(d) any advice given during the financial year to the ACMA by the committee constituted under section 205ZK.
205ZM Short title of amending Act does not limit the powers conferred by this Part
To avoid doubt, the use of the expression “Regional and Small Publishers Innovation” in the short title of the Act that inserted this Part does not limit the powers conferred by this Part.
Part 15—Miscellaneous
206 Broadcasting or datacasting taken to be publication in permanent form
For the purposes of the law of defamation, the broadcasting or datacasting of matter is taken to be publication of the matter in a permanent form.
207 Amounts of fees
Where the Minister or the ACMA may determine a fee under this Act, the amount of the fee so determined must not exceed the amount that the Minister or the ACMA estimates to be costs of processing the application, or doing the thing, to which the fee relates.
209 Prosecutions
(1) An offence against this Act may be prosecuted at any time.
(2) A prosecution for an offence against this Act the maximum penalty for which exceeds 500 penalty units for a natural person may be brought only in the Federal Court.
(3) Subsection (2) does not apply to an offence the maximum penalty for which may include a term of imprisonment.
(4) The Federal Court has jurisdiction to hear and determine matters arising under this Act.
210 Publication of opinions
(1) Subject to subsection (2), if the ACMA gives an opinion under section 21 or 74, the ACMA must cause a copy of the opinion to be published in the Gazette.
(2) The ACMA must not publish such an opinion until:
(a) in the case of an opinion under section 21—the service to which it relates has commenced; or
(b) in the case of an opinion under section 74—the transaction has taken place or the contract, agreement or arrangement has been entered into.
211AA Time when a television program is broadcast—certain terrestrial licence areas
Scope
(1A) This section affects the operation of the following (the affected provisions) in relation to a commercial television broadcasting licence for the Remote Central and Eastern Australia TV1 licence area or the Remote Central and Eastern Australia TV2 licence area:
(a) this Act;
(b) any program standards;
(c) any other instrument under this Act;
(d) any codes of practice registered under section 123.
(1) The licensee of the licence may nominate one or more specified places in the licence area for one or more specified broadcasting services provided under the licence in specified parts of the licence area.
Note: A nomination may specify one place for all parts of the licence area.
(2) The nomination must be expressed to be a nomination under subsection (1).
Withdrawal of nomination
(3) If a nomination is in force under subsection (1), the licensee may, by written notice given to the ACMA, withdraw the nomination.
(4) The withdrawal of a nomination does not prevent the licensee from making a fresh nomination under subsection (1).
Time when a program is broadcast
(5) The affected provisions have effect, in relation to any programs broadcast in a part of the licence area on a service for which part and service a place is nominated under subsection (1), as if the programs had been broadcast in that part on that service at the legal time they were broadcast in that place on that service.
211A Time when a television program is broadcast—South Eastern Australia TV3 and Northern Australia TV3 licence areas
Nomination of place—South Eastern Australia TV3 licence area
(1) The licensee of a commercial television broadcasting licence allocated under section 38C for the South Eastern Australia TV3 licence area may, by written notice given to the ACMA, nominate either or both of the following:
(a) a specified place in:
(i) the South Eastern Australia TV3 licence area; or
(ii) the Northern Australia TV3 licence area;
for the purposes of the HDTV multi‑channelled commercial television broadcasting services provided under the licence;
(b) a specified place in the South Eastern Australia TV3 licence area for the purposes of the SDTV multi‑channelled commercial television broadcasting services provided under the licence.
(2) The nomination must be expressed to be a nomination under subsection (1).
Nomination of place—Northern Australia TV3 licence area
(3) The licensee of a commercial television broadcasting licence allocated under section 38C for the Northern Australia TV3 licence area may, by written notice given to the ACMA, nominate either or both of the following:
(a) a specified place in:
(i) the Northern Australia TV3 licence area; or
(ii) the South Eastern Australia TV3 licence area;
for the purposes of the HDTV multi‑channelled commercial television broadcasting services provided under the licence;
(b) a specified place in the Northern Australia TV3 licence area for the purposes of the SDTV multi‑channelled commercial television broadcasting services provided under the licence.
(4) The nomination must be expressed to be a nomination under subsection (3).
Withdrawal of nomination
(5) If a nomination is in force under subsection (1) or (3), the licensee may, by written notice given to the ACMA, withdraw the nomination.
(6) The withdrawal of a nomination does not prevent the licensee from making a fresh nomination under subsection (1) or (3).
Time when a program is broadcast
(7) If a nomination of a place is in force under paragraph (1)(a) or (3)(a) for the purposes of the HDTV multi‑channelled commercial television broadcasting services provided under a licence, then:
(a) this Act; and
(b) any program standards; and
(c) any other instrument under this Act; and
(d) any codes of practice registered under section 123;
have effect, in relation to any programs broadcast on those services, as if those programs had been broadcast in all parts of the licence area at the time that is legal time in the nominated place.
