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BROADCASTING SERVICES ACT 1992 - SCHEDULE 6

Datacasting services

Note:       See section 216C.

Part 1 -- Introduction

   

1   Simplified outline

                   The following is a simplified outline of this Schedule:

•       This Schedule sets up a system for regulating the provision of datacasting services.

•       A person who provides a designated datacasting service must hold a datacasting licence.

•       Datacasting content will be subject to restrictions. Those restrictions are designed to encourage datacasting licensees to provide a range of innovative services that are different to traditional broadcasting services.

•       The main restrictions on datacasting content are as follows:

               (a)     restrictions on the provision of certain genres of television programs;

              (b)     restrictions on the provision of audio content.

•       Datacasting licensees will be allowed to provide the following types of content:

               (a)     information-only programs (including matter that enables people to carry out transactions);

              (b)     educational programs;

               (c)     interactive computer games;

              (d)     content in the form of text or still visual images;

               (e)     Parliamentary broadcasts;

               (f)     ordinary email;

               (g)     internet content.

•       A group that represents datacasting licensees may develop codes of practice.

•       The ACMA has a reserve power to make a standard if there are no codes of practice or if a code of practice is deficient.

•       The ACMA may investigate complaints about datacasting licensees.

2   Definitions

             (1)  In this Schedule, unless the contrary intention appears:

"advertising or sponsorship material" means advertising or sponsorship material (whether or not of a commercial kind).

"Classification Board" means the Classification Board established by the Classification (Publications, Films and Computer Games) Act 1995 .

"compilation program" means a program that consists of video clips or other matter edited together to form a structured program, where there is a heavy emphasis on entertainment value.

"declared internet carriage service" has the meaning given by clause 23B.

"designated datacasting service" has the meaning given by clause 2A.

"designated teletext service" means a teletext service provided by a commercial television broadcasting licensee, where:

                     (a)  the licensee provided the service throughout the 2-year period ending immediately before the commencement of this Schedule; and

                     (b)  the service remains substantially the same as the service provided throughout that 2-year period.

"drama program" has the same meaning as in section 103B.

"educational program" has the meaning given by clause 3.

"engage in conduct" (except in clause 55 or 56) means:

                     (a)  do an act; or

                     (b)  omit to perform an act.

"financial, market or business information bulletin" means a bulletin the sole or dominant purpose of which is to provide information, analysis, commentary or discussion in relation to financial, market or business matters.

"foreign-language news or current affairs program" has the meaning given by clause 5.

"information-only program" has the meaning given by clause 4.

"infotainment or lifestyle program" means a program the sole or dominant purpose of which is to present factual information in an entertaining way, where there is a heavy emphasis on entertainment value.

"interactive computer game" means a computer game, where:

                     (a)  the way the game proceeds, and the result achieved at various stages of the game, is determined in response to the decisions, inputs and direct involvement of the player; and

                     (b)  a part of the software that enables end-users to play the game is under the control of the datacasting licensee concerned.

"internet carriage service" has the same meaning as in Schedule 5, but does not include a service that transmits content that has been copied from the internet, where the content is selected by the datacasting licensee concerned.

"music program" means a program the sole or dominant purpose of which is to provide:

                     (a)  music with video clips; or

                     (b)  video footage of musical performances;

or both.

"news or current affairs program" means any of the following:

                     (a)  a news bulletin;

                     (b)  a sports news bulletin;

                     (c)  a program (whether presenter-based or not) whose sole or dominant purpose is to provide analysis, commentary or discussion principally designed to inform the general community about social, economic or political issues of current relevance to the general community.

"nominated datacaster declaration" means a declaration under clause 45.

"ordinary email" does not include a posting to a newsgroup.

"qualified entity" means:

                     (a)  a company that:

                              (i)  is registered under Part 2A.2 of the Corporations Act 2001 ; and

                             (ii)  has a share capital; or

                     (b)  the Commonwealth, a State or a Territory; or

                     (c)  the Australian Broadcasting Corporation; or

                     (d)  the Special Broadcasting Service Corporation; or

                     (e)  any other body corporate established for a public purpose by a law of the Commonwealth or of a State or Territory.

"reality television" program means a program the sole or dominant purpose of which is to depict actual, contemporary events, people or situations in a dramatic or entertaining way, where there is a heavy emphasis on dramatic impact or entertainment value.

"related body corporate" has the same meaning as in the Corporations Act 2001 .

"sports program" means a program the sole or dominant purpose of which is to provide:

                     (a)  coverage of one or more sporting events; or

                     (b)  analysis, commentary or discussion in relation to one or more sporting events;

or both, but does not include a sports news bulletin.

"transmitter licence" has the same meaning as in the Radiocommunications Act 1992 .

             (2)  In determining the meaning of an expression used in a provision of this Act (other than this Schedule), this clause is to be disregarded.

2A   Designated datacasting service

             (1)  For the purposes of this Schedule, a designated datacasting service is a datacasting service that:

                     (a)  is provided by a person who is:

                              (i)  a commercial television broadcasting licensee; or

                             (ii)  a commercial radio broadcasting licensee; or

                            (iii)  a national broadcaster; or

                     (b)  is of a kind specified in an instrument under subclause (2).

             (2)  The Minister may, by legislative instrument, specify kinds of datacasting services for the purposes of paragraph (1)(b).

3   Educational programs

             (1)  For the purposes of this Schedule, an educational program is matter, where, having regard to:

                     (a)  the substance of the matter; and

                     (b)  the way in which the matter is advertised or promoted; and

                     (c)  any other relevant matters;

it would be concluded that the sole or dominant purpose of the matter is to assist a person in education or learning, whether or not in connection with a course of study or instruction.

             (2)  Subclause (1) has effect subject to subclauses (3) and (4).

ACMA determinations

             (3)  The ACMA may, by legislative instrument, make a determination providing that, for the purposes of this Schedule, specified matter is taken to be an educational program .

