Broadcasting Services Act 1992 (Cth)

Broadcasting Services Act 1992

No. 110, 1992

Compilation No. 112

Compilation date: 17 December 2024

Includes amendments: Act No. 62, 2024

This compilation is in 2 volumes

Volume 1:sections 1–218

Volume 2: Schedules 1, 2, 4 and 6–8

Endnotes

Each volume has its own contents

About this compilation

This compilation

This is a compilation of the Broadcasting Services Act 1992 that shows the text of the law as amended and in force on 17 December 2024 (the compilation date).

The notes at the end of this compilation (the endnotes) include information about amending laws and the amendment history of provisions of the compiled law.

Uncommenced amendments

The effect of uncommenced amendments is not shown in the text of the compiled law. Any uncommenced amendments affecting the law are accessible on the Register ( The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. For more information on any uncommenced amendments, see the Register for the compiled law.

Application, saving and transitional provisions for provisions and amendments

If the operation of a provision or amendment of the compiled law is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes.

Editorial changes

For more information about any editorial changes made in this compilation, see the endnotes.

Modifications

If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. Accordingly, this compilation does not show the text of the compiled law as modified. For more information on any modifications, see the Register for the compiled law.

Self‑repealing provisions

If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes.

Contents

An Act relating to broadcasting services, broadcasting video on demand services, datacasting services, online services and content services, and for related purposes

Part 1Preliminary 1Short title

This Act may be cited as the Broadcasting Services Act 1992.

2Commencement

(1)
Section 1, this section, sections 3 and 6 commence on the day on which this Act receives the Royal Assent.
(2)
The remaining provisions of this Act commence on a day to be fixed by Proclamation.
(3)
If those provisions do not commence under subsection (2) within the period of 6 months beginning on the day on which this Act receives the Royal Assent, those provisions commence on the first day after the end of that period.

3Objects of this Act

(1)
The objects of this Act are:
(a)
to promote the availability to audiences throughout Australia of a diverse range of radio and television services offering entertainment, education and information; and
(aa)
to promote the availability to audiences and users throughout Australia of a diverse range of datacasting services; and
(b)
to provide a regulatory environment that will facilitate the development of a broadcasting industry in Australia that is efficient, competitive and responsive to audience needs; and
(ba)
to provide a regulatory environment that will facilitate the development of a datacasting industry in Australia that is efficient, competitive and responsive to audience and user needs; and
(c)
to encourage diversity in control of the more influential broadcasting services; and
(e)
to promote the role of broadcasting services in developing and reflecting a sense of Australian identity, character and cultural diversity; and
(ea)
to promote the availability to audiences throughout Australia of television and radio programs about matters of local significance; and
(eb)
to promote the free availability to audiences throughout Australia of television coverage of events of national importance and cultural significance; and
(f)
to promote the provision of high quality and innovative programming by providers of broadcasting services; and
(fa)
to promote the provision of high quality and innovative content by providers of datacasting services; and
(g)
to encourage providers of commercial and community broadcasting services to be responsive to the need for a fair and accurate coverage of matters of public interest and for an appropriate coverage of matters of local significance; and
(h)
to encourage providers of broadcasting services to respect community standards in the provision of program material; and
(ha)
to promote access to certain broadcasting services and broadcasting video on demand services that are made available free to Australian audiences and users; and
(hb)
to ensure online content service providers respect community standards in relation to gambling promotional content; and
(i)
to encourage the provision of means for addressing complaints about broadcasting services; and
(ia)
to provide a means for addressing complaints about gambling promotional content provided on online content services; and
(j)
to ensure that providers of broadcasting services place a high priority on the protection of children from exposure to program material which may be harmful to them; and
(ja)
to ensure that international broadcasting services are not provided contrary to Australia’s national interest; and
(n)
to ensure the maintenance and, where possible, the development of diversity, including public, community and indigenous broadcasting, in the Australian broadcasting system in the transition to digital broadcasting.
(2)
In this section:
broadcasting video on demand services has the same meaning as in Part 9E.
gambling promotional content has the same meaning as in Schedule 8.
online content service has the same meaning as in Schedule 8.
online content service provider has the same meaning as in Schedule 8.

4Regulatory policy

(1)
The Parliament intends that different levels of regulatory control be applied across the range of broadcasting services, broadcasting video on demand services, datacasting services and online content services according to the degree of influence that different types of broadcasting services, broadcasting video on demand services, datacasting services and online content services are able to exert in shaping community views in Australia.
(2)
The Parliament also intends that broadcasting services, broadcasting video on demand services and datacasting services in Australia be regulated in a manner that, in the opinion of the ACMA:
(a)
enables public interest considerations to be addressed in a way that does not impose unnecessary financial and administrative burdens on providers of broadcasting services, broadcasting video on demand services and datacasting services; and
(b)
will readily accommodate technological change; and
(c)
encourages:
(i)
the development of broadcasting technologies, broadcasting video on demand technologies and datacasting technologies, and their application; and
(ii)
the provision of services made practicable by those technologies to the Australian community.
(3AB)
The Parliament also intends that gambling promotional content provided on online content services be regulated in a manner that:
(a)
enables public interest considerations in relation to gambling promotional content to be addressed in a way that does not impose unnecessary financial and administrative burdens on the providers of online content services; and
(b)
will readily accommodate technological change; and
(c)
encourages the provision of online content services to the Australian community; and
(d)
encourages the development of technologies relating to online content services.
(3A)
This section does not apply to Part 8B (which deals with international broadcasting services).
(4)
In this section:
broadcasting video on demand service has the same meaning as in Part 9E.
gambling promotional content has the same meaning as in Schedule 8.
online content service has the same meaning as in Schedule 8.
online content service provider has the same meaning as in Schedule 8.

5Role of the ACMA

(1)
In order to achieve the objects of this Act in a way that is consistent with the regulatory policy referred to in section 4, the Parliament:
(a)
charges the ACMA with responsibility for monitoring the broadcasting industry, the broadcasting video on demand industry, the datacasting industry and the online content service industry; and
(b)
confers on the ACMA a range of functions and powers that are to be used in a manner that, in the opinion of the ACMA, will:
(i)
produce regulatory arrangements that are stable and predictable; and
(ii)
deal effectively with breaches of the rules established by this Act.
(2)
Where it is necessary for the ACMA to use any of the powers conferred on it by this Act to deal with a breach of this Act or the regulations, the Parliament intends that the ACMA use its powers, or a combination of its powers, in a manner that, in the opinion of the ACMA, is commensurate with the seriousness of the breach concerned.
(3)
This section does not, by implication, limit the functions and powers of:
(b)
the Australian Competition and Consumer Commission; or
(c)
any other body or person who has regulatory responsibilities in relation to the internet industry.
(4)
In this section:
broadcasting video on demand service has the same meaning as in Part 9E.
online content service has the same meaning as in Schedule 8.

