Broadcasting Services Act 1992

Section 1, this section, sections 3 and 6 commence on the day on which this Act receives the Royal Assent.

The remaining provisions of this Act commence on a day to be fixed by Proclamation.

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.

The objects of this Act are:

to promote the availability to audiences throughout Australia of a diverse range of radio and television services offering entertainment, education and information; and

to promote the availability to audiences and users throughout Australia of a diverse range of datacasting services; and

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

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

to encourage diversity in control of the more influential broadcasting services; and

to promote the role of broadcasting services in developing and reflecting a sense of Australian identity, character and cultural diversity; and

to promote the availability to audiences throughout Australia of television and radio programs about matters of local significance; and

to promote the free availability to audiences throughout Australia of television coverage of events of national importance and cultural significance; and

to ensure the development, production and provision of Australian programs by subscription video on demand services; and

to promote the provision of high quality and innovative programming by providers of broadcasting services; and

to promote the provision of high quality and innovative content by providers of datacasting services; and

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

to encourage providers of broadcasting services to respect community standards in the provision of program material; and

to promote access to certain broadcasting services and broadcasting video on demand services that are made available free to Australian audiences and users; and

to ensure online content service providers respect community standards in relation to gambling promotional content; and

to encourage the provision of means for addressing complaints about broadcasting services; and

to provide a means for addressing complaints about gambling promotional content provided on online content services; and

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

to ensure that international broadcasting services are not provided contrary to Australia’s national interest; and

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.

In this section:

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.

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:

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

will readily accommodate technological change; and

encourages:

the development of broadcasting technologies, broadcasting video on demand technologies and datacasting technologies, and their application; and

the provision of services made practicable by those technologies to the Australian community.

The Parliament also intends that gambling promotional content provided on online content services be regulated in a manner that:

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

will readily accommodate technological change; and

encourages the provision of online content services to the Australian community; and

encourages the development of technologies relating to online content services.

This section does not apply to Part 8B (which deals with international broadcasting services).

In this section:

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:

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

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:

produce regulatory arrangements that are stable and predictable; and

deal effectively with breaches of the rules established by this Act.

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.

This section does not, by implication, limit the functions and powers of:

the Australian Competition and Consumer Commission; or

any other body or person who has regulatory responsibilities in relation to the internet industry.

In this section:

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

tracing company interests of persons.

For the purposes of this Act:

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

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.

For the purposes of this Act:

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

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.

For the purposes of this Act:

a person has a dividend interest in a company if:

the person is, or would become if a dividend were declared, beneficially entitled to be paid or credited a dividend by the company; or

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

the percentage of the interest is:

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

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.

For the purposes of this Act:

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

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.

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.

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.

Subsection (1) is enacted for the avoidance of doubt.

For the purposes of this Act, a community radio broadcasting licence is a designated community radio broadcasting licence if:

the community radio broadcasting licence was allocated under Part 6 (other than under subsection 82(1)); and

the licence area of the community radio broadcasting licence is the same as the licence area of a commercial radio broadcasting licence; and

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.

See also section 8AD, which deals with deemed radio broadcasting licence areas.

The Minister may, by legislative instrument, give the ACMA a direction about the exercise of the power conferred by paragraph (1)(c).

The ACMA must comply with a direction under subsection (2).

For the purposes of this Act and any other law of the Commonwealth, if a commercial radio broadcasting licensee provides:

a digital commercial radio broadcasting service; and

digital program enhancement content in relation to a radio program delivered by that service;

For the purposes of this Act and any other law of the Commonwealth, if a designated community radio broadcasting licensee provides:

a digital community radio broadcasting service; and

digital program enhancement content in relation to a radio program delivered by that service;

For the purposes of this Act and any other law of the Commonwealth, if a national broadcaster provides:

a digital national radio broadcasting service; and

digital program enhancement content in relation to a radio program delivered by that service;

If the ACMA is satisfied that:

the ACMA has taken sufficient action under:

Part 3 of this Act; and

Part 2.3 of the Radiocommunications Act 1992;

digital commercial radio broadcasting services;

digital community radio broadcasting services;

digital national radio broadcasting services; and

one or more foundation digital radio multiplex transmitter licences have been issued for the licence area; and

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

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);

A day specified in a declaration under subsection (1) must not be earlier than the day on which the declaration is made.

A copy of a declaration under subsection (1) must be made available on the ACMA’s website.

A declaration under subsection (1) is not a legislative instrument.

In this section:

the licence area of a commercial radio broadcasting licence; or

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.

See also section 8AD, which deals with deemed radio broadcasting licence areas.

For the purposes of:

section 8AC of this Act; and

the definition of designated BSA radio area in section 5 of the Radiocommunications Act 1992; and

the application of:

any other provision of this Act; or

any other provision of the Radiocommunications Act 1992; or

any other law of the Commonwealth;

For the purposes of:

sections 8AA and 8AC of this Act; and

the definition of designated BSA radio area in section 5 of the Radiocommunications Act 1992; and

paragraph 9C(1)(i) and subparagraph 9C(1)(j)(ii) of the Radiocommunications Act 1992; and

the application of:

any other provision of this Act; or

any other provision of the Radiocommunications Act 1992; or

any other law of the Commonwealth;

The ACMA may, by legislative instrument, determine that, for the purposes of:

sections 8AA and 8AC of this Act; and

the definition of designated BSA radio area in section 5 of the Radiocommunications Act 1992; and

paragraph 9C(1)(i) and subparagraph 9C(1)(j)(ii) of the Radiocommunications Act 1992; and

the application of:

any other provision of this Act; or

any other provision of the Radiocommunications Act 1992; or

any other law of the Commonwealth;

The Minister may, by legislative instrument, give the ACMA a direction about the exercise of the power conferred by subsection (3).

The ACMA must comply with a direction under subsection (4).