             (4)  The ACMA may, by legislative instrument, make a determination providing that, for the purposes of this Schedule, specified matter is taken not to be an educational program .

             (5)  A determination under subclause (3) or (4) has effect accordingly.

Note:          For specification by class, see subsection 13(3) of the Legislation Act 2003 .

4   Information-only programs

             (1)  For the purposes of this Schedule, an information-only program is matter the sole or dominant purpose of which is to:

                     (a)  provide factual information, or directly-related comment, about any of a wide range of matters, including but not limited to any of the following:

                              (i)  products;

                             (ii)  services;

                            (iii)  community activities;

                            (iv)  domestic or household matters;

                             (v)  private recreational pursuits or hobbies;

                            (vi)  legal rights, obligations or responsibilities;

                           (vii)  first aid, health or safety matters;

                          (viii)  emergencies or natural disasters;

                            (ix)  rural matters;

                             (x)  travel matters;

                            (xi)  crime prevention matters; or

                     (b)  enable and/or facilitate the carrying out and/or completion of transactions;

or both, where there is not a significant emphasis on dramatic impact or entertainment.

             (2)  Subclause (1) has effect subject to subclauses (3) and (4).

ACMA determinations

             (3)  The ACMA may, by legislative instrument, make a determination providing that, for the purposes of this Schedule, specified matter is taken to be an information-only program .

             (4)  The ACMA may, by legislative instrument, make a determination providing that, for the purposes of this Schedule, specified matter is taken not to be an information-only program .

             (5)  A determination under subclause (3) or (4) has effect accordingly.

Note:          For specification by class, see subsection 13(3) of the Legislation Act 2003 .

Definitions

             (8)  In this clause:

"community activity" means:

                     (a)  a meeting, event, performance or other activity that can be attended by:

                              (i)  the public; or

                             (ii)  a section of the public; or

                            (iii)  members of a particular club, society or organisation; or

                     (b)  the activity of visiting an institution, a tourist attraction or other place;

whether on payment of a charge or otherwise.

"product" includes real property.

"services" means any services, benefits, rights, privileges or facilities that are capable of being provided, granted or conferred:

                     (a)  in trade or commerce; or

                     (b)  by a government or government authority; or

                     (c)  in any other way.

"transactions" includes:

                     (a)  commercial transactions; and

                     (b)  banking transactions; and

                     (c)  insurance transactions; and

                     (d)  dealings about employment matters; and

                     (e)  dealings with governments and government authorities.

5   Foreign-language news or current affairs programs

             (1)  For the purposes of this Schedule, a foreign-language news or current affairs program means a news or current affairs program that is wholly in a language other than English.

             (2)  For the purposes of subclause (1), disregard minor and infrequent uses of the English language.

             (3)  For the purposes of subclause (1), disregard any English language subtitles or captioning.

6   Datacasting content is taken not to be a television program or a radio program etc.

                   For the purposes of this Act (other than Divisions 1 and 2 of Part 3 of this Schedule) and any other law of the Commonwealth (other than the Tobacco Advertising Prohibition Act 1992 ), if a datacasting service is provided under, and in accordance with the conditions of, a datacasting licence:

                     (a)  any matter provided on that service is taken not to be a television program or a radio program; and

                     (b)  any matter provided on that service is taken not to be broadcast or televised; and

                     (c)  that service is taken not to be a broadcasting service, a television service or a radio service.

Part 2 -- Datacasting licences

   

7   Allocation of datacasting licence

             (1)  The ACMA may allocate a datacasting licence to a person, on written application by the person.

             (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.

8   When datacasting licence must not be allocated

             (1)  A datacasting licence is not to be allocated to an applicant if:

                     (a)  the applicant is not a qualified entity; or

                     (b)  the ACMA decides that subclause 9(1) applies to the applicant.

             (2)  The ACMA may refuse to allocate a datacasting licence to an applicant if a datacasting licence held by the applicant, or by a related body corporate of the applicant, was cancelled at any time during the previous 12 months.

             (3)  Paragraph (1)(b) does not require the ACMA to consider the application of clause 9 in relation to an applicant before allocating a licence to the applicant.

9   Unsuitable applicant

             (1)  The ACMA may, if it is satisfied that allowing a particular person to provide a datacasting service under a datacasting licence would lead to a significant risk of:

                     (a)  an offence against this Act or the regulations being committed; or

                    (aa)  a breach of a civil penalty provision occurring; or

                     (b)  a breach of the conditions of the licence occurring;

decide that this subclause applies to the person.

             (2)  In deciding whether such a risk exists, the ACMA is to take into account:

                     (a)  the business record of the person; and

                     (b)  the person's record in situations requiring trust and candour; and

                     (c)  the business record of each person who would be, if a datacasting licence were allocated to the first-mentioned person, in a position to control the licence; and

                     (d)  the record in situations requiring trust and candour of each such person; and

                     (e)  whether the first-mentioned person, or a person referred to in paragraph (c) or (d), has been convicted of an offence against this Act or the regulations; and

                      (f)  whether a civil penalty order has been made against:

                              (i)  the first-mentioned person; or

                             (ii)  a person referred to in paragraph (c) or (d).

             (3)  This clause does not affect the operation of Part VIIC of the Crimes Act 1914 (which includes provisions that, in certain circumstances, relieve persons from the requirement to disclose spent convictions and require persons aware of such convictions to disregard them).

10   Transfer of datacasting licences

             (1)  A datacasting licensee may transfer the licence to another qualified entity.

             (2)  A transferee of a datacasting licence must, within 7 days after the transfer, notify the ACMA of the transfer.

Penalty:  50 penalty units.

          (2A)  Subclause (2) is an offence of strict liability.

Note:          For strict liability , see section 6.1 of the Criminal Code .

