(1) A datacasting licensee must not breach a condition of the licence set out in clause 14, 16, 21 or 24.
(2) Subclause (1) is a civil penalty provision.
(3) A person who contravenes subclause (1) 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.
53 Remedial directions—breach of conditions
(1) If a datacasting licensee has breached, or is breaching, a condition of the licence (other than the condition set out in clause 25), the ACMA may, by written notice given to the licensee, direct the licensee to take action directed towards ensuring that the licensee does not breach the condition, or is unlikely to breach the condition, in the future.
(2) The following are examples of the kinds of direction that may be given to a licensee under subclause (1):
(a) a direction that the licensee implement effective administrative systems for monitoring compliance with a condition of the licence;
(b) a direction that the licensee implement a system designed to give the licensee’s employees, agents and contractors a reasonable knowledge and understanding of the requirements of a condition of the licence, in so far as those requirements affect the employees, agents or contractors concerned.
(3) A person is not required to comply with a notice under subclause (1) until the end of the period specified in the notice. That period must be reasonable.
(4) A person commits an offence if:
(a) a person has been given a notice under subclause (1); and
(b) the person intentionally engages in conduct; and
(c) the person’s conduct contravenes a requirement in the notice.
Penalty: 20,000 penalty units.
(5) A person who contravenes subclause (4) 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.
(6) A person must comply with a notice under subclause (1).
(7) Subclause (6) is a civil penalty provision.
(8) A person who contravenes subclause (6) 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.
54 Suspension and cancellation
(1) If a person who is a datacasting licensee:
(a) fails to comply with a notice under clause 53; or
(b) breaches a condition of the licence;
the ACMA may, by written notice given to the person:
(c) suspend the licence for such period, not exceeding 3 months, as is specified in the notice; or
(d) cancel the licence.
(2) If a datacasting licence is suspended because of a breach of a condition set out in clause 14, 16 or 21, the ACMA may take such action, by way of suspending one or more datacasting licences held by:
(a) the licensee; or
(b) a related body corporate of the licensee;
as the ACMA considers necessary to ensure that the same, or a substantially similar, datacasting service is not transmitted by the licensee or the related body corporate, as the case may be, during the period of suspension.
(3) If a datacasting licence is cancelled because of a breach of a condition set out in clause 14, 16 or 21, the ACMA may take such action, by way of cancelling one or more datacasting licences held by:
(a) the licensee; or
(b) a related body corporate of the licensee;
as the ACMA considers necessary to ensure that the same, or a substantially similar, datacasting service is not transmitted by the licensee or the related body corporate, as the case may be, at a time after the cancellation.
(4) If the ACMA proposes to take action against a person under subclause (1), (2) or (3), the ACMA must give to the person:
(a) written notice of its intention; and
(b) a reasonable opportunity to make representations to the ACMA in relation to the proposed action.
55 Injunctions
Restraining injunctions
(1) If a person who is a datacasting licensee has engaged, is engaging or is proposing to engage, in any conduct in contravention of a condition of the licence (other than a condition set out in clause 25), the Federal Court may, on the application of the ACMA, grant an injunction:
(a) restraining the person from engaging in the conduct; and
(b) if, in the court’s opinion, it is desirable to do so—requiring the person to do something.
(2) If a person has engaged, is engaging or is proposing to engage, in any conduct in contravention of clause 49, the Federal Court may, on the application of the ACMA, grant an injunction:
(a) restraining the person from engaging in the conduct; and
(b) if, in the court’s opinion, it is desirable to do so—requiring the person to do something.
Performance injunctions
(3) If:
(a) a person who is a datacasting licensee has refused or failed, or is refusing or failing, or is proposing to refuse or fail, to do an act or thing; and
(b) the refusal or failure was, is or would be a contravention of a condition of the licence (other than a condition set out in clause 25);
the Federal Court may, on the application of the ACMA, grant an injunction requiring the person to do that act or thing.
56 Federal Court’s powers relating to injunctions
Grant of interim injunction
(1) If an application is made to the Federal Court for an injunction under clause 55, the court may, before considering the application, grant an interim injunction restraining a person from engaging in conduct of a kind referred to in that clause.
No undertakings as to damages
(2) The Federal Court is not to require an applicant for an injunction under clause 55, as a condition of granting an interim injunction, to give any undertakings as to damages.
Discharge etc. of injunctions
(3) The Federal Court may discharge or vary an injunction granted under clause 55.
Certain limits on granting injunctions do not apply
(4) The power of the Federal Court under clause 55 to grant an injunction restraining a person from engaging in conduct of a particular kind may be exercised:
(a) if the court is satisfied that the person has engaged in conduct of that kind—whether or not it appears to the court that the person intends to engage again, or to continue to engage, in conduct of that kind; or
(b) if it appears to the court that, if an injunction is not granted, it is likely that the person will engage in conduct of that kind—whether or not the person has previously engaged in conduct of that kind and whether or not there is an imminent danger of substantial damage to any person if the person engages in conduct of that kind.
