Broadcasting Services (Remote Indigenous Communities) Determination 2022

The instrument is short and conceptually narrow. Its central legal concept is the statutory designation of named localities as “remote Indigenous communities” for the purposes of the Broadcasting Services Act 1992. The Determination implements that concept by reference to three structural elements in the text.

• Authority and legal basis: the Determination expressly invokes ACMA’s power under s8B of the Broadcasting Services Act 1992 as the source of authority for making the declaration (s3). The instrument therefore functions as an exercise of a statutory power to identify places to which the Act’s special regime for remote Indigenous communities applies.

• Operative declaration: s6 is the operative clause. It states, in plain terms, that “Pursuant to section 8B of the Act, the ACMA determines each of the remote Indigenous communities listed in Schedule 1 to be a remote Indigenous community for the purposes of the Act.” The clause ties the list in Schedule 1 to the statutory concept in the Act: the Determination’s legal effect is that each entry in Schedule 1 attains the statutory status stated, as of commencement.

• Schedule as listing device: Schedule 1 is the method by which ACMA fixes which communities are covered. The Schedule is arranged by state and territory headings and contains named localities. Some entries include parenthetical clarifications or alternate names; others are single-word or composite names (for example, island names, mission names, or community names). The instrument contains a specific note marking the Western Australia section as “Note: WESTERN AUSTRALIA,” indicating a formatting or structural choice.

Ancillary but legally relevant concepts present by omission include the lack of spatial delineation, the absence of transitional rules, and the absence of procedural detail about amendment or review. The Determination itself does not define what changes or regulatory consequences flow from designation; rather, those consequences attach by operation of the Broadcasting Services Act 1992 when a place is a “remote Indigenous community” under a section 8B determination. The instrument also repeals the 2011 Determination (s4), which means the current list replaces the earlier list as the authoritative instrument under the Act. The commencement provision (s2) fixes the timing rule for when the list takes legal effect: the start of the day after registration on the Federal Register of Legislation.

The Determination names specific communities across multiple jurisdictions: Queensland, New South Wales, South Australia, Western Australia (noted), and the Northern Territory (Schedule 1). The text itself identifies who exercises the power , the Australian Communications and Media Authority , and records the signatories (Creina Chapman and Fiona Cameron) and the date (24 March 2022). Beyond those immediate facts, the instrument affects, in practical terms, the set of persons, entities and regulatory arrangements whose legal position under the Broadcasting Services Act 1992 depends on whether a place is a “remote Indigenous community.”

The Determination does not, however, itself spell out duties or entitlements, so the class of affected parties must be understood negatively from the instrument: anyone whose regulatory status under the Act turns on whether a site is a remote Indigenous community will find their status determined by reference to Schedule 1 as of commencement (s6 and s2). That includes operators of broadcasting services, community media organisations, licence applicants, licensees, and other stakeholders whose rights or obligations under the Act differ when a place is designated as remote Indigenous. The instrument also affects persons or bodies that were covered by the prior 2011 Determination: s4 repeals the 2011 Determination, so entities that relied on that earlier instrument must now rely on the 2022 list.

Geographic specificity is confined to the names in the Schedule. The Determination does not supply geographic coordinates, maps or boundary descriptions; it therefore affects decision-makers who must determine whether a particular physical site or audience falls within a named entry. If a localised activity occurs in or around a named community, that activity’s regulatory treatment under the Act will depend on whether the place is an exact match to an entry in Schedule 1. The absence of boundary data means consequential actors , for example, broadcasters considering service coverage, or suppliers of content aimed at a named community , will need to interpret whether their locality is captured by the listed name or seek authoritative clarification.

Finally, administrative actors inside ACMA are affected because ACMA is the maker and potential future modifier of the list under s8B of the Act. The Determination does not set an internal review or amendment process; any future changes will require making a further instrument under the statutory head of power relied upon here (s3). The Determination thus alters the legal landscape for a defined set of communities and for those whose obligations under the Act depend on that status, while leaving the detailed implementation and enforcement mechanisms to the Broadcasting Services Act 1992 and to ACMA’s future action.

The Determination does not itself create novel duties, rights, or penalties within its text. The document is declaratory: s6 determines that each community listed in Schedule 1 is a “remote Indigenous community for the purposes of the Act.” Consequently, any duties, rights, exemptions or regulatory distinctions that flow from being a remote Indigenous community originate in the Broadcasting Services Act 1992 rather than in this Determination. The Determination’s legal effect is therefore to change which places trigger the Act’s existing regime.

Because the instrument is silent about specific obligations, it is important to separate two points: (1) the Determination performs the legal act of designation and thus changes the set of places to which the Act’s provisions apply; and (2) the content of the duties and rights remains governed by the Act’s text and any subordinate instruments or policies that implement the Act. The Determination itself contains no clauses that confer entitlements, set compliance steps, specify licensing criteria, or create exceptions; it is a list-making exercise that shifts legal classification.