             (3)  A notification must be in accordance with a form approved in writing by the ACMA.

11   Surrender of datacasting licences

                   A datacasting licensee may, by written notice given to the ACMA, surrender the licence.

12   ACMA to maintain Register of datacasting licences

             (1)  The ACMA is to maintain a Register in which the ACMA includes:

                     (a)  particulars of datacasting licences; and

                     (b)  such information about transmitter licences as the ACMA determines.

             (2)  The Register may be maintained by electronic means.

             (3)  The Register is to be made available for inspection on the internet.

Part 3 -- Conditions of datacasting licences

Division 1 -- Genre conditions

13   Category A television programs

             (1)  For the purposes of this Division, each of the following television programs is a category A television program :

                     (a)  a drama program;

                     (c)  a sports program;

                     (d)  a music program;

                     (e)  an infotainment or lifestyle program;

                      (f)  a documentary program;

                     (g)  a "reality television" program;

                     (h)  a children's entertainment program;

                      (i)  a light entertainment or variety program;

                      (j)  a compilation program;

                     (k)  a quiz or games program;

                      (l)  a comedy program;

                    (m)  a program that consists of a combination of any or all of the above programs.

             (2)  Subclause (1) has effect subject to subclauses (3), (4) and (5).

             (3)  For the purposes of this Division, neither of the following television programs is a category A television program :

                     (a)  an information-only program;

                     (b)  an educational program.

ACMA genre determinations

             (4)  The ACMA may, by legislative instrument, make a determination providing that, for the purposes of this Division, a specified television program or specified matter is taken to be a category A television program covered by a specified paragraph of subclause (1).

             (5)  The ACMA may, by legislative instrument, make a determination providing that, for the purposes of this Division, a specified television program or specified matter is taken not to be a category A television program covered by a specified paragraph of subclause (1).

             (6)  A determination under subclause (4) or (5) has effect accordingly.

Note:          For specification by class, see subsection 13(3) of the Legislation Act 2003 .

14   Condition relating to category A television programs

             (1)  Each datacasting licence is subject to the condition that the licensee will not transmit matter that, if it were broadcast on a commercial television broadcasting service, would be:

                     (a)  a category A television program; or

                     (b)  an extract from a category A television program.

             (2)  The condition set out in subclause (1) does not prevent the licensee from transmitting an extract from a category A television program, so long as:

                     (a)  the extract is not longer than 10 minutes; and

                     (c)  the extract is not combined with one or more other extracts from category A television programs in such a way that the extracts together constitute the whole or a majority of a particular category A television program; and

                     (d)  having regard to:

                              (i)  the nature of the extract; and

                             (ii)  the circumstances in which the extract is provided;

                            it would be concluded that the licensee did not intend that the extract be combined with one or more other extracts from category A television programs in such a way that the extracts together constitute the whole or a majority of a particular category A television program.

             (3)  A reference in subclause (2) to a category A television program is a reference to matter that is covered by subclause (1) because of paragraph (1)(a).

             (4)  A reference in subclause (2) to an extract from a category A television program is a reference to matter that is covered by subclause (1) because of paragraph (1)(b).

             (5)  If, because of subclause (2) of this clause, a datacasting licensee can transmit matter without breaching the condition set out in subclause (1) of this clause, the condition set out in subclause 16(1) does not prevent the licensee from transmitting that matter.

15   Category B television programs

             (1)  For the purposes of this Division, each of the following television programs is a category B television program :

                     (a)  a news or current affairs program;

                     (b)  a financial, market or business information bulletin;

                     (c)  a weather bulletin;

                     (d)  a bulletin or program that consists of a combination of any or all of the above bulletins or programs.

             (2)  Subclause (1) has effect subject to subclauses (3), (4) and (5).

             (3)  For the purposes of this Division, none of the following television programs is a category B television program :

                     (a)  an information-only program;

                     (b)  an educational program;

                     (c)  a foreign-language news or current affairs program.

ACMA genre determinations

             (4)  The ACMA may, by legislative instrument, make a determination providing that, for the purposes of this Division, a specified television program or specified matter is taken to be a category B television program covered by a specified paragraph of subclause (1).

             (5)  The ACMA may, by legislative instrument, make a determination providing that, for the purposes of this Division, a specified television program or specified matter is taken not to be a category B television program covered by a specified paragraph of subclause (1).

             (6)  A determination under subclause (4) or (5) has effect accordingly.

Note:          For specification by class, see subsection 13(3) of the Legislation Act 2003 .

16   Condition relating to category B television programs

             (1)  Each datacasting licence is subject to the condition that the licensee will not transmit matter that, if it were broadcast on a commercial television broadcasting service, would be:

                     (a)  a category B television program; or

                     (b)  an extract from a category B television program.

             (2)  The condition set out in subclause (1) does not prevent the licensee from transmitting a bulletin, or program, (whether presenter-based or not), so long as:

                     (a)  the bulletin or program is not longer than 10 minutes; and

                     (b)  if:

                              (i)  an earlier bulletin or program covered by subclause (1) was transmitted by the licensee; and

                             (ii)  the content of the first-mentioned bulletin or program differs in any respect from the content of the earlier bulletin or program;

                            the interval between the start of the transmission of the earlier bulletin or program and the start of the transmission of the first-mentioned bulletin or program is at least 30 minutes; and

                     (c)  the bulletin or program is not combined with one or more other bulletins or programs in such a way that the bulletins or programs together constitute a bulletin or program longer than 10 minutes; and

                     (d)  having regard to:

                              (i)  the nature of the bulletin or program; and

                             (ii)  the circumstances in which the bulletin or program is provided;

                            it would be concluded that the licensee did not intend that the bulletin or program be combined with one or more other bulletins or programs in such a way that the bulletins or programs together constitute a bulletin or program longer than 10 minutes.