6Interpretation

(1)
In this Act, unless the contrary intention appears:
ACMA means the Australian Communications and Media Authority.
ACNC type of entity means an entity that meets the description of a type of entity in column 1 of the table in subsection 25‑5(5) of the Australian Charities and Not‑for‑profits Commission Act 2012.
amount paid on shares, in relation to a company, includes an amount treated by the company as having been so paid.
analog commercial radio broadcasting service means a commercial radio broadcasting service that is transmitted using an analog modulation technique.
analog community radio broadcasting service means a community radio broadcasting service that is transmitted using an analog modulation technique.
anti‑siphoning event means an event, or an event of a kind, that is specified in the anti‑siphoning list. For this purpose, disregard subsections 146V(2) and (4).
associate, in relation to a person in relation to control of a licence or a newspaper, or control of a company in relation to a licence or a newspaper, means:
(a)
the person’s spouse or a parent, child, brother or sister of the person; or
(b)
a partner of the person or, if a partner of the person is a natural person, a spouse or a child of a partner of the person; or
(c)
if the person or another person who is an associate of the person under another paragraph receives benefits or is capable of benefiting under a trust—the trustee of the trust; or
(d)
a person (whether a company or not) who:
(i)
acts, or is accustomed to act; or
(ii)
under a contract or an arrangement or understanding (whether formal or informal) is intended or expected to act;
in accordance with the directions, instructions or wishes of, or in concert with, the first‑mentioned person or of the first‑mentioned person and another person who is an associate of the first‑mentioned person under another paragraph; or
(e)
if the person is a company—another company if:
(i)
the other company is a related body corporate of the person for the purposes of the Corporations Act 2001; or
(ii)
the person, or the person and another person who is an associate of the person under another paragraph, are in a position to exercise control of the other company;
but persons are not associates if the ACMA is satisfied that they do not act together in any relevant dealings relating to that company, licence or newspaper, and neither of them is in a position to exert influence over the business dealings of the other in relation to that company, licence or newspaper.
Note: See also subsection (3).
associate member means an associate member of the ACMA.
authorised infringement notice officer means:
(a)
the Chair of the ACMA; or
(b)
a member of the staff of the ACMA appointed under section 205ZE.
broadcasting service means a service that delivers television programs or radio programs to persons having equipment appropriate for receiving that service, whether the delivery uses the radiofrequency spectrum, cable, optical fibre, satellite or any other means or a combination of those means, but does not include:
(a)
a service (including a teletext service) that provides no more than data, or no more than text (with or without associated still images); or
(b)
a service that makes programs available on demand on a point‑to‑point basis, including a dial‑up service; or
(c)
a service, or a class of services, that the Minister determines, under subsection (2), not to fall within this definition.
broadcasting services bands means:
(a)
that part of the radiofrequency spectrum that is designated under subsection 31(1) of the Radiocommunications Act 1992 as being primarily for broadcasting purposes; and
(b)
that part of the radiofrequency spectrum that is designated under subsection 31(1A) of the Radiocommunications Act 1992 as being partly for the purpose of digital radio broadcasting services.
broadcasting services bands licence means a commercial television broadcasting licence, a commercial radio broadcasting licence or a community broadcasting licence that uses the broadcasting services bands as a means of delivering broadcasting services.
census count means a census count of the Australian population published by the Australian Statistician.
CER Trade in Services Protocol:
(a)
means the Protocol on Trade in Services to the Australia New Zealand Closer Economic Relations Trade Agreement (being that Protocol as in force from time to time); and
(b)
includes an instrument under that Protocol (being that instrument as in force from time to time).
Chair means the Chair of the ACMA.
child: without limiting who is a child of a person for the purposes of this Act, someone is the child of a person if he or she is a child of the person within the meaning of the Family Law Act 1975.
civil penalty order means an order under subsection 205F(1).
civil penalty provision means a provision declared by this Act to be a civil penalty provision.
class licence means a class licence determined by the ACMA under section 117.
commercial broadcasting service has the meaning given by section 14.
commercial radio broadcasting licence means a licence under Part 4 to provide:
(a)
in the case of a licence allocated under subsection 40(1)—a commercial radio broadcasting service; or
(b)
in any other case—the commercial radio broadcasting service or services that, under section 41D, are authorised by the licence.
commercial radio broadcasting service means a commercial broadcasting service that provides radio programs.
commercial television broadcasting licence means a licence under Part 4 to provide:
(aa)
in the case of a licence allocated under section 38C—the commercial television broadcasting services that, under section 41CA, are authorised by the licence; or
(a)
in the case of a licence allocated under subsection 40(1)—a commercial television broadcasting service; or
(b)
in any other case—the commercial television broadcasting services that, under section 41C, are authorised by the licence.
commercial television broadcasting service means a commercial broadcasting service that provides television programs.
community broadcasting licence means:
(a)
a community radio broadcasting licence; or
(b)
a community television broadcasting licence.
community broadcasting service has the meaning given by section 15.
community radio broadcasting licence means:
(a)
a licence under Part 6 to provide:
(i)
in the case of a licence allocated under subsection 82(1)—a community radio broadcasting service; or
(ii)
in the case of a designated community radio broadcasting licence—the community radio broadcasting service or services that, under section 85A, are authorised by the licence; or
(iii)
in any other case—a community radio broadcasting service; or
(b)
a licence under Part 6A to provide a community radio broadcasting service.
community radio broadcasting service means a community broadcasting service that provides radio programs.
community television broadcasting licence means a licence under Part 6 or 6A to provide a community broadcasting service that provides television programs.
company interests, in relation to a person who has a shareholding interest, a voting interest, a dividend interest or a winding‑up interest in a company, means the percentage of that interest or, if the person has 2 or more of those interests, whichever of those interests has the greater or greatest percentage.
conditional access scheme means a scheme that sets out rules relating to access to services provided under a commercial television broadcasting licence allocated under section 38C.
constitutional corporation means a corporation to which paragraph 51(xx) of the Constitution applies.
control includes control as a result of, or by means of, trusts, agreements, arrangements, understandings and practices, whether or not having legal or equitable force and whether or not based on legal or equitable rights.
CTV licence means a community broadcasting licence under Part 6 to provide a service that provides television programs but is not targeted, to a significant extent, to one or more remote Indigenous communities.
datacasting licence means a licence under Schedule 6 to provide a datacasting service.
datacasting service means a service that delivers content:
(a)
whether in the form of text; or
(b)
whether in the form of data; or
(c)
whether in the form of speech, music or other sounds; or
(d)
whether in the form of visual images (animated or otherwise); or
(e)
whether in any other form; or
(f)
whether in any combination of forms;
to persons having equipment appropriate for receiving that content, where the delivery of the service uses the broadcasting services bands.
de facto partner of a person has the meaning given by the Acts Interpretation Act 1901.
designated community radio broadcasting licence has the meaning given by section 8AA.
designated infringement notice provision means a provision declared by this Act to be a designated infringement notice provision.
digital commercial radio broadcasting service means a commercial radio broadcasting service that is transmitted using a digital modulation technique.
digital community radio broadcasting service means a community radio broadcasting service that is transmitted using a digital modulation technique.
digital national radio broadcasting service means a national radio broadcasting service that is transmitted using a digital modulation technique.
digital program enhancement content, in relation to a radio program, means content:
(a)
in the form of text; or
(b)
in the form of still visual images; or
(c)
if a form is specified in a legislative instrument made by the Minister—in that form; or
(d)
in any combination of the above forms;
where:
(e)
the content is transmitted using a digital modulation technique; and
(f)
both the content and the radio program are intended to be received by the same reception equipment; and
(g)
if:
(i)
the reception equipment is capable of receiving both the content and the radio program; and
(ii)
the reception equipment is set to receive the radio program;
the reception equipment will also receive the content.
digital radio multiplex transmitter licence has the same meaning as in the Radiocommunications Act 1992.
digital radio start‑up day for a licence area has the meaning given by section 8AC.
evidential burden, in relation to a matter, means the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist.
Federal Court means the Federal Court of Australia.
foundation digital radio multiplex transmitter licence has the same meaning as in the Radiocommunications Act 1992.
gambling promotion program standard means a standard determined by the ACMA under section 125A.
infringement notice means an infringement notice under section 205Y.

