Creates a new Part 8C in the Broadcasting Services Act 1992 that applies to "major SVOD services" (subscription video‑on‑demand services with at least 1 million paying subscribers in Australia) and to services that become "regulated SVOD services" (see sections 121FY, 121FZA).
Imposes an Australian content "expenditure" obligation (not a catalogue quota). A major SVOD service must meet an annual Australian content expenditure requirement equal to either:
10% of the service’s total program expenditure for Australia (default) (section 121FZL(1)), or
if the provider elects, 7.5% of the revenue the service derives from Australia for a 3‑year period (section 121FZL(2) and 121FZM).
What counts as meeting the obligation: qualifying expenditure is money actually spent on "eligible Australian programs" that are "new" (not previously released in Australia other than in cinemas) and fall into drama, children’s, documentary, arts or education categories (sections 121FZK, 121FV, 121FW).
Calculation details: "total program expenditure for Australia" must include commissions, acquisitions and a proportionate (arm’s‑length) value of globally licensed programs that are made available in Australia (section 121FZN(1)–(3)). The ACMA can make binding determinations about how particular amounts are treated (sections 121FZF, 121FZG).
Compliance and reporting: regulated SVOD services must send the ACMA an annual report (within 45 days after the reporting year) with expenditure, revenue, subscriber numbers and acquittal information (section 121FZO). Providers with at least 250,000 Australian paying subscribers must notify the ACMA (section 121FZQ). The ACMA can require further information and documents (section 121FZT).
The Communications Legislation Amendment (Australian Content Requirement for Subscription Video On Demand (Streaming) Services) Act 2025 amends the Broadcasting Services Act 1992 by inserting a new Part 8C titled Australian content requirements for subscription video on demand services, comprising proposed sections 121FT to 121FZZ. This Part establishes expenditure obligations for major SVOD services. It also adds paragraph 3(1)(ec) to the objects of the Broadcasting Services Act 1992 to ensure the development, production and provision of Australian programs by subscription video on demand services. Subsection 3(2) is amended to define subscription video on demand service by reference to the meaning of SVOD service in Part 8C. Consequential amendments are made to the Australian Communications and Media Authority Act 2005, specifically to the definition of authorised disclosure information in section 3 and to paragraph 10(1)(a) to include subscription video on demand services within the ACMA's functions. Transitional provisions in Part 3 of Schedule 1 address the commencement year, including how expenditure, revenue and subscriber thresholds are calculated for that year, and the timing of elections and notifications. The Act received royal assent on 4 December 2025 and commenced on 5 December 2025. No schedules of amendments were passed, and the text as passed by both Houses forms the enacted law.
Main concepts
Official source available
Zoe has indexed the source text for search and analysis. Use the official register for the original document and download formats.
Amends the: Broadcasting Services Act 1992 to require providers of certain subscription video on demand services to ensure minimum levels of expenditure on new eligible Australian programs; and Australian Communications and Media Authority Act 2005 to make consequential amendments.
Parliamentary progress
Progress
House of Representatives
Introduced and read a first time
06 Nov 2025
Second reading moved
06 Nov 2025
Second reading debate
24 Nov 2025
Second reading debate
25 Nov 2025
Second reading agreed to
25 Nov 2025
Consideration in detail debate
25 Nov 2025
Third reading agreed to
25 Nov 2025
Senate
Introduced and read a first time
26 Nov 2025
Second reading moved
26 Nov 2025
Second reading agreed to
27 Nov 2025
Third reading agreed to
27 Nov 2025
Finally passed both Houses
27 Nov 2025
Assent
Act no: 71
Year: 2025
04 Dec 2025
Notes
Documents and transcripts
Text of bill
First reading
As passed by both Houses
Explanatory memoranda
Explanatory memorandum
Transcript of speeches
All second reading speeches
Minister's second reading speech
Proposed amendments
House of representatives
2nd reading amendment
LEESER, Julian, MP
Detail - Crossbench
STEGGALL, Zali, MP
Detail - Crossbench
SPENDER, Allegra, MP
Detail - Opposition
LEESER, Julian, MP
Flexibility and enforcement: expenditure shortfalls may be carried forward for up to two reporting years (section 121FZI). If a carried‑over requirement remains unacquitted beyond that, civil penalties apply (section 121FZJ and amendments to penalty provisions at section 205F). Small compliance failures (late notifications/reports) attract lower civil penalties and infringement notices (see sections 121FZP, 121FZS and the penalty limits inserted at 205F(5AAA)). More serious failures to acquit can attract very large corporate penalties (see 205F(5AAB)).
Regulator powers and shape of the regime: the Australian Communications and Media Authority (ACMA) is given broad powers to:
determine whether particular programs or amounts of expenditure/revenue count as "eligible" or "Australian" (sections 121FV, 121FW, 121FZF);
issue class exemptions or determine classes of services exempt from the Part (section 121FZD — legislative instrument);
make various administrative determinations about continuity, consolidation or splitting of services and how the Part applies in those circumstances (section 121FZX); and
apply an anti‑avoidance adjustment to transactions between non‑arm’s‑length parties (section 121FZW).
Extra features: the Part has extraterritorial reach (121FZH), treats New Zealand programs as Australian where the existing Australian Content Standard does, and requires a ministerial review of the regime within four years (121FZY).
Who this affects
Directly affected: constitutional corporations that are SVOD providers with paying subscribers in Australia and that at any time in a reporting year have at least 1 million Australian paying subscribers (section 121FY). The Explanatory Memorandum expects this to capture services such as Netflix, Amazon Prime, Stan, Apple TV+, Disney+, Paramount+, Binge and similar global platforms.
Indirectly affected: independent producers, Australian production sector participants, rights holders and the downstream viewers (because platform incentives determine what is commissioned and made available).
Why this matters (policy claims and practical consequences)
The stated policy aim (added to the objects of the Broadcasting Services Act) is to "ensure the development, production and provision of Australian programs by SVOD services" (new paragraph 3(1)(ec) and section 121FT).
How the law pursues that aim: it forces large SVODs to allocate a predictable share of spend (or revenue) to new eligible Australian programs (sections 121FZL, 121FZK). That channels money into producing or acquiring Australian content rather than directly prescribing how much Australian content must appear on a platform (the law regulates expenditure not title counts).
Costs, incentives and trade‑offs to note:
Incentives for SVODs: the rule creates a floor on spending; platforms can choose the least‑cost way to meet qualifying expenditure (commission, acquire, invest, or pre‑production costs — 121FZK). Platforms may prefer a small number of high‑budget productions or acquisitions rather than many smaller titles, because the obligation is measured in dollars not hours (121FZK and 121FZN).
Calculation complexity and accounting risk: total program expenditure for Australia requires allocating a proportion of global commissions/acquisitions to Australia using an "arm’s‑length" or "transfer price" approach (121FZN(3)). The statute leaves significant scope for how that is done and directs the ACMA to make binding or class determinations (121FZF, 121FZG). That creates a compliance and measurement burden, and a risk of inconsistent or strategic accounting (the Bill provides ACMA powers to adjust but not detailed rules in the Act).
Regulator discretion and implementation risk: the ACMA has wide powers to define eligible programs, determine providers, and treat particular sums as qualifying or not (121FV–121FW, 121FZC, 121FZF, 121FZX). Several of those determinations are not legislative instruments and therefore are not subject to parliamentary disallowance (the Act nonetheless requires public publication and offers merits review avenues for affected persons — see additions to section 204). This concentrates scope over time in the regulator’s hands, increasing administrative discretion in shaping how the rule operates.
Compliance cost and reporting burden: annual reporting, notification at 250,000 subscribers, and potential ACMA information notices mean additional administrative costs for providers (121FZO, 121FZQ, 121FZT). Small providers below the 1M threshold are not subject to the expenditure requirement but may still face notification/reporting as they grow.
Carry‑forward rules and business planning: providers can carry shortfalls forward for two years (121FZI), and surplus qualifying expenditure can also be carried forward. This gives planning flexibility but also creates multi‑year enforcement triggers (121FZJ).
Enforcement scale: failure to file reports/notifications carries modest pecuniary penalties (60 penalty units for a corporate offender for some offences — inserted at 205ZA and 205F(5AAA)), but failure to acquit carried‑over obligations can attract very large penalties (corporate maximums set at either 10,000 penalty units or, where the court can determine the original requirement, up to 10 times that requirement — 205F(5AAB)). That raises the stakes for correct accounting and timely acquittal.
International trade and legal risk: the Act applies to foreign corporations when they provide SVOD services to Australians and includes extraterritorial reach (121FZH). The explanatory materials assert consistency with trade commitments, but the subject has been debated publicly and could be a source of legal challenge depending on interpretation and application.
Concentrated benefits, diffuse costs and behavioural effects
Concentrated benefits: larger winners are likely to be Australian producers and rights holders who receive commissioning or production deals; these are concentrated beneficiaries.
Diffuse costs: additional compliance costs fall on the SVOD providers (and may be passed to consumers via price or content strategy), and some production costs could rise if the regime raises the going price for Australian‑labelled production inputs.
Substitution effects: because the law measures dollars, platforms may prioritise fewer expensive productions (which could raise headline spending while not increasing the breadth of Australian titles). Platforms might also fulfil obligations via acquisitions rather than new commissions unless the qualifying tests are narrowly enforced (see the "new" requirement in 121FZK(1)(c)).
Implementation and governance risks
Measurement disputes: the Act places ACMA at the centre of contested accounting choices (transfer pricing, cross‑border allocations) and how particular programs are classified (121FZKF, 121FZL, 121FZG). Without clear, published conversion rules and sound audit rights, disputes and litigation are possible.
Discretion creep: numerous ACMA powers to determine eligibility, provider status and accounting treatment (some as non‑legislative determinations at 121FV/121FW/121FZF and some as legislative instruments at 121FZG/121FZD) mean the regulator will substantially shape the scheme's practical scope.
Industry response levers: platforms can elect the revenue‑based method for multi‑year periods (121FZM), can plan use of carry‑overs (121FZI), and can structure corporate arrangements — the ACMA's anti‑avoidance and continuity determinations (121FZW, 121FZX) are intended to limit gaming but shift implementation into an enforcement contest.
Bottom line (neutral summary)
Mechanically, the Act forces large SVOD platforms operating in Australia to spend a fixed share of program expenditure (10%) or, if elected, a share of Australian‑derived revenue (7.5%) on new eligible Australian programs, backed by annual reporting, notification thresholds and ACMA oversight (Part 8C: sections 121FZL, 121FZK, 121FZO, 121FV–121FZX). It does not mandate title quotas or catalogue placement; it mandates expenditure.
The law channels predictable funding to Australian production but introduces measurement, accounting and administrative complexity, significant regulator discretion and potentially large enforcement penalties. Key implementation risks are how global content spend is allocated to "Australia", how the ACMA exercises non‑legislative determinations, and whether platforms meet the spirit or merely the letter of the expenditure test (see sections 121FZN, 121FZF, 121FZG, 121FZW).
Central concepts include the SVOD service, defined in section 121FX as an online content service with paying subscribers in Australia where a catalogue of audiovisual content is available on demand and the primary or a significant purpose is to provide such content. A major SVOD service, under section 121FY, is an SVOD service that meets the SVOD service test, program test and paying subscriber test of at least one million paying subscribers in Australia during the relevant SVOD reporting year, unless it is an excluded service under section 121FZ for reasons such as predominantly user-generated content or limited appeal. An eligible program under section 121FV covers drama programs, children's programs, documentaries, arts programs and educational programs, excluding news, sports and advertising. An eligible Australian program under section 121FW requires the program to be an Australian program, New Zealand program, Australian/New Zealand program or Australian official co-production as classified under the Australian Content Standard. The Australian content expenditure requirement in section 121FZL is calculated as 10 per cent of total program expenditure for Australia or, if elected under section 121FZM, 7.5 per cent of revenue derived from Australia. Qualifying expenditure amount in section 121FZK comprises expenditure on eligible Australian programs that are new, meaning not previously released in Australia except in cinemas, and covers commissioning, acquisition, investment and pre-production costs. Carry-over provisions in section 121FZI allow unacquitted expenditure requirements or surplus qualifying expenditure to be carried forward for up to two SVOD reporting years. Regulated SVOD service status under sections 121FZA and 121FZB persists until expenditure requirements are wholly acquitted. SVOD reporting year is defined as the financial or calendar year of commencement and each subsequent year.
Who it affects
The legislation directly affects providers of major SVOD services that have at least one million paying subscribers in Australia at any time in an SVOD reporting year and that provide eligible programs, including Netflix, Amazon Prime, Stan, Apple TV+, Disney+, Paramount+ and Binge, with HBO Max expected to qualify once established. These providers must comply with annual reporting under section 121FZO, notifications under sections 121FZQ and 121FZR once reaching 250,000 subscribers, and acquittal of expenditure requirements. The Australian Communications and Media Authority gains expanded regulatory functions, including information-gathering powers under section 121FZT, determination powers under sections 121FV, 121FW, 121FZC, 121FZF and 121FZG, and class exemption powers under section 121FZD. Australian screen producers, writers, directors and production companies benefit from mandated expenditure on new eligible Australian programs, supporting development and production. Commercial free-to-air broadcasters and subscription television operators face indirect effects through potential competition for content and talent, as noted in stakeholder commentary on cost inflation risks. Australian audiences gain potential increased access to eligible Australian programs on major platforms, though no carriage quota is imposed. The Minister for the Arts and Parliament are affected through the mandatory review process under section 121FZY, which must commence after four years and be tabled in both Houses. Constitutional corporations providing online content services are subject to the extraterritorial application in section 121FZH.
What people will want to know
People will want to know which services trigger obligations: any SVOD service reaching one million Australian paying subscribers and offering eligible programs becomes a major SVOD service and must meet the expenditure requirement for that year. The requirement is satisfied by spending on new eligible Australian programs, defined as drama, children's, documentary, arts or educational content that qualifies as Australian, New Zealand or official co-production under the Australian Content Standard and has not been released in Australia before the expenditure except via cinema. Platforms may choose between 10 per cent of their Australian program expenditure or 7.5 per cent of Australian revenue, with the election lasting three years and subject to conditions. Qualifying spend includes acquisition of rights, production or commissioning, investment and pre-production costs, with transfer pricing rules for globally acquired content. Compliance involves annual reports to the ACMA within 45 days of year end detailing expenditure, revenue, subscribers and acquittal, plus notifications within 60 days of reaching 250,000 subscribers or changes in status. Failure to acquit carried-over requirements after two years attracts civil penalties, and surplus expenditure can be carried forward. The ACMA can determine program eligibility, expenditure classification and exemptions in unforeseen circumstances, with some determinations reviewable by the Administrative Review Tribunal. A statutory review of the Part must occur after four years. The official materials do not specify exact reporting templates or detailed transfer pricing methodologies.
Status and what happens next
The Act received royal assent on 4 December 2025 as Act No. 71 of 2025 and commenced the following day on 5 December 2025. All provisions are now in force, including the new Part 8C of the Broadcasting Services Act 1992. Providers of SVOD services that reach 250,000 Australian subscribers must notify the ACMA within 60 days of the commencement day or the relevant threshold being met. For the commencement year, expenditure and subscriber calculations take into account the full year, including pre-commencement periods. The first annual reports under section 121FZO will be due within 45 days after the end of the first SVOD reporting year. Elections for the revenue-based calculation method must be made within 60 days of the start of the relevant three-year period. The ACMA may issue legislative instruments for class exemptions, class determinations on expenditure and revenue, and notifiable circumstances. A mandatory review of the operation, effectiveness and implications of Part 8C must commence as soon as practicable after the end of the four-year period starting on commencement day, with the report tabled in both Houses within 15 sitting days. The Minister may also request ad hoc reports from the ACMA on SVOD services and expenditure. No further parliamentary stages remain, and the legislation is now operational.
Powers, duties and rights created
The ACMA receives broad powers, including the ability under sections 121FV(3)-(4) and 121FW(2)-(3) to determine by writing whether a specified program is or is not an eligible program or eligible Australian program, with such determinations published on its website and reviewable by the Administrative Review Tribunal. Under section 121FZC the ACMA may determine providers of online content services, and under section 121FZD it may grant class exemptions by legislative instrument. Sections 121FZF and 121FZG empower determinations on qualifying expenditure, total program expenditure and revenue, some by legislative instrument and subject to parliamentary scrutiny. Information-gathering powers under section 121FZT allow the ACMA to require information and documents, with non-compliance a civil penalty provision. Providers of regulated SVOD services have duties under section 121FZO to prepare and give annual compliance reports, under sections 121FZQ and 121FZR to notify subscriber thresholds and changes, and under section 121FZI to acquit expenditure requirements using qualifying expenditure on new eligible Australian programs. A duty to use cash-based accounting applies under section 121FZE. Rights include the ability for affected persons to seek Administrative Review Tribunal review of specified ACMA determinations listed in amended subsection 204(1), and the right for providers to elect the revenue calculation method for three-year periods under section 121FZM, subject to conditions. The Minister has the duty to cause the four-year review under section 121FZY and may request reports under section 121FZZ. Anti-avoidance provisions in section 121FZW allow the ACMA to adjust non-arm's length expenditure amounts.
Money, penalties and enforcement
No direct appropriation or government expenditure is created by the Act. Regulated SVOD services must expend qualifying amounts on eligible Australian programs, with the requirement modelled at between 175 million and 200 million Australian dollars annually based on current spending levels. Civil penalties apply for failure to acquit expenditure requirements under subsection 121FZJ(1), with maximum penalties for bodies corporate of the greater of 10,000 penalty units or 10 times the original expenditure requirement, and 2,000 penalty units for individuals. Separate civil penalties apply for failure to give annual reports under subsection 121FZP(1), failure to notify under subsection 121FZS(1), and failure to comply with information notices under subsection 121FZT(3), each capped at 60 penalty units for bodies corporate and 12 for individuals, and designated as infringement notice provisions. Infringement notices may specify these amounts under section 205ZA. The Federal Court may order civil penalties under section 205F, and multiple contraventions can attract cumulative penalties. Carried-over expenditure requirements continue even after a penalty order. Enforcement is through the ACMA's monitoring and the civil penalty regime in the Broadcasting Services Act 1992, with no criminal offences created. The official materials do not specify the exact value of penalty units or enforcement priorities.
Pressure points and controversies
The expenditure thresholds of 10 per cent of program expenditure or 7.5 per cent of revenue are lower than the 20 per cent revenue-based obligation advocated by crossbench members, the Australian Greens and industry bodies such as Screen Producers Australia and the Australian Writers' Guild, and lower than models considered in the Senate inquiry into Revive. This raises a policy trade-off between guaranteeing existing spending levels of approximately 193.4 million dollars on average and driving additional investment. The focus on expenditure rather than content quotas means platforms are not required to make eligible Australian programs available to subscribers, potentially limiting achievement of the object in paragraph 3(1)(ec) regarding provision of such programs. Calculation of total program expenditure for globally commissioned content relies on arm's-length transfer pricing determined by providers, creating ambiguity and risk of inconsistent or opaque valuation without detailed regulatory guidance. The ACMA's extensive non-legislative instrument determinations on eligibility, expenditure and providers allow flexible administration but limit parliamentary scrutiny, although affected persons may seek tribunal review. Claims of consistency with the Australia-United States Free Trade Agreement are stated in the Explanatory Memorandum and Minister's speech, yet earlier concerns were raised about potential conflicts with e-commerce and investment chapters. The absence of a quota may result in sporadic high-budget productions rather than sustained volume, affecting the production sector differently from free-to-air obligations. The official materials do not detail specific stakeholder submissions on the final thresholds or modelling assumptions.
What changes if it passes
With royal assent and commencement achieved, major SVOD services now operate under a formal regulatory framework requiring minimum ongoing expenditure on new eligible Australian programs, locking in current investment levels of roughly 175 to 200 million dollars per year rather than mandating increases. The Australian screen industry gains a statutory guarantee of continued commissioning and acquisition activity for drama, children's, documentary, arts and educational content that meets Australian content criteria, including New Zealand and official co-production material. The ACMA assumes ongoing oversight through annual reporting, threshold notifications and information powers, enabling monitoring of subscriber numbers, revenue and compliance. Platforms must implement internal processes for tracking qualifying expenditure, applying carry-over rules and preparing statutory reports within strict timeframes. Australian audiences may see sustained or marginally increased availability of eligible content on major platforms, although no prominence or catalogue quota applies. Free-to-air and subscription television sectors face potential upward pressure on content costs due to competition for Australian productions. A built-in review mechanism after four years provides an opportunity to assess effectiveness, adjust thresholds or introduce quotas if warranted. The legislation establishes a precedent for expenditure-based regulation of streaming services, distinct from traditional quota models, and integrates SVOD oversight into the ACMA's existing broadcasting functions. Transitional rules ensure seamless application from the commencement year onward.
Social post angles
Streaming services with over a million Australian subscribers must now spend at least 7.5 per cent of local revenue or 10 per cent of program costs on new Aussie drama, kids shows and documentaries. This formalises existing investment levels and brings SVOD under the same regulatory umbrella as traditional broadcasters for the first time. The new rules lock in roughly 175 to 200 million dollars a year for Australian screen content without requiring platforms to actually show the programs they fund. Providers can carry forward unspent obligations or surplus expenditure for two years, giving flexibility while still imposing civil penalties for long-term non-compliance. ACMA gains wide powers to decide what counts as eligible content and expenditure, with limited parliamentary oversight but tribunal review rights for affected parties. Crossbench calls for 20 per cent revenue spend were not adopted, leaving the final thresholds closer to current voluntary levels than to industry and parliamentary recommendations. A statutory review in four years will test whether expenditure rules deliver more Australian stories or simply maintain the status quo. Notifications kick in at 250,000 subscribers, meaning emerging platforms will soon face transparency obligations even before hitting the major service threshold.
Detail - Opposition
WEBSTER, Anne, MP
Senate
2R - Opposition [sheet 3558]
DUNIAM, Sen Jonathon
CW - Australia's Voice [sheet 3507]
PAYMAN, Sen Fatima
CW - Opposition [sheet 3559]
DUNIAM, Sen Jonathon
Schedules of amendments
No documents at present
Bills digest
Bills Digest
Notes
An electronic version of this Act is available on the Federal Register of Legislation (www.legislation.gov.au)
The Communications Legislation Amendment (Australian Content Requirement for Subscription Video On Demand (Streaming) Services) Bill 2025 (the Bill) introduces an Australian content expenditure requirement for certain subscription video on demand (SVOD) services with over 1 million paying subscribers in Australia.
A platform’s expenditure requirement is either:
an amount equal to 10% of the service’s total program expenditure for Australia for the relevant year, or
an amount equal to 7.5% of the revenue derived by the service from Australia in the relevant year.
Broadcast television has long been subject to local content obligations.
The Bill follows numerous parliamentary inquiries that have commented on the matter and was an action in the Albanese Government’s National Cultural Policy, Revive.
Whilst introducing content obligations for streaming services has strong bipartisan support, the Opposition and crossbench are yet to express support for the Bill.
The expenditure requirements proposed in the Bill are lower than amounts previously suggested by government and advocated for by industry. The Explanatory Memorandum suggests that streaming services are already meeting the expenditure requirements proposed in the Bill.
At the time of writing, the Bill had not been referred to or reported on by any parliamentary committees.
Introductory Info
Date of introduction: 6 November 2025
House introduced in: House of Representatives
Portfolio: Arts
Commencement: The day after Royal Assent
Purpose of the Bill
The purpose of the Communications Legislation Amendment (Australian Content Requirement for Subscription Video On Demand (Streaming) Services) Bill 2025 (the Bill) is to amend the Broadcasting Services Act 1992 (BSA) to require certain major subscription video on demand services (SVOD services) to ensure minimum levels of expenditure on new eligible Australian programs. The Bill will also amend the Australian Communications and Media Authority Act 2005 to facilitate the reform.
Background
Key terms
Subscription video on demand (SVOD): an industry term for services that provide on‑demand video content to subscribers in exchange for a regular, recurring fee (that is, not one-off purchases). Unlike traditional subscription TV, SVOD is delivered over the internet.
Free-to-air television (FTA): the common industry term for the licensed broadcasting services provided free to the public in Australia. This includes commercial broadcasting services and national broadcasting services.
Broadcast video on demand (BVOD): a term for video on demand services provided by the traditional Australian broadcasters free to the general public (e.g., ABC iview, 7plus, 9Now).
Subscription television: licensed broadcasting services provided on payment of a subscription fee.
Changing viewing patterns in Australia
According to a 2024 Australian Communications and Media Authority (ACMA) report (p. 3), more Australians watch SVOD services (69% in a 7-day period) than live FTA (46%) or BVOD services (43%). Deloitte’s Media & Entertainment Consumer Insights 2025 report found that 83% of Australian households subscribe to at least one SVOD service, with the average number of subscriptions being 2.3 per household when considering all respondents, and 2.8 when considering subscribers only (pp. 7-8).
Regulation of film and television services in Australia
Broadcast television, including FTA commercial television and subscription television, is regulated by the BSA. The national broadcasters are regulated by their respective enabling legislation - the Australian Broadcasting Corporation Act 1983 and the Special Broadcasting Service Act 1991.
Quotas for local content have long been required of commercial FTA, and subscription television services that provide drama channels must meet local drama expenditure requirements. Commercial FTA broadcasters are further subject to licensing fees (though these are currently paused).
Similar provisions do not apply to SVOD services, which are currently unregulated in Australia. SVOD providers voluntarily report to the ACMA on the number of Australian titles on their service and their expenditure on Australian content.
Imposing local content requirements on SVOD services is not a new idea. Conversations around the issue have been occurring for the better part of the last decade, since Netflix, Stan and other streaming platforms launched Australia in 2015. Multiple parliamentary inquiries and government reviews have considered the issue and suggested action.
In February 2022, then Minister for Communications, Paul Fletcher, announced that the government was developing:
A proposed Streaming Services Reporting and Investment Scheme to incentivise and, as needed, require large subscription video on demand (SVOD) services to invest in Australian content.
The Morrison Government released a discussion paper on the proposed scheme at the same time, and provided funding for it in the March 2022-23 Budget (p. 145).
Following the change of government later in 2022, the Albanese Government also committed to addressing the issue. Revive - the National Cultural Policy released on 30 January 2023 - included the action to ‘introduce requirements for Australian screen content on streaming platforms to ensure continued access to local stories and content in the third quarter of 2023 and to commence no later than 1 July 2024’ (p. 89).
In late 2024, the ABC reported that the Minister for the Arts, Tony Burke, ‘told Labor's caucus on Tuesday [5 November] that the interaction of any new local content rules with the US free trade deal was a stumbling block’, which would delay introduction of legislation.
Policy position of non-government parties/independents
The policy of introducing content obligations for streaming services has broad support across the Parliament. However, the Opposition and crossbench are yet to comment on the specific details contained in the Bill.
In a press release on 6 November 2025, Shadow Minister for the Arts, Julian Leeser, stated:
Since announcing our Australian content guarantee in 2022, the Coalition has called on the Albanese government to take similar action … Questions remain about aspects of the Billand whether it delivers for our screen industry.
The Australian Greens expressed a similar sentiment in a press release dated 4 November 2025:
The Greens have long campaigned for local content quotas on streaming platforms to support Australian stories on our screen … We will look carefully at the detail of the bill and reserve our position until we know it is strong enough to ensure a strong future for our screen industry, including children’s content.
The broader crossbench also supports content regulations for streaming services. On 8 October 2025, Zali Steggall, Kate Chaney, Dr Sophie Scamps, Dr Helen Haines, Senator Jacqui Lambie, Allegra Spender, Nicolette Boele, Dr Monique Ryan, Elizabeth Watson-Brown and Senator David Pocock co-signed a letter to the Minister for the Arts, ‘call[ing] on the government to deliver on its promise to legislate an obligation for streaming platforms to invest 20 per cent of Australian revenue in Australian stories by 30 June 2026’.
Key issues and provisions
Expenditure requirements
The key amendment of the Bill is item 3, which inserts a proposed Part 8C,Australian content requirements for subscription video on demand services into the BSA, comprising proposed sections 121FT to 121FZZ. The object of proposed Part 8C is ‘to ensure the development, production and provision of Australian programs by subscription video on demand services’ (proposed paragraph 3(1)(ec), at item 1).
Overview of the expenditure requirements
Proposed Part 8C of the BSA will introduce an Australian content expenditure requirement for major SVOD services (≥1 million Australian subscribers). Rather than mandating quotas, services must invest either 10% of total program expenditure for Australia or 7.5% of Australian-derived revenue (if elected) on eligible Australian programs. The expenditure must relate to programs that are:
eligible: drama, children’s, documentary, arts or educational (news, sport or advertising are excluded)
new: not previously released in Australia (except in cinemas) and
Australian: classified under the Broadcasting Services (Australian Content and Children’s Television) Standards 2020 (includes New Zealand content and official co‑productions).
Qualifying expenditure will include commissioning, acquisition, investment and pre‑production costs.
Expenditure requirement not content requirement
While the Minister’s second reading speech states that ‘the government is legislating for streaming services to have guaranteed Australian content’, and a press release foreshadowing the legislation referred to ‘content obligations’ for SVOD services, content quotas are not an explicit feature of the Bill.
Rather, the Bill introduces an expenditure requirement for major SVOD services. As outlined at proposed sections 121FZK and 121FZL, a major SVOD service is required to meet a certain level of expenditure on ‘new’ eligible Australian programs. There is no requirement for SVOD services to carry or provide a certain amount of Australian content.
This focus on expenditure is at odds with the quota requirements for commercial broadcasters - who are required to provide a certain amount of Australian content on their channels - but consistent with expenditure requirements for subscription television drama channels.
Which platforms do the requirements apply to?
The proposed expenditure requirements apply only to major SVOD services.
An SVOD service is defined (proposed section 121FX) as a service with a primary purpose, or a significant purpose, of providing a catalogue of audiovisual content on demand to paying subscribers, and which has paying subscribers in Australia.
In turn, for the purpose of proposed Part 8C, a major SVOD service is defined as a service that, at any time in the relevant year, has been an SVOD service with at least 1 million paying subscribers in Australia (proposed section 121FY). The SVOD service must also provide eligible programs - drama programs, children’s programs, documentaries, arts programs or education programs (proposed section 121FY(4) and 121FV).
The Explanatory Memorandum (p. 17) notes that Netflix, Amazon Prime, Stan, Apple TV+, Disney+, Paramount+, and Binge are expected to meet this definition, and that ‘it is expected that HBO Max would also meet this definition once it has established its presence in Australia’. Five of these providers currently voluntarily report their expenditure on Australian content to the ACMA.
How is the expenditure requirement calculated?
The Australian content expenditure requirement may be calculated in one of 2 ways (proposed section 121FZL):
an amount equal to 10% of the service’s total program expenditure for Australia for the relevant year, or
an amount equal to 7.5% of the revenue derived by the service from Australia in the relevant year.
Program expenditure is the default basis for calculation unless a platform elects to calculate their expenditure on a revenue basis (as per proposed section 121FZM).
Total program expenditure for Australia is the total of the expenditure incurred by the service provider in the relevant year on eligible programs that are, or are intended to be, provided on the service in Australia (proposed subsection 121FZN (1)).
As outlined in the Explanatory Memorandum (p. 28) a service’s total program expenditure for Australia includes:
programs that are commissioned or acquired specifically for the Australian market,
programs that are licensed by a streaming service for use on its Australian service, and
programs available on a streaming service operating in Australia that are globally commissioned or licensed or otherwise not subject to a licensing payment specifically for the Australian market.
In the last case, each ‘streaming service in Australia must ascribe a proportionate value, or a “transfer price”, to these programs … calculated as if arrangements to provide such content on the service in Australia were entered into at arm’s length’ (Explanatory Memorandum, p. 28). There do not appear to be clear guidelines on how this ‘proportionate value’ is to be calculated. Without this guidance, there is a risk that streamers may inconsistently calculate the ‘Australian expenditure’ related to global acquisitions. Mr Matthew Deaner, CEO of Screen Producers Australia expressed a similar concern in evidence provided to the Senate’s Environment and Communications References Committee inquiry into the National Cultural Policy, suggesting that streamers self-determining the value of an Australian licence for a globally acquired show would be ‘artificial’ and contrary to usual practice, leading to opaque and potentially insincere ‘Hollywood accounting’ methods. He further suggests that the regulator would need to have complete access to the accounting books of streamers in order to understand if expenditure figures provided were accurate (p. 43).
The revenue derived by the service from Australia appears easier to calculate. The Explanatory Memorandum notes that ‘revenue would include, but would not be limited to, revenue derived from subscription fees and advertising in Australia’ (p. 26).
How can the expenditure requirement be satisfied?
Platforms must expend at least the value of the Australian content expenditure requirement on eligible Australia programs, which are programs that are:
eligible: drama programs, children’s programs, documentaries, arts programs or education programs, and not news, sports programming or advertising (proposed section 121FV, definitions for these program types are provided at proposed section 121FU).
new: not previously released to the public in Australia (other than being shown in a cinema) at any time before the expenditure was incurred (subsection 121FZK(1)(c)).
Australian: classified as an ‘Australian program’, a ‘New Zealand program’, an ‘Australian/New Zealand program’ or an ‘Australian official co-production’ as per the definitions in the Broadcasting Services (Australian Content and Children’s Television) Standards 2020 (the Standards) (or its successor) (proposed section 121FW and definitions at proposed section 121FU).
Importantly, in relation to being ‘Australian’, the Standards tightly define Australian and New Zealand programs as those that are ‘produced under the creative control’ of Australians or New Zealanders (see full definitions at sections 10-12 of the Standard). Official co‑productions are made under formal arrangements between Australia and the governments of various countries and managed by Screen Australia.
The classification of New Zealand content as Australian content is consistent with Australian content requirements for commercial broadcast television and subscription television.
Qualifying expenditure may be in the form of expenditure (see proposed sections 121FU and 121FZK) spent on:
acquiring rights in relation to the program
producing or commissioning the program
investing in the program, or
pre-production expenditure.
Compliance & enforcement
Flexibility of satisfying requirements: carry-over provisions
The Bill grants service providers flexibility in meeting their expenditure requirements. These requirements need not be met in the same reporting year as they are incurred; they can be carried over for 2 reporting years. That is, an expenditure requirement incurred in reporting year 1 must be acquitted by the end of reporting year 3 (proposed section 121FZI). If the carried-over expenditure requirement is not acquitted within this time, the provider of the service may be liable for a civil penalty, and the carried-over expenditure requirement continues to carry over to further reporting years (and may result in further civil penalties, see proposed section 121FZJ).
Similarly, if a service provider expends more money on eligible Australian content than is needed to satisfy its expenditure requirement in a given reporting year, the surplus expenditure amount may be carried over for 2 reporting years (proposed subsections 121FZI(6) and (7)).
How is compliance monitored?
Service providers must provide the ACMA with an annual report outlining their compliance with the Part, including details of their expenditure, revenue and number of paying subscribers in Australia (proposed section 121FZO). Not providing this report in the form and manner outlined may result in a civil penalty (proposed section 121FZP).
Further, proposed section 121FZT empowers the ACMA to compel providers to give the ACMA information and documents ‘if the ACMA has reason to believe that the person has information or a document that is relevant to the operation’ of new Part 8C. Not providing the requested information may result in a civil penalty (proposed subsection 121FZT(4)).
Key issue: power of the regulator to determine the scope of the Part
The Bill provides the ACMA with substantial powers to determine the scope and application of new Part 8C:
The ACMA may determine that a specified program is or is not an eligible program, regardless of the definitions provided in the Bill (proposed subsections 121FV(3) and (4)).
The ACMA may determine that a specified program is or is not an eligible Australian program (proposed subsections 121FW(2) and (3)).
The ACMA may determine that specified amounts of expenditure are taken to be or not to be qualifying expenditure amounts (proposed subsections 121FZF(1) and (2)).
The ACMA may determine that specified amounts of expenditure are taken to be or not to be total program expenditure for Australia (proposed subsections 121FZF(3) and (4)).
The ACMA may determine that specified amounts are taken to be or not to be revenue derived by an online content service from Australia (proposed subsections 121FZF(5) and (6)).
Proposed subsections 121FZC(4)-(7) allow the ACMA to determine that specified persons are or are not providers of a specified online content service.
The Explanatory Memorandum notes that these powers are intended to be used in the case of ‘unforeseen circumstances’ and ‘ambiguities’ (pp. 21, 22); for example, to determine whether a program featuring a pottery competition ‘meets the definition of an arts program or whether it may be light entertainment and therefore [an] ineligible’ program (p. 15). In effect, however, these provisions allow the ACMA to flexibly determine whether a provider meets or does not meet the requirements of the Part, potentially shaping the scope and application of the Part in a significant way, including in ways that may diverge substantially from the underlying policy intent.
These determinations by the ACMA are not legislative instruments and are not subject to Parliamentary scrutiny. However, ‘a person whose interests are affected by the decision to make the determination’ may apply to the Administrative Review Tribunal for a review of the decision (item 4, proposed addition to subsection 204(1)). The ACMA must also publish a copy of each determination under sections 121FV, 121FW and 121FZC on the ACMA’s website.
The ACMA has the power to determine that ‘online content services included in a specified class of online content services are exempt’ from Part 8C or specified provisions of the Part (proposed section 121FZD). This determination is a legislative instrument. The Explanatory Memorandum (pp. 20-21) provides an example of when this power could be used:
It is intended that the ACMA would only use these powers sparingly and only in exceptional circumstances. For example, if an existing broadcaster has an online content service that is an exact mirror of its main service (such as Foxtel, being the main service, and Foxtel Go, being a duplicate of the main service), and that main service is already subject to local content requirements, it would not be intended to be captured by this Part. In this case, it would be up to the ACMA to consider whether this class of services should be exempt.
The ACMA may also determine that certain classes of expenditure or revenue are or are not to be accounted in various ways (proposed section 121FZG). These determinations are legislative instruments and subject to parliamentary scrutiny.
Interaction with the Australia-United States Free Trade Agreement
From late 2023, media reports began suggesting that the government’s proposal to introduce expenditure requirements for SVOD services may violate provisions of the Australia-United States Free Trade Agreement (AUSFTA). A blog post published by the Computer and Communications Industry Association (CCIA) in December 2023 argued that the proposed models appeared to contravene 2 articles of AUSFTA:
Article 16.4 of AUSFTA’s E-Commerce Chapter … prohibits preferential treatment for digital products based on the national origin of an “author, performer, producer, developer, or distributor.”
…
Article 11.9 of AUSFTA’s Investment Chapter (Performance Requirements) … prohibits measures designed to “achieve a given level or percentage of domestic content…”
It further stated:
AUSFTA does allow the Australian government to enact content requirements inconsistent with these rules, but only in the case where a finding is made that the amount of Australian content in the market is “not readily available to Australian consumers.”
In reality, this condition is not remotely close to being met…
On 6 November 2024, the ABC reported that Minister for the Arts, Tony Burke, ‘told Labor's caucus on Tuesday [5 November] that the interaction of any new local content rules with the US free trade deal was a stumbling block’.
Both the Minister’s second reading speech and the Explanatory Memorandum (pp. 53, 55, 61, 62) state that the proposed requirements are consistent with Australia's international trade and investment law obligations.
For discussion of the interaction between content quotas and trade agreements see commentary on the interaction between the General Agreement on Tariffs and Trade and European broadcasting content requirements, including the EU’s Audiovisual Media Services Directive (pp. 77-83), which requires SVOD services to include at least 30% ‘European works in their catalogues and ensure prominence of those works’.
Development, production and provision of Australian content
Does the Bill support the stated policy aim?
Proposed paragraph 3(1)(ec) adds the following policy aim to the objects of the BSA:
to ensure the development, production and provision of Australian programs by subscription video on demand services [emphasis added]
The 2020 report, Supporting Australian stories on our screens,options paper, authored by the ACMA and Screen Australia, provides 3 main arguments for why local content quotas should apply to SVOD services:
Cultural significance: ‘Stories influence us in many ways, ultimately reflecting, shaping and challenging our perceptions of ourselves and each other’ (p. 14).
International reach: commissioned Australian content is shared around the world, supporting Australia’s ‘global brand and standing’ and increasing tourism to Australia (p. 6).
Economic impact: the screen sector contributes significantly to Australia’s economy. However, Australian content is expensive to produce and may be a relatively unattractive option for SVOD services without regulated quotas (pp. 5-6).
These arguments are echoed in the Minister’s second reading speech.
The Bill primarily supports these objectives by requiring regulated SVOD services to expend money on eligible new Australian content (supporting the development and production of Australian programs and having a potential positive economic impact). However, Free TV CEO, Bridget Fair has noted that expenditure requirements for SVOD services may have unintended economic costs by inflating the costs of producing Australian programs, negatively impacting other content creators, such as FTA broadcasters.
Further, the Bill does not require that a certain quantity of Australian content (or indeed any Australian content) be provided on regulated SVOD services. It is therefore unclear whether the objective of ‘providing’ Australian programs will be achieved by the Bill. As RMIT researcher Alexa Scarlata notes in an article in The Conversation:
We might see a few big-budget productions popping up sporadically, rather than a larger quantity overall. What good is that for our flailing production sector?
Will the Bill make a difference?
The expenditure requirements proposed in the Bill are notably lower than the amounts previously suggested by the Albanese Government and advocated for by industry.
The May 2024 Interim Report of the Senate Standing Committee on Environment and Communications’ inquiry into Revive stated that the government was considering 2 models for local content requirements, in consultation with industry:
an expenditure model,being a progressive obligation to spend a percentage of revenue [sic; expenditure] on local drama content based on number of subscribers, with no obligation for services with less than one million subscribers, up to a 30 per cent obligation for services with more than five million subscribers; or
a revenue model,services would be required to spend 10 per cent of their Australian revenue on new local drama, with sports streamers having a reduced obligation, and with the potential for the obligation to be increased to 20 per cent over time. (p. 11)
A 20% expenditure requirement based on Australian revenue has been advocated for by stakeholders such as the Australian Writers’ Guild (p. 22) and Screen Producers Australia, crossbench Parliamentarians and the Australian Greens (p. 2).
In comparison, the Bill sets expenditure requirements at either 10% of the service’s total program expenditure for Australia or 7.5% of the revenue derived by the service from Australia.
Reporting suggests that the Government believes that all streamers, bar one, already meet the expenditure requirements outlined in the Bill. The Explanatory Memorandum outlines (p. 59):
The required expenditure modelled earlier, estimates the expenditure requirement to be a spend of between $175 million to $200 million each year on new Australian content (approximately 48 to 53 hours of content) this would be consistent with the current expenditure for Australian adult drama, children’s and documentary programs by SVODs, which is an average of $193.4 million… This would confirm ongoing investment for future years. [emphasis added]
This suggests that, rather than encouraging increased expenditure in Australian content, the Bill acts to guarantee that current levels are maintained.
Other provisions
Notification requirements of SVOD services
Proposed section 121FZQ requires providers of SVOD services to notify the ACMA if, at any time, they have at least 250,000 paying subscribers in Australia. These services must further notify the ACMA if their circumstances change. Notifiable circumstances include if the service becomes (or ceases to be) a major SVOD service, if the service ceases to be an SVOD service, and if general identity details for the service provider change (proposed subsection 121FZR). The ACMA may, by legislative instrument, determine that other specified circumstances are notifiable circumstances.
Failing to notify the ACMA appropriately may result in a civil penalty (proposed subsection 121FZS(2)).
Mandatory review of Part 8C
Proposed section 121FZY requires the Minster to cause a review to be conducted of the ‘operation, effectiveness and implications of’ new Part 8C and related provisions. This must occur ‘as soon as practicable’ at least 4 years after the Part takes effect. The written report of the review must be tabled in both Houses of the Parliament within 15 sitting days of being received by the Minister.
Links
The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill’s home page, or through the Australian Parliament website.
When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the Federal Register of Legislation website.
All hyperlinks in this Bills Digest are correct as of November 2025.
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Communications Legislation Amendment (Australian Content Requirement for Subscription Video On Demand (Streaming) Services) Act 2025
No. 71, 2025
An Act to amend the law relating to communications, and for related purposes
Contents
1 Short title 2
2 Commencement 2
3 Schedules 2
Schedule 1,Amendments 3
Part 1,Amendment of the Broadcasting Services Act 1992 3
Broadcasting Services Act 1992 3
Part 2,Other amendments 39
Australian Communications and Media Authority Act 2005 39
Part 3,Transitional provisions 40
Communications Legislation Amendment (Australian Content Requirement for Subscription Video On Demand (Streaming) Services) Act 2025
No. 71, 2025
An Act to amend the law relating to communications, and for related purposes
[Assented to 4 December 2025]
The Parliament of Australia enacts:
1 Short title
This Act is the Communications Legislation Amendment (Australian Content Requirement for Subscription Video On Demand (Streaming) Services) Act 2025.
