This instrument is a legislative standard made by the Australian Communications and Media Authority under subsection 125(2) of the Broadcasting Services Act 1992 (Cth). It imposes three content prohibitions on providers of television narrowcasting services who hold a class licence under paragraph 117(c) (subscription television narrowcasting services) or paragraph 117(e) (open narrowcasting television services) of that Act. The standard replaces two earlier instruments from 2011: the Broadcasting Services (Anti-terrorism Requirements for Subscription Television Narrowcasting Services) Standard 2011 and the Broadcasting Services (Anti-terrorism Requirements for Open Narrowcasting Television Services) Standard 2011 (see section 4). It commenced on the day after registration on the Federal Register of Legislation, which was 10 September 2021 (section 2). The stated object in section 7 is to prevent the broadcasting of programs that advocate the doing of a terrorist act or encourage people to join or finance listed terrorists. Mechanically, the standard operates as a condition of the class licence: any licensee that broadcasts a program falling within sections 9, 10 or 11 is in breach regardless of whether it knew the program contained prohibited material. That is a form of strict liability on the licensee. The prohibitions cover (a) recruiting for a listed terrorist (section 9), (b) financing terrorism by soliciting or assisting in the collection of funds for a listed terrorist (section 10), and (c) advocating the doing of a terrorist act (section 11). Two explicit exceptions exist: programs that merely give information about or promote the beliefs or opinions of a listed terrorist (section 12), and bona fide reports or comments on matters of public interest that include an excerpt from an otherwise prohibited program (section 13). Additionally, section 11(4) excludes depictions or descriptions of a terrorist act that could reasonably be considered part of public discussion, debate, entertainment or satire. The standard applies only to television narrowcasting services, not to free-to-air broadcasters or radio narrowcasting services, which are covered by other instruments or codes.

The core definitions are in section 5. Licensee means a person who provides either a subscription television narrowcasting service under a class licence determined under paragraph 117(c) of the Broadcasting Services Act, or an open narrowcasting television service under a class licence determined under paragraph 117(e) of that Act. Narrowcasting services are distinguished from broadcasting services by their limited target audience, entertainment nature, or restricted access; the standard therefore catches smaller, specialist television providers such as ethnic community channels, hotel in-room services, or subscription sports packages.

Listed terrorist has two limbs. The first limb is a listed terrorist organisation within the meaning of the Criminal Code (the schedule to the Criminal Code Act 1995). The second limb is a proscribed person or entity listed in the Gazette by the Minister for Foreign Affairs under section 15 of the Charter of the United Nations Act 1945. This creates a dynamic reference: the class of prohibited persons and organisations can expand or contract without amendment to this standard, simply by updates to the Criminal Code regulations or Gazettal. The definition of terrorist act is imported from section 100.1 of the Criminal Code, which covers actions or threats of actions done with certain intentions (such as advancing a political, religious or ideological cause and coercing a government or intimidating the public). The standard’s note emphasises that threats of action are included, and the definition applies regardless of where the action occurs or the threats are made.

Recruit is defined to include induce, incite and encourage. This goes beyond formal membership drives; any program that could be reasonably understood as encouraging someone to join or participate in the activities of a listed terrorist (for example, a documentary that explicitly calls for viewers to sign up) would be caught. Funds has the same meaning as in the Criminal Code, which is broad enough to cover money, digital currency, property, and financial assets. The meaning of program is not defined in this standard but is borrowed from the Broadcasting Services Act as noted in the interpretative notes. The term advocates in section 11 is specifically elaborated: it covers direct or indirect counselling, promoting, encouraging, or urging the doing of a terrorist act; providing instruction on the doing of a terrorist act; and directly praising a terrorist act where there is a substantial risk that such praise might lead a person (including a person with mental impairment) to engage in a terrorist act. This three-part definition is subject to the defence in subsection 11(4) for depictions or descriptions that are reasonably considered part of public discussion, debate, entertainment or satire. The concept of "substantial risk" creates a probabilistic test that may require expert evidence.

The standard directly applies to licensees - that is, persons providing a subscription television narrowcasting service or an open narrowcasting television service under a class licence. This includes commercial operators such as Foxtel (supplying subscription television narrowcasting services), hotel and hospital in-room television providers, ethnic community television channels, and niche sports or entertainment channels that are narrowcast rather than broadcast to the general public. The class licence regime means these providers do not need an individual licence but must comply with all applicable standards, including this one, as a condition of their licence. Non-compliance can trigger enforcement action not just by ACMA but also potentially by the Australian Federal Police if the content crosses into criminal offences under the Criminal Code (though the standard itself creates a civil penalty or licence condition regime, not a criminal offence).

Indirectly affected parties include producers and distributors of content who supply programs to licensees. Because the licensee bears the compliance risk, it will likely contractually require upstream content suppliers to warrant that programs do not contain material that would breach this standard. That shifts screening costs along the supply chain. Viewers of narrowcasting services are also affected: their access to certain political or religious content may be reduced as licensees adopt conservative filtering to avoid any risk of breach, especially given the strict liability provisions. Journalists, documentary makers, and political commentators may find that their content is pre-cleared or subject to legal review before broadcast on these platforms. The exception for bona fide reports and comments (section 13) and the political opinion carve-out (section 12) provide some breathing room, but the cost of establishing those defences rests on the licensee. The standard does not apply to free-to-air television broadcasters who operate under individual licences or to radio narrowcasting services, though those sectors have their own anti-terrorism content obligations under different codes or standards. This creates a regulatory asymmetry: the same content may be prohibited on a pay-TV ethnic channel but permitted on a community radio station.

The primary duty is found in sections 9, 10 and 11: a licensee must not broadcast a program that falls within the prohibited categories. For recruitment (section 9), the test is objective - the program must be one that "would be reasonably understood as directly recruiting a person to join, or participate in the activities of, a listed terrorist". The use of "directly" suggests that indirect encouragement that does not rise to the level of express recruitment might be outside this section, but the definition of "recruit" (including induce, incite and encourage) may narrow that gap. For financing (section 10), the test is also objective: the program must be "reasonably understood as soliciting funds" or "assisting in the collection or provision of funds". Section 10(2) provides a non-limiting example: giving details of a bank account, address for sending funds, or other means of payment to or for the benefit of a listed terrorist. For advocacy of a terrorist act (section 11), the test is not "reasonably understood" but simply whether the program "advocates" - and that term is defined in subsection 11(3) with three distinct limbs: counselling/promotion/encouragement/urging (directly or indirectly), instruction on doing a terrorist act (directly or indirectly), and praise of a terrorist act where there is a substantial risk of leading a person to engage in a terrorist act (only direct praise).

Crucially, each prohibition is subject to a strict liability provision: the licensee is in breach "whether or not the licensee is aware that the program falls within" the prohibition (sections 9(2), 10(3), 11(2)). This eliminates any defence of ignorance, mistake of fact, or reasonable belief that the content was lawful. Only the exceptions provide a potential safe harbour. The two main exceptions are:

• Political opinion safe harbour (section 12): sections 9, 10 and 11 are not intended to prevent a licensee from broadcasting a program that "merely gives information about, or promotes the beliefs or opinions of, a listed terrorist". The word "merely" is critical - if the program goes beyond information or promotion into recruitment, fund solicitation, or advocacy, the safe harbour is lost. The line between informing about and recruiting for a listed terrorist will be fact-dependent.

• Bona fide report or comment (section 13): an excerpt from a program that would otherwise be prohibited may be broadcast if included in a news report, current affairs program, documentary or other program, and the excerpt is included as part of a bona fide report or comment on a matter of public interest. This is limited to excerpts, not the entire prohibited program, and the commentary must be genuine, not a pretext for broadcasting the prohibited material.

The standard itself does not prescribe specific penalties. However, because it is made under subsection 125(2) of the Broadcasting Services Act, it has effect as a condition of the class licence held by the licensee. A breach of the standard is a breach of a licence condition. The Broadcasting Services Act then provides a range of enforcement mechanisms available to ACMA, including remedial directions (requiring the licensee to take action to ensure future compliance), injunctions, and civil penalties. For class-licensed services, the ultimate sanction may be suspension or cancellation of the class licence, though in practice ACMA may first issue a warning or compliance notice. The Act also empowers ACMA to accept enforceable undertakings. Additionally, because the standard prohibits content that may overlap with criminal offences under the Criminal Code (such as advocating terrorism, financing terrorism, or recruiting for terrorist organisations), ACMA may refer matters to the Australian Federal Police for investigation. The standard's strict liability nature means that ACMA does not need to prove any mental element; it only needs to prove that the program was broadcast and that it meets the objective test in sections 9, 10 or 11, and that none of the exceptions apply.

The standard does not create a private right of action; enforcement is by ACMA. Industry self-regulation is not relevant here because this is a mandatory standard rather than an industry code. The maximum civil penalty for breach of a licence condition under the Broadcasting Services Act can be substantial (up to $250,000 for an individual or $1.25 million for a body corporate, indexed). However, the standard itself does not quantify a penalty; the applicable penalty provisions are in Part 14 of the Act. Practitioners should check the current penalty amounts under section 205F and related provisions of the Broadcasting Services Act. Importantly, the absence of a knowledge defence increases the risk for licensees: even if a licensee inadvertently broadcasts a prohibited program (for example, because a content provider mislabelled a documentary), the licensee is still in breach. This creates strong incentives for pre-broadcast content review and contractual indemnities.

This standard sits within a broader regulatory framework for broadcasting content. The Broadcasting Services Act establishes a tiered system: commercial television and radio broadcasters operate under industry codes of practice (registered with ACMA), while subscription and open narrowcasting services are subject to standards made by ACMA under section 125. This standard replaces two previous standards (for subscription and open narrowcasting separately) with a consolidated instrument. It does not apply to free-to-air commercial television, which is subject to the Commercial Television Industry Code of Practice and the Broadcasting Services (Content and Other Matters) Standard 2021 (which contains its own anti-terrorism provisions). Radio narrowcasting services are not covered by this standard, though they may be subject to similar obligations under other instruments.

The standard operates alongside the general criminal law. Conduct that breaches this standard may also constitute an offence under the Criminal Code, such as advocating terrorism (section 80.2C), recruiting for a terrorist organisation (section 102.4), or financing terrorism (Part 5.3). However, the standard creates a lower threshold for civil breach: no mens rea is required, and the objective "reasonably understood" test for recruitment and financing may catch material that would not meet the higher criminal standard. The standard also applies to threats of terrorist acts (see note to definition of terrorist act). Other Commonwealth laws, such as the Charter of the United Nations Act 1945 relating to asset-freezing and proscription, feed into the definition of "listed terrorist". The standard's definition incorporates both Criminal Code listings and Ministerial Gazettal under the Charter of the United Nations Act. This means that if an entity is listed under either regime, any program that recruits for, solicits funds for, or advocates terrorist acts for that entity may be prohibited. Changes to the listing regimes automatically affect the scope of the standard without amendment.

The standard also interacts with the implied constitutional freedom of political communication. Sections 12 and 13 attempt to carve out political content and bona fide news reporting, but they are not absolute constitutional guarantees. A licensee could theoretically challenge the standard as an impermissible burden on political communication, particularly if a program expresses support for a listed terrorist's political ideology without crossing into recruitment or advocacy. The "merely gives information about" language in section 12 may be vulnerable to narrowing interpretation by regulators. There is no mention in the instrument of any consultation with the Attorney-General's Department or human rights compatibility, though as a legislative instrument the standard is subject to disallowance by Parliament.

This standard was made on 9 September 2021 and registered on the Federal Register of Legislation on the same day (assuming registration date). It commenced on the day after registration (section 2), meaning 10 September 2021. It repealed two predecessor instruments: the Broadcasting Services (Anti-terrorism Requirements for Subscription Television Narrowcasting Services) Standard 2011 and the Broadcasting Services (Anti-terrorism Requirements for Open Narrowcasting Television Services) Standard 2011. Those earlier standards had separate provisions for subscription and open narrowcasting services, but the 2021 standard consolidates them into a single instrument with identical prohibitions for both types of licensee. The substantive prohibitions in sections 9, 10 and 11 are substantially similar to the repealed instruments, though the definitions and formatting have been updated. The 2021 standard also includes updated references to the Criminal Code (noting the definition of terrorist act covers threats), and clarifies that the Charter of the United Nations Act 1945 proscription process is included in the definition of "listed terrorist" (the 2011 standards used the same definition, but the note is clearer). There have been no amendments to this standard since its commencement as of the time of writing. However, the dynamic referencing to the Criminal Code and Gazettal means that the scope of "listed terrorist" changes over time without formal amendment of the instrument. For example, if a new organisation is listed under Division 102 of the Criminal Code, it automatically becomes a listed terrorist for the purposes of this standard. Similarly, if the Minister Gazettees an entity under the Charter of the United Nations Act, it is swept in. Practitioners must monitor those external listings rather than relying solely on this instrument.

As of the date of this instrument (September 2021) there is no recorded litigation specifically concerning the 2021 standard. The repealed 2011 standards gave rise to some commentary but no known judicial decisions that interpret the provisions. However, the constitutional validity of similar content-based prohibitions on broadcasting in Australia has been the subject of litigation. For instance, the earlier Broadcasting Services (Anti-terrorism Requirements for Subscription Television Broadcasting Services) Standard 2011 (relating to subscription broadcasting, not narrowcasting) was challenged in Maloney v The Queen (2013) 252 CLR 168, though that case concerned different provisions about voting rights, not anti-terrorism. More relevantly, the defence of the implied freedom of political communication has been raised against other broadcasting content restrictions, but not specifically this standard.

Potential grounds for future legal challenge include: (a) the definitions of "advocates" and "recruit" being too broad and vague, possibly infringing the implied freedom of political communication, especially given the strict liability nature; (b) the exclusion of satire and public debate limited to section 11(4) only, leaving section 9 and 10 without any equivalent defence; (c) the "substantial risk" test in section 11(3)(c) for praising terrorist acts, which may be uncertain and difficult to apply, inviting a finding that it gives ACMA excessive discretion; (d) the interaction with the Criminal Code where the same words have different meanings (e.g. "advocates" in this standard versus the specific offence of urging violence). A court could find that the standard is inconsistent with the Broadcasting Services Act if it conflicts with the general scheme of industry self-regulation for narrowcasting services. The objects clause (section 7) may be used to resolve ambiguity, but it cannot override clear text.

Several traps await unwary licensees and their advisers. First, the strict liability provisions (sections 9(2), 10(3), 11(2)) remove any defence of ignorance. A licensee that broadcasts a program without reviewing it for prohibited content is liable even if it had no reason to suspect the content was problematic. This places a heavy compliance burden on all programming, including pre-recorded material, live-to-air content (such as talkback or viewer contributions), and even third-party advertisements. Pre-broadcast screening becomes essential. Second, the definition of "listed terrorist" is dynamic and broad. It includes not only organisations proscribed under the Criminal Code (which are generally well-known) but also any entity or person listed in the Gazette by the Minister for Foreign Affairs under the Charter of the United Nations Act 1945. This second limb captures individuals or entities designated by the United Nations Security Council or by Australian ministerial discretion. A licensee must monitor both lists regularly; a failure to check the Gazette could result in broadcasting content about an entity that was listed a month ago but which the licensee never heard of.

Third, the exception for political opinion in section 12 is limited to programs that "merely" give information or promote beliefs or opinions. If the program goes beyond that into active recruitment or fundraising (even implicitly), the exception is lost. The word "merely" is restrictive; a documentary that provides significant information about a listed terrorist's ideology but also includes a call to action (even a veiled one) may not be protected. Similarly, the bona fide report exception (section 13) only applies to "an excerpt" from a prohibited program. Broadcasting the entire program with commentary may not be covered; only a short excerpt is allowed. And the commentary must be a genuine report or comment on a matter of public interest. A program that is essentially a feature-length propaganda piece with minimal editorialising is unlikely to satisfy this exception. Fourth, the definition of "recruit" includes induce, incite and encourage. This means a program that praises the activities of a listed terrorist in a way that encourages others to join may fall under section 9 even if it does not explicitly ask for recruits. The "reasonably understood" test in section 9(1) is objective; the licensee's intention or the program maker's purpose is irrelevant.

Fifth, the advocacy prohibition in section 11 uses a three-part test for "advocates" that includes indirect counselling or promotion (subsection 11(3)(a)). This is broad: a program that subtly promotes the idea of a terrorist act without explicitly saying "go do it" could still be caught. The defence in subsection 11(4) for public discussion or satire is useful but applies only to the advocacy prohibition, not to recruitment or financing. A satirical sketch that depicts a terrorist act might be protected under section 11(4), but if that same sketch also solicits funds for a listed terrorist (e.g. as a joke), it could still breach section 10. Sixth, the standard does not contain any transitional provisions or savings for content that was lawful under the 2011 standards. If a licensee broadcast a program before September 2021 that was lawful under the old standards but now falls within a prohibition under the new standard (though unlikely given the similarity), the licensee must cease broadcasting that content immediately.

Compliance begins with understanding the licensee's obligations and the scope of the prohibitions. A licensee should develop a written compliance policy that addresses the standard. The policy should include the following elements. First, content pre-screening: all programs proposed for broadcast (whether produced in-house, commissioned, or acquired) should be reviewed by a designated compliance officer before transmission. The review should assess whether the program could be reasonably understood as recruiting for a listed terrorist, soliciting/assisting funds for a listed terrorist, or advocating a terrorist act (as defined). Special attention should be paid to programs that discuss or depict political violence, religious extremism, or entities that may be listed terrorists. The compliance officer should have access to up-to-date lists of listed terrorist organisations (published by the Australian government) and the Gazette for proscribed persons/entities.

Second, live content management: if the licensee broadcasts live programs (e.g. talk shows, viewer call-ins, or live sports that might include political statements), a delay mechanism (of, say, 30 seconds) should be implemented to allow the operator to cut away if prohibited content emerges. Without a delay, the licensee is strictly liable for anything said live. Third, contractual protections: licensees should require content suppliers to indemnify the licensee against any loss arising from a breach of this standard caused by the supplied content, and to warrant that the content does not contain material that would breach this standard. However, indemnities do not protect the licensee from ACMA enforcement; they only provide financial recovery. Fourth, training: all staff involved in programming, editorial decisions, and compliance should receive training on the standard's definitions, including the meaning of "listed terrorist", "recruit", and "advocates", and the limited exceptions. Staff must understand that ignorance is not a defence.

Fifth, monitoring external listings: the compliance officer should regularly (monthly) check the Federal Register of Legislation for new listings under the Criminal Code and the Charter of the United Nations Act 1945 Gazette notices. The standard's scope changes automatically when new entities are listed. Sixth, documentation: maintain records of content pre-screening decisions, including the reasoning for clearing or rejecting programs. This may be useful if ACMA investigates a complaint about a broadcast. Seventh, when in doubt, seek legal advice. The "substantial risk" test in section 11(3)(c) for praising terrorist acts is particularly nuanced; a program that contains a historic news clip of a terrorist act with a voiceover praising the perpetrators may need careful legal analysis. The exceptions for political opinion and bona fide reports should be applied strictly: do not assume that because a program is a documentary, it automatically qualifies for the exception; it must be a genuine report or comment on a matter of public interest, and the excerpt must be incidental to that purpose. Finally, licensees should review their existing content libraries to remove any programs that may have been lawful before the standard but now breach it, and ensure that new acquisitions are screened before broadcast.