interim tax means tax imposed by the Commercial Broadcasting (Tax) Act 2017.
international broadcasting guidelines means guidelines in force under section 121FP.
international broadcasting licence means a licence to provide an international broadcasting service.
international broadcasting service has the meaning given by section 18A.
legislature of a Territory means:
(a)
the Legislative Assembly for the Australian Capital Territory; or
(b)
the Legislative Assembly of the Northern Territory; or
(c)
such other Territory legislative bodies as are prescribed.
licence means a licence allocated by the ACMA under this Act (other than a class licence).
licence area means:
(a)
an area designated by the ACMA under section 29, 40 or 92G; or
(b)
an area specified in column 1 of the table in subsection 38C(1).
Note: See also section 8AD, which deals with deemed radio broadcasting licence areas.
licence area plan means a licence area plan prepared under subsection 26(1) or (1B).
licence area population, in relation to a licence area, means the population of the licence area determined under section 30.
line has the same meaning as in the Telecommunications Act 1997.
local content exemption period has the meaning given by section 8AE.
member means a member of the ACMA.
Minister for Foreign Affairs means the Minister administering the Diplomatic Privileges and Immunities Act 1967.
multiplex capacity has the same meaning as in Division 4B of Part 3.3 of the Radiocommunications Act 1992.
national broadcaster means the provider of a national broadcasting service referred to in paragraph 13(1)(a) or (b).
national broadcasting service has the meaning given by section 13.
national radio broadcasting service means a national broadcasting service that provides radio programs.
near relative, in relation to a person, means:
(a)
a parent, step‑parent, child, stepchild, grandparent, grandchild, brother or sister of the person; or
(b)
the spouse of the first‑mentioned person.
newspaper means a newspaper that is in the English language and is published on at least 4 days in each week, but does not include a publication if less than 50% of its circulation is by way of sale.
offence against this Act includes an offence against section 136.1 or 137.1 of the Criminal Code that relates to this Act.
open narrowcasting radio service means an open narrowcasting service that provides radio programs.
open narrowcasting service has the meaning given by section 18.
open narrowcasting television service means an open narrowcasting service that provides television programs.
overlap area, in relation to a licence area part of which is within another licence area, means the area of overlap between the 2 licence areas.
parent: without limiting who is a parent of a person for the purposes of this Act, someone is the parent of a person if the person is his or her child because of the definition of child in this section.
Parliament means:
(a)
the Parliament of the Commonwealth; or
(b)
a State Parliament; or
(c)
the legislature of a Territory.
political party means an organisation whose objects or activities include the promotion of the election of candidates endorsed by it to a Parliament.
population of Australia means the Australian population determined by the ACMA under section 30.
primary commercial television broadcasting service, in relation to a commercial television broadcasting licence, has the same meaning as in Schedule 4.
program, in relation to a broadcasting service, means:
(a)
matter the primary purpose of which is to entertain, to educate or to inform an audience; or
(b)
advertising or sponsorship matter, whether or not of a commercial kind.
program standards means standards determined by the ACMA relating to the content or delivery of programs, and includes a gambling promotion program standard.
radio program has a meaning affected by section 8AB.
reception certificate means a reception certificate issued under a conditional access scheme registered under Part 9C.
regional commercial radio broadcasting licence means a commercial radio broadcasting licence the licence area of which is neither:
(a)
a licence area in which is situated the General Post Office of the capital city of any of the following States:
(i)
New South Wales;
(ii)
Victoria;
(iii)
Queensland;
(iv)
Western Australia;
(v)
South Australia; nor
(b)
the licence area known as Western Suburbs Sydney RA1.
regional racing service radio licence has the meaning given by section 8AF.
registered code of practice means a code of practice registered under:
(a)
section 123; or
(c)
clause 28 of Schedule 6.
remote area service radio licence means a regional commercial radio broadcasting licence the licence area of which is:
(a)
Remote Commercial Radio Service Central Zone RA1; or
(b)
Remote Commercial Radio Service North East Zone RA1; or
(c)
Remote Commercial Radio Service Western Zone RA1.
remote Indigenous community has the meaning given by section 8B.
satellite subscription television broadcasting licence means a licence under Part 7 to provide a subscription television broadcasting service with the use of a subscription television satellite.
scheme administrator:
(a)
in relation to a conditional access scheme for the South Eastern Australia TV3 licence area or the Northern Australia TV3 licence area—has the meaning given by subsection 130ZB(8); or
(b)
in relation to a conditional access scheme for the Western Australia TV3 licence area—has the meaning given by subsection 130ZBB(9).
shares, in relation to a company, means shares in, or stock forming part of, the capital of the company.
spouse of a person includes a de facto partner of the person.
stepchild: without limiting who is a stepchild of a person for the purposes of this Act, someone who is a child of a de facto partner of the person is the stepchild of the person if he or she would be the person’s stepchild except that the person is not legally married to the partner.
step‑parent: without limiting who is a step‑parent of a person for the purposes of this Act, someone who is a de facto partner of a parent of the person is the step‑parent of the person if he or she would be the person’s step‑parent except that he or she is not legally married to the person’s parent.
subscription broadcasting service has the meaning given by section 16.
subscription fee includes any form of consideration.
subscription narrowcasting service has the meaning given by section 17.
subscription radio broadcasting service means a subscription broadcasting service that provides radio programs.
subscription radio narrowcasting service means a subscription narrowcasting service that provides radio programs.
subscription television broadcasting licence means a licence under Part 7 to provide one or more subscription television broadcasting services.
subscription television broadcasting service means a subscription broadcasting service that provides television programs.
subscription television narrowcasting service means a subscription narrowcasting service that provides television programs.
subscription television satellite means a satellite that was, at any time before 1 July 1997, operated under the general telecommunications licence that was granted to AUSSAT Pty Ltd and notified on 26 November 1991 in Gazette No. S323.
telecommunications carrier means a carrier (within the meaning of the Telecommunications Act 1997).
television licence area plan means a licence area plan prepared under subsection 26(1B).
temporary community broadcasting licence means a community broadcasting licence that:
(a)
is a broadcasting services bands licence; and
(b)
is allocated under Part 6A.
transaction includes:
(a)
arrangements under which a person becomes a director of a company; and
(b)
the acquisition of things by gift or inheritance.
transmitter licence has the same meaning as in the Radiocommunications Act 1992.
(2)
For the purposes of paragraph (c) of the definition of broadcasting service in subsection (1), the Minister may, by legislative instrument, determine that a service, or a class of services, does not fall within that definition.
(3)
For the purposes of paragraph (a) of the definition of associate in subsection (1) and the definition of near relative in subsection (1), if one person is the child of another person because of the definition of child in this section, relationships traced to or through the person are to be determined on the basis that the person is the child of the other person.

7Interpretation – meaning of control

Schedule 1 sets out mechanisms that are to be used in:
(a)
deciding whether a person is in a position to exercise control of a licence, a company or a newspaper for the purposes of this Act; and
(b)
tracing company interests of persons.

8Interpretation – shareholding interests, voting interests, dividend interests and winding‑up interests

(1)
For the purposes of this Act:
(a)
a person has a shareholding interest in a company if the person is beneficially entitled to, or to an interest in, shares in the company, whether or not any part of the legal ownership of the shares is vested in the person; and
(b)
the percentage of the interest is the value of the shares, or of the interest in the shares, as the case may be, on the basis that the value of the shares is equal to the amount paid on the shares, expressed as a percentage of the total of all amounts paid on shares in the company.
(2)
For the purposes of this Act:
(a)
a person has a voting interest in a company if the person is in a position to exercise control of votes cast on a poll at a meeting of the company; and
(b)
the percentage of the interest is the greatest percentage of the number of votes, expressed as a percentage of the total number of votes that could be cast on any issue at a meeting of the company, the casting of which the person is in a position to control.
(3)
For the purposes of this Act:
(a)
a person has a dividend interest in a company if:
(i)
the person is, or would become if a dividend were declared, beneficially entitled to be paid or credited a dividend by the company; or
(ii)
under the memorandum and articles of association of the company, a share of any profits of the company is to be, or may be, paid or credited to the person otherwise than as dividends on shares; and
(b)
the percentage of the interest is:
(i)
if subparagraph (a)(i) applies—the amount of the dividend to which the person is beneficially entitled or will become beneficially entitled expressed as a percentage of the total of all dividends to which members of the company become entitled at that time; or
(ii)
if subparagraph (a)(ii) applies—the amount of the maximum share of any profits of the company that could be paid or credited to the person at a particular time expressed as a percentage of the total of all shares of profits that could be paid or credited to all members of the company at that time.
(4)
For the purposes of this Act:
(a)
a person has a winding‑up interest in a company if the person would be entitled to a share of the property of the company that could be distributed among members of the company if property of the company were distributed among members, whether as a result of a winding‑up or otherwise; and
(b)
the percentage of the interest is the percentage that the value of that part of the property of the company to which the person would be so entitled bears to the total value of the property of the company.
(5)
A person may have a voting interest, a dividend interest or a winding‑up interest in a company even if the person does not have a beneficial entitlement to, or to an interest in, shares in the company.

8ACaptioning taken to be part of program

(1)
For the purposes of this Act, if a television program is captioned for the deaf and hearing impaired, the captioning is taken to be part of the program.
(2)
Subsection (1) is enacted for the avoidance of doubt.

8AADesignated community radio broadcasting licence

(1)
For the purposes of this Act, a community radio broadcasting licence is a designated community radio broadcasting licence if:
(a)
the community radio broadcasting licence was allocated under Part 6 (other than under subsection 82(1)); and
(b)
the licence area of the community radio broadcasting licence is the same as the licence area of a commercial radio broadcasting licence; and
(c)
the community radio broadcasting service or services provided under the community radio broadcasting licence satisfy such conditions (if any) as are set out in a legislative instrument made by the ACMA.
Note: See also section 8AD, which deals with deemed radio broadcasting licence areas.
(2)
The Minister may, by legislative instrument, give the ACMA a direction about the exercise of the power conferred by paragraph (1)(c).
(3)
The ACMA must comply with a direction under subsection (2).

8ABDigital program enhancement content taken to be a radio program

Commercial radio broadcasting services
(1)
For the purposes of this Act and any other law of the Commonwealth, if a commercial radio broadcasting licensee provides:
(a)
a digital commercial radio broadcasting service; and
(b)
digital program enhancement content in relation to a radio program delivered by that service;
the digital program enhancement content is taken to be a radio program delivered by that service.
Community radio broadcasting services
(2)
For the purposes of this Act and any other law of the Commonwealth, if a designated community radio broadcasting licensee provides:
(a)
a digital community radio broadcasting service; and
(b)
digital program enhancement content in relation to a radio program delivered by that service;
the digital program enhancement content is taken to be a radio program delivered by that service.
National radio broadcasting services
(3)
For the purposes of this Act and any other law of the Commonwealth, if a national broadcaster provides:
(a)
a digital national radio broadcasting service; and
(b)
digital program enhancement content in relation to a radio program delivered by that service;
the digital program enhancement content is taken to be a radio program delivered by that service.