             (3)  The condition set out in subclause (1) does not prevent the licensee from transmitting a bulletin or program, so long as:

                     (a)  the bulletin or program is not a presenter-based bulletin or program; and

                     (b)  one of the following applies:

                              (i)  the bulletin or program consists of a single item of news (including a single item of sports news);

                             (ii)  the bulletin or program is a financial, market or business information bulletin or program that deals with a single topic;

                           (iia)  the bulletin or program is a compilation of items, the subject of which is the same or directly related, and is not longer than 10 minutes;

                            (iii)  the bulletin or program is a weather bulletin or program; and

                     (c)  the bulletin or program can only be accessed by an end-user who makes a selection from an on-screen menu.

             (4)  In this clause:

"presenter-based bulletin or program" means a bulletin or program that consists of, or includes, a combination of:

                     (a)  introductory or closing segments, or both, spoken by a host, or an anchor presenter, who is visible on the screen; and

                     (b)  video images (whether or not with accompanying sound).

             (5)  If, because of subclause (2) or (3) of this clause, a datacasting licensee can transmit matter without breaching the condition set out in subclause (1) of this clause, the condition set out in subclause 14(1) does not prevent the licensee from transmitting that matter.

17   Genre conditions do not apply to Parliamentary proceedings etc.

                   The conditions set out in clauses 14 and 16 do not prevent a datacasting licensee from transmitting live matter that consists of:

                     (a)  the proceedings of, or the proceedings of a committee of, a Parliament; or

                     (b)  the proceedings of a court or tribunal in Australia; or

                     (c)  the proceedings of an official inquiry or Royal Commission in Australia; or

                     (d)  a hearing conducted by a body established for a public purpose by a law of the Commonwealth or of a State or Territory.

18   Genre conditions do not apply to matter that consists of no more than text or still visual images etc.

             (1)  The conditions set out in clauses 14 and 16 do not prevent a datacasting licensee from transmitting matter that consists of no more than:

                     (a)  text; or

                     (b)  text accompanied by associated sounds; or

                     (c)  still visual images; or

                     (d)  still visual images accompanied by associated sounds; or

                     (e)  any combination of matter covered by the above paragraphs; or

                      (f)  any combination of:

                              (i)  matter that is covered by any of the above paragraphs (the basic matter ); and

                             (ii)  animated images (with or without associated sounds);

                            where:

                            (iii)  having regard to the substance of the animated images, it would be concluded that the animated images are ancillary or incidental to the basic matter; or

                            (iv)  the animated images consist of advertising or sponsorship material.

             (2)  In determining the meaning of the expressions television or television program , when used in a provision of this Act, subclause (1) is to be disregarded.

18A   Genre conditions do not apply to advertising or sponsorship material

                   The conditions set out in clauses 14 and 16 do not prevent a datacasting licensee from transmitting advertising or sponsorship material.

19   Genre conditions do not apply to interactive computer games

             (1)  The conditions set out in clauses 14 and 16 do not prevent a datacasting licensee from providing an interactive computer game.

             (2)  In determining the meaning of the expressions television or television program , when used in a provision of this Act, subclause (1) is to be disregarded.

20   Genre conditions do not apply to internet carriage services or ordinary email

             (1)  The conditions set out in clauses 14 and 16 do not apply to:

                     (a)  the transmission of so much of a datacasting service as consists of an internet carriage service (other than a declared internet carriage service); or

                     (b)  the transmission of ordinary email.

             (2)  In determining the meaning of the expressions television or television program , when used in a provision of this Act, subclause (1) is to be disregarded.

20AA   Genre conditions do not apply to certain content copied from the internet

             (1)  The conditions set out in clauses 14 and 16 do not apply to the transmission of matter if:

                     (a)  the matter is content that has been copied from the internet; and

                     (b)  the content is selected by the datacasting licensee concerned; and

                     (c)  there is in force an exemption order under subclause 27A(1) in relation to the transmission of the matter.

             (2)  In determining the meaning of the expressions television or television program , when used in a provision of this Act, subclause (1) is to be disregarded.

Division 2 -- Audio content condition

21   Audio content condition

             (1)  Each datacasting licence is subject to the condition that the licensee will not transmit matter that, if it were broadcast on a commercial radio broadcasting service, would be a designated radio program.

Designated radio program

             (2)  For the purposes of this clause, a designated radio program is a radio program other than:

                     (a)  an information-only program; or

                     (b)  an educational program; or

                     (c)  a foreign-language news or current affairs program.

             (3)  Subclause (2) has effect subject to subclauses (4) and (5).

ACMA determinations

             (4)  The ACMA may, by legislative instrument, make a determination providing that, for the purposes of this clause, a specified radio program or specified matter is taken to be a designated radio program .

             (5)  The ACMA may, by legislative instrument, make a determination providing that, for the purposes of this clause, a specified radio program or specified matter is taken not to be a designated radio program .

             (6)  A determination under subclause (4) or (5) has effect accordingly.

Note:          For specification by class, see subsection 13(3) of the Legislation Act 2003 .

Condition does not apply to incidental or background audio content

          (8A)  The condition set out in subclause (1) does not apply to the transmission of audio content that is incidental to, or provided as background to, matter displayed on the screen.

Condition does not apply to internet carriage services

             (9)  The condition set out in subclause (1) does not apply to the transmission of so much of a datacasting service as consists of an internet carriage service (other than a declared internet carriage service).

Condition does not apply to certain content copied from the internet

           (10)  The condition set out in subclause (1) does not apply to the transmission of matter if:

                     (a)  the matter is content that has been copied from the internet; and

                     (b)  the content is selected by the datacasting licensee concerned; and

                     (c)  there is in force an exemption order under subclause 27A(1) in relation to the transmission of the matter.

