These Guidelines set out how the Australian Communications and Media Authority will exercise its enforcement powers under the Broadcasting Services Act 1992, by explaining the types of enforcement action available, the discretionary factors the ACMA will usually consider, and the ACMA’s approach to public comment and publication of enforcement action. The instrument is made under subsection 215(4) of the Broadcasting Services Act (clause 3), commences the day after registration on the Federal Register of Legislation (clause 2), and revokes the ACMA’s 2011 enforcement guidelines (clause 4).

Mechanically the instrument does not create new statutory powers. It records and explains how the ACMA proposes to use powers already conferred by the BSA and related provisions of the ACMA Act, including powers in Division 4 of Part 8B, Part 10, Part 14B, Part 14D, Part 14E, and Part 8 of Schedule 6, as referenced in clause 6.4. It enumerates and describes administrative options the ACMA can deploy, such as remedial directions, suspension and cancellation of licences, enforceable undertakings and infringement notices, and it sets out when and how the ACMA will litigate civilly or refer matters to the Commonwealth Director of Public Prosecutions for criminal prosecution (clause 7.2).

The Guidelines frame the ACMA’s enforcement decision-making as discretionary and risk-based, with a non-exhaustive list of factors the ACMA will generally consider when selecting a response, including the nature and seriousness of the conduct, whether it was deliberate or inadvertent, compliance history, remediation already undertaken, and public harm or urgency (clauses 9.3-9.4). They also explain the ACMA’s public-interest approach to publication and comment about enforcement action, detailing when publication is likely, how it will be communicated, and what elements will ordinarily be made publicly available (clauses 8, 16). The Guidelines therefore operate as procedural and policy guidance for regulated entities, rather than as an extension of statutory penalties or a restatement of legal standards beyond the BSA itself.

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Commonwealth Coat of Arms

Broadcasting Services – Enforcement Guidelines of the ACMA 2021

Broadcasting Services Act 1992

The AUSTRALIAN COMMUNICATIONS AND MEDIA AUTHORITY makes these Guidelines under subsection 215(4) of the Broadcasting Services Act 1992.

Dated 12 August 2021

James Cameron [signed] Member

Cathy Rainsford [signed] Member/General Manager

Australian Communications and Media Authority

Contents

5 Definitions and interpretation

6 Introduction

7 Types of enforcement action available to the ACMA

8 Public comment and publication of enforcement action

9 Exercising enforcement powers

10 Suspension and cancellation of licences

11 Remedial directions

12 Enforceable undertakings

13 Infringement notices

14 Institution of civil proceedings

15 Referral of matters to the CDPP

16 Form of publicity and public comment

1 Name of instrument

This instrument is the Broadcasting Services – Enforcement Guidelines of the ACMA 2021 (the guidelines).

2 Commencement

The guidelines commence on the day after they are registered on the Federal Register of Legislation.

Note: The Federal Register of Legislation may be accessed at www.legislation.gov.au.

3 Authority

The guidelines are made under subsection 215(4) of the Broadcasting Services Act 1992.

4 Revocation

The Guidelines relating to the ACMA’s enforcement powers under the Broadcasting Services Act 1992 dated 26 August 2011 (Registration No. F2011L01778) are revoked.

5 Definitions and interpretation

5.1 In these guidelines:

ACCC means the Australian Competition and Consumer Commission.

ACMA means the Australian Communications and Media Authority.

ACMA Act means the Australian Communications and Media Authority Act 2005.

BSA means the Broadcasting Services Act 1992.

BSA code means an industry code of practice registered by the ACMA under the Broadcasting Services Act 1992.

CDPP means the Commonwealth Director of Public Prosecutions.

5.2. Unless the contrary intention appears, expressions used in the guidelines and the BSA have the same meaning in the guidelines as they have in the BSA.

5.3 In these guidelines, unless the contrary intention appears, a reference to any other legislative instrument is a reference to that other legislative instrument as in force from time to time.

Note 1: For references to Commonwealth Acts, see section 10 of the Acts Interpretation Act 1901; and see also subsection 13(1) of the Legislation Act 2003 for the application of the Acts Interpretation Act 1901 to legislative instruments.

Note 2: All Commonwealth Acts and legislative instruments are registered on the Federal Register of Legislation.

6 Introduction

6.1 The ACMA is an independent statutory authority established under section 6 of the ACMA Act. The ACMA’s broadcasting, content and datacasting functions are set out in section 10 of that Act.

6.2 Section 5 of the BSA charges the ACMA with responsibility for monitoring the broadcasting industry and a number of related industries, and notes that the ACMA has conferred on it a range of functions and powers that are to be used in a manner that, in the opinion of the ACMA, will:

 produce regulatory arrangements that are stable and predictable; and

 deal effectively with breaches of the rules established by the BSA.

6.3 Subsection 215(4) of the BSA provides that the ACMA may formulate guidelines relating to its enforcement powers. These guidelines are in force for the purposes of subsections 215(5) and (6) of the BSA.

6.4 The guidelines highlight the discretionary factors which the ACMA generally considers in the exercise of its enforcement powers conferred under Division 4 of Part 8B—remedies for breaches of international broadcasting licence provisions, Part 10—remedies for breaches of broadcasting licensing provisions, Part 14B—civil penalties, Part 14D—enforceable undertakings, Part 14E—infringement notices and Part 8 of Schedule 6 to the BSA—remedies for breaches of datacasting licence provisions, and in deciding whether to refer a matter to the CDPP. The guidelines also highlight the ACMA’s approach to public comment and publication of enforcement action.

6.5 The guidelines take into account the objects of, and regulatory policy underpinning, the BSA (sections 3 and 4).

6.6 Under the BSA, the ACMA is responsible for regulating certain aspects of media diversity. The ACCC has a role in regulating competition and assessing whether a merger will lead to a substantial lessening of competition. Where a matter requires enforcement action by both agencies, these processes will generally run in tandem, although this may vary depending on the circumstances of each individual case.

6.7 While the guidelines seek to provide guidance to the regulated community, the ACMA retains the discretion to impose or seek remedies and sanctions which it considers appropriate in the light of the particular circumstances of each case.