8ACDigital radio start‑up day

(1)
If the ACMA is satisfied that:
(a)
the ACMA has taken sufficient action under:
(i)
Part 3 of this Act; and
(ii)
Part 2.3 of the Radiocommunications Act 1992;
to facilitate the provision of the following services in a licence area:
(iii)
digital commercial radio broadcasting services;
(iv)
digital community radio broadcasting services;
(v)
digital national radio broadcasting services; and
(b)
one or more foundation digital radio multiplex transmitter licences have been issued for the licence area; and
(c)
the multiplex capacity, or the combined multiplex capacities, of those licences are sufficient to fulfil the standard access entitlements that are likely to come into existence under subsection 118NQ(2) of the Radiocommunications Act 1992 in its application to the licence area; and
(d)
an access undertaking under Division 4B of Part 3.3 of the Radiocommunications Act 1992 is in force for the licence or licences referred to in paragraph (b);
the ACMA may, by writing, declare a specified day to be the digital radio start‑up day for the licence area.
(2)
A day specified in a declaration under subsection (1) must not be earlier than the day on which the declaration is made.
(4)
A copy of a declaration under subsection (1) must be made available on the ACMA’s website.
(5)
A declaration under subsection (1) is not a legislative instrument.
Definitions
(8)
In this section:
licence area means:
(a)
the licence area of a commercial radio broadcasting licence; or
(b)
the licence area of a community radio broadcasting licence, where that licence area is the same as the licence area of a commercial radio broadcasting licence.
Note: See also section 8AD, which deals with deemed radio broadcasting licence areas.

8ADDeemed radio broadcasting licence areas

Western Suburbs Sydney RA1
(1)
For the purposes of:
(a)
section 8AC of this Act; and
(b)
the definition of designated BSA radio area in section 5 of the Radiocommunications Act 1992; and
(c)
the application of:
(i)
any other provision of this Act; or
(ii)
any other provision of the Radiocommunications Act 1992; or
(iii)
any other law of the Commonwealth;
to digital commercial radio broadcasting services;
the licence area known as Western Suburbs Sydney RA1 is taken to be the same as the commercial radio broadcasting licence area in which is situated the General Post Office of Sydney.
Hobart RA2 and Hobart RA4
(2)
For the purposes of:
(a)
sections 8AA and 8AC of this Act; and
(b)
the definition of designated BSA radio area in section 5 of the Radiocommunications Act 1992; and
(c)
paragraph 9C(1)(i) and subparagraph 9C(1)(j)(ii) of the Radiocommunications Act 1992; and
(d)
the application of:
(i)
any other provision of this Act; or
(ii)
any other provision of the Radiocommunications Act 1992; or
(iii)
any other law of the Commonwealth;
to digital community radio broadcasting services;
the licence areas known as Hobart RA2 and Hobart RA4 are taken to be the same as the commercial radio broadcasting licence area in which is situated the General Post Office of Hobart.
Other licence areas
(3)
The ACMA may, by legislative instrument, determine that, for the purposes of:
(a)
sections 8AA and 8AC of this Act; and
(b)
the definition of designated BSA radio area in section 5 of the Radiocommunications Act 1992; and
(c)
paragraph 9C(1)(i) and subparagraph 9C(1)(j)(ii) of the Radiocommunications Act 1992; and
(d)
the application of:
(i)
any other provision of this Act; or
(ii)
any other provision of the Radiocommunications Act 1992; or
(iii)
any other law of the Commonwealth;
to digital community radio broadcasting services;
a specified licence area of a community radio broadcasting licence is taken to be the same as a specified licence area of a commercial radio broadcasting licence.
(4)
The Minister may, by legislative instrument, give the ACMA a direction about the exercise of the power conferred by subsection (3).
(5)
The ACMA must comply with a direction under subsection (4).

8AELocal content exemption period – regional commercial radio broadcasting licensee

(1)
For the purposes of this Act, a local content exemption period, for the licensee of a regional commercial radio broadcasting licence, is:
(a)
if:
(i)
the ACMA, by legislative instrument, specifies a period in relation to one or more specified regional commercial radio broadcasting licensees; and
(ii)
the period does not exceed 5 weeks; and
(iii)
the licensees specified in the instrument consist of or include the licensee;
that period; or
(b)
if:
(i)
paragraph (a) does not apply; and
(ii)
the ACMA, by legislative instrument, specifies 2 periods in relation to one or more specified regional commercial radio broadcasting licensees; and
(iii)
the periods, in aggregate, do not exceed 5 weeks; and
(iv)
the licensees specified in the instrument consist of or include the licensee;
each of those periods; or
(c)
if:
(i)
neither paragraph (a) nor (b) applies; and
(ii)
the ACMA, by legislative instrument, specifies a period; and
(iii)
the period does not exceed 5 weeks;
that period; or
(d)
if:
(i)
none of paragraphs (a), (b) or (c) apply; and
(ii)
the ACMA, by legislative instrument, specifies 2 periods; and
(iii)
the periods, in aggregate, do not exceed 5 weeks;
each of those periods; or
(e)
if:
(i)
none of paragraphs (a), (b), (c) or (d) apply; and
(ii)
the licensee, by written notice given to the ACMA, specifies a period; and
(iii)
the period does not exceed 5 weeks;
that period; or
(f)
if:
(i)
none of paragraphs (a), (b), (c), (d) or (e) apply; and
(ii)
the licensee, by written notice given to the ACMA, specifies 2 periods; and
(iii)
the periods, in aggregate, do not exceed 5 weeks;
each of those periods; or
(g)
if none of paragraphs (a), (b), (c), (d), (e) or (f) apply—the 5‑week period beginning on the second Sunday in December each financial year.
(2)
A period specified under subsection (1) may be:
(a)
a period that occurs only once; or
(b)
a recurring period.
Notice given to the ACMA—requirements
(3)
A notice under paragraph (1)(e) or (f) must be given to the ACMA at least 21 days before the earlier of:
(a)
the start of the next local content exemption period that, disregarding the notice, would be applicable to the licensee giving the notice; and

(b)
whichever of the following times is applicable:
(i)
in the case of a notice under paragraph (1)(e)—the start of the period specified in the notice;
(ii)
in the case of a notice under paragraph (1)(f)—the start of the earlier of the periods specified in the notice.
(4)
A regional commercial radio broadcasting licensee may only give the ACMA one notice under subsection (1) each financial year.
(5)
A notice given to the ACMA under subsection (1) cannot be varied.
(6)
If:
(a)
a regional commercial radio broadcasting licensee gives the ACMA a notice under subsection (1) (the earlier notice) in a financial year; and
(b)
the licensee gives the ACMA another notice under subsection (1) (the later notice) in a later financial year; and
(c)
the later notice is expressed to replace the earlier notice;
the earlier notice is taken to cease to be in force when the later notice is given.
(7)
If a notice given to the ACMA under subsection (1) (the original notice) by a regional commercial radio broadcasting licensee is in force, the licensee may, by written notice to the ACMA, revoke the original notice, so long as the notice of revocation is not given during a period specified in the original notice.
(8)
If a regional commercial radio broadcasting licensee gives the ACMA a notice under subsection (1), the licensee must publish the notice on its website.
(9)
If:
(a)
a regional commercial radio broadcasting licensee gives the ACMA a revocation notice under subsection (7); and
(b)
the revocation results in paragraph (1)(g) applying to the licensee;
the licensee must publish the revocation notice on its website.

8AFRegional racing service radio licence

(1)
For the purposes of this Act, a regional racing service radio licence is a regional commercial radio broadcasting licence, where the following conditions are satisfied in relation to a broadcasting service provided under the licence:
(a)
the broadcasting service is promoted, on the broadcasting service:
(i)
as a broadcasting service of interest mainly to persons involved in horse racing, harness racing or greyhound racing; or
(ii)
using the phrase “racing radio service”;
(b)
the racing content percentage, in relation to the broadcasting service, is 60% or more for each day, other than Christmas Day and Good Friday;
(c)
if, on a particular day, content other than racing content is broadcast on the broadcasting service—a significant proportion of that content is:
(i)
relevant to horse racing, harness racing or greyhound racing; or
(ii)
of interest mainly to persons involved in horse racing, harness racing or greyhound racing.
(2)
For the purposes of this section, racing content percentage means the percentage worked out using the following formula:

(3)
For the purposes of this section, racing content means content that consists of:
(a)
coverage of a horse race, a harness race or a greyhound race; or
(b)
information directly related to horse racing, harness racing or greyhound racing, including:
(i)
selections; and
(ii)
scratchings; and
(iii)
betting information; and
(iv)
track conditions; or
(c)
other material that is broadcast during an hour, so long as that material:
(i)
is broadcast between 2 races of a kind referred to in paragraph (a); and
(ii)
is not broadcast for more than 15 minutes of the hour.

