(2) If the ACMA proposes to vary or revoke a condition or to impose a new condition, the ACMA must:
(a) give to the licensee written notice of its intention; and
(b) give to the licensee a reasonable opportunity to make representations to the ACMA in relation to the proposed action; and
(c) make the proposed changes available on the internet.
(3) Action taken under subclause (1) must not be inconsistent with conditions set out in:
(a) clause 14; or
(b) clause 16; or
(c) clause 21; or
(d) clause 24; or
(e) clause 25.
(4) Conditions of datacasting licences varied or imposed by the ACMA must be relevant to the datacasting services to which those licences relate.
(5) Without limiting the range of conditions that may be imposed, the ACMA may impose a condition on a datacasting licensee:
(a) requiring the licensee to comply with a code of practice that is applicable to the licensee; or
(b) designed to ensure that a breach of a condition by the licensee does not recur.
ACMA to maintain Register of conditions
(6) The ACMA is to maintain a register in which it includes particulars of:
(a) conditions imposed under this clause; and
(b) variations of conditions under this clause; and
(c) revocations of conditions under this clause.
(7) The Register may be maintained by electronic means.
(8) The Register is to be made available for inspection on the internet.
27 Restricted access system
(1) The ACMA may, by legislative instrument, declare that a specified access‑control system is a restricted access system for the purposes of this Division. A declaration under this subclause has effect accordingly.
Note: For specification by class, see subsection 13(3) of the Legislation Act 2003.
(2) In making an instrument under subclause (1), the ACMA must have regard to:
(a) the objective of protecting children from exposure to matter that is unsuitable for children; and
(b) such other matters (if any) as the ACMA considers relevant.
Division 4—Exemption orders for content copied from the internet
27A Exemption orders in relation to content copied from the internet
(1) If the ACMA is satisfied that:
(a) matter is proposed to be transmitted by a datacasting licensee; and
(b) the matter is content that is proposed to be copied from the internet; and
(c) the content is proposed to be selected by the datacasting licensee; and
(d) if it were assumed that clause 20AA and subclause 21(10) had not been enacted:
(i) any breach of the conditions set out in clauses 14 and 16 and subclause 21(1) that would arise from the transmission of the matter would be of a minor, infrequent or incidental nature; or
(ii) the transmission of the matter would not be contrary to the purpose of clauses 14, 16 and 21;
the ACMA may, by writing, make an exemption order in relation to the transmission of the matter.
(2) If the ACMA receives a request from a datacasting licensee to make an exemption order in relation to the transmission of matter by the licensee, the ACMA must use its best endeavours to make that decision within 28 days after the request was made.
Part 4—Codes of practice
28 Development of codes of practice
(1) The Parliament intends that:
(a) a group that the ACMA is satisfied represents datacasting licensees should develop codes of practice that are to be applicable to the datacasting operations of datacasting licensees; and
(b) those codes of practice should be developed:
(i) in consultation with the ACMA; and
(ii) taking account of any relevant research conducted by the ACMA.
Content of codes of practice
(2) Codes of practice may relate to:
(a) preventing the transmission of matter that, in accordance with community standards, is not suitable to be transmitted by datacasting licensees; and
(b) methods of ensuring that the protection of children from exposure to datacasting content which may be harmful to them is a high priority; and
(c) methods of classifying datacasting content that reflect community standards; and
(d) promoting accuracy and fairness in datacasting content that consists of news or current affairs; and
(e) preventing the transmission of datacasting content that:
(i) simulates news or events in a way that misleads or alarms end‑users; or
(ii) depicts the actual process of putting a person into a hypnotic state; or
(iii) is designed to induce a hypnotic state in end‑users; or
(iv) uses or involves the process known as subliminal perception or any other technique that attempts to convey information to end‑users by transmitting messages below or near the threshold of normal awareness; and
(f) datacasting content that consists of:
(i) advertising; or
(ii) sponsorship announcements; and
(g) methods of:
(i) handling complaints from the public about datacasting content or compliance with codes of practice; and
(ii) reporting to the ACMA on complaints so made; and
(h) in a case where there are customers of datacasting licensees—dealings with those customers, including methods of billing, fault repair, privacy and credit management; and
(i) such other matters relating to datacasting content as are of concern to the community.
Classification etc.