22   Audio content condition does not apply to Parliamentary proceedings etc.

                   The condition set out in clause 21 does not prevent a datacasting licensee from transmitting live audio content that consists of:

                     (a)  the proceedings of, or the proceedings of a committee of, a Parliament; or

                     (b)  the proceedings of a court or tribunal in Australia; or

                     (c)  the proceedings of an official inquiry or Royal Commission in Australia; or

                     (d)  a hearing conducted by a body established for a public purpose by a law of the Commonwealth or of a State or Territory.

23   Audio content condition does not apply to matter that consists of no more than text or still visual images etc.

             (1)  The condition set out in clause 21 does not prevent a datacasting licensee from transmitting matter that consists of no more than:

                     (a)  text; or

                     (b)  text accompanied by associated sounds; or

                     (c)  still visual images; or

                     (d)  still visual images accompanied by associated sounds; or

                     (e)  any combination of matter covered by the above paragraphs; or

                      (f)  any combination of:

                              (i)  matter that is covered by any of the above paragraphs (the basic matter ); and

                             (ii)  animated images (with or without associated sounds);

                            where:

                            (iii)  having regard to the substance of the animated images, it would be concluded that the animated images are ancillary or incidental to the basic matter; or

                            (iv)  the animated images consist of advertising or sponsorship material.

             (2)  In determining the meaning of the expressions radio or radio program , when used in a provision of this Act, subclause (1) is to be disregarded.

23A   Audio content condition does not apply to advertising or sponsorship material

                   The condition set out in clause 21 does not prevent a datacasting licensee from transmitting advertising or sponsorship material.

Division 2A -- Genre conditions: anti-avoidance

23B   Anti-avoidance--declared internet carriage services

             (1)  If:

                     (a)  the whole or a part of a datacasting service provided under a datacasting licence consists of an internet carriage service; and

                     (b)  one or more persons enter into, begin to carry out, or carry out, a scheme; and

                     (c)  the ACMA is of the opinion that the person, or any of the persons, who entered into, began to carry out, or carried out, the scheme did so for the sole or dominant purpose of avoiding the application to the licensee of Division 1 or 2;

the ACMA may, by writing, determine that, for the purposes of the application of this Schedule to the licensee, the internet carriage service is a declared internet carriage service .

             (2)  The person, or any of the persons, referred to in paragraphs (1)(b) and (c) may be the licensee.

             (3)  A determination under subclause (1) has effect accordingly.

             (4)  In this clause:

"scheme" means:

                     (a)  any agreement, arrangement, understanding, promise or undertaking, whether express or implied and whether or not enforceable, or intended to be enforceable, by legal proceedings; or

                     (b)  any scheme, plan, proposal, action, course of action or course of conduct, whether there are 2 or more parties or only one party involved.

Division 3 -- Other conditions

24   General conditions

             (1)  Each datacasting licence is subject to the following conditions:

                     (a)  the licensee will comply with the requirements of clauses 3, 3A, 4, 5 and 6 of Schedule 2 (as modified by subclause (4) of this clause);

                     (b)  the licensee will not, in contravention of the Tobacco Advertising Prohibition Act 1992 , transmit a tobacco advertisement within the meaning of that Act;

                     (c)  the licensee will comply with standards applicable to the licence under clause 31;

                    (ca)  the licensee will comply with any standards under section 130A (which deals with technical standards for digital transmission);

                     (d)  the licensee will not use the datacasting service in the commission of an offence against another Act or a law of a State or Territory;

                     (e)  the licensee will not transmit datacasting content that has been classified as RC or X 18+ by the Classification Board;

                      (f)  the licensee will not transmit datacasting content that has been classified R 18+ by the Classification Board unless:

                              (i)  the content has been modified as mentioned in paragraph 28(4)(b); or

                             (ii)  access to the program is subject to a restricted access system (within the meaning of clause 27);

                     (g)  the licensee will comply with subsection 130V(1) (which deals with industry standards);

                     (h)  if the whole or a part of the datacasting service consists of an internet carriage service--the licensee will comply with an online provider rule (within the meaning of Schedule 5) that is applicable to the licensee in relation to the internet carriage service;

                      (i)  the licensee will not use the part of the radiofrequency spectrum covered by paragraph (b) of the definition of broadcasting services bands in subsection 6(1) to provide a datacasting service under the licence.

             (2)  The conditions set out in paragraphs (1)(a), (c), (e) and (f) do not apply in relation to:

                     (a)  the transmission of so much of a datacasting service as consists of an internet carriage service; or

                     (b)  the transmission of ordinary email.

             (3)  The condition set out in paragraph (1)(b) does not apply in relation to the transmission of ordinary email.

             (4)  Clauses 3, 3A, 4, 5 and 6 of Schedule 2 apply to datacasting services provided under datacasting licences in a corresponding way to the way in which those clauses apply to broadcasting services, and, in particular, those clauses have effect as if:

                     (a)  a reference in those clauses to a person providing broadcasting services under a class licence included a reference to a person who is a datacasting licensee; and

                     (b)  a reference in those clauses to a broadcasting service included a reference to a datacasting service; and

                     (c)  a reference in those clauses to broadcast included a reference to provide on a datacasting service; and

                     (d)  subclause 4(2) of Schedule 2 were not applicable to political matter provided under a datacasting licence, where the political matter consists of no more than:

                              (i)  text; or

                             (ii)  still visual images; or

                            (iii)  any combination of matter covered by the above subparagraphs; and

                     (e)  clause 4 of Schedule 2 also provided that, if a datacasting licensee provides on a datacasting service, at the request of another person, political matter that consists of no more than:

                              (i)  text; or

                             (ii)  still visual images; or

                            (iii)  any combination of matter covered by the above subparagraphs;

                            the licensee must also cause to be displayed to end-users the required particulars in relation to the political matter in a form approved in writing by the ACMA.

             (5)  Subclause (4) does not apply to:

                     (a)  the transmission of so much of a datacasting service as consists of an internet carriage service; or

                     (b)  the transmission of ordinary email.