7 Types of enforcement action available to the ACMA

7.1 The types of enforcement action available to the ACMA reflect the diverse and dynamic regulatory environment in which the ACMA operates as well as the range of the ACMA’s responsibilities.

7.2 The enforcement powers conferred on the ACMA under the BSA include:

 giving an infringement notice, accepting an enforceable undertaking, giving a remedial direction, and suspending or cancelling licences (administrative action)

 instituting civil proceedings to obtain injunctive relief, an order to cease, civil penalty orders, and orders to enforce compliance with an enforceable undertaking (civil litigation)

 referral to the CDPP for prosecution of an offence (criminal prosecution).

7.3 Not all of these enforcement powers are available for every contravention of the BSA. Certain enforcement decisions may only be made by the Authority (see subsection 53(2) of the ACMA Act).

7.4 The ACMA may, in the exercise of its discretion, accept informal voluntary undertakings given by a regulated entity. An undertaking of this kind may resolve and address the issues of concern to the ACMA and, as a consequence, recourse to formal enforcement powers would not be necessary.

8 Public comment and publication of enforcement action

8.1 The ACMA is accountable to government and the public for its investigations and enforcement actions arising from those investigations. In the ACMA’s view, open communication about the outcomes of its enforcement action:

 informs and educates members of the regulated community about the standards required by the law

 serves to deter illegal conduct and encourage compliance by highlighting the consequences of breaking the law

 helps the regulated community better understand their obligations and to conduct themselves in a way that minimises the need for the ACMA to intervene

 informs and educates members of the public about their legal rights, what the ACMA is doing to ensure compliance with the law and how they can act to benefit from those rights, and

 promotes confidence in the law as the law is seen to work in the public interest through enforcement action.

8.2 In deciding whether to publicise or comment on enforcement action the ACMA is guided by the public interest. There is a range of factors which may be considered by the ACMA in assessing whether publication or comment is or is not in the public interest, including:

 whether information about the investigation is in the public domain

 the nature and seriousness of the issues

 whether disclosure is desirable to address public concerns or protect the public from further harm or loss

 fairness to the subject(s) of the investigation

 protection of any private, confidential or sensitive information, and

 any potential adverse impact public comment may have on enforcement action, including court proceedings.

8.3 It is the ACMA’s view that where it has found a contravention of the law, publication of the enforcement action taken will ordinarily be in the public interest. See subclauses 10.4, 11.10, 12.17 and 12.18, 13.17 and 13.18 (administrative action), 14.4 and 14.5 (civil litigation), 15.4 and 15.5 (criminal prosecution). See too clause 16.

9 Exercising enforcement powers

9.1 The ACMA recognises that co-regulatory arrangements apply to some industry sectors regulated by the BSA and that these guidelines will operate in that context when those arrangements apply.

9.2 The ACMA recognises the importance of encouraging and facilitating compliance by all industry participants with statutory obligations. The ACMA’s compliance activities may be both proactive and reactive. In undertaking these activities, the ACMA engages with the regulated community to achieve, to the greatest extent possible, voluntary compliance.

9.3 The ACMA adopts a strategic risk-based approach to compliance and enforcement. The decision as to what, if any, enforcement action should be taken by the ACMA is made in the light of the facts of the matter and having regard to the objects the BSA and the regulatory policy underpinning it (sections 3 and 4 of the BSA).

9.4 The ACMA’s compliance and enforcement approach is to take action that is commensurate with the seriousness of the conduct which includes consideration of the nature and consequences of the conduct (section 5 of the BSA). There is a range of factors which may be considered by the ACMA in determining the appropriate enforcement response including:

 whether the conduct was deliberate, reckless or inadvertent

 whether the conduct has caused, or may cause, detriment to another person and the nature, seriousness and extent of that detriment

 whether the conduct involved indicates systemic issues which may pose ongoing compliance or enforcement issues

 whether the regulated entity or person has been the subject of prior compliance or enforcement action and the outcome of that action

 the compliance history and culture of the regulated entity

 the specific and general educative and/or deterrent effect of taking action

 the seniority and level of experience of the person(s) involved in the conduct

 what, if any, action has been taken to remedy and address the consequences of the conduct

 whether the subject of the investigation has co-operated with the ACMA

 whether the issues involved require urgent action or intervention by the ACMA.

9.5 The circumstances of each contravention will be considered separately. In making enforcement decisions, the ACMA will not be influenced by bias, conflicts of interest or irrelevant considerations.

9.6 The action which the ACMA may take to address and redress non-compliance may involve recourse to more than one enforcement option. Equally, the ACMA may consider that, in the light of the factual circumstances, no formal enforcement action should be taken. For example, the ACMA may consider, having raised the issue of non-compliance with the regulated entity, that it has, or will, adequately address the issues in question without the need for further action and intervention by the ACMA.

10 Suspension and cancellation of licences

10.1 Under the BSA, the ACMA is empowered to suspend or cancel licences in certain circumstances. The relevant provisions set out the preconditions for the exercise of these powers. There is a range of factors which the ACMA may consider in determining whether suspension or cancellation of a licence is an appropriate enforcement response (see clause 9).

10.2 Where the ACMA has formed a view that it may be appropriate to take action to suspend or cancel a licence it will, among other things:

 identify the issues of concern to the ACMA

 notify the relevant person of the proposed action that may be taken

 set out the time within which any representations concerning the proposed action should be provided to the ACMA.

10.3 The decision to suspend or cancel licences must be made by the Authority (see paragraph 53(2)(a) of the ACMA Act).

10.4 The ACMA may also be directed by the Minister for Foreign Affairs to take specified action concerning international broadcasting licensees, including giving a formal warning to the licensee (Part 8B of the BSA). The ACMA must comply with the directions given by the Minister.

Publication

10.5 The ACMA’s general approach is that it will publicise the suspension or cancellation of a licence. See clauses 8 and 16.

11 Remedial directions

11.1 Under the BSA, the ACMA is empowered to issue a remedial direction in certain limited circumstances.

11.2 There is a range of factors which the ACMA may consider in determining whether a remedial direction should be issued (see clause 9). In determining whether a remedial direction should be issued, the ACMA will generally also consider whether the remedial direction should address all or merely some aspects of the conduct or issues of concern to the ACMA.