(8) If a nomination of a place is in force under paragraph (1)(b) or (3)(b) for the purposes of the SDTV multi‑channelled commercial television broadcasting services provided under a licence, then:
(a) this Act; and
(b) any program standards; and
(c) any other instrument under this Act; and
(d) any codes of practice registered under section 123;
have effect, in relation to any programs broadcast on those services, as if those programs had been broadcast in all parts of the licence area at the time that is legal time in the nominated place.
Definitions
(9) In this section:
HDTV multi‑channelled commercial television broadcasting service has the same meaning as in Schedule 4.
SDTV multi‑channelled commercial television broadcasting service has the same meaning as in Schedule 4.
212 Special provisions for re‑transmission of programs
(1) Subject to this section, the regulatory regime established by this Act does not apply to a service that does no more than:
(a) re‑transmit programs that are transmitted by a national broadcasting service; or
(b) re‑transmit programs that are transmitted by a commercial broadcasting licensee or a community broadcasting licensee:
(i) within the licence area of that licence; or
(ii) outside the licence area of that licence in accordance with permission in writing given by the ACMA.
(2) No action, suit or proceeding lies against a person in respect of the re‑transmission by the person of programs as mentioned in subsection (1).
(2A) However, the rule in subsection (2) does not prevent an action, suit or proceeding against a person under the Copyright Act 1968 for infringement of copyright subsisting in a work, a sound recording or a cinematograph film, where:
(a) the infringement is in respect of the re‑transmission by the person of programs as mentioned in subsection (1); and
(b) the re‑transmission is not provided by a self‑help provider.
(2C) The Minister may give the ACMA a written direction about the exercise of the power conferred by subparagraph (1)(b)(ii).
(3) A reference in this section to a re‑transmission does not include a reference to:
(a) a re‑transmission by a commercial television broadcasting licensee of the programs transmitted by any of the licensee’s commercial television broadcasting services; or
(aa) a re‑transmission by a commercial radio broadcasting licensee of the programs transmitted by any of the licensee’s commercial radio broadcasting services; or
(b) a re‑transmission by a community broadcasting licensee (other than a designated community radio broadcasting licensee) of the programs transmitted by the licensee’s community broadcasting service; or
(ba) a re‑transmission by a designated community radio broadcasting licensee of the programs transmitted by any of the licensee’s community radio broadcasting services; or
(c) a re‑transmission by the Australian Broadcasting Corporation of the programs transmitted by any of its national broadcasting services, being national broadcasting services covered by paragraph 13(1)(a); or
(d) a re‑transmission by the Special Broadcasting Service Corporation of the programs transmitted by any of its national broadcasting services.
(4) In this section:
cinematograph film has the same meaning as in the Copyright Act 1968.
self‑help provider has the meaning given by section 212A.
sound recording has the same meaning as in the Copyright Act 1968.
work has the same meaning as in the Copyright Act 1968.
212A Self‑help providers
(1) For the purposes of the application of section 212 to a particular re‑transmission of programs, a self‑help provider is:
(a) one of the following that provides the re‑transmission for the sole or principal purpose of obtaining or improving reception in a small community:
(i) an entity that is registered under the Australian Charities and Not‑for‑profits Commission Act 2012;
(ii) a not‑for‑profit entity that is not an ACNC type of entity; or
(b) a local government body which provides the re‑transmission for the sole or principal purpose of obtaining or improving reception in a community located in the area served by the body; or
(c) a company which operates a mine and/or related infrastructure at an isolated location and which provides the re‑transmission for the sole or principal purpose of obtaining or improving reception in a community:
(i) that is located in the vicinity of the mine or infrastructure, as the case may be; and
(ii) that accommodates the whole or a part of the workforce for the mine or infrastructure, as the case may be; or
(d) a company which operates a petroleum, oil or gas installation and/or related infrastructure at an isolated location and which provides the re‑transmission for the sole or principal purpose of obtaining or improving reception in a community:
(i) that is located in the vicinity of the installation or infrastructure, as the case may be; and
(ii) that accommodates the whole or a part of the workforce for the installation or infrastructure, as the case may be; or
(e) a person who provides the re‑transmission within a building or structure for the sole or principal purpose of obtaining or improving reception for persons in the building or structure, as the case may be; or
(f) a person who provides the re‑transmission within one or more places that are all in the same area (within the meaning of section 36 of the Telecommunications Act 1997) for the sole or principal purpose of obtaining or improving reception for persons in those places; or
(g) a person who is a declared self‑help provider in relation to the re‑transmission;
other than:
(h) a subscription television broadcasting licensee; or
(i) a related body corporate of a subscription television broadcasting licensee; or
(j) a person who is an excluded provider in relation to the re‑transmission.
(2) Nothing in subsection (1) limits the generality of anything else in subsection (1).
(3) Subsection (1) does not limit the generality of anything in section 212B.
