The following is a simplified outline of this Schedule:
• This Schedule sets up a system for regulating the provision of datacasting services.
• A person who provides a designated datacasting service must hold a datacasting licence.
• Datacasting content will be subject to restrictions. Those restrictions are designed to encourage datacasting licensees to provide a range of innovative services that are different to traditional broadcasting services.
• The main restrictions on datacasting content are as follows:
(a) restrictions on the provision of certain genres of television programs;
(b) restrictions on the provision of audio content.
• Datacasting licensees will be allowed to provide the following types of content:
(a) information‑only programs (including matter that enables people to carry out transactions);
(b) educational programs;
(c) interactive computer games;
(d) content in the form of text or still visual images;
(e) Parliamentary broadcasts;
(f) ordinary email;
(g) internet content.
• A group that represents datacasting licensees may develop codes of practice.
• The ACMA has a reserve power to make a standard if there are no codes of practice or if a code of practice is deficient.
• The ACMA may investigate complaints about datacasting licensees.
2 Definitions
(1) In this Schedule, unless the contrary intention appears:
advertising or sponsorship material means advertising or sponsorship material (whether or not of a commercial kind).
compilation program means a program that consists of video clips or other matter edited together to form a structured program, where there is a heavy emphasis on entertainment value.
declared internet carriage service has the meaning given by clause 23B.
designated datacasting service has the meaning given by clause 2A.
designated teletext service means a teletext service provided by a commercial television broadcasting licensee, where:
(a) the licensee provided the service throughout the 2‑year period ending immediately before the commencement of this Schedule; and
(b) the service remains substantially the same as the service provided throughout that 2‑year period.
drama program has the same meaning as in section 103B.
educational program has the meaning given by clause 3.
engage in conduct (except in clause 55 or 56) means:
(a) do an act; or
(b) omit to perform an act.
financial, market or business information bulletin means a bulletin the sole or dominant purpose of which is to provide information, analysis, commentary or discussion in relation to financial, market or business matters.
foreign‑language news or current affairs program has the meaning given by clause 5.
information‑only program has the meaning given by clause 4.
infotainment or lifestyle program means a program the sole or dominant purpose of which is to present factual information in an entertaining way, where there is a heavy emphasis on entertainment value.
interactive computer game means a computer game, where:
(a) the way the game proceeds, and the result achieved at various stages of the game, is determined in response to the decisions, inputs and direct involvement of the player; and
(b) a part of the software that enables end‑users to play the game is under the control of the datacasting licensee concerned.
internet carriage service has the same meaning as in the Online Safety Act 2021, but does not include a service that transmits content that has been copied from the internet, where the content is selected by the datacasting licensee concerned.
music program means a program the sole or dominant purpose of which is to provide:
(a) music with video clips; or
(b) video footage of musical performances;
or both.
news or current affairs program means any of the following:
(a) a news bulletin;
(b) a sports news bulletin;
(c) a program (whether presenter‑based or not) whose sole or dominant purpose is to provide analysis, commentary or discussion principally designed to inform the general community about social, economic or political issues of current relevance to the general community.
ordinary email does not include a posting to a newsgroup.
qualified entity means:
(a) a company that:
(i) is registered under Part 2A.2 of the Corporations Act 2001; and
(ii) has a share capital; or
(b) the Commonwealth, a State or a Territory; or
(c) the Australian Broadcasting Corporation; or
(d) the Special Broadcasting Service Corporation; or
(e) any other body corporate established for a public purpose by a law of the Commonwealth or of a State or Territory.
“reality television” program means a program the sole or dominant purpose of which is to depict actual, contemporary events, people or situations in a dramatic or entertaining way, where there is a heavy emphasis on dramatic impact or entertainment value.
related body corporate has the same meaning as in the Corporations Act 2001.
sports program means a program the sole or dominant purpose of which is to provide:
(a) coverage of one or more sporting events; or
(b) analysis, commentary or discussion in relation to one or more sporting events;
or both, but does not include a sports news bulletin.
transmitter licence has the same meaning as in the Radiocommunications Act 1992.
(2) In determining the meaning of an expression used in a provision of this Act (other than this Schedule), this clause is to be disregarded.
2A Designated datacasting service
(1) For the purposes of this Schedule, a designated datacasting service is a datacasting service that:
(a) is provided by a person who is:
(i) a commercial television broadcasting licensee; or
(ii) a commercial radio broadcasting licensee; or
(iii) a national broadcaster; or
(b) is of a kind specified in an instrument under subclause (2).
(2) The Minister may, by legislative instrument, specify kinds of datacasting services for the purposes of paragraph (1)(b).