25   Suitability condition

             (1)  Each datacasting licence is subject to the condition that the licensee will remain a suitable licensee.

             (2)  For the purposes of this clause, a person is a suitable licensee if the ACMA has not decided that subclause (3) applies to the person.

             (3)  The ACMA may, if it is satisfied that allowing a particular person to provide, or continue to provide, datacasting services under a datacasting licence would lead to a significant risk of:

                     (a)  an offence against this Act or the regulations being committed; or

                     (b)  a breach of the conditions of the licence occurring;

decide that this subclause applies to the person.

             (4)  In deciding whether such a risk exists, the ACMA is to take into account:

                     (a)  the business record of the person; and

                     (b)  the person's record in situations requiring trust and candour; and

                     (c)  the business record of each person who is in a position to control the licence; and

                     (d)  the record in situations requiring trust and candour of each such person; and

                     (e)  whether the first-mentioned person, or a person referred to in paragraph (c) or (d), has been convicted of an offence against this Act or the regulations.

             (5)  This clause does not affect the operation of Part VIIC of the Crimes Act 1914 (which includes provisions that, in certain circumstances, relieve persons from the requirement to disclose spent convictions and require persons aware of such convictions to disregard them).

26   Additional conditions imposed by the ACMA

             (1)  The ACMA may, by written notice given to a datacasting licensee:

                     (a)  impose an additional condition on the licence; or

                     (b)  vary or revoke a condition of the licence imposed under this clause.

             (2)  If the ACMA proposes to vary or revoke a condition or to impose a new condition, the ACMA must:

                     (a)  give to the licensee written notice of its intention; and

                     (b)  give to the licensee a reasonable opportunity to make representations to the ACMA in relation to the proposed action; and

                     (c)  make the proposed changes available on the internet.

             (3)  Action taken under subclause (1) must not be inconsistent with conditions set out in:

                     (a)  clause 14; or

                     (b)  clause 16; or

                     (c)  clause 21; or

                     (d)  clause 24; or

                     (e)  clause 25.

             (4)  Conditions of datacasting licences varied or imposed by the ACMA must be relevant to the datacasting services to which those licences relate.

             (5)  Without limiting the range of conditions that may be imposed, the ACMA may impose a condition on a datacasting licensee:

                     (a)  requiring the licensee to comply with a code of practice that is applicable to the licensee; or

                     (b)  designed to ensure that a breach of a condition by the licensee does not recur.

ACMA to maintain Register of conditions

             (6)  The ACMA is to maintain a register in which it includes particulars of:

                     (a)  conditions imposed under this clause; and

                     (b)  variations of conditions under this clause; and

                     (c)  revocations of conditions under this clause.

             (7)  The Register may be maintained by electronic means.

             (8)  The Register is to be made available for inspection on the internet.

27   Restricted access system

             (1)  The ACMA may, by legislative instrument, declare that a specified access-control system is a restricted access system for the purposes of this Division. A declaration under this subclause has effect accordingly.

Note:          For specification by class, see subsection 13(3) of the Legislation Act 2003 .

             (2)  In making an instrument under subclause (1), the ACMA must have regard to:

                     (a)  the objective of protecting children from exposure to matter that is unsuitable for children; and

                     (b)  such other matters (if any) as the ACMA considers relevant.

Division 4 -- Exemption orders for content copied from the internet

27A   Exemption orders in relation to content copied from the internet

             (1)  If the ACMA is satisfied that:

                     (a)  matter is proposed to be transmitted by a datacasting licensee; and

                     (b)  the matter is content that is proposed to be copied from the internet; and

                     (c)  the content is proposed to be selected by the datacasting licensee; and

                     (d)  if it were assumed that clause 20AA and subclause 21(10) had not been enacted:

                              (i)  any breach of the conditions set out in clauses 14 and 16 and subclause 21(1) that would arise from the transmission of the matter would be of a minor, infrequent or incidental nature; or

                             (ii)  the transmission of the matter would not be contrary to the purpose of clauses 14, 16 and 21;

the ACMA may, by writing, make an exemption order in relation to the transmission of the matter.

             (2)  If the ACMA receives a request from a datacasting licensee to make an exemption order in relation to the transmission of matter by the licensee, the ACMA must use its best endeavours to make that decision within 28 days after the request was made.

Part 4 -- Codes of practice

   

28   Development of codes of practice

             (1)  The Parliament intends that:

                     (a)  a group that the ACMA is satisfied represents datacasting licensees should develop codes of practice that are to be applicable to the datacasting operations of datacasting licensees; and

                     (b)  those codes of practice should be developed:

                              (i)  in consultation with the ACMA; and

                             (ii)  taking account of any relevant research conducted by the ACMA.

Content of codes of practice

             (2)  Codes of practice may relate to:

                     (a)  preventing the transmission of matter that, in accordance with community standards, is not suitable to be transmitted by datacasting licensees; and

                     (b)  methods of ensuring that the protection of children from exposure to datacasting content which may be harmful to them is a high priority; and

                     (c)  methods of classifying datacasting content that reflect community standards; and

                     (d)  promoting accuracy and fairness in datacasting content that consists of news or current affairs; and

                     (e)  preventing the transmission of datacasting content that:

                              (i)  simulates news or events in a way that misleads or alarms end-users; or

                             (ii)  depicts the actual process of putting a person into a hypnotic state; or

                            (iii)  is designed to induce a hypnotic state in end-users; or

                            (iv)  uses or involves the process known as subliminal perception or any other technique that attempts to convey information to end-users by transmitting messages below or near the threshold of normal awareness; and

                      (f)  datacasting content that consists of:

                              (i)  advertising; or

                             (ii)  sponsorship announcements; and

                     (g)  methods of:

                              (i)  handling complaints from the public about datacasting content or compliance with codes of practice; and

                             (ii)  reporting to the ACMA on complaints so made; and

                     (h)  in a case where there are customers of datacasting licensees--dealings with those customers, including methods of billing, fault repair, privacy and credit management; and

                      (i)  such other matters relating to datacasting content as are of concern to the community.

