(d) retain those records for the period ascertained in accordance with the first‑mentioned rules; and
(e) make those retained records available to the ACMA on request.
Note: See also subsection 33(3A) of the Acts Interpretation Act 1901.
(4) For the purposes of subparagraph (3)(c)(i), each of the following is an example of a kind of record:
(a) a written record;
(b) an audio record;
(c) an audio‑visual record.
End‑user physically present in Australia
(5) Online content service provider rules made for the purposes of subclause (1) or (2) do not apply in relation to content provided on an online content service to an end‑user unless the end‑user is physically present in Australia.
14 Accidental or incidental provision of gambling promotional content
The online content service provider rules do not apply in relation to the provision of gambling promotional content on an online content service if:
(a) the gambling promotional content is provided as an accidental or incidental accompaniment to the provision of other content; and
(b) the provider of the online content service does not receive any direct or indirect benefit (whether financial or not) for providing the gambling promotional content (in addition to any direct or indirect benefit that the provider receives for providing the other content).
15 Individual exemptions from online content service provider rules
(1) The ACMA may, by writing, determine that a specified online content service is exempt from online content service provider rules made for the purposes of subclause 13(1) or (2).
(2) The ACMA may, by writing, determine that a specified online content service is exempt from one or more specified provisions of online content service provider rules made for the purposes of subclause 13(1) or (2).
(3) The ACMA may, by writing, determine that a specified online content service provider is exempt from online content service provider rules made for the purposes of subclause 13(1) or (2).
(4) The ACMA may, by writing, determine that a specified online content service provider is exempt from one or more specified provisions of online content service provider rules made for the purposes of subclause 13(1) or (2).
Decision‑making criteria
(5) In deciding whether to make a determination under subclause (1) or (2) in relation to an online content service, the ACMA must have regard to:
(a) whether the online content service is a small online content service; and
(b) whether a failure to make the determination would be likely to have a substantial adverse effect on the financial circumstances of the provider of the online content service; and
(c) the likely impact of a failure to make the determination on the quantity and quality of content provided on the online content service; and
(d) such other matters (if any) as the ACMA considers relevant.
(6) In deciding whether to make a determination under subclause (3) or (4) in relation to an online content service provider, the ACMA must have regard to:
(a) whether the online content services provided by the provider are small online content services; and
(b) whether a failure to make the determination would be likely to have a substantial adverse effect on the financial circumstances of the provider; and
(c) the likely impact of a failure to make the determination on the quantity and quality of the content provided on the online content services provided by the provider; and
(d) such other matters (if any) as the ACMA considers relevant.
Small online content service
(7) For the purposes of this clause, in determining whether an online content service is a small online content service, the ACMA must have regard to:
(a) if the service has accounts for end‑users—the number of accounts that are held by end‑users who are ordinarily resident in Australia; and
(b) if the service does not have accounts for end‑users—the number of end‑users who are ordinarily resident in Australia; and
(c) such other matters (if any) as the ACMA considers relevant.
(8) For the purposes of paragraphs (7)(a) and (b), the ACMA may make such assumptions and estimates as the ACMA considers reasonable.
(9) The ACMA may publish on the ACMA’s website a statement that explains the ACMA’s approach to the administration of subclauses (7) and (8).
(10) A statement under subclause (9) is not a legislative instrument.
Other matters
(11) A determination under this clause may be:
(a) unconditional; or
(b) subject to such conditions (if any) as are specified in the determination.
(12) If the ACMA makes a determination under subclause (1), (2), (3) or (4), the ACMA must publish a copy of the determination on the ACMA’s website.
(13) Subsection 13(3) of the Legislation Act 2003 does not apply to subclause (1), (2), (3) or (4).
(14) A determination made under subclause (1), (2), (3) or (4) is not a legislative instrument.
16 Class exemptions from online content service provider rules
(1) The ACMA may, by legislative instrument, determine that online content services included in a specified class of online content services are exempt from online content service provider rules made for the purposes of subclause 13(1) or (2).
(2) The ACMA may, by legislative instrument, determine that online content services included in a specified class of online content services are exempt from one or more specified provisions of online content service provider rules made for the purposes of subclause 13(1) or (2).
(3) The ACMA may, by legislative instrument, determine that online content service providers included in a specified class of online content service providers are exempt from online content service provider rules made for the purposes of subclause 13(1) or (2).
(4) The ACMA may, by legislative instrument, determine that online content service providers included in a specified class of online content service providers are exempt from one or more specified provisions of online content service provider rules made for the purposes of subclause 13(1) or (2).