Subject matter of a remedial direction

11.3 Many of the provisions under which a remedial direction may be issued under the BSA set out examples of action that the ACMA may direct must be taken. Those examples are not exhaustive. What action will be specified in the remedial direction will turn on the facts of each matter. The action specified may involve multiple elements.

11.4 The action specified by the ACMA will be:

 proportionate to the impact of the conduct or risk of future contraventions

 expressed in clear and unambiguous language

 reasonably capable of implementation within any time specified for compliance

 capable of being measured or tested objectively.

Time for compliance

11.5 The time specified in the remedial direction will turn on the facts of the case, including the complexity and commercial sensitivity of the action which the ACMA directs must be taken. The time specified will:

 enable sufficient time for the recipient to take the specified action

 reflect the impact or egregiousness of the conduct or risk (for example, the greater the detriment to the public and/or risk of ongoing detriment, the greater the need for prompt action to be taken to minimise or ameliorate that detriment)

 be expressed in clear and unambiguous language.

Applications for an extension of time

11.6 Section 61AP of the BSA expressly provides for applications for an extension of time in which to comply with a remedial direction issued by the ACMA under section 61AN (unacceptable media diversity situation).

11.7 While there is no express power permitting the ACMA to grant an extension of time for compliance with a remedial direction issued under the other provisions of the BSA, the ACMA will consider an application for an extension of time for compliance. Whether a request will be granted will turn on the facts.

11.8 An application for an extension of time should be made before the compliance date specified in the remedial direction. The basis for the request, as well as the extended period of time sought for compliance, should be specified. The application should be forwarded to the ACMA officer with whom the recipient of the direction has been dealing.

Non-compliance

11.9 The ACMA may commence proceedings in the Federal Court if the ACMA considers that the person has breached a remedial direction. Breach of a remedial direction may also be a criminal offence: see section 142 of the BSA.

Publication

11.10 The ACMA’s general approach is that it will publicise the giving of a remedial direction. See clauses 8 and 16.

12 Enforceable undertakings

12.1 In appropriate circumstances, an enforceable undertaking can provide a flexible and effective remedy, in addition to, or in substitution for, other formal enforcement action that may be available to the ACMA.

12.2 Under section 205W of the BSA, the ACMA is empowered to accept a written undertaking given by a person that the person will:

 take specified action to comply with the Act or a BSA code

 refrain from taking specified action to comply with the BSA or BSA code

 take specified action directed towards ensuring that the person does not contravene the BSA or BSA code, or is unlikely to contravene the Act or code, in the future.[1]

12.3 It is a requirement that the undertaking must be expressed as an undertaking under section 205W of the BSA.

12.4 The person may withdraw or vary the undertaking at any time, but only with the consent of the ACMA. However, the ACMA may cancel the enforceable undertaking by written notice.

12.5 The ACMA may commence proceedings in the Federal Court if the ACMA considers that the person has breached the undertaking.

12.6 An enforceable undertaking may be accepted if, in the opinion of the ACMA, it provides an effective regulatory outcome. In more complex matters, it is not uncommon for there to be a number of issues that may be the subject of concern. It is open to the ACMA to accept an enforceable undertaking with respect to certain aspects of the matter while pursuing other remedies.

12.7 Whether an enforceable undertaking will be accepted by the ACMA will turn on the facts of the particular matter. The acceptance of an enforceable undertaking in a particular set of circumstances should not be regarded as a binding precedent for future action.

Discretionary factors

12.8 There is a range of factors which the ACMA may consider in determining whether an enforceable undertaking should be accepted (see clause 9). The ACMA will generally also consider whether:

 the regulated person or entity is prepared to publicly acknowledge the ACMA’s concerns about the conduct and the need for corrective action

 the terms of the undertaking will achieve an effective outcome for those who may have been disadvantaged by the misconduct (if any)

 there is any risk that the undertakings given will not be fulfilled.

Terms of an undertaking

12.9 The ACMA will not consider accepting an enforceable undertaking that seeks to impose terms or conditions on the ACMA.

12.10 The ACMA will not consider accepting an enforceable undertaking where the regulated person or entity:

 seeks to deny liability

 seeks to establish defences for breach of the relevant Act or BSA code

 merely undertakes to comply with the law.

12.11 The ACMA will also not consider accepting an enforceable undertaking on a confidential basis. It may, however, consider a request that a particular term of the enforceable undertaking not be made public if that term discloses sensitive private, commercial or confidential information. Any such request must be made before the undertaking is executed by the ACMA. The ACMA will carefully consider, but is under no obligation to agree to, any such request.

12.12 The terms of an enforceable undertaking offered should:

 establish a relationship between the specified action and the contravention of the BSA or BSA code

 be proportionate to the impact of the breach or risk of future contravention

 be readily understood

 be capable of implementation

 include action which is capable of being measured or verified objectively.

Offering an enforceable undertaking

12.13 The person offering the undertaking must have the requisite authority to negotiate and bind the regulated person or entity.

12.14 Once offered, it is then a matter for the ACMA to determine whether the undertakings offered provide, in the light of the facts of the case, an effective and appropriate regulatory outcome.

12.15 A person wishing to offer the ACMA an enforceable undertaking should generally raise it, in the first instance, with the ACMA officer with whom they have been dealing. While ACMA officers may be authorised to negotiate an undertaking, the decision to accept the terms of an undertaking is made by the Authority.

12.16 The person offering the enforceable undertaking must execute the undertaking first. The enforceable undertaking will only come into effect when the Authority has executed the undertaking given.

Publication

12.17 The ACMA’s general approach is that it will publicise the acceptance of the enforceable undertaking by the ACMA. As acceptance of an undertaking is made public, so too will any decision by the ACMA to vary, withdraw or cancel an enforceable undertaking.

12.18 It is also the ACMA’s practice to publish all enforceable undertakings on its website www.acma.gov.au (see subsection 205W(5)). As noted in subclause 12.11, particular terms of an enforceable undertaking may, however, not be published. See clauses 8 and 16.

