relevant, including the knowledge and experience of the members.
Division 2—Investigations
170 Investigations by the ACMA
The ACMA may conduct investigations for the purposes of the performance or exercise of any of its broadcasting, content and datacasting functions (as defined in the Australian Communications and Media Authority Act 2005) and related powers.
171 Minister may direct ACMA to conduct an investigation
(1) The Minister may direct the ACMA in writing to investigate any matter with respect to which the Parliament is given power to make laws by paragraph 51(v) of the Constitution.
(2) Without limiting subsection (1), the Minister may direct the ACMA to investigate:
(a) any matter that the Minister is satisfied should be investigated in the interests of the due administration of this Act; or
(b) any matter relating to the future regulation or operation of a carriage service or a content service.
(3) In this section:
carriage service has the same meaning as in the Telecommunications Act 1997.
content service has the same meaning as in the Telecommunications Act 1997.
172 ACMA may call for written submissions from the public
The ACMA may, in conducting an investigation, call for written submissions from members of the public.
173 Notice requiring appearance for examination
For the purposes of an investigation by the ACMA, the ACMA may give a notice in writing to a person summoning the person:
(a) to attend before a delegate of the ACMA named in the notice to produce documents or to answer questions; or
(b) to provide documents or other information to the ACMA;
relevant to the subject matter of the investigation.
174 Examination on oath or affirmation
Investigation by the ACMA
(1) If a person is summoned to attend before a delegate of the ACMA, the delegate may examine that person on oath or affirmation and, for that purpose:
(a) may require the person to take an oath or make an affirmation; and
(b) may administer an oath or affirmation to the person.
(2) The oath or affirmation is to be an oath or affirmation that the statements the person will make will be true to the best of the person’s knowledge or belief.
(3) The delegate may require the person to answer a question that is put to the person at an examination and that is relevant to a matter that the ACMA is investigating or is to investigate.
175 Examination to take place in private
The examination of a person for the purposes of an investigation must be conducted in private, but the person is entitled to have an adviser present at the examination.
176 Record to be made of examination
Investigation by the ACMA
(1) If a person is examined by a delegate of the ACMA, a record must be made of the examination and the person is entitled to be given a written copy of the record.
(2) If the record of the examination of a person is made in electronic form, the person is, if the person so requests, to be given a copy of the record in that form.
177 Production of documents for inspection
The ACMA may, by notice in writing given to a person, require the person:
(a) to make available for inspection by a member of the staff of the ACMA any documents in the possession of the person that may contain information relevant to the subject matter of an investigation by the ACMA; and
(b) to permit that member to make copies of any such documents.
178 Report on investigation
(1) The ACMA may prepare a report on an investigation, and must prepare a report on an investigation conducted at the direction of the Minister and give a copy of each report conducted at the direction of the Minister to the Minister.
(2) If a report on an investigation relates to conduct that could constitute an offence under this Act or another law of the Commonwealth, the ACMA may give a copy of the report or of a part of the report to the Director of Public Prosecutions.
179 Publication of report
(1) Except in the case of a report prepared as a result of an investigation directed by the Minister, the ACMA may cause a copy of a report on an investigation to be published.
(2) The Minister may direct the ACMA to publish a report on an investigation directed by the Minister.
(3) The ACMA is not required to publish, or to disclose to a person to whose affairs it relates, a report or part of a report if the publication or disclosure would:
(a) disclose matter of a confidential character; or
(b) be likely to prejudice the fair trial of a person.
180 Person adversely affected by report to be given opportunity to comment
If publication of matter in a report or part of a report would or would be likely to adversely affect the interests of a person, the ACMA must not publish the report or the part of the report until it has given the person a reasonable period, not exceeding 30 days, to make representations, either orally or in writing, in relation to the matter.
Division 3—Hearings
182 Power to hold hearings
The ACMA may hold hearings for the purposes of the performance or exercise of any of its broadcasting, content and datacasting functions (as defined in the Australian Communications and Media Authority Act 2005) and related powers.
183 Minister may direct ACMA to hold a hearing
If the Minister is satisfied that the ACMA should, in the interests of the due administration of this Act, hold a hearing in relation to any matter, the Minister may direct the ACMA in writing to hold a hearing in relation to the matter.
184 Procedure for conduct of hearings
(1) Subject to this Division, the procedure for the conduct of a hearing is within the discretion of the ACMA.
(2) The ACMA may give directions, either generally or in relation to a particular case, for the procedures to be followed in relation to the conduct of hearings.
185 ACMA may direct holding of conference
(1) The ACMA may, at any stage of a hearing, direct persons participating or seeking to participate in the hearing to attend a conference before a member of the ACMA or a member of the staff of the ACMA for the purpose of:
(a) discussing matters relevant to the hearing; or
(b) clarifying any of the matters to be dealt with by the hearing; or
(c) resolving any differences between the persons participating in the hearing.
(2) If a person who is directed to participate in a conference in relation to a hearing fails, without reasonable excuse, to attend the conference, the person may be excluded from participation or further participation in the hearing.
186 Hearings to be informal, quick and economical
(1) A hearing is to be conducted:
(a) with as little technicality and formality; and
(b) as quickly and economically;
as the requirements of this Act and a proper consideration of the matters before the ACMA permit.