(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 datacasting content of physical and psychological violence;
(b) the portrayal in datacasting content of sexual conduct and nudity;
(c) the use in datacasting content of offensive language;
(d) the portrayal in datacasting content of the use of drugs, including alcohol and tobacco;
(e) the portrayal in datacasting content 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 datacasting content as are of concern to the community.
(4) In developing codes of practice referred to in paragraph (2)(a), (b) or (c), the group that the ACMA is satisfied represents datacasting licensees must ensure that:
(a) for the purpose of classifying films—those codes apply the film classification system provided for by the Classification (Publications, Films and Computer Games) Act 1995; and
(b) those codes provide for methods of modifying films having particular classifications under that system so that the films are suitable to be transmitted; and
(c) those codes provide for the provision of advice to consumers on the reasons for films receiving a particular classification; and
(d) for the purpose of classifying interactive computer games—those codes apply the computer games classification system provided for by the Classification (Publications, Films and Computer Games) Act 1995; and
(e) those codes provide for the provision of advice to consumers on the reasons for interactive computer games receiving a particular classification; and
(f) for the purpose of classifying content (other than films or interactive computer games)—those codes apply the film classification system provided for by the Classification (Publications, Films and Computer Games) Act 1995 in a corresponding way to the way in which that system applies to films; and
(g) those codes provide for methods of modifying content (other than films or interactive computer games) having particular classifications under that system (as correspondingly applied) so that the content is suitable to be transmitted; and
(h) those codes provide for the provision of advice to consumers on the reasons for content (other than films or interactive computer games) receiving a particular classification.
(5) In developing codes of practice referred to in paragraph (2)(a) or (b), the group that the ACMA is satisfied represents datacasting licensees must ensure that films classified as “M” or “MA 15+” do not portray material that goes beyond the previous “AO” classification criteria.
Registration of codes of practice
(6) If:
(a) the group that the ACMA is satisfied represents datacasting licensees develops a code of practice to be observed in the conduct of the datacasting operations of those licensees; 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 datacasting licensees; 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.
Interactive computer game
(7) In this clause:
interactive computer game includes a computer game within the meaning of the Classification (Publications, Films and Computer Games) Act 1995.
30 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 clause 28.
(2) The Register may be maintained by electronic means.
(3) The Register is to be made available for inspection on the internet.
31 ACMA may determine 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 clause 28 is not operating to provide appropriate community safeguards for a matter referred to in subclause 28(2) in relation to the datacasting operations of datacasting licensees; and
(b) the ACMA is satisfied that it should determine a standard in relation to that matter;
the ACMA must, by legislative instrument, determine a standard in relation to that matter.
(2) If:
(a) no code of practice has been registered under clause 28 for a matter referred to in subclause 28(2); and
(b) the ACMA is satisfied that it should determine a standard in relation to that matter;
the ACMA must, by legislative instrument, determine a standard in relation to that matter.
32 Consultation on standards
The ACMA must, before determining, varying or revoking a standard, seek public comment on the proposed standard or the variation or revocation.
33 Notification of determination or variation or revocation of standards
(1) If the ACMA determines or varies or revokes a standard, the ACMA must publish a notice stating:
(a) that the standard has been determined, varied or revoked; and
(b) the places where copies of the standard or of the variation or revocation can be accessed.
(2) A notice under subclause (1) must be published:
(a) on the ACMA’s website; and
(b) in one or more other forms that are readily accessible by the public.
Example: Publication in a form mentioned in paragraph (b) could be publication on a website other than the ACMA’s website.
34 Limitation of ACMA’s power in relation to standards
(1) The ACMA must not determine a standard that requires that, before datacasting content is transmitted, the datacasting content, or a sample of the datacasting content, be approved by the ACMA or by a person or body appointed by the ACMA.
(2) However, the ACMA may determine such a standard in relation to datacasting content for children.
35 This Part does not apply to internet carriage services or ordinary email
This Part does not apply to:
(a) the transmission of so much of a datacasting service as consists of an internet carriage service; or
(b) the transmission of ordinary email.
35A This Part does not apply to the ABC or SBS
For the purposes of this Part, the Australian Broadcasting Corporation and the Special Broadcasting Service Corporation are taken not to be datacasting licensees.
Note: If the Australian Broadcasting Corporation or the Special Broadcasting Service Corporation is otherwise a datacasting licensee, it is a duty of the Board of the Corporation to develop a code of practice that relates to the service provided under the licence. See paragraph 8(1)(e) of the Australian Broadcasting Corporation Act 1983 and paragraph 10(1)(j) of the Special Broadcasting Service Act 1991.
