Guidelines relating to ACMA’s enforcement powers under the Broadcasting Services Act 1992
Supplementary Explanatory Statement
LEGISLATIVE INSTRUMENTS ACT 2003
Section 26 – Supplementary Explanatory Statement
Guidelines relating to ACMA’s enforcement powers under the Broadcasting Services Act 1992
On 25 January 2007, the Australian Communications & Media Authority (ACMA) made the Guidelines relating to ACMA’s enforcement powers under the Broadcasting Services Act 1992 (guidelines). These guidelines are formulated for the purpose of subsections 215(1), 215(2) and 215(3) of the Broadcasting Services Act 1992 (the BSA).
Regard will be had to these guidelines in deciding whether to refer a matter to the Commonwealth Director of Public Prosecutions (CDPP) for action in relation to a possible offence against the BSA or when ACMA exercises a power conferred by the following provisions of the BSA:
- Division 4 of Part 8B;
- Part 10, 14B, and 14D; and
- Part 8 of Schedule 6 (Remedies for breaches of licensing provisions – datacasting).
Relevant parts will also be had regard to by authorised infringement notice officers when exercising a power conferred by Part 14E of the BSA. There is other enforcement action available to ACMA which is outside the scope of these guidelines.
Registration and commencement
The guidelines commenced on 4 February 2007. They were registered on the Federal Register of Legislative Instruments on 6 February 2007.
Although the commencement date of the instrument is prior to the registration date, the instrument has effect from its commencement date because it does not create any liabilities, or affect the rights of any person in a way that might disadvantage them.
The Guidelines simply set out the issues that ACMA will have regard to when exercising some of its enforcement powers, and note some procedural matters about those powers.
As a result, this instrument is not affected by subsection 12(2) of the Legislative Instruments Act 2003.
Overview
The Guidelines relating to ACMA’s enforcement powers under the Broadcasting Services Act 1992 were introduced on 25 January 2007 to provide clarity and guidance on the exercise of certain enforcement powers by the Australian Communications & Media Authority (ACMA) under the Broadcasting Services Act 1992 (BSA). These guidelines were formulated to assist ACMA in making decisions about whether to refer matters to the Commonwealth Director of Public Prosecutions for possible offences against the BSA, as well as when exercising specific powers under the BSA. This legislative instrument is intended to ensure consistency and fairness in the application of enforcement actions by ACMA, providing a framework that aligns with the policy objectives of the BSA. The guidelines came into effect on 4 February 2007 and were registered on the Federal Register of Legislative Instruments on 6 February 2007, ensuring that they do not create liabilities or disadvantage any person.
Scope and Application
The Guidelines relating to ACMA’s enforcement powers under the Broadcasting Services Act 1992 apply to the Australian Communications & Media Authority (ACMA) in its role of enforcing specific provisions of the Broadcasting Services Act 1992. These guidelines are relevant when ACMA is deciding whether to refer a matter to the Commonwealth Director of Public Prosecutions for possible offences under the Act, or when exercising enforcement powers conferred by particular sections of the Act, such as those concerning licensing, content regulation, and datacasting. The guidelines provide a framework for ACMA’s consideration in these enforcement contexts and outline some procedural aspects of the powers involved. They do not apply to all enforcement actions available to ACMA, only those specified within the scope of the guidelines. The application of these guidelines is limited to the Commonwealth jurisdiction and is not affected by certain legislative registration requirements due to their non-retroactive nature and the fact they do not impose liabilities or affect rights adversely.
Key Provisions
The Guidelines relating to ACMA’s enforcement powers under the Broadcasting Services Act 1992 (BSA) (sections 215(1), 215(2) and 215(3)) clarify the procedures and considerations that the Australian Communications & Media Authority (ACMA) must follow when exercising certain enforcement powers under the BSA. These guidelines are relevant when ACMA decides whether to refer a matter to the Commonwealth Director of Public Prosecutions (CDPP) for potential offences against the BSA or when ACMA exercises powers under specific provisions of the BSA, such as those in Division 4 of Part 8B, Part 10, 14B, 14D, Part 8 of Schedule 6, and Part 14E. The guidelines outline the factors that ACMA will consider in these circumstances.
Under these guidelines, ACMA has a responsibility to adhere to a set of criteria when exercising its enforcement powers. For example, when deciding whether to refer a matter to the CDPP, ACMA must consider the seriousness of the alleged offence, the public interest, and any relevant mitigating or aggravating factors. ACMA must also ensure that its actions are proportionate to the alleged breach and that it provides due process to the parties involved. Additionally, authorised infringement notice officers must consider these guidelines when issuing infringement notices under Part 14E of the BSA, ensuring that notices are issued fairly and in accordance with the law.
Failure to comply with these guidelines may result in legal consequences for both ACMA and the entities it governs. While the guidelines themselves do not impose direct penalties, non-compliance with the BSA provisions they support can lead to significant penalties. For instance, breaches of the BSA can result in substantial fines, with maximum penalties varying depending on the specific offence. Criminal penalties may also apply, including imprisonment for serious offences. Furthermore, ACMA’s failure to adhere to these guidelines could potentially be challenged in court, leading to judicial review or other civil remedies. It is therefore crucial that ACMA and the entities it governs are fully aware of and comply with these guidelines to avoid potential legal repercussions.