3 Educational programs
(1) For the purposes of this Schedule, an educational program is matter, where, having regard to:
(a) the substance of the matter; and
(b) the way in which the matter is advertised or promoted; and
(c) any other relevant matters;
it would be concluded that the sole or dominant purpose of the matter is to assist a person in education or learning, whether or not in connection with a course of study or instruction.
(2) Subclause (1) has effect subject to subclauses (3) and (4).
ACMA determinations
(3) The ACMA may, by legislative instrument, make a determination providing that, for the purposes of this Schedule, specified matter is taken to be an educational program.
(4) The ACMA may, by legislative instrument, make a determination providing that, for the purposes of this Schedule, specified matter is taken not to be an educational program.
(5) A determination under subclause (3) or (4) has effect accordingly.
Note: For specification by class, see subsection 13(3) of the Legislation Act 2003.
4 Information‑only programs
(1) For the purposes of this Schedule, an information‑only program is matter the sole or dominant purpose of which is to:
(a) provide factual information, or directly‑related comment, about any of a wide range of matters, including but not limited to any of the following:
(i) products;
(ii) services;
(iii) community activities;
(iv) domestic or household matters;
(v) private recreational pursuits or hobbies;
(vi) legal rights, obligations or responsibilities;
(vii) first aid, health or safety matters;
(viii) emergencies or natural disasters;
(ix) rural matters;
(x) travel matters;
(xi) crime prevention matters; or
(b) enable and/or facilitate the carrying out and/or completion of transactions;
or both, where there is not a significant emphasis on dramatic impact or entertainment.
(2) Subclause (1) has effect subject to subclauses (3) and (4).
ACMA determinations
(3) The ACMA may, by legislative instrument, make a determination providing that, for the purposes of this Schedule, specified matter is taken to be an information‑only program.
(4) The ACMA may, by legislative instrument, make a determination providing that, for the purposes of this Schedule, specified matter is taken not to be an information‑only program.
(5) A determination under subclause (3) or (4) has effect accordingly.
Note: For specification by class, see subsection 13(3) of the Legislation Act 2003.
Definitions
(8) In this clause:
community activity means:
(a) a meeting, event, performance or other activity that can be attended by:
(i) the public; or
(ii) a section of the public; or
(iii) members of a particular club, society or organisation; or
(b) the activity of visiting an institution, a tourist attraction or other place;
whether on payment of a charge or otherwise.
product includes real property.
services means any services, benefits, rights, privileges or facilities that are capable of being provided, granted or conferred:
(a) in trade or commerce; or
(b) by a government or government authority; or
(c) in any other way.
transactions includes:
(a) commercial transactions; and
(b) banking transactions; and
(c) insurance transactions; and
(d) dealings about employment matters; and
(e) dealings with governments and government authorities.
5 Foreign‑language news or current affairs programs
(1) For the purposes of this Schedule, a foreign‑language news or current affairs program means a news or current affairs program that is wholly in a language other than English.
(2) For the purposes of subclause (1), disregard minor and infrequent uses of the English language.
(3) For the purposes of subclause (1), disregard any English language subtitles or captioning.
6 Datacasting content is taken not to be a television program or a radio program etc.
(1) For the purposes of this Act (other than Divisions 1 and 2 of Part 3 of this Schedule) and any other law of the Commonwealth, if a datacasting service is provided under, and in accordance with the conditions of, a datacasting licence:
(a) any matter provided on that service is taken not to be a television program or a radio program; and
(b) any matter provided on that service is taken not to be broadcast or televised; and
(c) that service is taken not to be a broadcasting service, a television service or a radio service.
(2) Nothing in subclause (1) prevents a matter provided on the datacasting service from constituting the publication of a tobacco advertisement or an e‑cigarette advertisement for the purposes of the Public Health (Tobacco and Other Products) Act 2023.
Part 2—Datacasting licences
7 Allocation of datacasting licence
(1) The ACMA may allocate a datacasting licence to a person, on written application by the person.
(2) Applications must:
(a) be in accordance with a form approved in writing by the ACMA; and
(b) be accompanied by the application fee determined in writing by the ACMA.
8 When datacasting licence must not be allocated
(1) A datacasting licence is not to be allocated to an applicant if:
(a) the applicant is not a qualified entity; or
(b) the ACMA decides that subclause 9(1) applies to the applicant.
(2) The ACMA may refuse to allocate a datacasting licence to an applicant if a datacasting licence held by the applicant, or by a related body corporate of the applicant, was cancelled at any time during the previous 12 months.
(3) Paragraph (1)(b) does not require the ACMA to consider the application of clause 9 in relation to an applicant before allocating a licence to the applicant.