Part 5—Complaints to the ACMA about datacasting services
36 Complaints about offences or breach of licence conditions
(1) If a person believes that a datacasting licensee has:
(a) committed an offence against this Act or the regulations; or
(b) breached a condition of the datacasting licence;
the person may make a complaint to the ACMA about the matter.
(2) If a person believes that another person is providing a designated datacasting service without a datacasting licence that authorises the provision of that service, the first‑mentioned person may make a complaint to the ACMA about the matter.
37 Complaints under codes of practice
(1) If:
(a) a person has made a complaint to a datacasting licensee about a matter relating to:
(i) datacasting content; or
(ii) compliance with a code of practice that applies to the datacasting operations of datacasting licensees and that is included in the Register of codes of practice; and
(b) if there is a relevant code of practice relating to the handling of complaints of that kind—the complaint was made in accordance with that code of practice; and
(c) 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) This clause does not apply to:
(a) the transmission of so much of a datacasting service as consists of an internet carriage service; or
(b) the transmission of ordinary email.
(3) Also, this clause does not apply if the datacasting licensee is the Australian Broadcasting Corporation or the Special Broadcasting Service Corporation.
Note: Sections 150 to 153 deal with complaints about a datacasting service provided by the Australian Broadcasting Corporation or the Special Broadcasting Service Corporation.
38 Investigation of complaints by the ACMA
The ACMA may investigate the complaint if the ACMA thinks that it is desirable to do so.
Part 8—Remedies for breaches of licensing provisions
Division 1—Providing a designated datacasting service without a licence
49 Prohibition on providing a designated datacasting service without a licence
(1) A person commits an offence if the person:
(a) intentionally provides a designated datacasting service; and
(b) does not have a datacasting licence to provide the service.
Penalty: 20,000 penalty units.
(2) A person who contravenes subclause (1) commits a separate offence in respect of each day (including a day of a conviction for the offence or any later day) during which the contravention continues.
(3) A person must not provide a designated datacasting service if the person does not have a datacasting licence to provide that service.
(4) Subclause (3) is a civil penalty provision.
(5) A person who contravenes subclause (3) commits a separate contravention of that subclause 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.
Note 1: For exemptions for broadcasters, see clause 51.
Note 2: For exemptions for designated teletext services, see clause 51A.
(1) If the ACMA is satisfied that a person has breached, or is breaching, subclause 49(3), the ACMA may, by written notice given to the person, direct the person to take action directed towards ensuring that the person does not breach that subclause, or is unlikely to breach that subclause, in the future.
Note 1: For exemptions for broadcasters, see clause 51.
Note 2: For exemptions for designated teletext services, see clause 51A.
Offence
(2) A person commits an offence if:
(a) the person has been given a notice under subclause (1); and
(b) the person engages in conduct; and
(c) the person’s conduct contravenes a requirement in the notice.
Penalty: 20,000 penalty units.
(3) A person who contravenes subclause (2) commits a separate offence in respect of each day (including a day of a conviction for the offence or any subsequent day) during which the contravention continues.
Civil penalty
(4) A person must comply with a notice under subclause (1).
(5) Subclause (4) is a civil penalty provision.
(6) A person who contravenes subclause (4) commits a separate contravention of that subclause 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.
Definition
(7) In this clause:
engage in conduct means:
(a) do an act; or
(b) omit to perform an act.
51 Exemption for broadcasting licensees etc.
(1) Clauses 49 and 50 do not apply to the provision of a broadcasting service under, and in accordance with the conditions of:
(a) a licence allocated by the ACMA under this Act (other than this Schedule); or
(b) a class licence.
(2) Clauses 49 and 50 do not apply to the provision of a national broadcasting service.
51A Exemption for designated teletext services
Clauses 49 and 50 do not apply to the provision of a designated teletext service.
Division 2—Breaches of licence conditions
52 Offence for breach of conditions
(1) A person commits an offence if:
(a) the person is a datacasting licensee; and
(b) the person intentionally engages in conduct; and
(c) the person’s conduct breaches a condition of the licence set out in clause 14, 16, 21 or 24.
Penalty: 2,000 penalty units.
(2) A person who contravenes subclause (1) commits a separate offence in respect of each day (including a day of a conviction for the offence or any later day) during which the contravention continues.
52A Civil penalty provision relating to breach of conditions of datacasting licences