The principal duty that flows from the Determination , for affected actors , is the practical obligation to treat the Schedule 1 names as the authoritative list of remote Indigenous communities for any decision or compliance exercise under the Broadcasting Services Act 1992. Stakeholders must therefore check the Determination, confirm the commencement date (s2), and align their internal compliance and operational assessments with the updated list. For parties previously relying on the 2011 Determination, s4 removes that instrument and replaces it with the 2022 list; such parties must update their records and legal positions accordingly.

The Determination affords ACMA the right and power to effect such classifications using its statutory power under s8B of the Act (s3). It does not, within its text, provide a right of appeal, review, or objection to the determination itself. The Determination is a statutory instrument; any procedural or substantive remedies would need to be located in the Act or in general administrative law remedies outside the instrument. The Determination also does not contain transitional arrangements, saving provisions, or treatment for changes in community names or status; therefore affected parties should assume that any alteration to who is covered will require a fresh instrument made under the statutory power referenced in s3.

In short, the Determination changes the identity of places that attract whatever duties and rights the Act prescribes for remote Indigenous communities, but the Determination itself is not the source of those substantive rights and duties.

The Determination contains no penalty clauses, enforcement mechanisms, compliance inspections, or administrative sanctions. It does not, by itself, regulate conduct or create offences. The instrument is declaratory: s6 designates the Schedule 1 places as remote Indigenous communities “for the purposes of the Act,” and the Determination’s own provisions are procedural and classificatory rather than punitive.

Because it is silent on enforcement, any sanctions, monitoring, or compliance processes that apply to activities in the named communities must derive from the Broadcasting Services Act 1992 and other relevant statutory or regulatory instruments outside this Determination. The Determination therefore functions as a trigger rather than as an enforcement instrument: it identifies the locales that bring particular behaviours within the scope of the Act, and enforcement of the Act in those locales will be governed by the Act’s enforcement architecture. The Determination itself does not specify which parts of the Act become applicable, nor does it list the civil or criminal penalties that might attach to non-compliance with provisions of the Act, because those matters reside in the Act rather than in this instrument.

From an implementation standpoint, the absence of enforcement text in the Determination has two operational consequences for stakeholders. First, entities seeking to understand penalties or regulatory risk must consult the Broadcasting Services Act 1992 and any relevant subordinate instruments that implement enforcement, rather than rely on the Determination. Second, those responsible for enforcing the Act will need to refer to both this Determination (to identify whether a place is designated) and the Act (to identify applicable offences and enforcement powers) when initiating compliance or enforcement action.

Because the Determination repealed the 2011 Determination (s4), enforcement authorities and regulated parties must be attentive to the change in the operative list , that is, the set of places where enforcement powers under the Act may be applied in the context of remote Indigenous communities has been updated by this instrument, but the Determination itself does not detail how enforcement action will be prioritised, conducted, or penalised.

The Determination explicitly situates itself within the Broadcasting Services Act 1992. Section 3 of the Determination records that it is made under section 8B of that Act, and section 5 defines “Act” to mean the Broadcasting Services Act 1992. The Determination also contains a note directing the reader to section 6 of the Act for definitions of other expressions used in the Determination (s5 Note). Those are the only explicit cross-references to other law within the instrument itself.

Because the Determination is an exercise of a statutory power, its legal operation is to alter the application of the Broadcasting Services Act 1992 by changing which places are remote Indigenous communities under the Act (s6). The Determination therefore interacts with the Act in a way that is limited and targeted: it supplies the factual predicate that the Act uses to apply particular rules. The Determination does not itself amend the Act; it does not change statutory language beyond exercising the classification power conferred by the Act.

Outside of that direct connection, the Determination does not refer to any other statutory regimes, state or territory laws, land tenure, native title, local government arrangements, or broadcasting licences. It does not purport to displace or override other legal regimes; it simply declares a status under the Broadcasting Services Act 1992 for the named places. Any interaction with other statutory instruments (for example, licensing schemes, spectrum assignments, or communications infrastructure regimes) will have to be determined by cross-referencing the Act and those other instruments, since the Determination contains no integrated treatment or express coordination clauses.

The Determination repeals the prior Broadcasting Services (Remote Indigenous Communities) Determination 2011 (s4). That repeal is a direct statutory interaction: the 2011 instrument ceases to be operative and is replaced by the 2022 Determination as the authoritative list under the Act. The instrument does not contain transitional savings or grandfathering provisions; therefore, in the absence of such provisions in the Act itself or in other instruments, the operative list for determining remote Indigenous community status under the Act is the Schedule 1 list from this Determination as of its commencement.