(5) A determination under this clause may be:
(a) unconditional; or
(b) subject to such conditions (if any) as are specified in the determination.
Division 2—Interpretive provisions
17 When a part of an online content service is taken to be an online content service in its own right
(1) For the purposes of the application of this Schedule to a sporting event, if content that consists of live coverage of the sporting event is, or is to be, provided on a distinct part of an online content service (the overall online content service):
(a) that part is taken to be an online content service in its own right; and
(b) that part is taken not to be included in the overall online content service.
(2) For the purposes of subclause (1), it is immaterial whether:
(a) gambling promotional content; or
(b) any other content;
is, or is to be, provided on that part.
18 Gambling service
For the purposes of this Schedule, gambling service means:
(a) a service for the placing, making, receiving or acceptance of bets; or
(b) a service the sole or dominant purpose of which is to introduce individuals who wish to make or place bets to individuals who are willing to receive or accept those bets; or
(c) a service for the conduct of a lottery; or
(d) a service for the supply of lottery tickets; or
(e) a service for the conduct of a game, where:
(i) the game is played for money or anything else of value; and
(ii) the game is a game of chance or of mixed chance and skill; and
(iii) a customer of the service gives or agrees to give consideration to play or enter the game; or
(f) a gambling service (within the ordinary meaning of that expression) that is not covered by any of the above paragraphs.
19 Sporting event
(1) Each of the following is taken to be a sporting event for the purposes of this Schedule:
(a) the Summer Olympic Games;
(b) the Winter Olympic Games;
(c) the Commonwealth Games;
(d) any similar games.
(2) The online content service provider rules may provide that a specified thing is taken to be a sporting event for the purposes of this Schedule.
(3) The online content service provider rules may provide that a specified thing is taken not to be a sporting event for the purposes of this Schedule.
(4) The following are examples of things that may be specified in the online content service provider rules made for the purposes of subclause (2) or (3):
(a) a match;
(b) a series of matches;
(c) a race;
(d) a series of races;
(e) a stage;
(f) a time trial;
(g) a qualification session;
(h) a tournament;
(i) a round.
(5) For the purposes of this clause, thing includes a series of things.
20 Live coverage of a sporting event
For the purposes of this Schedule, if:
(a) content that consists of live coverage of a sporting event is provided on an online content service; and
(b) there is an unscheduled break in the sporting event;
any content provided on the service during the break is taken to be content that consists of live coverage of the sporting event.
21 Gambling promotional content provided in conjunction with live coverage of a sporting event
(1) For the purposes of this Schedule, gambling promotional content (other than a commentator betting odds promotion or a representative venue‑based promotion) is provided on an online content service in conjunction with live coverage of a sporting event if, and only if, the content is provided on the service during the period:
(a) beginning 5 minutes before the scheduled start of the sporting event; and
(b) ending 5 minutes after the conclusion of the sporting event.
(2) However, if coverage of the sporting event is delayed, this clause has effect as if there were a corresponding delay to the period mentioned in subclause (1).
(3) For the purposes of this Schedule, gambling promotional content that consists of a commentator betting odds promotion or a representative venue‑based promotion is provided on an online content service in conjunction with live coverage of a sporting event if, and only if, the promotion is provided on the service during the period:
(a) beginning 30 minutes before the scheduled start of the sporting event; and
(b) ending 30 minutes after the conclusion of the sporting event.
(4) However, if coverage of the sporting event is delayed, this clause has effect as if there were a corresponding delay to the period mentioned in subclause (3).
22 Scheduled start of a sporting event
The online content service provider rules may provide that, for the purposes of the application of this Schedule to a specified sporting event, scheduled start has the meaning given by the online content service provider rules.
Note: For specification by class, see subsection 13(3) of the Legislation Act 2003.
23 Conclusion of a sporting event
The online content service provider rules may provide that, for the purposes of the application of this Schedule to a specified sporting event, conclusion has the meaning given by the online content service provider rules.
Note: For specification by class, see subsection 13(3) of the Legislation Act 2003.
Part 4—Complaints
24 Complaints to ACMA—online content service provider rules
(1) If a person has reason to believe that an online content service provider has contravened the online content service provider rules, the person may make a complaint to the ACMA about the matter.
(2) The ACMA may conduct an investigation into the complaint if it thinks that it is desirable to do so, but is not required to conduct an investigation.
Note: One of the ACMA’s functions is to monitor compliance with the online content service provider rules.
Part 5—Enforcement
25 Compliance with the online content service provider rules
(1) An online content service provider must not contravene the online content service provider rules.