(4) In this section:
declared self‑help provider has the meaning given by section 212B.
excluded provider has the meaning given by section 212B.
isolated location means a place in a State or Territory that is not at a location in, or adjacent to, an eligible urban area (within the meaning of section 140 of the Fringe Benefits Tax Assessment Act 1986).
non‑profit body means an incorporated body that:
(a) is not carried on for the purposes of profit or gain to its individual members; and
(b) is prohibited by its constituent document from making any distribution of money or property to its individual members.
related body corporate has the same meaning as in the Corporations Act 2001.
212B Declared self‑help providers and excluded providers
Declared self‑help providers
(1) The Minister may, by legislative instrument, determine that a specified person who provides a re‑transmission of programs for the sole or principal purpose of obtaining or improving reception is a declared self‑help provider in relation to the re‑transmission for the purposes of section 212A.
(2) The Minister may, by legislative instrument, determine that a specified person who provides a re‑transmission of programs for the sole or principal purpose of obtaining or improving reception in specified circumstances is a declared self‑help provider in relation to the re‑transmission for the purposes of section 212A.
Excluded providers
(3) The Minister may, by legislative instrument, determine that a specified person who provides a re‑transmission of programs is an excluded provider in relation to the re‑transmission for the purposes of section 212A.
(4) The Minister may, by legislative instrument, determine that a specified person who provides a re‑transmission of programs in specified circumstances is an excluded provider in relation to the re‑transmission for the purposes of section 212A.
Determination has effect
(5) A determination under this section has effect accordingly.
Note: For specification by class, see subsection 13(3) of the Legislation Act 2003.
213 Penalties for continuing offences
If an offence against this Act is a continuing offence (whether under this Act or because of section 4K of the Crimes Act 1914), the maximum penalty for each day that the offence continues is 10% of the maximum penalty that could be imposed in respect of the principal offence.
214 Procedure relating to continuing offences
(1) Where subsection 66(2), 121FG(2) or 121FHA(2), 121FJC(2), section 136, subsection 138(4), section 140 or subsection 142(5) or subclause 49(2), 50(3), 52(2) or 53(5) of Schedule 6 applies to an offence against a provision of this Act, charges against the same person for any number of offences against that provision may be joined in the same information, complaint or summons if those charges are founded on the same facts or form, or are part of a series of offences of the same or a similar character.
(2) If a person is convicted of 2 or more offences against such a provision, the court may impose one penalty in respect of both or all of those offences, but that penalty must not exceed the sum of the maximum penalties that could be imposed if a separate penalty were imposed in respect of each offence.
215 Guidelines relating to ACMA’s enforcement powers etc.
ACMA’s enforcement powers etc.
(1) In exercising a power conferred on the ACMA by:
(a) Division 4 of Part 8B; or
(b) Part 10, 13, 14B, 14C or 14D; or
(c) Part 8 of Schedule 6;
the ACMA must have regard to any relevant guidelines in force under subsection (4).
Power to give infringement notices
(2) In exercising a power conferred on an authorised infringement notice officer by Part 14E, the officer must have regard to any relevant guidelines in force under subsection (4).
Referrals to Director of Public Prosecutions
(3) In deciding whether to refer a matter to the Director of Public Prosecutions for action in relation to a possible offence against this Act, the ACMA must have regard to any relevant guidelines in force under subsection (4).
Formulation of guidelines
(4) The ACMA may, by legislative instrument, formulate guidelines for the purposes of subsections (1), (2) and (3).
Note: For consultation requirements, see section 17 of the Legislation Act 2003.
(5) The ACMA must ensure that guidelines relating to the powers conferred on the ACMA by:
(a) Division 4 of Part 8B; or
(b) Part 10, 14B or 14D; or
(c) Part 8 of Schedule 6;
are in force under subsection (4) at all times after the commencement of this section.
(6) The ACMA must ensure that guidelines relating to the powers conferred on an authorised infringement notice officer by Part 14E are in force under subsection (4) at all times after the commencement of this section.
216 Ministerial consultative and advisory bodies
The Minister may form consultative or advisory bodies to assist the Minister in the administration of this Act.
216A Schedule 4 (digital television broadcasting)
Schedule 4 has effect.
216AA Review of taxation arrangements etc.
(1) After 30 June 2019, the ACMA must conduct a review of the following matters:
(a) whether the Commercial Broadcasting (Tax) Act 2017 should be repealed or amended on or before 1 July 2022;
(b) such matters (if any) as are specified in an instrument under subsection (2).
(2) The Minister may, by notifiable instrument, specify one or more matters for the purposes of paragraph (1)(b), so long as those matters relate to:
(a) commercial television broadcasting licensees and commercial radio broadcasting licensees; and
(b) the use of spectrum (within the meaning of the Radiocommunications Act 1992) by those licensees to provide commercial broadcasting services.
(3) In conducting the review, the ACMA must consider such matters (if any) as are specified in an instrument under subsection (4).