Finally, the Determination’s referencing of the Federal Register of Legislation for commencement (s2) indicates an administrative interaction with the mechanisms for instrument registration and publication. Registration is the trigger for commencement under this instrument; the Determination does not commence on signature alone but at the start of the day after registration.

The Determination itself records only a minimal amendment history: it repeals the earlier Broadcasting Services (Remote Indigenous Communities) Determination 2011 (s4). There are no other amendments recorded inside the text, nor is there any schedule of past amendments beyond the 2011 instrument’s repeal. The Determination is dated 24 March 2022 and signed by ACMA members, which provides the instrument’s provenance and date of execution; commencement is tied to registration on the Federal Register of Legislation (s2). The only explicit historical fact recorded about prior instruments is the formal repeal of the 2011 Determination by s4.

Because the instrument does not describe a process for amendment, it follows from the document’s structure that any future change to the list will need to be effected by a further instrument made under the same statutory head of power , section 8B of the Broadcasting Services Act 1992 , which is the power ACMA exercised to make this Determination (s3). The Determination itself contains no timetable for review, no periodic reporting requirement and no sunset clause; the document therefore leaves open the timing and process for future updates.

For stakeholders needing to track the instrument’s provenance and amendments, the key historical markers contained in the text are: the instrument’s title and number, the date it was made and signed (24 March 2022), its commencement rule tied to registration (s2), and the express repeal of the 2011 Determination (s4). The Determination does not include an explanatory statement or an explanatory memorandum embedded in the text, nor does it set out any legislative history beyond those points. Any further amendment history , additions, deletions, or replacements of communities in Schedule 1 , would be recorded only through the publication of subsequent determinations or instruments made under s8B of the Act.

The Determination contains no reference to litigation, court challenges, tribunals, or disputes. The instrument does not record any past or pending legal proceedings relating to the list, the repeal of the 2011 Determination, or the exercise of the power under section 8B of the Broadcasting Services Act 1992. The text does not cite any cases, nor does it include any factual background describing contestation or legal argumentation.

Given that the Determination’s purpose is to classify places by name, the absence of litigation material in the instrument means that, from the perspective of the text itself, there is no reported litigation history to summarise. Practitioners seeking to identify whether there has been any legal challenge to ACMA’s exercise of power under s8B will need to consult external case law, tribunal records and court databases; the Determination does not supply that record. Within the confines of this instrument, the only historical legal action recorded is the repeal of the 2011 Determination (s4), but that repeal is presented as an administrative replacement rather than the outcome of litigation.

Because the instrument is silent on remedies, objections, or review rights, it does not describe whether affected parties may seek internal review, merits review, or judicial review of the determination itself. The instrument’s silence on those procedural questions means the Determination does not supply guidance on the fora or grounds on which a challenge could be mounted; those matters would be governed by the Broadcasting Services Act 1992 and by general administrative law, neither of which are reproduced or summarised in this instrument.

In short, the Determination contains no litigation history. Any search for cases or legal challenges that concern the classification of the communities listed in Schedule 1 must be conducted outside this instrument, by reference to court and tribunal records and by review of the Broadcasting Services Act 1992 and its administration.

The Determination’s brevity and its method of operation produce a number of practical issues and points of legal ambiguity that parties should note. These are matters that stem directly from what the instrument does include and what it does not include.

• Name-only listing, no boundaries. Schedule 1 lists communities by name (for example, “PALM ISLAND” or “KINGARNARRA” style entries). The Determination does not provide geographic coordinates, cadastral references, maps, or explicit boundary descriptions. For operations that depend on precise spatial coverage , such as station siting, transmitter location, or on-ground delivery of services , the absence of delineated boundaries will create uncertainty about whether a particular parcel of land, address or infrastructure falls within a listed community. The Determination supplies names only (s6 and Schedule 1).

• Alternate and parenthetical names. Several entries include parenthetical names or alternate forms (for example, “MER (MURRAY ISLAND)”, “KALTJITI (FREGON)”, “MANTAMARU (JAMESON)”). Practitioners should not assume that parenthetical terms indicate hierarchy or priority; the Determination does not explain the relationship between alternative names, common names, or official names. This may create ambiguity when different legal instruments or local authorities use different nomenclature to describe the same place.

• Broad labels and single-word descriptors. Some Schedule entries are broad labels rather than clearly delimited towns (for example, “ARNHEM LAND” or “MOUNT ISA”). The Determination does not explain whether such labels are intended to capture entire regions or particular communities within those regions. Users must treat such entries carefully and, where necessary, seek ACMA clarification.

• Repeal without transitional provisions. Section 4 repeals the 2011 Determination, but the instrument contains no transitional or saving provisions. Parties that previously relied on the 2011 list should not assume grandfathering; the Determination is silent on whether licences, approvals, or arrangements that were in place under the 2011 instrument continue without interruption. That silence requires attention from any party with existing regulatory arrangements to confirm how the change affects their legal situation.