(5) The power of the Federal Court under clause 55 to grant an injunction requiring a person to do an act or thing may be exercised:
(a) if the court is satisfied that the person has refused or failed to do that act or thing—whether or not it appears to the court that the person intends to refuse or fail again, or to continue to refuse or fail, to do that act or thing; or
(b) if it appears to the court that, if an injunction is not granted, it is likely that the person will refuse or fail to do that act or thing—whether or not the person has previously refused or failed to do that act or thing and whether or not there is an imminent danger of substantial damage to any person if the person refuses or fails to do that act or thing.
Other powers of the court unaffected
(6) The powers conferred on the Federal Court under clause 55 are in addition to, and not instead of, any other powers of the court, whether conferred by this Act or otherwise.
57 Stay of proceedings relating to additional licence conditions, remedial directions and suspension/cancellation decisions
(1) For the purposes of this clause, an eligible decision is:
(a) a decision under clause 26 to impose or vary a condition of a datacasting licence; or
(b) a decision to give a direction under clause 53 (which deals with remedial directions); or
(c) a decision to suspend or cancel a datacasting licence under clause 54.
(2) An order must not be made under paragraph 15(1)(a) or 15A(1)(a) of the Administrative Decisions (Judicial Review) Act 1977 in relation to an eligible decision if:
(a) the order has the effect of suspending the operation of the eligible decision for more than 3 months; or
(b) the order and any previous order or orders made under the paragraph concerned have the combined effect of suspending the operation of the eligible decision for more than 3 months.
(3) An order must not be made under paragraph 15(1)(b) or 15A(1)(b) of the Administrative Decisions (Judicial Review) Act 1977 in relation to an eligible decision if:
(a) the order has the effect of staying particular proceedings under the eligible decision for more than 3 months; or
(b) the order and any previous order or orders made under the paragraph concerned have the combined effect of staying particular proceedings under the eligible decision for more than 3 months.
(4) If:
(a) a person applies to the Federal Court under subsection 39B(1) of the Judiciary Act 1903 for a writ or injunction in relation to an eligible decision; and
(b) an order could be made staying, or otherwise affecting the operation or implementation of, the eligible decision pending the finalisation of the application;
such an order must not be made if:
(c) the order has the effect of staying, or otherwise affecting the operation or implementation of, the eligible decision for more than 3 months; or
(d) the order and any previous order or orders covered by paragraph (b) have the combined effect of staying, or otherwise affecting the operation or implementation of, the eligible decision for more than 3 months.
(5) If:
(a) a person applies to the Administrative Review Tribunal for review of an eligible decision; and
(b) an order could be made under subsection 32(2) of the Administrative Review Tribunal Act 2024 staying, or otherwise affecting the operation or implementation of, the eligible decision;
such an order must not be made if:
(c) the order has the effect of staying, or otherwise affecting the operation or implementation of, the eligible decision for more than 3 months; or
(d) the order and any previous order or orders covered by paragraph (b) have the combined effect of staying, or otherwise affecting the operation or implementation of, the eligible decision for more than 3 months.
Part 9—Review of decisions
58 Review by the Administrative Review Tribunal
An application may be made to the Administrative Review Tribunal for a review of a decision set out in the second column of the table made under the provision of this Schedule set out in the third column, but such an application may only be made by the person described in the fourth column.
Reviewable decisions
Item Decision Provision Person who may apply
1 refusal to allocate datacasting licence clause 7 or 8 the applicant
2 that a person is not a suitable applicant subclause 9(1) the person
2A that an internet carriage service is a declared internet carriage service subclause 23B(1) the licensee
3 that a person is not a suitable licensee subclause 25(3) the licensee
4 Variation of datacasting licence conditions or imposition of new conditions subclause 26(1) the licensee
4A refusal to make an exemption order clause 27B the licensee
5 refusal to include a code of practice in the Register subclause 28(6) the relevant industry group
8 to give or vary, or to refuse to revoke, a direction clause 53 the licensee
9 suspension or cancellation of datacasting licence clause 54 the licensee
59 Notification of decisions to include notification of reasons and appeal rights
If the ACMA makes a decision that is reviewable under clause 58, the ACMA is to include in the document by which the decision is notified:
(a) a statement setting out the reasons for the decision; and
(b) a statement to the effect that an application may be made to the Administrative Review Tribunal for a review of the decision.
Schedule 7—Content services definitions
Note: See section 216D.