13 Infringement notices

13.1 Infringement notices are designed to provide a timely, cost-efficient enforcement outcome and an alternative to court proceedings. Only certain limited provisions of the BSA are designated as infringement notice provisions.

13.2 There is no obligation on the ACMA to issue an infringement notice (section 205ZD). There is a range of factors which the ACMA may consider in determining whether an infringement notice should be given (see clause 9). Matters where an infringement notice may not be appropriate include where:

 the ACMA has previously taken action against the recipient for similar contraventions

 the contraventions have occurred over an extended period of time

 the recipient has, as a consequence of the contraventions, obtained a financial or other advantage, to the detriment of others

 the recipient’s conduct is the subject of other compliance or enforcement action by the ACMA.

13.3 Before an infringement notice is issued, a formal warning must be given about the alleged contravention or a similar contravention (section 205XA and subsection 205Y(4)). The decision to issue a formal warning, and/or an infringement notice, must be made by the Chair or member of staff of the ACMA appointed by the ACMA under section 205ZE (authorised infringement notice officer).

13.4 Payment of the penalty within 28 days after the notice is given, or a longer period agreed to by the ACMA (paragraph 205Z(d)), prevents the ACMA from commencing proceedings for the imposition of a civil penalty for the alleged contravention. On payment, the liability of the person for that alleged contravention is discharged.

13.5 In the event that payment is not made within 28 days after the notice is given, or the longer period agreed to by the ACMA, the ACMA may take action, including commencing proceedings for the imposition of a civil penalty.

13.6 In giving the formal warning, the ACMA puts the recipient formally on notice about the ACMA’s view of the alleged conduct.

13.7 Whether it is necessary to proceed beyond the formal warning stage will turn on the facts. For example, the recipient may provide information about the conduct or other information may come to light which alters the ACMA’s understanding of the issues.

Content of an infringement notice

13.8 An infringement notice issued by the ACMA under the BSA will, among other things:

 state the date on which the notice is issued

 set out brief details of the alleged contravention

 set out the amount of the penalty imposed and an explanation as to how the penalty was calculated

 set out the date by which payment is due and to whom payment should be addressed (see discussion below concerning requests for extensions of time)

 state that the person to whom a notice is given has the right to request an extension of time to pay

 state that, following payment of the penalty, further proceedings will not be taken with respect to the alleged contravention, and that the liability of the person for that alleged contravention is discharged

 state that the person to whom a notice is given has the right to apply to the ACMA to have the notice withdrawn

 explain that the ACMA may withdraw the infringement notice within 28 days of giving the notice and, if the penalty has already been paid, must refund the penalty (see discussion below concerning applications for withdrawal)

 set out the name of the authorised infringement notice officer who issued the notice and the contact details of the person to whom enquiries concerning the notice may be directed.

Request for an extension of time in which to pay the penalty

13.9 Generally, the penalty is required to be paid within 28 days after the notice is given. However, the ACMA may extend the time for payment (section 205Z).

13.10 Requests for extensions of time must be received before the due date for payment and will be considered on a case-by-case basis. Requests should be directed to the contact officer specified in the infringement notice in the first instance.

Withdrawal of an infringement notice

13.11 As noted in paragraph 13.8 above, an infringement notice may be withdrawn by the ACMA. It may be withdrawn by the ACMA of its own volition or following a request for withdrawal from the recipient of the notice. To be effective, the withdrawal must occur within 28 days after the notice was given (subsection 205ZB(3)).

13.12 Factors that may have a bearing on whether a notice should be withdrawn include whether there is further information or evidence which suggests that:

 the recipient of the notice did not breach the Act; or

 the conduct is more serious than initially believed and, as a consequence, the matter would be more appropriately dealt with by the court.

13.13 The decision as to who should consider an application for withdrawal of a notice will be made in light of the facts of the case including the basis/reasons for the request. In most cases it will be the authorised infringement notice officer who gave the notice who will be best placed to consider the request. As the issuing officer, they will be aware of the factual issues and will be in a position to make an informed decision within the 28 days, taking into account the reasons for the request and any new information or facts presented, as to whether the information presented alters their belief that the person has contravened the relevant infringement notice provision.

13.14 Requests for withdrawal should therefore be directed to the officer specified in the notice, in the first instance.

Effect of withdrawal of an infringement notice

13.15 If the infringement notice is withdrawn after payment of the penalty, the penalty paid will be refunded.

13.16 If an infringement notice is withdrawn, the ACMA will consider whether further action is appropriate. That action may include the institution of civil penalty proceedings for the alleged contravention/s, the subject of the infringement notice (section 205ZD(b)(ii)). What further action is appropriate, if any, will turn on the facts of the case.

Publication

13.17 The ACMA’s general approach to publication of infringement notices given under the BSA is:

 it will not publicise the giving of the infringement notice to an identified person

 it will not publicise that an identified person did not pay the penalty specified in the infringement notice

 it will publicise payment by an identified person of the penalty specified in the infringement notice.

13.18 The ACMA may also publish information from time to time concerning the issue of, and compliance with, infringement notices issued under the BSA aggregated, without identification of the recipients of the notices. See clauses 8 and 16.

14 Institution of civil proceedings

14.1 Under the BSA, the ACMA is conferred a discretion to institute civil proceedings in certain instances. Not all matters where civil proceedings may be commenced will be litigated. There is a range of factors which the ACMA may consider in determining whether the institution of civil proceedings is an appropriate enforcement response (see clause 9).

14.2 The ACMA is bound to comply with the Commonwealth’s model litigant rules when contemplating or conducting litigation.

14.3 The decision to commence civil litigation is made in the light of the facts of the matter.

Publication

14.4 The ACMA’s general approach is that it will publicise the institution of civil proceedings when those proceedings have been filed. Once filed, the ACMA will generally make no further public comment about the subject matter of the litigation until the proceedings have concluded.14.5 The ACMA will generally publish the outcome of civil proceedings including appeals (if any). See clauses 8 and 16.