(2) In holding a hearing, the ACMA is not bound by the rules of evidence.
187 Hearings to be in public except in exceptional cases
(1) Subject to subsection (2), a hearing conducted by the ACMA must take place in public.
(2) A hearing or a part of a hearing may be conducted in private if:
(a) evidence that may be given, or a matter that may arise, during the hearing or the part of the hearing is of a confidential nature; or
(b) the ACMA is satisfied that hearing a matter or part of a matter in public would not be conducive to the due administration of this Act.
188 Public notice of hearings
If the ACMA is to conduct a hearing in public, the ACMA must give reasonable public notice of the conduct of the hearing.
189 Confidential material not to be published
If a hearing or part of a hearing takes place in public, the ACMA may order that evidence or other material presented to the hearing, or material in a submission lodged with the ACMA under section 196, that is, in the opinion of the ACMA, of a confidential nature not be published, or that its disclosure be restricted as directed by the ACMA.
190 Directions as to private hearings
If a hearing or part of a hearing takes place in private, the ACMA:
(a) must give directions as to the persons who may be present at the hearing or the part of the hearing; and
(b) may give directions restricting the disclosure of evidence or other material presented at the hearing or the part of the hearing.
191 Constitution of ACMA for conduct of hearings
The ACMA is to be constituted for the purposes of a hearing by a panel consisting of such members as the Chair directs.
192 Presiding member
A panel conducting a hearing is to be presided over by the Chair or, if the Chair is not a member of the panel, by such member of the panel as the Chair directs.
193 Reconstitution of hearing panel
(1) If, during the course of a hearing:
(a) it appears to the Chair that, because of the importance of the matters in issue the panel conducting a hearing should be reconstituted by the addition to that panel of one or more additional members; or
(b) a member of the panel conducting the hearing is unable to continue with the hearing;
the Chair may direct that the panel be reconstituted.
(2) All proceedings in the hearing that have taken place before the reconstitution of the panel are, unless the panel as reconstituted otherwise directs, to be taken to have taken place before the reconstituted panel.
194 Exercise of powers in relation to conduct of hearing
The powers of the ACMA in relation to the conduct of a particular hearing may be exercised:
(a) by the panel conducting that hearing; or
(b) by the Chair; or
(c) by a member of the ACMA authorised by the Chair to exercise those powers in relation to the hearing.
195 Summons to give evidence or produce documents
(1) The member presiding at a hearing may:
(a) by notice in writing given to a person, summon that person to appear before the ACMA as constituted for the purposes of the hearing to give evidence in relation to the subject matter of the hearing or to produce to the ACMA such documents as are specified in the notice, or to do both; or
(b) require a person appearing to give evidence either to take an oath or to make an affirmation; or
(c) administer an oath or affirmation to a person so appearing.
(2) The oath or affirmation to be taken or made by a person is an oath or affirmation that the evidence the person will give will be true.
196 Written submissions may be made to hearing
A person may lodge with the ACMA any submissions in writing that the person wishes the ACMA to take into account in relation to the subject matter of the hearing.
197 Evidence and submissions to be taken into account by ACMA
The ACMA must take into account:
(a) evidence given, or a submission made, to it at a hearing; or
(b) a submission lodged with it in relation to the hearing;
in making a decision on a matter to which the evidence or submission relates.
198 Representation at hearings
(1) A person who wishes to participate in a hearing may be represented at the hearing by another person.
(2) As far as practicable, the ACMA is to ensure that a person is not at a disadvantage at a hearing because that person is not represented by another person.
199 Reports on hearings
(1) If the ACMA has completed a hearing, the ACMA must prepare and publish a report setting out its findings as a result of the hearing.
(2) If the hearing was conducted at the direction of the Minister, the ACMA must give a copy of the report to the Minister.
(3) The ACMA is not required to include in a report any material:
(a) that is of a confidential nature; or
(b) the disclosure of which is likely to prejudice the fair trial of a person; or
(c) that is the subject of an order or direction under section 189 or 190.
Division 4—General
200 Protection of members and persons giving evidence
(1) A person who is a member of the panel conducting a hearing has in the performance of his or her duties as a member of the panel the same protection and immunity as a Justice of the High Court.
(2) A lawyer appearing before the ACMA at a hearing as the representative of another person has the same protection and immunity as a barrister has in appearing for a party in proceedings in the High Court.
(3) A person who is summoned to appear at a hearing, or a person who gives evidence or produces documents at an investigation by the ACMA or a hearing, has the same protection as a witness in a proceeding in the High Court.
201 Protection of panel conducting hearing
A person must not:
(a) obstruct a member of a panel conducting a hearing; or
(b) disrupt a hearing; or
(c) do any other act or thing that would, if the hearing were a proceeding in the High Court, constitute a contempt in the face of that Court.
Penalty: Imprisonment for one year.
202 Non‑compliance with requirement to give evidence
(1) A person required to give evidence or to produce documents at a hearing must not:
(a) fail to attend as required by the notice; or
(b) fail to appear and report from day to day unless excused or released from further attendance.
Penalty: Imprisonment for one year.
(1A) A person required to give evidence or to produce documents at a hearing must not: