Broadcasting Services Act 1992

Overview

The Broadcasting Services Act 1992 was enacted to address the need for a comprehensive regulatory framework governing the provision of radio and television broadcasting services in Australia, alongside emerging technologies like datacasting and online content services. The Act was passed by the Commonwealth Parliament with the primary objective of promoting the availability of a diverse range of broadcasting services that offer entertainment, education, and information to the Australian public, while also fostering an efficient and competitive broadcasting industry. The Act empowers the Australian Communications and Media Authority (ACMA) to monitor and regulate the broadcasting industry, ensuring that it remains responsive to audience needs and technological advancements. Additionally, the legislation seeks to encourage diversity in media ownership and control, support the development of community and indigenous broadcasting, and maintain high standards in broadcasting content.

Scope and Application

The Broadcasting Services Act 1992 (BSA) applies across the Commonwealth of Australia, including its external territories, and binds the Crown in all its capacities. The BSA regulates various categories of broadcasting services, including national broadcasting services, commercial broadcasting services, community broadcasting services, subscription broadcasting services, subscription narrowcasting services, open narrowcasting services, and international broadcasting services. The Act specifically targets the allocation, operation, and control of these services through the Australian Communications and Media Authority (ACMA). It sets out the objects of promoting diverse, efficient, and competitive broadcasting services, encouraging diversity in control, and ensuring high-quality programming. The Act extends its regulatory reach to include the economic and efficient use of the radiofrequency spectrum, the protection of community interests, and the maintenance of diversity in the broadcasting industry. Exclusions from the Act's application include national broadcasting services unless expressly provided by the Act and international broadcasting services in Part 8B, which are governed by separate rules. The BSA is complemented by subordinate instruments and regulations that further define terms, specify conditions, and set out technical standards and planning criteria for broadcasting services. These instruments allow for flexibility and adaptation to technological advancements and market conditions.

Key Provisions

• The Broadcasting Services Act 1992, as amended, sets out a regulatory framework for broadcasting services in Australia. The Act is divided into several parts, each containing specific provisions that govern different aspects of the broadcasting industry. Section 11 outlines the categories of broadcasting services to which the Act applies, including national broadcasting services, commercial broadcasting services, community broadcasting services, subscription broadcasting services, subscription narrowcasting services, open narrowcasting services, and international broadcasting services. Each category is subject to different regulatory requirements and obligations. For example, commercial broadcasting services require individual licences, while other services may be provided under class licences. The Act imposes various obligations on licensees, such as providing specific services, maintaining local content, and complying with licence conditions (Sections 41C, 41D, 43B, and 43C). Licences are typically valid for five years but can be renewed (Sections 45 and 46).
• In terms of control and ownership, the Act limits the number of licences that can be held by a single entity within certain areas to promote diversity and competition. For instance, Section 50 restricts the number of commercial television broadcasting licences that can be held in the same licence area to three, and Section 54 imposes similar limitations on commercial radio broadcasting licences. Additionally, Section 55 restricts the number of directorships a person can hold in relation to these services. The Act also addresses potential breaches of these control provisions and provides mechanisms for the Australian Communications and Media Authority (ACMA) to approve temporary breaches or issue remedial directions (Sections 65A and 66).
• Failure to comply with the provisions of the Act can lead to significant penalties. Providing broadcasting services without a valid licence is a strict liability offence, with penalties ranging from 500 penalty units for community radio services to 20,000 penalty units for commercial television services (Sections 131 to 136). Licence holders who breach conditions of their licences face fines up to 1,000 penalty units per day of the breach (Sections 139 and 140). There are also provisions for civil penalties where specified, with maximum penalties varying based on the type of offence and the entity involved (Sections 205E to 205AE). For example, a contravention of a civil penalty provision by a body corporate can result in a fine of up to 300 penalty units, while a contravention by an individual can incur a penalty of up to 60 penalty units. Furthermore, the Act includes provisions for injunctions and enforcement actions by the ACMA to ensure compliance with its regulations (Sections 205Q and 205R).
• The Act further outlines the role of the ACMA in monitoring and enforcing compliance with the Act's provisions. The ACMA has the authority to investigate complaints, conduct hearings, and gather information to ensure that broadcasters adhere to their obligations. It also has the power to issue infringement notices for certain breaches and can refer matters to the Federal Court for more serious offences. The Minister can direct the ACMA to investigate specific issues or to take certain actions, and the ACMA must comply with such directions (Sections 171 and 172). The Act includes provisions for the ACMA to obtain information and documents from broadcasters, summon individuals for examination, and publish reports on its investigations and findings (Sections 168 to 179). The Minister may also request reports on specific issues from the ACMA, which must then comply and provide the requested information (Section 205ZC).
• The Act includes measures to protect the interests of the public, such as requiring broadcasters to provide certain types of content, including local news and programming (Sections 43B and 43C). It also mandates the disclosure of cross-media relationships and limits on the concentration of media ownership to prevent undue influence on public opinion (Sections 61BA to 61AH). The Act provides for the ACMA to impose additional conditions on licences to ensure compliance with these objectives. The Act also includes provisions for the ACMA to obtain information and documents from broadcasters, summon individuals for examination, and publish reports on its investigations and findings. The Minister may request reports on specific issues from the ACMA, which must then comply and provide the requested information. The Act provides for the ACMA to obtain information and documents from broadcasters, summon individuals for examination, and publish reports on its investigations and findings.
• Finally, the Act sets out the procedures for appeals against ACMA decisions, ensuring that affected parties have a means to challenge regulatory actions. The Act specifies which decisions are reviewable and outlines the process for making an application to the Administrative Review Tribunal. The Tribunal has the authority to review decisions made by the ACMA and can vary or affirm those decisions (Section 204). Additionally, the Act includes provisions for the ACMA to investigate complaints, conduct hearings, and gather information to ensure that broadcasters adhere to their obligations. It also has the power to issue infringement notices for certain breaches and can refer matters to the Federal Court for more serious offences. The Minister may request reports on specific issues from the ACMA, which must then comply and provide the requested information.

Legal classification tags

Area of Law

Commercial Law

Media Law

Communications Law

Instrument

Act

Concepts

Commencement Provisions

Regulatory Standards

Licensing Requirements

Enforcement Powers

Civil Penalty Provisions

Reporting Obligations