15 Referral of matters to the CDPP

15.1 Offences are prosecuted by the CDPP. Not all matters involving an alleged offence will be referred to the CDPP by the ACMA. On referral of a matter by the ACMA, the CDPP conducts an independent review of the evidence to determine whether, in the light of the Prosecution Policy of the Commonwealth, it is appropriate to commence a prosecution.

15.2 In referring a matter to the CDPP, the ACMA will act in compliance with any administrative arrangements which may be agreed between the CDPP and the ACMA.

15.3 The decision to refer a matter to the CDPP must be made by the Authority (see paragraph 53(2)(l) of the ACMA Act).

Publication

15.4 The ACMA will not publicise referral of a matter to the CDPP.

15.5 The ACMA’s general approach is that it will publicise the laying of charges and the outcome of any prosecution undertaken by the CDPP, including the withdrawal of charges, acquittal, successful prosecution and the outcome of an appeal (if any). See clauses 8 and 16.

16 Form of publicity and public comment

16.1 The ACMA will report and comment on enforcement action in a manner that is factually accurate, fair and balanced and seeks to inform in a way that serves to promote compliance and enhance public confidence in the regulation of communications and media.

16.2 The form of publicity and public comment made by the ACMA about enforcement actions and outcomes may include:

media releases and briefings

inclusion of the matter in a register on the ACMA website including links to the formal document incorporating any administrative outcome (such as a remedial direction, enforceable undertaking or infringement notice)

publication of reports, updates and guides on the ACMA website

social media posts

public presentations and speeches.

16.3 The ACMA is also accountable to the Commonwealth Parliament through parliamentary committees. The ACMA may be obliged, or it may otherwise be appropriate, to answer questions or provide information to parliamentary committees in relation to the ACMA’s activities, including enforcement actions and outcomes. Where the ACMA does so, these disclosures will form part of the public record.

[1] The ACMA may also accept an enforceable undertaking under section 61AS of the BSA. The range of discretionary factors that the ACMA may consider when accepting and enforcing a section 205W enforceable undertaking will also generally apply to the acceptance and enforcement of a section 61AS undertaking.

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Broadcasting Services – Enforcement Guidelines of the ACMA 2021

Broadcasting Services Act 1992

The AUSTRALIAN COMMUNICATIONS AND MEDIA AUTHORITY makes these Guidelines under subsection 215(4) of the Broadcasting Services Act 1992.

Dated 12 August 2021

James Cameron [signed] Member

Cathy Rainsford [signed] Member/General Manager

Australian Communications and Media Authority

Contents

5 Definitions and interpretation

6 Introduction

7 Types of enforcement action available to the ACMA

8 Public comment and publication of enforcement action

9 Exercising enforcement powers

10 Suspension and cancellation of licences

The Guidelines rest on a handful of organising concepts and statutory cross-references. First, the ACMA is an independent statutory authority established under the ACMA Act, and the Guidelines are issued under the BSA power to formulate enforcement guidelines at subsection 215(4) (clause 6.1 and clause 3). Second, the Guidelines treat enforcement as a menu of available responses, not a single mandatory sequence. That menu includes administrative actions, civil litigation and criminal referral, each drawing on discrete provisions of the BSA and associated legislation (clause 7.2).

A central concept is discretion. The Guidelines repeatedly identify a "range of factors" the ACMA will consider in deciding whether and how to act (clauses 9.4, 12.8, 13.2, 14.1). Those factors are non-exhaustive and include deliberateness, detriment caused, systemic issues, prior action, compliance culture, remedial steps taken, cooperation with the ACMA, and urgency (clause 9.4). The Guidelines therefore signal case-by-case assessment rather than bright-line rules.

A related concept is proportionality. When the ACMA crafts remedial directions or accepts enforceable undertakings it says the required action will be proportionate to the impact of the conduct, capable of being measured objectively, and reasonably practicable within any specified time for compliance (clauses 11.4, 11.5, 12.12). For infringement notices the Guidelines describe a procedural prerequisite, a formal warning, and state that payment within the prescribed period discharges liability for the alleged contravention (clauses 13.3-13.4).

Publicity and transparency is another organising idea. The ACMA sets out a public-interest test to guide whether to publicise enforcement action, and it states a general approach that many enforcement outcomes will ordinarily be publicised, with specified exceptions for some infringement notice disclosures (clauses 8.1-8.3, 13.17-13.18, 12.17-12.18). Finally, the Guidelines acknowledge institutional interfaces and limits: the ACMA’s responsibilities intersect with the ACCC on media diversity and competition in mergers (clause 6.6), the CDPP prosecutes offences after referral and conducts an independent evidence review (clause 15.1), and some decisions must be taken by the Authority or in conformity with the model litigant rules (clauses 10.3, 14.2, 15.3).

The Guidelines apply to the persons and entities regulated by the Broadcasting Services Act. The defined terms include ACMA, ACCC, CDPP, the ACMA Act and the BSA itself (clause 5.1), and clause 5.2 clarifies that expressions used in the Guidelines have the same meaning as in the BSA. In practice the Guidelines will be relevant to:

broadcasting licensees, including local and national broadcasters operating under the BSA and datacasting licensees to which Part 8 of Schedule 6 applies (clause 6.4);
international broadcasting licensees, for whom Part 8B and ministerial directions may be relevant (clause 10.4);
entities subject to registered industry codes under the BSA, because the ACMA may accept enforceable undertakings and issue remedial directions to ensure compliance with BSA codes (clause 12.2);
any natural person or corporation that may be the subject of an infringement notice, remedial direction, suspension or cancellation of licence, enforceable undertaking, civil penalty action or criminal referral (clauses 7.2, 11.9, 12.5, 13.4, 14.1, 15.1).

The Guidelines also affect intermediaries who advise those regulated entities, such as legal and compliance teams, because they set out procedural expectations and practical timelines for responses, representations and applications for extensions (clauses 10.2, 11.5-11.8, 13.9-13.10). The Guidelines reference the ACCC’s role where media diversity and competition intersect, so regulated parties involved in mergers or ownership changes should expect parallel or tandem processes when both ACMA and ACCC involvement is required (clause 6.6).