2 Commencement
(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.
Commencement information
Column 1
Column 2
Column 3
Provisions
Commencement
Date/Details
The whole of this Act
The day after this Act receives the Royal Assent.
5 December 2025
Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.
(2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.
3 Schedules
Legislation that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.
Schedule 1,Amendments
Part 1,Amendment of the Broadcasting Services Act 1992
Broadcasting Services Act 1992
1 After paragraph 3(1)(eb)
Insert:
(ec) to ensure the development, production and provision of Australian programs by subscription video on demand services; and
2 Subsection 3(2)
Insert:
subscription video on demand service has the same meaning as SVOD service has in Part 8C.
3 After Part 8B
Insert:
Part 8C,Australian content requirements for subscription video on demand services
Division 1,Introduction
121FT Simplified outline of this Part
This Part requires providers of certain major subscription video on demand services (SVOD services) to ensure minimum levels of expenditure on new eligible Australian programs.
Major SVOD services are SVOD services that have at least 1 million paying subscribers in Australia, and satisfy certain other requirements. Services that predominantly provide user‑generated content, or that have limited appeal in Australia, are excluded.
To be an eligible Australian program, a program must be a drama program, a children’s program, a documentary, an arts program or an educational program, and must be an Australian or New Zealand program.
A major SVOD service must acquit its Australian content expenditure requirement using qualifying expenditure on eligible Australian programs.
A major SVOD service’s Australian content expenditure requirement is a percentage of its total program expenditure for Australia, although a service can elect to instead have its Australian content expenditure requirement be based on its total revenue derived from Australia.
An expenditure requirement can be carried over for 2 years. If it remains unacquitted after 2 years, the providers of the service may be liable for a civil penalty, and the unacquitted expenditure requirement continues to carry over to further years.
Excess qualifying expenditure amounts can also be carried over, for up to 2 years.
Providers of certain SVOD services that are regulated under this Part must give annual reports to the ACMA. Providers of certain SVOD services that have at least 250,000 paying subscribers in Australia must also give notifications to the ACMA.
The ACMA has various powers for administering this Part and monitoring compliance with this Part, including powers to give class exemptions.
121FU Definitions
In this Part:
ABN has the same meaning as in the A New Tax System (Australian Business Number) Act 1999.
acquiring, in relation to a program, includes acquiring rights in relation to the program.
Note: For example, acquiring a licence to make a program available in Australia.
acquitted: for when an expenditure requirement is acquitted, see subsection 121FZI(2).
arts program means a program whose subject matter wholly or substantially comprises material relating to the visual arts, design, literature, the performing arts or music.
Australian content expenditure requirement, of an SVOD service for an SVOD reporting year, has the meaning given by section 121FZL.
Australian Content Standard means:
(a) the Broadcasting Services (Australian Content and Children’s Television) Standards 2020 as in force from time to time; or
(b) if the standard mentioned in paragraph (a) is not in force, but there is in force another standard that is a successor (whether immediate or not) to the standard mentioned in paragraph (a),that other standard as in force from time to time.
Australian/New Zealand program has the same meaning as in the Australian Content Standard.
Australian official co‑production has the same meaning as in the Australian Content Standard.
Australian program has the same meaning as in the Australian Content Standard.
carried‑over expenditure amount, for an online content service for an SVOD reporting year, has the meaning given by subsection 121FZI(6).
carried‑over expenditure requirement, for an online content service for an SVOD reporting year, has the meaning given by subsection 121FZI(5).
children’s program means a program produced for children 15 years or younger.
documentary means a program that is a creative treatment of actuality, other than:
(a) a news program; or
(b) a sports program; or
(c) a magazine program; or
(d) an infotainment or light entertainment program; or
(e) a “reality television” program (within the meaning of Schedule 6).
drama program means:
(a) a program that has a fully scripted screenplay in which the dramatic elements of character, theme and plot are introduced and developed to form a narrative structure; or
(b) a program that has:
(i) a partially scripted screenplay in which the dramatic elements of character, theme and plot are introduced and developed to form a narrative structure; and
(ii) actors delivering improvised dialogue that is based on a script outline or outlines developed by a writer or writers; or
(c) a program that has actors delivering improvised dialogue that is based on a script outline or outlines:
(i) developed by a writer or writers; and
(ii) in which the dramatic elements of character, theme and plot are introduced and developed to form a narrative structure;
and includes:
(d) a fully scripted sketch comedy program; and
(e) an animated drama; and
(f) a dramatised documentary;
but does not include:
(g) a program that involves the incidental use of actors; or
(h) advertising or sponsorship matter (whether or not of a commercial kind).
educational program has the same meaning as in Schedule 6.
eligible Australian program has the meaning given by section 121FW.
eligible program has the meaning given by section 121FV.
excluded service, for an SVOD reporting year, has the meaning given by section 121FZ.
expenditure, in relation to a program, means:
(a) expenditure incurred in acquiring the program; or
(b) expenditure incurred in producing or commissioning the program; or
(c) pre‑production expenditure incurred in relation to the program; or
(d) expenditure incurred by way of the making of an investment in the program;
and includes nil expenditure.
expenditure amount, for an online content service for an SVOD reporting year, means:
(a) a qualifying expenditure amount of the service for the SVOD reporting year; or
(b) a carried‑over expenditure amount of the service for the SVOD reporting year.
expenditure requirement, for an online content service for an SVOD reporting year, means:
(a) an Australian content expenditure requirement of the service for the SVOD reporting year; or
(b) a carried‑over expenditure requirement of the service for the SVOD reporting year.
major SVOD service has the meaning given by section 121FY.
news program means any of the following:
(a) a news bulletin;
(b) a sports news bulletin;
(c) a program (whether presenter‑based or not) whose sole or dominant purpose is to provide analysis, commentary or discussion principally designed to inform the general community about social, economic or political issues of current relevance to the general community.
New Zealand program has the same meaning as in the Australian Content Standard.
online content service has the same meaning as in Schedule 8.
paying subscriber, in relation to an online content service, means a person who pays a subscription fee (however described, and whether periodical or otherwise) to use the online content service (including where the fee is paid to use a set of services that includes the online content service and other services, whether the other services are online content services or not).
program, in relation to an online content service, has the same meaning as that term has in subsection 6(1) in relation to a broadcasting service.
provider, in relation to an online content service, has the meaning given by section 121FZC.
qualifying expenditure amount, of an online content service for an SVOD reporting year, has the meaning given by section 121FZK.
regulated SVOD service has the meaning given by section 121FZA.
sports program means a program the sole or dominant purpose of which is to provide:
(a) coverage of one or more sporting events; or
(b) analysis, commentary or discussion in relation to one or more sporting events;
or both.
SVOD reporting year means:
(a) if this Part commences in January, February, March, April, May or June,the financial year in which this Part commences, and each later financial year; or
(b) otherwise,the calendar year in which this Part commences, and each later calendar year.
SVOD service (short for Subscription Video On Demand service) has the meaning given by section 121FX.
total program expenditure for Australia, of an online content service for an SVOD reporting year, has the meaning given by section 121FZN.
wholly acquitted: an expenditure requirement has been wholly acquitted when it has been reduced to nil under subsection 121FZI(2).
121FV Meaning of eligible program
(1) For the purposes of this Part, a program is an eligible program if the program is any of the following:
(a) a drama program;
(b) a children’s program;
(c) a documentary;
(d) an arts program;
(e) an educational program.
(2) However, a program is not an eligible program to the extent that the program is:
(a) a news program; or
(b) a sports program; or
(c) advertising or sponsorship matter (whether or not of a commercial kind).
(3) The ACMA may, by writing, determine that a specified program is, and is taken always to have been, an eligible program despite subsection (1) or (2).
(4) The ACMA may, by writing, determine that a specified program is not, and is taken never to have been, an eligible program despite subsection (1).
Determination has effect
(5) A determination under subsection (3) or (4) has effect accordingly.
Determination is not a legislative instrument
(6) A determination under subsection (3) or (4) is not a legislative instrument.
The ACMA must publish determination
(7) The ACMA must publish a copy of a determination under subsection (3) or (4) on the ACMA’s website.
121FW Meaning of eligible Australian program
(1) For the purposes of this Part, a program is an eligible Australian program if:
(a) the program is an eligible program; and
(b) the program is any of the following:
(i) an Australian program;
(ii) a New Zealand program;
(iii) an Australian/New Zealand program;
(iv) an Australian official co‑production.
(2) The ACMA may, by writing, determine that a specified program is, and is taken always to have been, an eligible Australian program despite subsection (1).
(3) The ACMA may, by writing, determine that a specified program is not, and is taken never to have been, an eligible Australian program despite subsection (1).
Determination has effect
(4) A determination under subsection (2) or (3) has effect accordingly.
Determination is not a legislative instrument
(5) A determination under subsection (2) or (3) is not a legislative instrument.
The ACMA must publish determination
(6) The ACMA must publish a copy of a determination under subsection (2) or (3) on the ACMA’s website.
121FX Meaning of SVOD service
For the purposes of this Part, an online content service is an SVOD service if:
(a) the service has any number of paying subscribers in Australia; and
(b) a catalogue of audiovisual content is available on demand through the service to those paying subscribers; and
(c) the primary purpose, or a significant purpose, of the service is to provide audiovisual content on demand to those paying subscribers.
Note: An online content service that does not have paying subscribers in Australia, but derives its revenue from one‑off transactions or advertising, is not an SVOD service.
121FY Meaning of major SVOD service
(1) For the purposes of this Part, an online content service is a major SVOD service for an SVOD reporting year (the relevant year) if the service passes all the following tests in relation to the relevant year:
(a) the SVOD service test in subsection (3);
(b) the program test in subsection (4);
(c) the paying subscriber test in subsection (5).
(2) Despite subsection (1), the service is not a major SVOD service for the relevant year if the service is an excluded service for the relevant year.
SVOD service test
(3) The service passes the SVOD service test if, at any time in the relevant year, the service is an SVOD service.
Program test
(4) The service passes the program test if, at any time in the relevant year when the service is an SVOD service, a part (other than a part that is merely incidental) of the audiovisual content provided on the service that is likely to appeal to the public, or a section of the public, in Australia consists of eligible programs.
Paying subscriber test
(5) The service passes the paying subscriber test if, at any time in the relevant year when the service is an SVOD service, the service has at least 1 million paying subscribers in Australia.
121FZ Meaning of excluded service
For the purposes of this Part, an online content service is an excluded service for an SVOD reporting year (the relevant year) if, during the relevant year:
(a) the audiovisual content provided by the service was predominantly user‑generated content; or
(b) the service’s appeal to the public in Australia was limited because the service:
(i) was targeted to special interest groups; or
(ii) was intended only for limited locations, for example, arenas or business premises; or
(iii) was provided during a limited period or to cover a special event; or
(iv) predominantly provided programs of limited appeal.
121FZA Meaning of regulated SVOD service
(1) An online content service is a regulated SVOD service for any SVOD reporting year for which the service is a major SVOD service.
(2) An online content service that is a regulated SVOD service for an SVOD reporting year continues to be a regulated SVOD service for each successive SVOD reporting year (even if the service becomes an excluded service or ceases to be a major SVOD service or an SVOD service) until the service ceases, under section 121FZB, to be a regulated SVOD service.