• Registration-dependent commencement. The commencement mechanism is the start of the day after registration on the Federal Register of Legislation (s2). The instrument therefore will have a specific commencement date that is not the signature date (24 March 2022) but the registration date; practitioners must check the Register to determine the exact operative date.

• No stated amendment process. The Determination does not set out how the list will be reviewed, who can request an addition or removal, or what criteria ACMA will apply when considering changes. While the instrument was made under s8B (s3), the Determination is silent on procedural standards. Any likely future change will require ACMA to make a further instrument, but the Determination does not provide a mechanism for community consultation, notice periods, or challenge.

• Mixed types of entries. Schedule 1 contains islands, reserves, missions, community names, and broader place names. The heterogeneity in typology may complicate automated or administrative checks, as well as third-party databases that attempt to align addresses or postcodes to the Determination.

• Multi-jurisdictional spread. The Schedule crosses state and territory lines. Coordination between federal regulatory action under the Act and state or territory rules that apply to land, planning, or broadcasting facilities is not addressed. The Determination does not identify which state or territory agencies should be engaged with respect to each listed entry, nor does it harmonise with any state lists.

• Blank cells and formatting notes. The Schedule contains blank cells in places and a “Note: WESTERN AUSTRALIA” heading that is formatted differently from the other state headings. Users should not infer substantive meaning from those formatting particulars; rather, they should rely on the literal presence or absence of a community name in the Schedule.

These are not regulatory findings or external recommendations; they are immediate facts derivable from the instrument’s text. Each point follows from what the Determination includes or omits and therefore represents an area of potential operational or legal uncertainty for affected parties that requires attention.

Compliance with this Determination is principally a matter of recognising and acting on the list in Schedule 1. Because the instrument itself does not specify operational obligations, the first compliance step for affected parties is to confirm the legal and practical implications of a place being a “remote Indigenous community” under the Broadcasting Services Act 1992. The Determination provides three concrete compliance checkpoints.

1. Confirm commencement date. The instrument commences at the start of the day after registration on the Federal Register of Legislation (s2). Organisations should not assume the signature date is the operative commencement; identify the exact registration date on the Federal Register and treat the day after that registration as the point at which the Schedule becomes operative.

2. Verify whether your locality appears in Schedule 1. The Determination is definitive about which places are to be treated as remote Indigenous communities for the purposes of the Act: if a community’s name appears in Schedule 1, it is designated as such by ACMA (s6). For any given site, cross-check the place name used in your operational records with the Schedule entry. Pay attention to alternative names in parentheses which may indicate common or historical variants.

3. Determine regulatory consequences under the Act. The Determination does not list duties or licensing changes; any compliance obligations that arise because a place is designated as a remote Indigenous community stem from the Broadcasting Services Act 1992 itself (s3 and s5). Organisations must therefore consult the Act and any subordinate instruments that implement the Act’s regime to identify specific steps required (licensing, content obligations, technical standards, exemptions, or reporting). The Determination is the trigger; the Act supplies the content.

Operationally, practical compliance steps grounded in the instrument’s structure include the following:

• Update records and policies to reflect the 2022 list and the repeal of the 2011 Determination (s4). If internal compliance procedures previously relied on the 2011 list, revise those procedures to use the 2022 instrument.

• For questions of geographic extent, do not assume the named community covers adjacent or nearby addresses absent further evidence. The Determination provides names but no boundaries; where precise spatial qualification is material (for example, transmitter siting or service radius), seek definitive clarification from ACMA or the relevant map-based resources that ACMA or the Department may make available.

• If your operations straddle multiple named places or are near a named place that uses a broad label (for example, “ARNHEM LAND”), document the basis for treating a location as inside or outside the listed community and consider seeking ACMA confirmation to reduce enforcement risk.

• Monitor for further determinations. Because the Determination contains no amendment procedure, and because ACMA made this instrument under s8B (s3), any changes to the list will occur only by further instrument. Establish a process to check the Federal Register of Legislation for updates to this Determination or for new determinations made under s8B.

• If you are a licence holder or an applicant whose obligations change if a place is designated, incorporate into your compliance program a prompt to reassess licences, approvals and conditions in light of the Determination. The instrument’s repeal of the 2011 Determination (s4) means prior regulatory assumptions may no longer apply.

• Where names in Schedule 1 are ambiguous, include the parenthetical or alternative name (as written in the Schedule) in compliance documentation to avoid mismatches between internal records and the Determination’s wording.

In sum, compliance with this Determination requires treating the Schedule as the authoritative textual list of remote Indigenous communities for the purposes of the Broadcasting Services Act 1992 from the instrument’s commencement, and then following through by consulting the Act and related instruments to identify and meet any substantive regulatory duties that attach to that status. The Determination itself is the classification tool; the Act supplies the compliance landscape.