Finally, the Guidelines affect the broader public and stakeholders who may seek to be informed about enforcement outcomes. The ACMA says publication informs the public of legal rights and enforcement outcomes and serves educative and deterrence purposes, and it sets out a range of publicity mechanisms the ACMA may use, from media releases to registers on the ACMA website (clauses 8.1, 16.2). That means regulated entities should anticipate potential reputational consequences from publicised enforcement action, subject to the specific publication practices described elsewhere in the instrument.

The Guidelines restate and explicate duties and rights that flow from the BSA and procedural features the ACMA will respect when exercising its powers. Key duties include obligations on regulated entities to comply with remedial directions and enforceable undertakings once accepted, and the potential duty to respond to notices and ACMA inquiries in the course of an investigation. The ACMA may commence Federal Court proceedings for breach of a remedial direction or an enforceable undertaking (clauses 11.9, 12.5). The Guidelines also note that breach of a remedial direction may be a criminal offence under section 142 of the BSA (clause 11.9).

Key rights and procedural protections described include:

notice and opportunity to make representations before suspension or cancellation of a licence, with the ACMA notifying the person of the proposed action and the time for representations (clause 10.2). The Guidelines specify that licence suspension or cancellation decisions must be made by the Authority (clause 10.3).
a formal warning requirement before an infringement notice may be issued, with the authorised infringement notice officer required to decide whether to issue the warning or the notice (clause 13.3).
the right, upon receipt of an infringement notice, to request an extension of time to pay the penalty and to apply to the ACMA to have the notice withdrawn, with the ACMA empowered to withdraw within 28 days (clauses 13.8-13.11).
the right to offer an enforceable undertaking, but with constraints; the undertaking must be in the form required by section 205W of the BSA, must be executed by the offering party first, and will come into effect only when the Authority executes it (clauses 12.2, 12.13-12.16).
the ACMA’s commitment to observe the Commonwealth’s model litigant rules when it contemplates or conducts litigation (clause 14.2).

The Guidelines also describe limits on regulated parties’ bargaining positions. For example, the ACMA will not accept enforceable undertakings that deny liability, seek to establish defences to breaches, or merely undertake to comply with the law (clause 12.10). The ACMA will generally not accept undertakings that impose conditions on the ACMA itself (clause 12.9). On publication, certain actions are the ACMA’s choice under the public interest test, but the Guidelines confirm that the ACMA’s "general approach" is to publicise many enforcement outcomes, while preserving discretion to protect confidential or sensitive information (clauses 8.2-8.3, 12.11, 12.17-12.18).

The Guidelines catalogue the enforcement tools the ACMA may use and describe procedural features that affect exposure to penalties. The ACMA’s enforcement toolbox comprises administrative actions, civil litigation and criminal prosecution. Administrative tools include issuing infringement notices, accepting enforceable undertakings, issuing remedial directions, and suspending or cancelling licences (clause 7.2). Civil litigation can seek injunctive relief, orders to cease, civil penalty orders and enforcement of undertakings (clause 7.2). Criminal prosecution follows referral to the CDPP and is prosecuted by the CDPP after an independent review (clause 15.1).

Specific penalty mechanics described are:

infringement notices, which are available for certain BSA provisions designated as infringement notice provisions. A prerequisite to issuing such a notice is the giving of a formal warning about the alleged contravention or a similar contravention (clause 13.3). Payment of the infringement penalty within 28 days, or a longer period agreed by the ACMA, discharges liability for the alleged contravention and prevents civil penalty proceedings on that allegation (clause 13.4). If payment is not made, the ACMA may commence civil penalty proceedings (clause 13.5).
remedial directions, which must be proportionate, clear, capable of implementation within the time specified, and objectively measurable (clauses 11.4-11.5). Non-compliance may attract Federal Court proceedings and may be a criminal offence under section 142 (clause 11.9).
enforceable undertakings accepted under section 205W, which the ACMA may enforce in the Federal Court if breached (clauses 12.2, 12.5). The undertaking must be capable of verification and is intended to secure future compliance (clauses 12.12).
suspension and cancellation of licences, decisions that must be taken by the Authority and that the ACMA generally publicises (clauses 10.1-10.5).

The Guidelines also emphasise prosecutorial and institutional processes. The decision to refer criminal matters to the CDPP must be made by the Authority (clause 15.3). The CDPP will apply the Prosecution Policy of the Commonwealth when deciding whether to prosecute, after an independent review (clause 15.1). For civil litigation the ACMA will observe the Commonwealth model litigant rules (clause 14.2). Publication of enforcement action is treated as part of the enforcement mix and is viewed by the ACMA as an educative and deterrent mechanism, which it will apply subject to public interest considerations (clause 8.1).

The Guidelines situate ACMA enforcement within an existing legal network. They record that expressions used in the Guidelines have the same meaning as in the BSA and that references to other legislative instruments are to those instruments as in force from time to time, pointing readers to the Acts Interpretation Act and Legislation Act for statutory interpretation context (clauses 5.2-5.3). The Guidelines explicitly identify intersections with other agencies and legal regimes.

Competition and media diversity. The Guidelines note the ACCC’s role in competition matters, including merger assessment, and state that where a matter requires enforcement action by both agencies, processes will generally run in tandem, although timing may vary by case (clause 6.6). This identifies a potential coordination or concurrency issue for media mergers and ownership changes that implicate both media diversity regulation and competition law.

Prosecution and criminal law. Offences under the BSA are prosecuted by the Commonwealth Director of Public Prosecutions. The ACMA’s role is to refer matters to the CDPP, but not all alleged offences will be referred. The CDPP conducts an independent review against the Prosecution Policy of the Commonwealth when deciding whether to prosecute (clause 15.1). The Guidelines also state the ACMA will not publicise referral of a matter to the CDPP but will publicise laying of charges and prosecution outcomes (clauses 15.4-15.5).

Litigation standards and Commonwealth obligations. The ACMA is bound to comply with the Commonwealth’s model litigant rules in litigation (clause 14.2). The Guidelines further note that suspension and cancellation decisions must be made by the Authority under the ACMA Act, which establishes an internal governance check on significant enforcement steps (clause 10.3). For remedial directions associated with unacceptable media diversity situations, specific statutory procedures including s61AP for extension applications are invoked (clauses 11.6, 11.7).