Note: A regulated SVOD service that is no longer a major SVOD service must acquit any expenditure requirements carried over from when it was a major SVOD service, but does not incur further expenditure requirements.
(3) To avoid doubt, an online content service that ceases to be a regulated SVOD service under section 121FZB may become a regulated SVOD service again at a later time.
121FZB When an online content service ceases to be a regulated SVOD service
An online content service ceases to be a regulated SVOD service at the end of an SVOD reporting year if:
(a) the service was not a major SVOD service for the SVOD reporting year; and
(b) either:
(i) the service does not have an expenditure requirement for any SVOD reporting year; or
(ii) all expenditure requirements that the service has for any SVOD reporting year have been wholly acquitted.
121FZC Meaning of provider of an online content service
(1) For the purposes of this Part and subject to this section, a provider of an online content service is a person who:
(a) is a constitutional corporation; and
(b) provides the online content service.
(2) For the purposes of this Part and subject to subsections (4), (5) and (6), a person does not provide an online content service merely because the person supplies an internet carriage service that enables content to be delivered or accessed.
(3) For the purposes of this Part and subject to subsections (4), (5) and (6), a person does not provide an online content service merely because the person provides a billing service, or a fee collection service, in relation to an online content service.
Determinations by the ACMA
(4) The ACMA may, by writing, determine that, for the purposes of this Part, a specified person that is a constitutional corporation (and no other person) is a provider of a specified online content service.
(5) The ACMA may, by writing, determine that, for the purposes of this Part, each of one or more specified persons that are constitutional corporations (and no other persons) are providers of a specified online content service.
(6) The ACMA may, by writing, determine that, for the purposes of this Part, each of one or more specified persons that are constitutional corporations is a provider of a specified online content service, without limiting the application of subsection (1) to any other person.
(7) The ACMA may, by writing, determine that, for the purposes of this Part, each of one or more specified persons is not a provider of a specified online content service.
Determination has effect
(8) A determination under subsection (4), (5), (6) or (7) has effect accordingly.
Determination is not a legislative instrument
(9) A determination under subsection (4), (5), (6) or (7) is not a legislative instrument.
The ACMA must publish determination
(10) The ACMA must publish a copy of a determination under subsection (4), (5), (6) or (7) on the ACMA’s website.
121FZD Class exemptions from this Part
(1) The ACMA may, by legislative instrument, determine that online content services included in a specified class of online content services are exempt from this Part.
(2) The ACMA may, by legislative instrument, determine that online content services included in a specified class of online content services are exempt from one or more specified provisions of this Part.
(3) A determination under subsection (1) or (2) may be:
(a) unconditional; or
(b) subject to such conditions (if any) as are specified in the determination.
121FZE Cash‑based accounting,when expenditure is incurred
For the purposes of this Part:
(a) if the whole of an item of expenditure is paid at a particular time,the expenditure is incurred when the expenditure is paid; and
(b) if different parts of an item of expenditure are paid at different times,each part is incurred when the part is paid.
121FZF ACMA may make determinations about expenditure and revenue
Qualifying expenditure amounts
(1) The ACMA may, by writing, determine that, for the purposes of this Part, specified amounts of expenditure are taken to be qualifying expenditure amounts of a specified online content service for an SVOD reporting year.
(2) The ACMA may, by writing, determine that, for the purposes of this Part, specified amounts of expenditure are taken not to be qualifying expenditure amounts of a specified online content service for an SVOD reporting year.
Total program expenditure for Australia
(3) The ACMA may, by writing, determine that, for the purposes of this Part, specified amounts of expenditure are taken to be total program expenditure for Australia of a specified online content service for an SVOD reporting year.
(4) The ACMA may, by writing, determine that, for the purposes of this Part, specified amounts of expenditure are taken not to be total program expenditure for Australia of a specified online content service for an SVOD reporting year.
Revenue derived by an online content service from Australia
(5) The ACMA may, by writing, determine that, for the purposes of this Part, specified amounts are taken to be revenue derived by a specified online content service from Australia in an SVOD reporting year.
(6) The ACMA may, by writing, determine that, for the purposes of this Part, specified amounts are taken not to be revenue derived by a specified online content service from Australia in an SVOD reporting year.
Determination has effect
(7) A determination under this section has effect accordingly.
Determination is not a legislative instrument
(8) A determination under this section is not a legislative instrument.
121FZG ACMA may make determinations about classes of expenditure and revenue
Expenditure incurred, or not incurred, on programs
(1) The ACMA may, by legislative instrument, determine that, for the purposes of this Part, expenditure in a specified class of expenditure is taken to be incurred on a program.
(2) The ACMA may, by legislative instrument, determine that, for the purposes of this Part, expenditure in a specified class of expenditure is taken not to be incurred on a program.
Expenditure incurred, or not incurred, on eligible programs
(3) The ACMA may, by legislative instrument, determine that, for the purposes of this Part, expenditure in a specified class of expenditure is taken to be incurred on an eligible program.
(4) The ACMA may, by legislative instrument, determine that, for the purposes of this Part, expenditure in a specified class of expenditure is taken not to be incurred on an eligible program.
Qualifying expenditure amounts
(5) The ACMA may, by legislative instrument, determine that, for the purposes of this Part, amounts of expenditure in a specified class of expenditure are taken to be qualifying expenditure amounts of an online content service for an SVOD reporting year.
(6) The ACMA may, by legislative instrument, determine that, for the purposes of this Part, amounts of expenditure in a specified class of expenditure are taken not to be qualifying expenditure amounts of an online content service for an SVOD reporting year.
Total program expenditure for Australia
(7) The ACMA may, by legislative instrument, determine that, for the purposes of this Part, expenditure in a specified class of expenditure is taken to be total program expenditure for Australia of an online content service for an SVOD reporting year.
(8) The ACMA may, by legislative instrument, determine that, for the purposes of this Part, expenditure in a specified class of expenditure is taken not to be total program expenditure for Australia of an online content service for an SVOD reporting year.
Revenue derived by an online content service from Australia
(9) The ACMA may, by legislative instrument, determine that, for the purposes of this Part, amounts in a specified class of amounts are taken to be revenue derived by an online content service from Australia in an SVOD reporting year.
(10) The ACMA may, by legislative instrument, determine that, for the purposes of this Part, amounts in a specified class of amounts are taken not to be revenue derived by an online content service from Australia in an SVOD reporting year.
Determination has effect
(11) A determination under this section has effect accordingly.
Determination to be general in nature
(12) A determination under this section must be general in nature.
121FZH Extraterritorial application
This Part extends to acts, omissions, matters and things outside Australia.
Subdivision A,Acquittal of expenditure requirements
121FZI Acquittal of expenditure requirements
(1) For each SVOD reporting year that an online content service is a regulated SVOD service, the following expenditure requirements are to be acquitted in accordance with this section:
(a) the service’s Australian content expenditure requirement (if any) for the SVOD reporting year (the relevant year);
(b) any carried‑over expenditure requirement the service has for an SVOD reporting year before the relevant year that has not already been acquitted.
Note 1: For a service’s Australian content expenditure requirement, see section 121FZL.
Note 2: Australian content expenditure requirements that are not acquitted in the SVOD reporting year in which they are incurred become carried‑over expenditure requirements (see subsection (5) of this section), and can be acquitted in the 2 following SVOD reporting years. If a carried‑over expenditure requirement is not acquitted by the end of the second such SVOD reporting year, the provider or providers of the service may be liable for a civil penalty (see section 121FZJ), and the carried‑over expenditure requirement continues to carry over to further SVOD reporting years (and may give rise to liability for further civil penalties).
Note 3: Australian content expenditure requirements are acquitted using qualifying expenditure amounts (see section 121FZK). If a regulated SVOD service has some or all of a qualifying expenditure amount left after acquitting any outstanding Australian content expenditure requirements, it can carry over the remaining qualifying expenditure amount for up to 2 further SVOD reporting years (see subsections (6) and (7) of this section).
(2) An expenditure requirement is acquitted by reducing the expenditure requirement (but not below nil) by:
(a) the service’s qualifying expenditure amount (if any) for the relevant year; and
(b) any carried‑over expenditure amount the service has from an SVOD reporting year before the relevant year (subject to the time limit in subsection (7));
to the extent that each expenditure amount has not already been used to acquit an expenditure requirement.
Expenditure requirements and amounts to be dealt with in order
(3) If the service has expenditure requirements for 2 or more SVOD reporting years, an expenditure requirement for an earlier year is to be acquitted before an expenditure requirement for a later year.
(4) If the service has expenditure amounts for 2 or more SVOD reporting years that have not already been used to acquit an expenditure requirement, an expenditure amount for an earlier year is to be used to acquit an expenditure requirement before an expenditure amount for a later year.
Carry‑over of expenditure requirements and amounts
(5) If, after applying subsection (2) to each expenditure requirement, the service has an Australian content expenditure requirement for the relevant year that is more than nil, the amount of that expenditure requirement is the carried‑over expenditure requirement of the service for the relevant year.
(6) If:
(a) the service has a qualifying expenditure amount for the relevant year; and
(b) after applying subsection (2) to each expenditure requirement, some or all of the qualifying expenditure amount for the relevant year has not been used to acquit an expenditure requirement;
that qualifying expenditure amount, to the extent that it has not been used to acquit an expenditure requirement, is the carried‑over expenditure amount of the service for the relevant year.
(7) A carried‑over expenditure amount for an SVOD reporting year (the expenditure year) cannot be used to acquit an expenditure requirement for an SVOD reporting year that is more than 2 SVOD reporting years after the expenditure year.
121FZJ Civil penalty for failure to acquit expenditure requirement
(1) A provider of an online content service that is a regulated SVOD service for an SVOD reporting year (the current year) contravenes this subsection if, at the end of the current year (and after applying section 121FZI for the current year), the service has:
(a) a carried‑over expenditure requirement, that has not been wholly acquitted, for one SVOD reporting year that is 2 or more SVOD reporting years before the current year; or
(b) carried‑over expenditure requirements, that have not been wholly acquitted, for 2 or more SVOD reporting years that are each 2 or more SVOD reporting years before the current year.
(2) Subsection (1) is a civil penalty provision.
Civil penalty order does not affect acquittal obligation, or prevent further civil penalty orders
(3) To avoid doubt, the making of a civil penalty order against a person in relation to a contravention of subsection (1) (or a contravention of section 205E that relates to a contravention of subsection (1) of this section) that relates to an online content service’s carried‑over expenditure requirement for a particular SVOD reporting year:
(a) does not relieve the service of the obligation to acquit that carried‑over expenditure requirement; and
(b) does not prevent a civil penalty order being made against the person in respect of another contravention of subsection (1) (or section 205E) that:
(i) occurs at the end of an SVOD reporting year other than the current year; and
(ii) relates to the same carried‑over expenditure requirement; and
(c) if the service’s Australian content expenditure requirement for the SVOD reporting year to which the carried‑over expenditure requirement relates is taken into account under subparagraph 205F(5AAB)(c)(ii) and subsection 205F(5AAC) in determining the pecuniary penalty payable by a person,does not prevent that Australian content expenditure requirement being taken into account in relation to another contravention of subsection (1) of this section (or section 205E) by any person.