1 Purpose of this Schedule
The purpose of this Schedule is to enable:
(a) other Acts; and
(b) other provisions of this Act;
to define certain expressions as having the same meaning as in this Schedule.
2 Definitions
In this Schedule:
access includes:
(a) access that is subject to a pre‑condition (for example, the use of a password); and
(b) access by way of push technology; and
(c) access by way of a standing request.
adult chat service means a chat service where, having regard to any or all of the following:
(a) the name of the chat service;
(b) the way in which the chat service is advertised or promoted;
(c) the reputation of the chat service;
it would be concluded that the majority of the content accessed by end‑users of the chat service is reasonably likely to be content that is class 1 material or content that is class 2 material covered by paragraph 107(1)(a), (b), (c), (d) or (e) of the Online Safety Act 2021.
carriage service has the same meaning as in the Telecommunications Act 1997.
class 1 material has the same meaning as in the Online Safety Act 2021.
class 2 material has the same meaning as in the Online Safety Act 2021.
commercial content service means a content service that:
(a) is operated for profit or as part of a profit‑making enterprise; and
(b) is provided to the public but only on payment of a fee (whether periodical or otherwise).
content means content:
(a) whether in the form of text; or
(b) whether in the form of data; or
(c) whether in the form of speech, music or other sounds; or
(d) whether in the form of visual images (animated or otherwise); or
(e) whether in any other form; or
(f) whether in any combination of forms.
content service means:
(a) a service that delivers content to persons having equipment appropriate for receiving that content, where the delivery of the service is by means of a carriage service; or
(b) a service that allows end‑users to access content using a carriage service;
but does not include:
(c) a licensed broadcasting service; or
(d) a national broadcasting service; or
(e) a re‑transmitted broadcasting service; or
(f) a licensed datacasting service; or
(g) a re‑transmitted datacasting service; or
(h) an exempt Parliamentary content service; or
(i) an exempt court/tribunal content service; or
(j) an exempt official‑inquiry content service; or
(k) an exempt point‑to‑point content service; or
(l) an exempt internet directory service; or
(m) an exempt internet search engine service; or
(n) a service that enables end‑users to communicate, by means of voice calls, with other end‑users; or
(o) a service that enables end‑users to communicate, by means of video calls, with other end‑users; or
(p) a service that enables end‑users to communicate, by means of email, with other end‑users; or
(q) an instant messaging service that:
(i) enables end‑users to communicate with other end‑users; and
(ii) is not an adult chat service; or
(r) an SMS service that:
(i) enables end‑users to communicate with other end‑users; and
(ii) is not an adult chat service; or
(s) an MMS service that:
(i) enables end‑users to communicate with other end‑users; and
(ii) is not an adult chat service; or
(t) a service that delivers content by fax; or
(u) an exempt data storage service; or
(v) an exempt back‑up service; or
(x) a service specified in the regulations.
Note 1: SMS is short for short message service.
Note 2: MMS is short for multimedia message service.
Note 3: For specification by class, see subsection 13(3) of the Legislation Act 2003.
content service provider means a person who provides a content service.
Note: See clause 5.
court/tribunal proceedings means words spoken and acts done in the course of, or for purposes of or incidental to, the transacting of the business of a court or a tribunal, and includes:
(a) evidence given before the court or tribunal; and
(b) a document presented or submitted to the court or tribunal; and
(c) a document issued or published by, or with the authority of, the court or tribunal.
exempt back‑up service means a back‑up service, where each end‑user’s access is restricted to the end‑user’s backed‑up content.
exempt court/tribunal content service means a service to the extent to which it delivers, or provides access to, content that consists of court/tribunal proceedings.
exempt data storage service means a data storage service, where each end‑user’s access is restricted to the end‑user’s stored content.
exempt internet directory service means an internet directory service that:
(a) does not specialise in providing links to, or information about, websites that specialise in content that is class 1 material or content that is class 2 material covered by paragraph 107(1)(a), (b), (c), (d) or (e) of the Online Safety Act 2021; and
(b) is not a service specified in the regulations; and
(c) complies with such other requirements (if any) as are specified in the regulations.
Note: For specification by class, see subsection 13(3) of the Legislation Act 2003.
exempt internet search engine service means an internet search engine service that:
(a) does not specialise in providing links to, or information about, websites that specialise in content that is class 1 material or content that is class 2 material covered by paragraph 107(1)(a), (b), (c), (d) or (e) of the Online Safety Act 2021; and
(b) is not a service specified in the regulations; and
(c) complies with such other requirements (if any) as are specified in the regulations.
Note: For specification by class, see subsection 13(3) of the Legislation Act 2003.
exempt official‑inquiry content service means a service to the extent to which it delivers, or provides access to, content that consists of official‑inquiry proceedings.