8BRemote Indigenous community

An Indigenous community is a remote Indigenous community for the purposes of this Act if the ACMA so determines by legislative instrument.

9Act to bind the Crown

This Act binds the Crown in right of the Commonwealth, of each of the States, of the Australian Capital Territory and of the Northern Territory, but nothing in this Act renders the Crown liable to be prosecuted for an offence.

10Extension of Act to the external Territories

This Act extends to all the external Territories.

10AApplication of the Criminal Code

Chapter 2 of the Criminal Code applies to all offences against this Act.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

Part 2Categories of broadcasting services 11Categories of broadcasting services

The following categories of broadcasting services are broadcasting services to which this Act relates:
(a)
national broadcasting services;
(b)
commercial broadcasting services;
(c)
community broadcasting services;
(d)
subscription broadcasting services;
(e)
subscription narrowcasting services;
(f)
open narrowcasting services;
(fa)
international broadcasting services.

11ADual categorisation of international broadcasting services

An international broadcasting service may also fall into another category of broadcasting services.

12Method of regulating particular services

(1)
Commercial broadcasting services, community broadcasting services, subscription television broadcasting services and international broadcasting services require individual licences.
(2)
Other broadcasting services (other than national broadcasting services) are to be provided under the relevant class licence.
Dual categorisation of international broadcasting services
(3)
An international broadcasting service that also falls into the category of commercial broadcasting services requires both:
(a)
an international broadcasting licence; and
(b)
either:
(i)
a commercial radio broadcasting licence; or
(ii)
a commercial television broadcasting licence.
(4)
An international broadcasting service that also falls into the category of community broadcasting services requires both:
(a)
an international broadcasting licence; and
(b)
a community broadcasting licence.
(5)
An international broadcasting service that also falls into the category of subscription television broadcasting services requires both:
(a)
an international broadcasting licence; and
(b)
a subscription television broadcasting licence.
(6)
Both of the following rules apply to an international broadcasting service that also falls into a category of broadcasting services covered by subsection (2):
(a)
the service requires an international broadcasting licence;
(b)
the service is to be provided under the relevant class licence.

13National broadcasting services

(1)
National broadcasting services are:
(a)
broadcasting services provided by the Australian Broadcasting Corporation in accordance with section 6 of the Australian Broadcasting Corporation Act 1983; or
(b)
broadcasting services provided by the Special Broadcasting Service Corporation in accordance with section 6 of the Special Broadcasting Service Act 1991; or
(c)
broadcasting services provided under the Parliamentary Proceedings Broadcasting Act 1946.
(2)
National broadcasting services do not include subscription broadcasting services or subscription or open narrowcasting services provided by the Australian Broadcasting Corporation or the Special Broadcasting Service Corporation.
(3)
Subsection (2) does not apply to services specified by the Minister under subsection (4).
(4)
The Minister may, by legislative instrument, specify services for the purposes of subsection (3).
(5)
Except as expressly provided by this Act, the regulatory regime established by this Act does not apply to national broadcasting services.

14Commercial broadcasting services

(1)
Commercial broadcasting services are broadcasting services:
(a)
that provide programs that, when considered in the context of the service being provided, appear to be intended to appeal to the general public; and
(b)
that provide programs that:
(i)
are able to be received by commonly available equipment; and
(ii)
are made available free to the general public; and
(c)
that are usually funded by advertising revenue; and
(d)
that are operated for profit or as part of a profit‑making enterprise; and
(e)
that comply with any determinations or clarifications under section 19 in relation to commercial broadcasting services.
(2)
For the purposes of the application of subsection (1) to a broadcasting service provided under a licence allocated under section 38C, assume that there is no conditional access system that relates to the broadcasting service.

15Community broadcasting services

Community broadcasting services are broadcasting services that:
(a)
are provided for community purposes; and
(b)
are not operated for profit or as part of a profit‑making enterprise; and
(c)
that provide programs that:
(i)
are able to be received by commonly available equipment; and
(ii)
are made available free to the general public; and
(d)
comply with any determinations or clarifications under section 19 in relation to community broadcasting services.

16Subscription broadcasting services

Subscription broadcasting services are broadcasting services that:
(a)
provide programs that, when considered in the context of the service being provided, appear to be intended to appeal to the general public; and
(b)
are made available to the general public but only on payment of subscription fees (whether periodical or otherwise); and
(c)
comply with any determinations or clarifications under section 19 in relation to subscription broadcasting services.

17Subscription narrowcasting services

Subscription narrowcasting services are broadcasting services:
(a)
whose reception is limited:
(i)
by being targeted to special interest groups; or
(ii)
by being intended only for limited locations, for example, arenas or business premises; or
(iii)
by being provided during a limited period or to cover a special event; or
(iv)
because they provide programs of limited appeal; or
(v)
for some other reason; and
(b)
that are made available only on payment of subscription fees (whether periodical or otherwise); and
(c)
that comply with any determinations or clarifications under section 19 in relation to subscription narrowcasting services.

18Open narrowcasting services

(1)
Open narrowcasting services are broadcasting services:
(a)
whose reception is limited:
(i)
by being targeted to special interest groups; or
(ii)
by being intended only for limited locations, for example, arenas or business premises; or
(iii)
by being provided during a limited period or to cover a special event; or
(iv)
because they provide programs of limited appeal; or
(v)
for some other reason; and
(b)
that comply with any determinations or clarifications under section 19 in relation to open narrowcasting services.
(1A)
A HDTV multi‑channelled commercial television broadcasting service (within the meaning of Schedule 4) is not an open narrowcasting service.
(1AA)
A SDTV multi‑channelled commercial television broadcasting service (within the meaning of Schedule 4) is not an open narrowcasting service.
(1B)
A HDTV multi‑channelled national television broadcasting service (within the meaning of Schedule 4) is not an open narrowcasting service.
(2)
A SDTV multi‑channelled national television broadcasting service (within the meaning of Schedule 4) is not an open narrowcasting service.
(3)
A digital commercial radio broadcasting service is not an open narrowcasting service.
(4)
A digital community radio broadcasting service is not an open narrowcasting service.
(5)
A digital national radio broadcasting service is not an open narrowcasting service.

18AInternational broadcasting services

(1)
International broadcasting services are broadcasting services that are targeted, to a significant extent, to audiences outside Australia, where:
(a)
the means of delivering the services involves the use of a radiocommunications transmitter in Australia (whether alone or in combination with any other means); and
(b)
the services comply with any determinations or clarifications under section 19 in relation to international broadcasting services.
(2)
A broadcasting service is not an international broadcasting service if the broadcasting service is:
(a)
provided by the Australian Broadcasting Corporation in accordance with section 6 of the Australian Broadcasting Corporation Act 1983; or
(b)
provided by the Special Broadcasting Service Corporation in accordance with section 6 of the Special Broadcasting Service Act 1991; or
(c)
an exempt broadcasting service (as defined by subsection (3)).
(3)
For the purposes of this section, a broadcasting service is an exempt broadcasting service if:
(a)
the service delivers only programs packaged outside Australia (which may include programs produced in Australia); and
(b)
all relevant programming decisions are made outside Australia; and
(c)
the service is transmitted from a place outside Australia to an earth station in Australia for the sole purpose of being immediately re‑transmitted to a satellite; and
(d)
the satellite is a means of delivering the service (whether alone or in combination with any other means).
(4)
The references in this section to localities do not, by implication, affect the application of paragraph 21(1)(b) of the Acts Interpretation Act 1901 and section 10 of this Act to a provision of this Act that deals with a category of broadcasting services other than international broadcasting services.
(5)
In this section:
Australia includes the external Territories.
radiocommunications transmitter has the same meaning as in the Radiocommunications Act 1992.

19ACMA may determine additional criteria or clarify existing criteria

(1)
The ACMA may, by legislative instrument:
(a)
determine additional criteria to those specified in sections 14 to 18A; or
(b)
clarify the criteria specified in sections 14 to 18A;
for the purpose of distinguishing between categories of broadcasting services.
(2)
Different criteria or clarifications may be determined or made for radio services and television services.
(3)
The Minister may give specific directions to the ACMA as to the making of determinations and clarifications, and the ACMA must observe those directions.