Subdivision B,Working out expenditure amounts and requirements
121FZK Meaning of qualifying expenditure amount
(1) For the purposes of this Part, an online content service’s qualifying expenditure amount for an SVOD reporting year (the relevant year) is the total expenditure incurred by the provider or providers of the service during the relevant year on programs that:
(a) are eligible Australian programs; and
(b) were:
(i) commissioned as mentioned in subsection (3); or
(ii) acquired by the provider or providers; and
(c) were not made available to the public in Australia, other than by being shown in a cinema, at any time before the expenditure was incurred.
(2) For the purposes of subsection (1), if the service has more than one provider, disregard any payments between the providers of the service.
(3) For the purposes of subparagraph (1)(b)(i), a program was commissioned if one or more of the providers of the service:
(a) produced the program; or
(b) made a material financial contribution to the production of the program before the production of the program was completed.
121FZL Meaning of Australian content expenditure requirement
(1) The Australian content expenditure requirement for a major SVOD service for an SVOD reporting year (the relevant year) is an amount equal to 10% of the service’s total program expenditure for Australia for the relevant year.
(2) However, if an election under subsection 121FZM(1) is in effect for the major SVOD service for the relevant year, the service’s Australian content expenditure requirement for the relevant year is instead an amount equal to 7.5% of the revenue derived by the service from Australia in the relevant year.
Note: Revenue derived by a service from Australia may include, for example, revenue derived from:
(a) paying subscribers in Australia; and
(b) advertising to people in Australia.
(3) The Australian content expenditure requirement for a regulated SVOD service that is not a major SVOD service for an SVOD reporting year is nil for that SVOD reporting year.
121FZM Election of revenue method
(1) The provider or providers of a regulated SVOD service may, by written notice to the ACMA, make an election to have subsection 121FZL(2) apply to the service for a period of 3 SVOD reporting years.
(2) The 3‑year period must be:
(a) the 3‑year period beginning on the first day of the first SVOD reporting year for which the service was a regulated SVOD service; or
(b) a 3‑year period beginning on the day after the end of a previous 3‑year period to which this subsection applies.
(3) A notice under subsection (1):
(a) may only be given within the period of 60 days beginning on the first day of the 3‑year period; and
(b) must be given in the form and manner approved, in writing, by the ACMA; and
(c) if the service has more than one provider,must be given jointly by all providers of the service.
(4) Despite subsection (1), the provider or providers may not make an election under that subsection if, at the end of the year (the pre‑election year) immediately preceding the 3‑year period, the service had a carried‑over expenditure requirement, that had not been wholly acquitted, for any SVOD reporting year that is 2 or more SVOD reporting years before the pre‑election year.
121FZN Meaning of total program expenditure for Australia
(1) For the purposes of this Part, an online content service’s total program expenditure for Australia for an SVOD reporting year (the relevant year) is the total of the expenditure incurred by the provider or providers of the service in the relevant year on eligible programs that are, or are intended to be, provided on the service in Australia.
(2) Without limiting subsection (1), the service’s total program expenditure for Australia for the relevant year includes expenditure incurred by the provider or providers of the service in the relevant year in commissioning or acquiring eligible Australian programs that are, or are intended to be, provided on the service in Australia.
(3) Without limiting subsection (1), the service’s total program expenditure for Australia for the relevant year includes:
(a) expenditure incurred by the provider or providers of the service in the relevant year in licensing eligible programs that are, or are intended to be, provided on the service in Australia; and
(b) other expenditure incurred by the provider or providers of the service in the relevant year in relation to eligible programs (other than eligible Australian programs) that are, or are intended to be, provided on the service in Australia, to the extent that the expenditure is reasonably attributable to the provision of the programs on the service in Australia; and
(c) amounts that are not covered by paragraph (a) or (b), but would be amounts of expenditure covered by paragraph (a) or (b) if arrangements under which eligible programs (other than eligible Australian programs) are made available to be provided on the service in Australia were entered into at arm’s length.
Division 3,Reporting and information
Subdivision A,Reporting by providers of regulated SVOD services
121FZO Annual reports
(1) The provider or providers of an online content service that is a regulated SVOD service for an SVOD reporting year (the year of the report) must, within 45 days after the end of the year of the report, prepare and give the ACMA a report relating to:
(a) compliance by the service, and the provider or providers of the service, with this Part during the year of the report; and
(b) the service’s qualifying expenditure amount for the year of the report; and
(c) the service’s total program expenditure for Australia for the year of the report; and
(d) the revenue derived by the service from Australia in the year of the report; and
(e) the number of paying subscribers the service has in Australia; and
(f) acquittal of the service’s expenditure requirements.
(2) A report under subsection (1) must:
(a) be given in the form and manner approved, in writing, by the ACMA; and
(b) set out such information as is required by the form.
121FZP Civil penalty for failure to give annual report
(1) A person contravenes this subsection if:
(a) the person is a provider of an online content service that is a regulated SVOD service for an SVOD reporting year; and
(b) a report under section 121FZO in relation to the service for the SVOD reporting year is not given to the ACMA in accordance with that section.
(2) Subsection (1) is a civil penalty provision.
(3) A person who contravenes subsection (1) commits a separate contravention of that subsection in respect of each day (including a day of the making of a relevant civil penalty order or any subsequent day) during which the contravention continues.
Designated infringement notice provision
(4) Subsection (1) is a designated infringement notice provision.
Subdivision B,Notification by providers of certain SVOD services
121FZQ Requirement to notify the ACMA of certain SVOD services
(1) A person must notify the ACMA if, at any time in an SVOD reporting year:
(a) the person is a provider of an SVOD service; and
(b) the service has at least 250,000 paying subscribers in Australia; and
(c) the service is not an excluded service for the SVOD reporting year.
(2) A notification under subsection (1):
(a) must be given before the end of 60 days after the first day on which all of paragraphs (1)(a), (b) and (c) apply; and
(b) must be given in the form and manner approved, in writing, by the ACMA; and
(c) must include the name of the service; and
(d) must include:
(i) the name of the person; and
(ii) if the person has an ABN,the person’s ABN; and
(iii) if the person has a principal office in Australia,the address of that principal office; and
(e) must include any other information required by the form in relation to the service, the providers of the service or other bodies corporate related to the providers of the service.
(3) If the service has more than one provider, the requirement for each provider to give a notification under subsection (1) is satisfied if any of the providers gives an equivalent notification.
(4) A form approved under paragraph (2)(b) for a notification under subsection (1) may provide for verification by statutory declaration of information included in the notification.
121FZR Further notifications if circumstances change etc.
(1) A person must notify the ACMA if, at any time in an SVOD reporting year (the notification year):
(a) the person is a provider of an online content service; and
(b) a notifiable circumstance mentioned in subsection (2) or (4) exists in relation to the service.
Notifiable circumstances,changes in SVOD service etc.
(2) For the purposes of paragraph (1)(b), if the online content service:
(a) is an SVOD service; and
(b) has at least 250,000 paying subscribers in Australia; and
(c) is not an excluded service for the notification year;
each of the following is a notifiable circumstance in relation to the service:
(d) a person starts or stops being a provider of the service (other than as a result of a determination by the ACMA under subsection 121FZC(4), (5), (6) or (7));
(e) information previously notified to the ACMA in relation to the service under section 121FZQ or this section is no longer correct, or no longer complete;
(f) the service is a major SVOD service for the notification year, but was not a major SVOD service for the immediately preceding SVOD reporting year;
(g) the service is not a major SVOD service for the notification year, but was a major SVOD service for the immediately preceding SVOD reporting year;
(h) any other circumstance specified by the ACMA under subsection (3).
(3) For the purposes of paragraph (2)(h), the ACMA may, by legislative instrument, determine that specified circumstances are notifiable circumstances in relation to online content services to which subsection (2) applies.
Notifiable circumstances,online content service ceases to be covered by other notification requirements
(4) For the purposes of paragraph (1)(b), if the online content service has, at any time in an SVOD reporting year, been an SVOD service that:
(a) had at least 250,000 paying subscribers in Australia; and
(b) was not an excluded service for that SVOD reporting year;
but ceases to be such an SVOD service, that cessation is a notifiable circumstance in relation to the service.
Requirements for notification
(5) A notification under subsection (1):
(a) must be given before the end of 60 days after the notifiable circumstance began to exist; and
(b) must be given in the form and manner approved, in writing, by the ACMA; and
(c) must include the name of the service; and
(d) must include any other information required by the form in relation to the notifiable circumstance.
(6) If the service has more than one provider, the requirement for each provider to give a notification under subsection (1) is satisfied if any of the providers gives an equivalent notification.
(7) A form approved under paragraph (5)(b) for a notification under subsection (1) may provide for verification by statutory declaration of information included in the notification.
121FZS Penalty for failing to notify the ACMA
(1) A person contravenes this section if:
(a) the person is a provider of an online content service; and
(b) the person is required to give the ACMA a notification under subsection 121FZQ(1) or 121FZR(1); and
(c) the person does not comply with the requirement in accordance with subsection 121FZQ(2) or 121FZR(5), as the case requires; and
(d) if the service has more than one provider,no other provider gives the ACMA an equivalent notification.
(2) Subsection (1) is a civil penalty provision.
(3) A person who contravenes subsection (1) commits a separate contravention of that subsection in respect of each day (including a day of the making of a relevant civil penalty order or any subsequent day) during which the contravention continues.
(4) Subsection (1) is a designated infringement notice provision.
Subdivision C,Information‑gathering
121FZT The ACMA may obtain information and documents
Scope
(1) This section applies to a person who is a provider of an SVOD service if the ACMA has reason to believe that the person has information or a document that is relevant to the operation of this Part.
The ACMA may require information or documents
(2) The ACMA may, by written notice given to the person, require the person to do any of the following:
(a) to give to the ACMA, within the period and in the manner and form specified in the notice, any such information;
(b) to produce to the ACMA, within the period and in the manner specified in the notice, any such documents;
(c) to make copies of any such documents and to produce to the ACMA, within the period and in the manner specified in the notice, those copies.
(3) A person must comply with a requirement under subsection (2).
Civil penalty provision
(4) Subsection (3) is a civil penalty provision.
(5) A person who contravenes subsection (3) commits a separate contravention of that subsection in respect of each day (including a day of the making of a relevant civil penalty order or any subsequent day) during which the contravention continues.
Designated infringement notice provision
(6) Subsection (3) is a designated infringement notice provision.
Requirements for notice
(7) A period specified under paragraph (2)(a), (b) or (c) must not be shorter than 14 days after the notice is given.
121FZU Copies of documents
(1) The ACMA may inspect a document or copy produced under section 121FZT and may make and retain copies of, or take and retain extracts from, such a document.
(2) The ACMA may retain possession of a copy of a document produced in accordance with a requirement covered by paragraph 121FZT(2)(c).
Division 4,Miscellaneous
121FZV Expenditure and revenue to be expressed in Australian currency
(1) For the purposes of this Part, expenditure and revenue are to be expressed in Australian currency.
(2) For the purposes of this Part, if expenditure is incurred or revenue is derived otherwise than in Australian currency, the expenditure or revenue is to be expressed in Australian currency at a rate equal to the average, over the SVOD reporting year in which the expenditure is incurred or the revenue is derived, of the exchange rate that is applicable to the expenditure or revenue.