Classification etc.

             (3)  In developing codes of practice relating to matters referred to in paragraphs (2)(a) and (c), community attitudes to the following matters are to be taken into account:

                     (a)  the portrayal in datacasting content of physical and psychological violence;

                     (b)  the portrayal in datacasting content of sexual conduct and nudity;

                     (c)  the use in datacasting content of offensive language;

                     (d)  the portrayal in datacasting content of the use of drugs, including alcohol and tobacco;

                     (e)  the portrayal in datacasting content of matter that is likely to incite or perpetuate hatred against, or vilifies, any person or group on the basis of ethnicity, nationality, race, gender, sexual orientation, age, religion or physical or mental disability;

                      (f)  such other matters relating to datacasting content as are of concern to the community.

             (4)  In developing codes of practice referred to in paragraph (2)(a), (b) or (c), the group that the ACMA is satisfied represents datacasting licensees must ensure that:

                     (a)  for the purpose of classifying films--those codes apply the film classification system administered by the Classification Board; and

                     (b)  those codes provide for methods of modifying films having particular classifications under that system so that the films are suitable to be transmitted; and

                     (c)  those codes provide for the provision of advice to consumers on the reasons for films receiving a particular classification; and

                     (d)  for the purpose of classifying interactive computer games--those codes apply the computer games classification system administered by the Classification Board; and

                     (e)  those codes provide for the provision of advice to consumers on the reasons for interactive computer games receiving a particular classification; and

                      (f)  for the purpose of classifying content (other than films or interactive computer games)--those codes apply the film classification system administered by the Classification Board in a corresponding way to the way in which that system applies to films; and

                     (g)  those codes provide for methods of modifying content (other than films or interactive computer games) having particular classifications under that system (as correspondingly applied) so that the content is suitable to be transmitted; and

                     (h)  those codes provide for the provision of advice to consumers on the reasons for content (other than films or interactive computer games) receiving a particular classification.

             (5)  In developing codes of practice referred to in paragraph (2)(a) or (b), the group that the ACMA is satisfied represents datacasting licensees must ensure that films classified as "M" or "MA 15+" do not portray material that goes beyond the previous "AO" classification criteria.

Registration of codes of practice

             (6)  If:

                     (a)  the group that the ACMA is satisfied represents datacasting licensees develops a code of practice to be observed in the conduct of the datacasting operations of those licensees; and

                     (b)  the ACMA is satisfied that:

                              (i)  the code of practice provides appropriate community safeguards for the matters covered by the code; and

                             (ii)  the code is endorsed by a majority of datacasting licensees; and

                            (iii)  members of the public have been given an adequate opportunity to comment on the code;

the ACMA must include that code in the Register of codes of practice.

Interactive computer game

             (7)  In this clause:

"interactive computer game" includes a computer game within the meaning of the Classification (Publications, Films and Computer Games) Act 1995 .

30   ACMA to maintain Register of codes of practice

             (1)  The ACMA is to maintain a Register in which it includes all codes of practice registered under clause 28.

             (2)  The Register may be maintained by electronic means.

             (3)  The Register is to be made available for inspection on the internet.

31   ACMA may determine standards where codes of practice fail or where no code of practice developed

             (1)  If:

                     (a)  the ACMA is satisfied that there is convincing evidence that a code of practice registered under clause 28 is not operating to provide appropriate community safeguards for a matter referred to in subclause 28(2) in relation to the datacasting operations of datacasting licensees; and

                     (b)  the ACMA is satisfied that it should determine a standard in relation to that matter;

the ACMA must, by legislative instrument, determine a standard in relation to that matter.

             (2)  If:

                     (a)  no code of practice has been registered under clause 28 for a matter referred to in subclause 28(2); and

                     (b)  the ACMA is satisfied that it should determine a standard in relation to that matter;

the ACMA must, by legislative instrument, determine a standard in relation to that matter.

32   Consultation on standards

                   The ACMA must, before determining, varying or revoking a standard, seek public comment on the proposed standard or the variation or revocation.

33   Notification of determination or variation or revocation of standards

                   If the ACMA determines or varies or revokes a standard, the ACMA must publish in the Gazette a notice stating:

                     (a)  that the standard has been determined, varied or revoked; and

                     (b)  the places where copies of the standard or of the variation or revocation can be purchased.

34   Limitation of ACMA's power in relation to standards

             (1)  The ACMA must not determine a standard that requires that, before datacasting content is transmitted, the datacasting content, or a sample of the datacasting content, be approved by the ACMA or by a person or body appointed by the ACMA.

             (2)  However, the ACMA may determine such a standard in relation to datacasting content for children.

35   This Part does not apply to internet carriage services or ordinary email

                   This Part does not apply to:

                     (a)  the transmission of so much of a datacasting service as consists of an internet carriage service; or

                     (b)  the transmission of ordinary email.

35A   This Part does not apply to the ABC or SBS

                   For the purposes of this Part, the Australian Broadcasting Corporation and the Special Broadcasting Service Corporation are taken not to be datacasting licensees.

Note:          If the Australian Broadcasting Corporation or the Special Broadcasting Service Corporation is otherwise a datacasting licensee, it is a duty of the Board of the Corporation to develop a code of practice that relates to the service provided under the licence. See paragraph 8(1)(e) of the Australian Broadcasting Corporation Act 1983 and paragraph 10(1)(j) of the Special Broadcasting Service Act 1991 .