9 Unsuitable applicant
(1) The ACMA may, if it is satisfied that allowing a particular person to provide a datacasting service under a datacasting licence would lead to a significant risk of:
(a) an offence against this Act or the regulations being committed; or
(aa) a breach of a civil penalty provision occurring; or
(b) a breach of the conditions of the licence occurring;
decide that this subclause applies to the person.
(2) In deciding whether such a risk exists, the ACMA is to take into account:
(a) the business record of the person; and
(b) the person’s record in situations requiring trust and candour; and
(c) the business record of each person who would be, if a datacasting licence were allocated to the first‑mentioned person, in a position to control the licence; and
(d) the record in situations requiring trust and candour of each such person; and
(e) whether the first‑mentioned person, or a person referred to in paragraph (c) or (d), has been convicted of an offence against this Act or the regulations; and
(f) whether a civil penalty order has been made against:
(i) the first‑mentioned person; or
(ii) a person referred to in paragraph (c) or (d).
(3) This clause does not affect the operation of Part VIIC of the Crimes Act 1914 (which includes provisions that, in certain circumstances, relieve persons from the requirement to disclose spent convictions and require persons aware of such convictions to disregard them).
10 Transfer of datacasting licences
(1) A datacasting licensee may transfer the licence to another qualified entity.
(2) A transferee of a datacasting licence must, within 7 days after the transfer, notify the ACMA of the transfer.
Penalty: 50 penalty units.
(2A) Subclause (2) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
(3) A notification must be in accordance with a form approved in writing by the ACMA.
11 Surrender of datacasting licences
A datacasting licensee may, by written notice given to the ACMA, surrender the licence.
12 ACMA to maintain Register of datacasting licences
(1) The ACMA is to maintain a Register in which the ACMA includes:
(a) particulars of datacasting licences; and
(b) such information about transmitter licences as the ACMA determines.
(2) The Register may be maintained by electronic means.
(3) The Register is to be made available for inspection on the internet.
Part 3—Conditions of datacasting licences
Division 1—Genre conditions
13 Category A television programs
(1) For the purposes of this Division, each of the following television programs is a category A television program:
(a) a drama program;
(c) a sports program;
(d) a music program;
(e) an infotainment or lifestyle program;
(f) a documentary program;
(g) a “reality television” program;
(h) a children’s entertainment program;
(i) a light entertainment or variety program;
(j) a compilation program;
(k) a quiz or games program;
(l) a comedy program;
(m) a program that consists of a combination of any or all of the above programs.
(2) Subclause (1) has effect subject to subclauses (3), (4) and (5).
(3) For the purposes of this Division, neither of the following television programs is a category A television program:
(a) an information‑only program;
(b) an educational program.
ACMA genre determinations
(4) The ACMA may, by legislative instrument, make a determination providing that, for the purposes of this Division, a specified television program or specified matter is taken to be a category A television program covered by a specified paragraph of subclause (1).
(5) The ACMA may, by legislative instrument, make a determination providing that, for the purposes of this Division, a specified television program or specified matter is taken not to be a category A television program covered by a specified paragraph of subclause (1).
(6) A determination under subclause (4) or (5) has effect accordingly.
Note: For specification by class, see subsection 13(3) of the Legislation Act 2003.
14 Condition relating to category A television programs
(1) Each datacasting licence is subject to the condition that the licensee will not transmit matter that, if it were broadcast on a commercial television broadcasting service, would be:
(a) a category A television program; or
(b) an extract from a category A television program.
(2) The condition set out in subclause (1) does not prevent the licensee from transmitting an extract from a category A television program, so long as:
(a) the extract is not longer than 10 minutes; and
(c) the extract is not combined with one or more other extracts from category A television programs in such a way that the extracts together constitute the whole or a majority of a particular category A television program; and
(d) having regard to:
(i) the nature of the extract; and
(ii) the circumstances in which the extract is provided;
it would be concluded that the licensee did not intend that the extract be combined with one or more other extracts from category A television programs in such a way that the extracts together constitute the whole or a majority of a particular category A television program.
(3) A reference in subclause (2) to a category A television program is a reference to matter that is covered by subclause (1) because of paragraph (1)(a).
(4) A reference in subclause (2) to an extract from a category A television program is a reference to matter that is covered by subclause (1) because of paragraph (1)(b).
(5) If, because of subclause (2) of this clause, a datacasting licensee can transmit matter without breaching the condition set out in subclause (1) of this clause, the condition set out in subclause 16(1) does not prevent the licensee from transmitting that matter.
15 Category B television programs
(1) For the purposes of this Division, each of the following television programs is a category B television program:
(a) a news or current affairs program;
(b) a financial, market or business information bulletin;
(c) a weather bulletin;
(d) a bulletin or program that consists of a combination of any or all of the above bulletins or programs.
(2) Subclause (1) has effect subject to subclauses (3), (4) and (5).