Co-regulation and codes. The Guidelines acknowledge co-regulatory arrangements in some industry sectors and make explicit that the ACMA’s enforcement approach will operate within those arrangements (clause 9.1). The ACMA can accept enforceable undertakings to ensure compliance with the Act or registered BSA codes, and it may accept undertakings under s205W and s61AS where appropriate (clauses 12.2, footnote).

Publication and privacy/confidentiality. While the Guidelines emphasise public interest in publication, they balance that against confidentiality concerns and state that specific terms of an enforceable undertaking may be withheld from publication if they disclose sensitive private, commercial or confidential information, subject to ACMA’s discretion and only if requested before execution (clause 12.11). This creates an interaction point with confidentiality law and commercial sensitivities, although publication choices remain unilateral to the ACMA under the public interest framework (clauses 8.2, 16.1-16.2).

The text supplied is itself an instrument dated 12 August 2021 and states its legal provenance and immediate amendment action. Mechanically, the Guidelines commence the day after registration on the Federal Register of Legislation (clause 2). They state the instrument is made under subsection 215(4) of the BSA (clause 3). The instrument expressly revokes the previous Guidelines relating to ACMA enforcement powers under the BSA dated 26 August 2011, Registration No. F2011L01778 (clause 4). The Guidelines therefore replace the 2011 statement of ACMA enforcement policy for the BSA context.

Beyond that express revocation, the text does not record prior amending instruments or a history of incremental changes. The Guidelines themselves tie their content to statutory provisions in the BSA and to the ACMA Act, but they do not purport to amend primary legislation or to modify statutory thresholds. They are a legislative instrument that interprets and explains the exercise of statutory powers rather than a statutory amendment. The Guidelines also indicate that references to other legislative instruments are to those instruments as in force from time to time, which means future amendments to the BSA or other instruments will alter the underlying legal landscape to which these Guidelines refer (clause 5.3).

Users of the Guidelines should therefore note two operational points from the instrument itself. First, the Guidelines are current as of their commencement date following registration, and they revoke the prior guidance, so compliance practices should be updated to reflect the 2021 text (clause 4). Second, because the Guidelines explicitly cross-reference statutory sections and legislative instruments "as in force from time to time" (clause 5.3), any subsequent statutory amendments to the BSA or related statutes may change the practical effect of particular procedural rights and obligations described in the Guidelines, even if the Guidelines text remains the same.

The Guidelines do not include, reference or summarise any specific litigation decisions. They set out the ACMA’s approach to litigation and enforcement, and they record the legal pathways through the courts, but they do not cite cases or give precedential summaries. The document explains that the ACMA may commence proceedings in the Federal Court for breach of remedial directions or enforceable undertakings, and that civil proceedings can be used to seek injunctive relief, orders to cease activity, civil penalty orders and enforcement of undertakings (clauses 11.9, 12.5, 14.1).

The Guidelines set out procedural conduct for ACMA litigation activity rather than describe past litigation outcomes. They state that the ACMA is bound by the Commonwealth model litigant rules when contemplating or conducting litigation (clause 14.2), and they indicate the ACMA’s usual publicity approach in relation to litigation, namely that the ACMA will publicise the institution of civil proceedings when filed and will generally make no further public comment until proceedings conclude, although it will generally publish litigation outcomes including appeals (clauses 14.4-14.5). For criminal matters, the Guidelines describe that the ACMA will not publicise referral to the CDPP but will publicise laying of charges and prosecution outcomes once charges are lodged and resolved (clauses 15.4-15.5).

Because the Guidelines leave discretion at various points to the Authority and to authorised officers, litigation decisions such as whether to commence proceedings are presented as fact-specific exercises that will be made in light of the facts of each matter and the BSA’s objects and policy underpinnings (clauses 9.3, 14.3). The absence of litigation summaries in the Guidelines means practitioners should look to primary court decisions and ACMA published enforcement materials on the ACMA website for any specific case law or precedent relevant to enforcement under the BSA.

The Guidelines contain multiple procedural and substantive features that can catch regulated parties and advisers by surprise if not attended to. These are practical pitfalls, stated in the Guidelines, that affect timing, rights, publicity and acceptable negotiation positions.

Formal warning prerequisite for infringement notices. An infringement notice under the BSA cannot be given without first issuing a formal warning about the alleged or a similar contravention, and the decision to issue a warning or a notice is the function of an authorised infringement notice officer (clause 13.3). A regulated entity still needs to treat a formal warning seriously because it is a precondition of the infringement process.
Payment discharges liability. If a person pays an infringement penalty within 28 days, or a longer agreed period, that payment prevents the ACMA from commencing civil penalty proceedings for the alleged contravention and discharges the person’s liability for that alleged contravention (clause 13.4). Payment therefore closes off later civil avenues on that allegation, with strategic consequences for contested matters.
Time limits for withdrawal of infringement notices. The ACMA may withdraw an infringement notice only within 28 days after giving the notice, and if payment has occurred and the notice is withdrawn the penalty must be refunded (clauses 13.8, 13.11, 13.15). Requests for withdrawal should therefore be made promptly and addressed to the issuing officer (clause 13.13).
Publicity asymmetries. The ACMA’s publication rules differ by remedy. For infringement notices the ACMA will not publicise that an identified person was given a notice or that they did not pay, but it will publicise payment of penalties by identified persons (clauses 13.17-13.18). For remedial directions, enforceable undertakings and licence suspensions or cancellations the ACMA’s general approach is to publicise the action (clauses 10.5, 11.10, 12.17-12.18). Regulated entities should therefore expect differing reputational impacts depending on the enforcement tool used.
Enforceable undertaking constraints and confidentiality. The ACMA will not accept an enforceable undertaking where the person seeks to deny liability, to establish defences, or merely to undertake to comply with the law, and it will not accept undertakings that impose terms on the ACMA (clauses 12.9-12.10). The ACMA will not accept an undertaking on a confidential basis, although it may consider a pre-execution request to withhold particular terms that disclose sensitive information (clause 12.11). Parties seeking to use undertake-and-avoid-litigation strategies must draft terms carefully and be prepared to have most of the undertaking made public.
Remedial directions can trigger criminal exposure. The Guidelines state that breach of a remedial direction can lead to Federal Court proceedings and may be a criminal offence under section 142 of the BSA (clause 11.9). Compliance with remedial directions therefore has criminal as well as civil enforcement stakes.
Authority-level decisions. Some significant decisions must be made by the Authority, not by staff, for example suspension and cancellation of licences and referral to the CDPP (clauses 10.3, 15.3). Parties should therefore expect that the most serious enforcement outcomes will involve higher-level governance processes and potentially longer timelines.
Limited availability of infringement notices. Not every contravention is amenable to infringement notices; only specified BSA provisions are designated. The ACMA has no obligation to issue an infringement notice and may decline where the conduct is serious, systemic, repeated, or has produced financial advantage (clause 13.2).
Extensions and procedural timing. Where the BSA expressly allows an extension (for example s61AP in unacceptable media diversity situations), the statutory route is available, but for other remedial directions the ACMA will nevertheless consider extension requests on a case-by-case basis, and such requests should be made before the compliance date (clauses 11.6-11.8). For infringement notices, extension requests must be made before the due date (clauses 13.9-13.10).
Parallel processes with other regulators. Where ACMA enforcement issues intersect with ACCC or other regulatory regimes, parties may face parallel investigations or tandem processes which may complicate timing and settlement options (clause 6.6).