121FZW Anti‑avoidance,transactions between persons not at arm’s length
(1) If:
(a) a person has incurred expenditure in connection with a transaction where the parties to the transaction are not dealing with each other at arm’s length in relation to the transaction; and
(b) apart from this section, the expenditure is counted for the purposes of the application of this Part; and
(c) the amount of the expenditure is greater or less than is reasonable;
the ACMA may, by writing, determine that the amount of the expenditure is taken, for the purposes of the application of this Part in relation to the parties to the transaction, to be the amount that would have been reasonable if the parties were dealing with each other at arm’s length.
Determination has effect
(2) A determination under subsection (1) has effect accordingly.
Determination is not a legislative instrument
(3) A determination under subsection (1) is not a legislative instrument.
121FZX The ACMA may make determinations about online content services etc.
(1) The purpose of this section is to provide for the ACMA to make determinations dealing with any of the following circumstances or events that would otherwise affect the operation of this Part:
(a) the nature, ownership or structure of online content services;
(b) changes in the nature, ownership or structure of online content services;
(c) temporary cessations of online content services;
(d) online content services being combined with other services (whether the other services are online content services or not);
(e) online content services splitting into separate services (whether all of the separate services are online content services or not);
(f) any other circumstances or events, involving online content services, that could result in:
(i) qualifying expenditure amounts not being available to be used by the entities or online content services to which the amounts are reasonably attributable; or
(ii) expenditure requirements not being required to be acquitted by the entities or online content services to which the expenditure requirements are reasonably attributable.
(2) The ACMA may, by writing, determine that this Part is to operate, in relation to one or more specified online content services, in a way that reduces, eliminates or otherwise addresses the effect of specified circumstances or events of a kind mentioned in subsection (1).
(3) Without limiting subsection (2), the kinds of determinations that the ACMA may make include the following:
(a) a determination that a change in an online content service (including a change in the nature, ownership, structure or providers of the online content service) does not affect the continuity of the online content service;
(b) a determination that an online content service is, at or after a specified time or for a specified period, taken to be, or not to be, the same online content service as a particular online content service at a specified time or for a specified period;
(c) a determination that 2 or more online content services are taken to be a single online content service;
(d) a determination that specified parts of an online content service are taken to be separate online content services;
(e) a determination that an online content service is taken to be, or not to be, a major SVOD service for one or more specified SVOD reporting years;
(f) a determination that an online content service is taken to be, or not to be, a regulated SVOD service for one or more specified SVOD reporting years;
(g) a determination that specified expenditure is taken to have been incurred, or not to have been incurred, by a specified online content service;
(h) a determination that specified revenue is taken to have been derived, or not to have been derived, by a specified online content service.
(4) A determination under subsection (2):
(a) may have effect on, at or after a specified time (which may be before the determination is made), or for a specified period (which may begin before the determination is made); and
(b) may relate to circumstances that existed, or an event that occurred, before the commencement of this Part.
(5) A determination under subsection (2) that has effect before the determination is made does not result in:
(a) a person being liable for a civil penalty order in relation to a contravention of subsection 121FZJ(1) for a current year (within the meaning of that subsection) that ends before the determination is made; or
(b) a person being liable for a civil penalty order in relation to a contravention of subsection 121FZP(1) or 121FZS(1) that occurs before the determination is made.
Determination has effect
(6) A determination under subsection (2) has effect accordingly.
Determination is not a legislative instrument
(7) A determination under subsection (2) is not a legislative instrument.
121FZY Review of this Part
Review of this Part
(1) The Minister must cause a review to be conducted of:
(a) the operation, effectiveness and implications of:
(i) this Part; and
(ii) the remaining provisions of this Act to the extent to which they relate to this Part; and
(b) whether any changes could be made to this Part, or the provisions mentioned in subparagraph (a)(ii), in order to improve the operation and effectiveness of this Part or those provisions.
(2) The review must commence as soon as practicable after the end of the 4 year period starting on the day that this Part commences.
Report
(3) The persons undertaking the review must give the Minister a written report of the review. The report must not include information that is commercially sensitive.
(4) The Minister must cause copies of the report to be tabled in each House of the Parliament within 15 sittings days of that House after receiving the report.
121FZZ Minister may request report
(1) The Minister may, by written notice given to the ACMA, request the ACMA to:
(a) prepare a report about any one or more of the following:
(i) SVOD services;
(ii) expenditure by SVOD services on eligible Australian programs;
(iii) the acquittal of expenditure requirements by SVOD services;
(iv) access to eligible Australian programs by users of SVOD services;
(v) developments in the SVOD service industry; and
(b) give the report to the Minister.
(2) The ACMA must comply with a request under subsection (1).
4 Subsection 204(1) (after table item dealing with Cancellation of an international broadcasting licence under section 121FLH)
Insert:
Refusal to determine that a program is an eligible program
Subsection 121FV(3)
A person whose interests are affected by the decision to refuse to make the determination
Determination that a program is not an eligible program
Subsection 121FV(4)
A person whose interests are affected by the decision to make the determination
Refusal to determine that a program is an eligible Australian program
Subsection 121FW(2)
A person whose interests are affected by the decision to refuse to make the determination
Determination that a program is not an eligible Australian program
Subsection 121FW(3)
A person whose interests are affected by the decision to make the determination
Determination that a person is a provider of an online content service
Subsection 121FZC(4)
A person whose interests are affected by the decision to make the determination
Determination that one or more persons are providers of an online content service
Subsection 121FZC(5) or (6)
A person whose interests are affected by the decision to make the determination
Determination that one or more persons are not providers of an online content service
Subsection 121FZC(7)
A person whose interests are affected by the decision to make the determination
Refusal to determine that an amount is a qualifying expenditure amount of an online content service
Subsection 121FZF(1)
A person whose interests are affected by the decision to refuse to make the determination
Determination that an amount is not a qualifying expenditure amount of an online content service
Subsection 121FZF(2)
A person whose interests are affected by the decision to make the determination
Determination that an amount is total program expenditure for Australia of an online content service
Subsection 121FZF(3)
A person whose interests are affected by the decision to make the determination
Refusal to determine that an amount is not total program expenditure for Australia of an online content service
Subsection 121FZF(4)
A person whose interests are affected by the decision to refuse to make the determination
Determination that an amount is revenue derived by an online content service from Australia
Subsection 121FZF(5)
A person whose interests are affected by the decision to make the determination
Refusal to determine that an amount is not revenue derived by an online content service from Australia
Subsection 121FZF(6)
A person whose interests are affected by the decision to refuse to make the determination
Determination,anti‑avoidance
Subsection 121FZW(1)
A person whose interests are affected by the decision to make the determination
Determination about online content services
Subsection 121FZX(2)
A person whose interests are affected by the decision to make the determination
5 Subsection 205F(4)
After “74K(1),”, insert “121FZJ(1), 121FZP(1), 121FZS(1), 121FZT(3),”.
6 Subsection 205F(5)
After “74K(1)”, insert “, 121FZJ(1), 121FZP(1), 121FZS(1), 121FZT(3)”.
7 After subsection 205F(5AA)
Insert:
(5AAA) The pecuniary penalty payable by a person in respect of:
(a) a contravention of subsection 121FZP(1), 121FZS(1) or 121FZT(3); or
(b) a contravention of section 205E that relates to a contravention of subsection 121FZP(1), 121FZS(1) or 121FZT(3);
must not exceed:
(c) if the person is a body corporate,60 penalty units; or
(d) if the person is not a body corporate,12 penalty units.
(5AAB) The pecuniary penalty payable by a person in respect of:
(a) a contravention of subsection 121FZJ(1); or
(b) a contravention of section 205E that relates to a contravention of subsection 121FZJ(1);
must not exceed:
(c) if the person is a body corporate,whichever of the following is greatest:
(i) 10,000 penalty units;
(ii) if the Federal Court can determine the original expenditure requirement under subsection (5AAC) of this section in relation to the contravention,10 times that original expenditure requirement; or
(d) if the person is not a body corporate,2,000 penalty units.
(5AAC) For the purposes of subparagraph (5AAB)(c)(ii), the original expenditure requirement in relation to a contravention of subsection 121FZJ(1) by a provider of an online content service is the total of the service’s Australian content expenditure requirements (before any acquittal of those expenditure requirements) for each SVOD reporting year for which the service has a carried‑over expenditure requirement mentioned in paragraph 121FZJ(1)(a) or (b).
8 Paragraph 205F(6)(a)
Omit “121FJA(3) or 121FJD(3)”, substitute “121FJA(3), 121FJD(3), 121FZP(3), 121FZS(3) or 121FZT(5)”.
9 Subsection 205ZA(2)
Omit “74J(1) or 74K(1)”, substitute “74J(1), 74K(1), 121FZP(1), 121FZS(1) or 121FZT(3)”.
10 At the end of section 205ZA
Add:
(4) If an infringement notice given to a person relates to subsection 121FZP(1), 121FZS(1) or 121FZT(3), the penalty to be specified in the infringement notice must be a pecuniary penalty equal to:
(a) if the person is a body corporate,60 penalty units; or
(b) in any other case,12 penalty units.
Part 2,Other amendments
Australian Communications and Media Authority Act 2005
11 Section 3 (subparagraph (b)(i) of the definition of authorised disclosure information)
After “7”, insert “, 8C”.
12 Paragraph 10(1)(a)
After “broadcasting video on demand services”, insert “, subscription video on demand services”.
Part 3,Transitional provisions
13 Definitions
In this Part:
commencement day means the day this Schedule commences.
commencement year means the SVOD reporting year (within the meaning of Part 8C of the Broadcasting Services Act 1992) in which this Schedule commences.
online content service has the same meaning as in Part 8C of the Broadcasting Services Act 1992.
qualifying expenditure amount has the same meaning as in Part 8C of the Broadcasting Services Act 1992.
regulated SVOD service has the same meaning as in Part 8C of the Broadcasting Services Act 1992.
total program expenditure for Australia has the same meaning as in Part 8C of the Broadcasting Services Act 1992.
14 Transitional provision,major SVOD services and excluded services
In applying the following provisions of the Broadcasting Services Act 1992 in relation to the commencement year, have regard to the whole of the commencement year (including any part of the commencement year that is before the commencement day):
(a) section 121FY (major SVOD services);
(b) section 121FZ (excluded services).
15 Transitional provision,expenditure and revenue
(1) In working out, for the purposes of Part 8C of the Broadcasting Services Act 1992, any of the following for an online content service for the commencement year, have regard to expenditure incurred at any time in the commencement year (including any part of the commencement year that is before the commencement day):
(a) the service’s qualifying expenditure amount;
(b) the service’s total program expenditure for Australia.
(2) In working out, for the purposes of Part 8C of the Broadcasting Services Act 1992, the revenue derived by an online content service from Australia in the commencement year, have regard to revenue derived at any time in the commencement year (including any part of the commencement year that is before the commencement day).
16 Transitional provision,election of revenue method
If an online content service is a regulated SVOD service for the commencement year, then:
(a) to avoid doubt, the 3‑year period mentioned in paragraph 121FZM(2)(a) of the Broadcasting Services Act 1992 begins, for the service, on the first day of the commencement year; and
(b) the period of 60 days mentioned in paragraph 121FZM(3)(a) of that Act for that 3‑year period begins on the commencement day.
If paragraphs 121FZQ(1)(a), (b) and (c) of the Broadcasting Services Act 1992 apply to a person on the commencement day, the period of 60 days mentioned in paragraph 121FZQ(2)(a) of that Act begins on the commencement day.