21Requests to ACMA to decide which category a broadcasting service falls into

(1)
A person who is providing, or who proposes to provide, a broadcasting service may apply to the ACMA for an opinion as to which category, or categories, of broadcasting services the service falls into.
(2)
An application must be in accordance with a form approved in writing by the ACMA, and must state the applicant’s opinion as to which category, or categories, of broadcasting services the service falls into.
(3)
If the ACMA considers that additional information is required before an opinion can be given, the ACMA may, by notice in writing given to the applicant within 30 days after receiving the application, request the applicant to provide that information.
(4)
The ACMA must, as soon as practicable after:
(a)
receiving the application; or
(b)
if the ACMA has requested further information—receiving that further information;
give the applicant, in writing, its opinion as to which category, or categories, of broadcasting services the service falls into.
(5)
If the ACMA has given an opinion under this section to the provider of a broadcasting service, neither the ACMA nor any other Government agency may, while the circumstances relating to the broadcasting service remain substantially the same as those advised to the ACMA in relation to the application for the opinion:
(a)
take any action against the provider of the service during the period of 5 years commencing on the day on which the opinion is given on the basis that the service falls into a different category, or different categories, of broadcasting services than that advised in the opinion; or
(b)
unless the ACMA has made a determination or clarification under section 19 after that opinion was given that places the broadcasting service in a different category or different categories—take any action against the provider of the service after the end of that period on the basis that the service falls into a different category, or different categories, of broadcasting services.
(6)
If the ACMA does not, within 45 days after:
(a)
receiving the application; or
(b)
if the ACMA has requested further information—receiving that further information;
give the applicant, in writing, its opinion as to which category, or categories, of broadcasting services the service falls into, the ACMA is taken to have given an opinion at the end of that period that accords with the applicant’s opinion.
(7)
The ACMA may charge a fee for providing an opinion under this section.
(8)
The ACMA must not give an opinion under this section that a particular broadcasting service falls into more than one category of broadcasting services unless one of the categories is international broadcasting services.
(9)
A person must not, in an application under this section, state an opinion that a particular broadcasting service falls into more than one category of broadcasting services unless one of the categories is international broadcasting services.

22Matters to be considered by ACMA

In making determinations or clarifications under section 19 in relation to broadcasting services, and in giving opinions under section 21 in relation to broadcasting services, the ACMA is to have regard to:
(a)
the geographic coverage of those services; and
(b)
the number of persons who receive or are able to receive those services; and
(c)
the accessibility of those services, including:
(i)
whether those services are encrypted; and
(ii)
whether their availability is otherwise restricted, whether because of the high cost of the equipment required to receive those services, the controlled supply of that equipment or otherwise; and
(iii)
whether their comprehensibility is otherwise restricted; and
(d)
the duration and frequency of the provision of those services, including whether those services are provided for a set period only; and
(e)
the nature of the audience to which those services are targeted; and
(f)
the nature of the programs being provided by those services, including:
(i)
the level of interest in the subject matter of those programs; and
(ii)
whether those programs are directed at a specialised audience; and
(iii)
the social and cultural impact of those programs; and
(g)
such other matters as the ACMA thinks fit.

Part 3Planning of the broadcasting services bands 23Planning criteria

In performing functions under this Part, the ACMA is to promote the objects of this Act including the economic and efficient use of the radiofrequency spectrum, and is to have regard to:
(a)
demographics; and
(b)
social and economic characteristics within the licence area, within neighbouring licence areas and within Australia generally; and
(c)
the number of existing broadcasting services and the demand for new broadcasting services within the licence area, within neighbouring licence areas and within Australia generally; and
(d)
developments in technology; and
(e)
technical restraints relating to the delivery or reception of broadcasting services; and
(f)
the demand for radiofrequency spectrum for services other than broadcasting services; and
(g)
such other matters as the ACMA considers relevant.

26Preparation of licence area plans

(1)
The ACMA must, by legislative instrument, prepare licence area plans that determine the number and characteristics, including technical specifications, of broadcasting services that are to be available in particular areas of Australia with the use of the broadcasting services bands.
(1A)
To the extent to which a licence area plan prepared under subsection (1) deals with:
(a)
digital commercial radio broadcasting services; or
(b)
digital community radio broadcasting services; or
(c)
digital national radio broadcasting services;
the licence area plan is not required to determine the technical specifications of those services.
Television licence area plans
(1B)
The ACMA may, by legislative instrument, prepare licence area plans that:
(a)
specify the channels that are to be available in particular areas of Australia to provide the following services:
(i)
commercial television broadcasting services;
(ii)
national television broadcasting services;
(iii)
other television broadcasting services;
with the use of the broadcasting services bands; and
(b)
allot, or empower the ACMA to allot, those channels to:
(i)
particular commercial television broadcasting licensees; or
(ii)
particular national broadcasters; or
(iii)
particular providers of television broadcasting services (other than commercial television broadcasting licensees or national broadcasters);
as the case requires; and
(c)
determine the characteristics, including technical specifications, of the transmission of each of the following services:

(i)
commercial television broadcasting services;
(ii)
national television broadcasting services;
(iii)
other television broadcasting services;
using those channels; and
(d)
determine, or empower the ACMA to determine, any technical limitations on the use of a particular channel that the ACMA considers should be applicable; and
(e)
determine, or empower the ACMA to determine, whether the use of a particular channel depends on any event or circumstances that the ACMA considers should be applicable.
(1C)
A licence area plan prepared under subsection (1B) is to be known as a television licence area plan.
(1D)
A television licence area plan may allot, or empower the ACMA to allot, different channels to:
(a)
a particular commercial television broadcasting licensee; or
(b)
a particular national broadcaster; or
(c)
a particular provider of a television broadcasting service (other than a commercial television broadcasting licensee or a national broadcaster);
for different periods.
(1E)
A television licence area plan may allot, or empower the ACMA to allot, 2 or more channels to:
(a)
a particular commercial television broadcasting licensee; or
(b)
a particular national broadcaster; or
(c)
a particular provider of a television broadcasting service (other than a commercial television broadcasting licensee or a national broadcaster).
(1F)
To avoid doubt, and without limiting the operation of this section, a television licence area plan may allot, or empower the ACMA to allot, a channel to 2 or more particular commercial television broadcasting licensees.
(1G)
A television licence area plan does not need to identify a particular television broadcasting service by name.
(1M)
Section 23 has effect as if a function or power conferred on the ACMA by a television licence area plan were a function conferred on the ACMA by this section.
Variation
(2)
The ACMA may, by legislative instrument, vary a licence area plan.
Ministerial direction
(8)
The Minister may, by legislative instrument, direct the ACMA about the exercise of its powers to make or vary a licence area plan for a particular area.
(9)
The ACMA must comply with a direction under subsection (8).
Legislative instruments
(11)
If a determination made by the ACMA under a television licence area plan is in writing, the determination is not a legislative instrument.
Definitions
(13)
In this section:
national television broadcasting service has the same meaning as in Schedule 4.
television broadcasting service means a broadcasting service that provides television programs.
Note: For designation of licence areas, see section 29.

26AACompliance with television licence area plan

(1)
If:
(a)
a television licence area plan is applicable to the transmission of one or more commercial television broadcasting services in a particular area; and
(b)
those services are provided under a particular commercial television broadcasting licence;
the licensee must not transmit any of those commercial television broadcasting services in that area otherwise than in accordance with the television licence area plan.
(2)
If:
(a)
a television licence area plan is applicable to the transmission of one or more national television broadcasting services in a particular area; and
(b)
those services are provided by a particular national broadcaster;
the national broadcaster must not transmit any of those national television broadcasting services in that area otherwise than in accordance with the television licence area plan.
(3)
If:
(a)
a television licence area plan is applicable to the transmission of one or more television broadcasting services in a particular area; and
(b)
those services are not provided:
(i)
under a commercial television broadcasting licence; or
(ii)
by a national broadcaster;
the provider of those television broadcasting services must not transmit any of those services in that area otherwise than in accordance with the television licence area plan.
(4)
In this section:
national television broadcasting service has the same meaning as in Schedule 4.
television broadcasting service means a broadcasting service that provides television programs.

26CLicence area plans not required to deal with certain digital radio broadcasting services

Commercial radio broadcasting services
(1)
If:
(a)
a commercial radio broadcasting licence was in force immediately before the digital radio start‑up day for the licence area; and
(b)
the licence authorises the licensee to provide digital commercial radio broadcasting services in the licence area;
the relevant licence area plan is not required to deal with those services.
Community radio broadcasting services
(3)
If:
(a)
a designated community radio broadcasting licence was in force immediately before the digital radio start‑up day for the licence; and
(b)
the licence authorises the licensee to provide digital community radio broadcasting services in the licence area;
the relevant licence area plan is not required to deal with those services.

26DLicence area plans – how digital radio broadcasting services may be dealt with

(1)
This section applies if a licence area plan deals with:
(a)
digital commercial radio broadcasting services; or
(b)
digital community radio broadcasting services; or
(c)
digital national radio broadcasting services.
(2)
The licence area plan is not required to identify:
(a)
individual digital commercial radio broadcasting services; or
(b)
individual digital community radio broadcasting services; or
(c)
individual digital national radio broadcasting services.
(3)
It is sufficient if the licence area plan deals collectively with:
(a)
the digital commercial radio broadcasting services; and
(b)
the digital community radio broadcasting services; and
(c)
the digital national radio broadcasting services;
that, from time to time, are, or are to be, transmitted under the digital radio multiplex transmitter licence or licences issued, or to be issued, in relation to the area concerned.