Civil penalty provision
(2) Subclause (1) is a civil penalty provision.
(3) An online content service provider 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.
Designated infringement notice provision
(4) Subclause (1) is a designated infringement notice provision.
26 Remedial directions—breach of the online content service provider rules
Scope
(1) This clause applies if an online content service provider has contravened, or is contravening, the online content service provider rules.
Remedial directions
(2) The ACMA may give the provider a written direction requiring the provider to take specified action directed towards ensuring that the provider does not contravene the online content service provider rules, or is unlikely to contravene the online content service provider rules, in the future.
Note: For variation and revocation, see subsection 33(3) of the Acts Interpretation Act 1901.
(3) The following are examples of the kinds of direction that may be given to an online content service provider under subclause (2):
(a) a direction that the provider implement effective administrative systems for monitoring compliance with the online content service provider rules;
(b) a direction that the provider implement a system designed to give the provider’s employees, agents and contractors a reasonable knowledge and understanding of the requirements of the online content service provider rules, in so far as those requirements affect the employees, agents or contractors concerned.
(4) An online content service provider must not contravene a direction under subclause (2).
Civil penalty provision
(5) Subclause (4) is a civil penalty provision.
(6) An online content service provider 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.
Notice
(7) For the purposes of this Act and the Australian Communications and Media Authority Act 2005, a direction under subclause (2) is taken to be a notice under this Schedule.
Part 6—Miscellaneous
27 Minister may direct the ACMA about the exercise of its powers
(1) The Minister may, by legislative instrument, give the ACMA a direction about the exercise of the powers conferred on the ACMA by this Schedule (other than Part 4 or 5).
(2) The ACMA must comply with a direction under subclause (1).
28 Service of notices by electronic means
Paragraphs 9(1)(d) and (2)(d) of the Electronic Transactions Act 1999 do not apply to:
(a) a notice under this Schedule; or
(b) a notice under any other provision of this Act, so far as that provision relates to this Schedule.
Note: Paragraphs 9(1)(d) and (2)(d) of the Electronic Transactions Act 1999 deal with the consent of the recipient of information to the information being given by way of electronic communication.
29 Service of summons, process or notice on corporations incorporated outside Australia
Scope
(1) This clause applies to:
(a) a summons or process in any proceedings under, or connected with, this Schedule; or
(b) a notice under this Schedule; or
(c) a notice under any other provision of this Act, so far as that provision relates to this Schedule;
where:
(d) the summons, process or notice, as the case may be, is required to be served on, or given to, a body corporate incorporated outside Australia; and
(e) the body corporate does not have a registered office or a principal office in Australia; and
(f) the body corporate has an agent in Australia.
Service
(2) The summons, process or notice, as the case may be, is taken to have been served on, or given to, the body corporate if it is served on, or given to, the agent.
(3) Subclause (2) has effect in addition to section 28A of the Acts Interpretation Act 1901.
Note: Section 28A of the Acts Interpretation Act 1901 deals with the service of documents.
30 This Schedule does not limit Part 9 of the Online Safety Act 2021
This Schedule does not limit the operation of Part 9 of the Online Safety Act 2021.
32 Implied freedom of political communication
(1) The provisions of:
(a) this Schedule; and
(b) the online content service provider rules;
have no effect to the extent (if any) that their operation would infringe any constitutional doctrine of implied freedom of political communication.
(2) Subclause (1) does not limit the application of section 15A of the Acts Interpretation Act 1901 to this Act.
33 Acquisition of property
The provisions of:
(a) this Schedule; and
(b) the online content service provider rules;
have no effect to the extent (if any) to which their operation would result in an acquisition of property (within the meaning of paragraph 51(xxxi) of the Constitution) from a person otherwise than on just terms (within the meaning of that paragraph).
34 Concurrent operation of State and Territory laws
It is the intention of the Parliament that this Schedule is not to apply to the exclusion of a law of a State or Territory to the extent to which that law is capable of operating concurrently with this Schedule.
35 Schedule not to affect performance of State or Territory functions
A power conferred by this Schedule must not be exercised in such a way as to prevent the exercise of the powers, or the performance of the functions, of government of a State, the Northern Territory or the Australian Capital Territory.
Endnotes
Endnote 1—About the endnotes
The endnotes provide information about this compilation and the compiled law.
The following endnotes are included in every compilation:
Endnote 1—About the endnotes
Endnote 2—Abbreviation key
Endnote 3—Legislation history
Endnote 4—Amendment history
Abbreviation key—Endnote 2
The abbreviation key sets out abbreviations that may be used in the endnotes.