These "gotchas" are procedural or strategic constraints contained in the Guidelines. Parties should treat warnings and notices as material regulatory events, and plan responses in a way that preserves legal options while meeting tight statutory or administrative timelines.

The Guidelines outline practical steps and expectations which translate into a compliance playbook. The following actions are grounded in the text and reflect the specific processes the ACMA identifies.

Treat formal warnings as formal. Because an infringement notice requires a prior formal warning, respond comprehensively to any formal warning, gather factual records and, where appropriate, provide corrective action evidence to the authorised infringement notice officer. This can alter the ACMA’s assessment before any infringement notice is issued (clause 13.3, 13.6).
Engage early and cooperate. The ACMA lists cooperation and remedial action among the discretionary factors it will consider (clause 9.4). Prompt, candid engagement, and evidence of systemic fixes will be positively considered when the ACMA is choosing its enforcement response.
Prepare to make representations. For potential licence suspension or cancellation, the ACMA says it will notify the relevant person of proposed action and provide a time to make representations (clause 10.2). Ensure your point of contact has the authority to present full factual and legal representations and that you meet any representation timeframe.
Consider enforceable undertakings where appropriate. The ACMA accepts undertakings under section 205W when they provide an effective regulatory outcome. If an undertaking is offered, ensure the offeror has authority to bind the entity, the terms are proportionate, measurable and capable of verification, and be prepared to execute first because the ACMA will execute the Authority’s acceptance afterwards (clauses 12.2, 12.9, 12.12-12.16). Note that the ACMA will not accept undertakings that deny liability or seek to impose terms on the ACMA (clause 12.10).
Draft remedial action to be measurable and timely. Remedial directions must be proportionate, clear, reasonably capable of implementation within specified timeframes, and objectively measurable (clauses 11.4-11.5). If the direction is complex or commercially sensitive, the ACMA will set a time that reflects that complexity, but applicants can seek extensions before the compliance date, and for unacceptable media diversity matters s61AP provides a statutory extension mechanism (clauses 11.5-11.8).
Manage publicity risk proactively. Because the ACMA generally publicises outcomes such as remedial directions, enforceable undertakings and licence suspensions, and will publish accepted undertakings on its website, include public communication strategies and consider making pre-execution requests to withhold particularly sensitive terms from publication, bearing in mind the ACMA’s discretion and likely refusal where non-publication would conflict with public interest principles (clauses 12.11, 12.17-12.18, 16.2).
Preserve appeal and litigation options when strategic. Payment of an infringement penalty within 28 days prevents civil penalty proceedings on that alleged contravention and discharges the liability, a finality that has tactical consequences; make timely extension or withdrawal requests if contesting liability, and understand the limited 28-day window for withdrawal by the ACMA (clauses 13.4, 13.11, 13.15). For civil litigation, remember the ACMA is bound by model litigant rules, which may influence settlement posture and negotiation dynamics (clause 14.2).
Keep documentary proof of remediation and compliance culture. The ACMA considers compliance history, remedial steps taken, and the culture of the regulated entity in its discretionary assessment (clause 9.4). Maintain logs, policies, training records and remediation plans that can be produced to show systemic changes.
Coordinate with other regulators and advisers. Where matters implicate ACCC review or other administrative processes, coordinate submissions and timelines to minimise procedural conflicts or inadvertent disclosure. The Guidelines envisage tandem processes in media diversity and competition matters (clause 6.6).
Use the nominated contacts and act quickly on procedural steps. Infringement notices and applications for withdrawal or extensions should be directed to the contact officer specified in the notice or to the ACMA officer with whom the recipient has been dealing (clauses 11.8, 13.10, 13.13). Timely and targeted communications can preserve options and affect the ACMA’s discretionary calculus.

These steps reflect the mechanisms the Guidelines identify as influencing the ACMA’s enforcement choice and the practical protections available to regulated parties. They are oriented to preserving legal options, limiting exposure to escalatory steps, and demonstrating remediation and cooperation in ways the ACMA says it will recognise (clauses 9.3-9.4, 12.8).

Deep Dive

What it does

Current sections

Broadcasting Services – Enforcement Guidelines of the ACMA 2021

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1 Name of instrument

2 Commencement

3 Authority

4 Revocation

5 Definitions and interpretation

6 Introduction

7 Types of enforcement action available to the ACMA

8 Public comment and publication of enforcement action

9 Exercising enforcement powers

10 Suspension and cancellation of licences

11 Remedial directions

12 Enforceable undertakings

13 Infringement notices

14 Institution of civil proceedings

15 Referral of matters to the CDPP

16 Form of publicity and public comment

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Main concepts

Who it affects

Key duties and rights

Penalties and enforcement

How it interacts with other laws

Amendment history

Litigation history

Gotchas

How to comply