29Designation of licence areas

(1)
Before allocating a new commercial television broadcasting licence, commercial radio broadcasting licence or community broadcasting licence (other than a temporary community broadcasting licence) that is a broadcasting services bands licence, the ACMA is to designate one of the areas referred to in whichever of subsection 26(1) or (1B) is applicable as the licence area of the licence.
(2)
If the ACMA varies a licence area plan, the ACMA may vary the designation of the relevant licence areas.
(3)
This section does not apply to a licence allocated under section 38C.

30ACMA may determine population figures

(1)
The ACMA may, by notice in writing, determine the licence area population of a licence area.
(2)
The ACMA may, by notice in writing, determine a number that is to be the population of Australia for the purposes of this Act.
(3)
In making a determination, the ACMA is to have regard to the most recently published census count prepared by the Australian Statistician.
(4)
The ACMA is to make a new determination of the licence area population of a licence area if the licence area is changed.
(5)
The ACMA is to specify, in a determination of the licence area population of a licence area:
(a)
the percentage of the population of Australia constituted by that licence area population; and
(b)
the percentage of that licence area population that is attributable to an overlap area.

31Minister may reserve capacity for national broadcasters or community broadcasters

(1)
The Minister may, by legislative instrument, notify the ACMA that capacity in the broadcasting services bands is to be reserved for a specified number of:
(a)
national broadcasting services; or
(b)
community broadcasting services (other than services provided by temporary community broadcasting licensees);
but such a notice must not affect the provision of services in accordance with a licence already allocated by the ACMA under this Act or in accordance with a class licence.
(2)
The ACMA must not, except in accordance with section 34, allocate a licence or determine a class licence that would allow the provision of broadcasting services (other than services provided by national broadcasters or community broadcasting licensees) which would make use of reserved capacity in the broadcasting services bands.

33Development of technical planning guidelines

The ACMA is to develop in writing guidelines for the technical planning of individual services that use the broadcasting services bands as a means of delivery.

34Alternative uses of broadcasting services bands

(1)
If:
(a)
the ACMA has advertised under section 38 for applications for the allocation of one or more commercial television broadcasting licences or commercial radio broadcasting licences that are broadcasting services bands licences and that licence is not allocated or not all of those licences are allocated; or
(b)
broadcasting services bands spectrum is available in a licence area but has not been made available for commercial television broadcasting licences or commercial radio broadcasting licences; or
(c)
broadcasting services bands spectrum has been reserved under section 31 but has not been made available for the purpose for which it was reserved; or
(d)
broadcasting services bands spectrum is available but the ACMA has not commenced or completed planning and allocation processes in relation to that spectrum;
the ACMA may, by written instrument, determine that the part or parts of the radiofrequency spectrum concerned is or are available for allocation, for a period specified by the ACMA:
(e)
for the temporary transmission or the re‑transmission of programs; or
(ea)
to temporary community broadcasting licensees; or
(f)
to providers of subscription broadcasting services, subscription narrowcasting services or open narrowcasting services; or
(fa)
for the transmission of datacasting services on a temporary basis; or
(g)
for other purposes.
(2)
In making a determination under subsection (1), the ACMA is to have regard to:
(a)
the possible future demand for the use of that part of the radiofrequency spectrum; and
(b)
such other matters as the ACMA considers relevant.
(2A)
If a determination made under subsection (1) determines that a part or parts of the radiofrequency spectrum concerned is or are available for allocation to temporary broadcasting licensees for a period, the ACMA may also specify, in the determination, the maximum number of temporary community broadcasting licences that may be allocated to part or parts of the spectrum for the period.
(3)
The ACMA may, by written instrument, determine that a part or parts of the broadcasting services bands spectrum is or are available for allocation for the purposes of the transmission of datacasting services.
(4)
In making a determination under subsection (3), the ACMA is to have regard to:
(a)
the possible future demand for the use of that part of the radiofrequency spectrum for the provision of commercial television broadcasting services; and
(b)
such other matters as the ACMA considers relevant.
(4A)
Each part determined under subsection (3) must be 7 MHz. However, this rule does not prevent a particular part from being determined even if it adjoins:
(a)
another part that is also specified in the determination; or
(b)
2 other parts that are also specified in the determination.

Part 4Commercial television broadcasting licences and commercial radio broadcasting licencesDivision 1Allocation of licences36ACMA to determine system for allocating licences

(1)
The ACMA is to determine in writing a price‑based system for allocating:
(a)
commercial television broadcasting licences that are broadcasting services bands licences; and
(b)
commercial radio broadcasting licences that are broadcasting services bands licences.
(2)
The Minister may give specific directions to the ACMA for the purpose of a determination.
(3)
Directions may be to include in a determination specified reserve prices for licences, and those reserve prices may be different for licences in different licence areas.
(4)
If a commercial television broadcasting licence or a commercial radio broadcasting licence referred to in subsection (1) is allocated, the ACMA must, unless the allocation system adopted was public, publish in the Gazette the name of the successful applicant and the amount that the applicant agreed to pay to the Commonwealth for the allocation of the licence.

36ACommercial radio broadcasting licences to provide analog or digital commercial radio broadcasting services

Licences in force immediately before the commencement of this section
(1)
If a commercial radio broadcasting licence was in force immediately before the commencement of this section, the licence is taken, for the purposes of this Act, to have been allocated as a licence to provide an analog commercial radio broadcasting service.
Licences allocated before the digital radio start‑up day for the licence area
(2)
If the ACMA allocates a commercial radio broadcasting licence after the commencement of this section but before the digital radio start‑up day for the licence area, the licence must be allocated as a licence to provide an analog commercial radio broadcasting service.
Licences allocated on or after digital radio start‑up day for the licence area
(3)
If the ACMA allocates a commercial radio broadcasting licence on or after the digital radio start‑up day for the licence area, the licence must be allocated as:
(a)
a licence to provide an analog commercial radio broadcasting service; or
(b)
a licence to provide digital commercial radio broadcasting services.
Licence conditions
(4)
Subject to subsection (5), if a commercial radio broadcasting licence is or was allocated as a licence to provide an analog commercial radio broadcasting service, the licence is subject to the condition that the licensee may only provide an analog commercial radio broadcasting service under the licence.
(5)
If:
(a)
a commercial radio broadcasting licence was in force immediately before the digital radio start‑up day for the licence area; and
(b)
the licence authorised the licensee to provide an analog commercial radio broadcasting service in the licence area;
subsection (4) ceases to apply in relation to the licence at the start of the digital radio start‑up day for the licence area.
(6)
If a commercial radio broadcasting licence is allocated as a licence to provide digital commercial radio broadcasting services, the licence is subject to the condition that the licensee may only provide digital commercial radio broadcasting services under the licence.
Subsection 40(1) licences
(8)
This section does not apply to a commercial radio broadcasting licence that is or was allocated under subsection 40(1).

37When licences must not be allocated

(1)
A licence is not to be allocated to an applicant if:
(a)
the applicant is not a company that is registered as a company under Part 2A.2 of the Corporations Act 2001 and has a share capital; or
(b)
the ACMA decides that subsection 41(2) applies to the applicant.
(2)
Paragraph (1)(b) does not require the ACMA to consider the application of section 41 in relation to an applicant before allocating a licence to the applicant.

37ALimitation on number of commercial television broadcasting licences

The ACMA must ensure that the number of commercial television broadcasting licences that:
(a)
have the same licence area; and
(b)
are broadcasting services bands licences;
does not exceed 3.

38ACMA to advertise for applications for certain licences

(1)
Where the ACMA is going to allocate one or more commercial television broadcasting licences or commercial radio broadcasting licences referred to in subsection 36(1), the ACMA is to advertise, in a manner determined by the ACMA, for applications for licences of that kind, and is to include in the advertisements:
(a)
the date before which applications must be received by the ACMA; and
(b)
a statement specifying how details of:
(i)
the system determined under section 36; and
(ii)
the conditions that are to apply to the licence; and
(iii)
the licence area of the licence, the licence area population of the licence and any areas of overlap with other licence areas;
can be obtained.
(2)
Applications must:
(a)
be in accordance with a form approved in writing by the ACMA; and
(b)
be accompanied by the application fee determined in writing by the ACMA.

38AAdditional commercial television licences in single markets

Circumstances in which existing licensee may apply for additional licence
(1)
If:
(a)
a particular licence area is the licence area of only one commercial television broadcasting licence (the parent licence) that is in force; and
(aa)
the parent licence is not a licence allocated under section 38C; and
(b)
additional commercial television broadcasting licences can be allocated for the licence area;
the existing licensee may apply in writing to the ACMA for an additional commercial television broadcasting licence for the licence area.
ACMA must grant additional licence
(2)
As soon as practicable, the ACMA must allocate an additional commercial television broadcasting licence to the existing licensee for the licence area, so long as:
(a)
all of the following conditions are satisfied:
(i)
no licence for the licence area previously allocated under this section to the existing licensee has been cancelled because of a breach of the condition set out in paragraph 7(1)(i) of Schedule 2;
(iii)
no licence for the licence area previously held by the existing licensee has been surrendered; or
(b)
both:
(i)
paragraph (a) does not apply; and
(ii)
the ACMA is satisfied that there are exceptional circumstances.
Amalgamation of licence areas in some cases
(7)
If:
(a)
more than 30% of the licence area population of a licence area is attributable to an overlap area; or
(b)
a licence area is entirely within another licence area;
this section applies as if the 2 licence areas were one.
Fee for additional licence
(8)
On allocation of the additional licence, the applicant must pay to the ACMA a fee determined by the ACMA. The fee must not be more than the amount that, in the opinion of the ACMA, represents the costs (including planning costs) incurred by the ACMA in allocating the additional licence.
Section 37 restrictions apply
(11)
This section has effect subject to section 37.

38BAdditional commercial television licences in 2‑station markets

(1)
If:
(a)
a particular licence area is the licence area of only 2 commercial television broadcasting licences (the parent licences) that are in force; and
(c)
an additional commercial television broadcasting licence can be allocated for the licence area; and
(ca)
the ACMA, by notice published in the Gazette, invites:
(i)
the existing licensees to give the ACMA a joint written notice under paragraph (d); and
(ii)
each existing licensee to give the ACMA a written notice under paragraph (e);
during the period specified in the notice;
then, within the period specified in the paragraph (ca) notice:
(d)
the existing licensees may give the ACMA a joint written notice stating that:
(i)
a company specified in the notice (the joint‑venture company) will apply for an additional commercial television broadcasting licence for the licence area; and
(ii)
the joint‑venture company is jointly owned by the existing licensees; and
(iii)
the joint‑venture company is registered as a company under Part 2A.2 of the Corporations Act 2001 and has a share capital; or
(e)
each existing licensee may give the ACMA a written notice stating that the licensee will apply separately for an additional commercial television broadcasting licence for the licence area.
(1A)
A notice under paragraph (1)(ca) is not a legislative instrument.
Application by joint‑venture company
(2)
If a notice is given under paragraph (1)(d), the joint‑venture company may, within 12 months after the notice is given, apply in writing to the ACMA for an additional commercial television broadcasting licence for the licence area.
Separate applications by existing licensees
(3)
If an existing licensee gives a notice under paragraph (1)(e), the licensee may, within 12 months after the notice is given, apply in writing to the ACMA for an additional commercial television broadcasting licence for the licence area.
Allocation of additional licence to joint‑venture company

rep No 77, 2021
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Schedule 6
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Part 1
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Part 2
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Part 3
Division 1
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Part 8
Division 1
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Part 9
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Schedule 7
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c 59...........................................	ad No 124, 2007
am No 25, 2015
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c 59A.........................................	ad No 124, 2007
am No 25, 2015
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c 60...........................................	ad No 124, 2007
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c 61...........................................	ad No 124, 2007
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c 62...........................................	ad No 124, 2007
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c 63...........................................	ad No 124, 2007
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c 64...........................................	ad No 124, 2007
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c 65...........................................	ad No 124, 2007
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c 66...........................................	ad No 124, 2007
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c 67...........................................	ad No 124, 2007
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c 68...........................................	ad No 124, 2007
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c 69...........................................	ad No 124, 2007
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c 70...........................................	ad No 124, 2007
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c 71...........................................	ad No 124, 2007
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c 72...........................................	ad No 124, 2007
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Part 4.........................................	rep No 77, 2021
c 73...........................................	ad No 124, 2007
am No 25, 2015
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c 74...........................................	ad No 124, 2007
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c 75...........................................	ad No 124, 2007
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c 76...........................................	ad No 124, 2007
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c 77...........................................	ad No 124, 2007
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c 78...........................................	ad No 124, 2007
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c 79...........................................	ad No 124, 2007
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c 80...........................................	ad No 124, 2007
am No 25, 2015
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c 81...........................................	ad No 124, 2007
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c 82...........................................	ad No 124, 2007
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c 83...........................................	ad No 124, 2007
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c 84...........................................	ad No 124, 2007
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c 85...........................................	ad No 124, 2007
am No 25, 2015
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c 86...........................................	ad No 124, 2007
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c 87...........................................	ad No 124, 2007
am No 8, 2010; No 25, 2015
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c 88...........................................	ad No 124, 2007
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c 89...........................................	ad No 124, 2007
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c 90...........................................	ad No 124, 2007
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c 91...........................................	ad No 124, 2007
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c 92...........................................	ad No 124, 2007
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c 93...........................................	ad No 124, 2007
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c 94...........................................	ad No 124, 2007
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c 95...........................................	ad No 124, 2007
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c 96...........................................	ad No 124, 2007
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c 97...........................................	ad No 124, 2007
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c 98...........................................	ad No 124, 2007
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c 99...........................................	ad No 124, 2007
am No 8, 2010; No 25, 2015
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c 100..........................................	ad No 124, 2007
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c 101..........................................	ad No 124, 2007
am No 8, 2010; No 25, 2015
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c 102..........................................	ad No 124, 2007
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c 103..........................................	ad No 124, 2007
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Part 5.........................................	rep No 77, 2021
c 104..........................................	ad No 124, 2007
am No 25, 2015
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c 105..........................................	ad No 124, 2007
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Part 6.........................................	rep No 77, 2021
c 106..........................................	ad No 124, 2007
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c 107..........................................	ad No 124, 2007
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c 108..........................................	ad No 124, 2007
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c 109..........................................	ad No 124, 2007
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c 110..........................................	ad No 124, 2007
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Part 7.........................................	rep No 77, 2021
c 111..........................................	ad No 124, 2007
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c 112..........................................	ad No 124, 2007
am No 25, 2015; No 51, 2017
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Part 8.........................................	rep No 77, 2021
c 113..........................................	ad No 124, 2007
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Part 9.........................................	rep No 77, 2021
c 114..........................................	ad No 124, 2007
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c 115..........................................	ad No 124, 2007
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c 116..........................................	ad No 124, 2007
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c 117..........................................	ad No 124, 2007
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c 117A.......................................	ad No 124, 2007
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c 118..........................................	ad No 124, 2007
rep No 109, 2014
c 119..........................................	ad No 124, 2007
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c 121..........................................	ad No 124, 2007
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c 122..........................................	ad No 124, 2007
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c 123..........................................	ad No 124, 2007
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Schedule 8
Schedule 8..................................	ad No 28, 2018
Part 1
c 1.............................................	ad No 28, 2018
c 2.............................................	ad No 28, 2018
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c 3.............................................	ad No 28, 2018
c 4.............................................	ad No 28, 2018
c 5.............................................	ad No 28, 2018
c 6.............................................	ad No 28, 2018
c 7.............................................	ad No 28, 2018
c 8.............................................	ad No 28, 2018
c 9.............................................	ad No 28, 2018
c 10...........................................	ad No 28, 2018
Part 2
c 11...........................................	ad No 28, 2018
c 12...........................................	ad No 28, 2018
Part 3
Division 1
c 13...........................................	ad No 28, 2018
c 14...........................................	ad No 28, 2018
c 15...........................................	ad No 28, 2018
c 16...........................................	ad No 28, 2018
Division 2
c 17...........................................	ad No 28, 2018
c 18...........................................	ad No 28, 2018
c 19...........................................	ad No 28, 2018
c 20...........................................	ad No 28, 2018
c 21...........................................	ad No 28, 2018
c 22...........................................	ad No 28, 2018
c 23...........................................	ad No 28, 2018
Part 4
c 24...........................................	ad No 28, 2018
Part 5
c 25...........................................	ad No 28, 2018
c 26...........................................	ad No 28, 2018
Part 6
c 27...........................................	ad No 28, 2018
c 28...........................................	ad No 28, 2018
c 29...........................................	ad No 28, 2018
c 30...........................................	ad No 28, 2018
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ed C104
c 31...........................................	ad No 28, 2018
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c 32...........................................	ad No 28, 2018
c 33...........................................	ad No 28, 2018
c 34...........................................	ad No 28, 2018
c 35...........................................	ad No 28, 2018