Part 5 -- Complaints to the ACMA about datacasting services

   

36   Complaints about offences or breach of licence conditions

             (1)  If a person believes that a datacasting licensee has:

                     (a)  committed an offence against this Act or the regulations; or

                     (b)  breached a condition of the datacasting licence;

the person may make a complaint to the ACMA about the matter.

             (2)  If a person believes that another person is providing a designated datacasting service without a datacasting licence that authorises the provision of that service, the first-mentioned person may make a complaint to the ACMA about the matter.

37   Complaints under codes of practice

             (1)  If:

                     (a)  a person has made a complaint to a datacasting licensee about a matter relating to:

                              (i)  datacasting content; or

                             (ii)  compliance with a code of practice that applies to the datacasting operations of datacasting licensees and that is included in the Register of codes of practice; and

                     (b)  if there is a relevant code of practice relating to the handling of complaints of that kind--the complaint was made in accordance with that code of practice; and

                     (c)  either:

                              (i)  the person has not received a response within 60 days after making the complaint; or

                             (ii)  the person has received a response within that period but considers that response to be inadequate;

the person may make a complaint to the ACMA about the matter.

             (2)  This clause does not apply to:

                     (a)  the transmission of so much of a datacasting service as consists of an internet carriage service; or

                     (b)  the transmission of ordinary email.

             (3)  Also, this clause does not apply if the datacasting licensee is the Australian Broadcasting Corporation or the Special Broadcasting Service Corporation.

Note:          Sections 150 to 153 deal with complaints about a datacasting service provided by the Australian Broadcasting Corporation or the Special Broadcasting Service Corporation.

38   Investigation of complaints by the ACMA

                   The ACMA may investigate the complaint if the ACMA thinks that it is desirable to do so.

Part 6 -- Control of datacasting transmitter licences

   

41   Datacasting transmitter licences not to be controlled by ABC or SBS

             (1)  The Australian Broadcasting Corporation must not be in a position to exercise control of a datacasting transmitter licence.

             (2)  The Special Broadcasting Service Corporation must not be in a position to exercise control of a datacasting transmitter licence.

             (3)  Subclauses (1) and (2) do not apply to a channel B datacasting transmitter licence unless the relevant transmitter, or any of the relevant transmitters, is operated for transmitting a datacasting service that is capable of being received by a domestic digital television receiver.

Part 7 -- Nominated datacaster declarations

   

42   Object of this Part

                   The object of this Part is to provide for the making of declarations ( nominated datacaster declarations ) that allow the following licences to be held by different persons:

                     (a)  a datacasting licence that authorises the provision of a datacasting service;

                     (b)  a datacasting transmitter licence for a radiocommunications transmitter that is for use for transmitting the datacasting service.

43   Datacasting transmitter licence

                   A reference in this Part to a datacasting transmitter licence does not include a reference to an authorisation under section 114 of the Radiocommunications Act 1992 .

44   Applications for nominated datacaster declarations

             (1)  If there is:

                     (a)  a datacasting licence that authorises the provision of a datacasting service; and

                     (b)  a datacasting transmitter licence for a transmitter that is intended for use for transmitting the datacasting service;

the licensee of the datacasting transmitter licence may apply to the ACMA for a nominated datacaster declaration in relation to the provision of the datacasting service under the datacasting licence.

             (2)  An application must be accompanied by:

                     (a)  the application fee determined in writing by the ACMA; and

                     (b)  the consent of the licensee of the datacasting licence.

             (3)  The application and consent must be:

                     (a)  in writing; and

                     (b)  in accordance with a form approved in writing by the ACMA.

45   Making a nominated datacaster declaration

             (1)  After considering the application, the ACMA must declare in writing that the provision of the datacasting service under the datacasting licence is nominated in relation to the datacasting transmitter licence if the ACMA is satisfied that:

                     (a)  the licensee of the datacasting transmitter licence will transmit the datacasting service on behalf of the licensee of the datacasting licence; and

                     (b)  the licensee of the datacasting transmitter licence will not be involved in the selection or provision of datacasting content to be transmitted on the datacasting service.

             (2)  The ACMA must give a copy of the declaration to:

                     (a)  the applicant; and

                     (b)  the licensee of the datacasting licence.

             (3)  If the ACMA refuses to make a nominated datacaster declaration, the ACMA must give written notice of the refusal to:

                     (a)  the applicant; and

                     (b)  the licensee of the datacasting licence.

46   Effect of nominated datacaster declaration

                   If:

                     (a)  a nominated datacaster declaration is in force; and

                     (b)  the licensee of the datacasting transmitter licence transmits the datacasting service on behalf of the licensee of the datacasting licence;

then:

                     (c)  for the purposes of the Radiocommunications Act 1992 , the licensee of the datacasting licence is taken not to operate the radiocommunications transmitter for any purpose in connection with that transmission; and

                     (d)  for the purposes of this Act:

                              (i)  the licensee of the datacasting licence is taken to provide the datacasting service; and

                             (ii)  the licensee of the datacasting transmitter licence is taken not to provide the datacasting service; and

                     (e)  for the purposes of this Act (other than Schedule 1) and the Tobacco Advertising Prohibition Act 1992 , any content that is transmitted by the licensee of the datacasting transmitter licence on behalf of the licensee of the datacasting licence:

                              (i)  is taken to be content transmitted by the licensee of the datacasting licence; and

                             (ii)  is not taken to be content transmitted by the licensee of the datacasting transmitter licence.

47   Revocation of nominated datacaster declaration

             (1)  The ACMA must, by writing, revoke a nominated datacaster declaration if the ACMA is satisfied that:

                     (a)  the licensee of the datacasting transmitter licence is not transmitting, or does not propose to transmit, the datacasting service on behalf of the licensee of the datacasting licence; or

                     (b)  the licensee of the datacasting transmitter licence is involved, or proposes to become involved, in the selection or provision of datacasting content to be transmitted on the datacasting service.

             (2)  The ACMA must, by writing, revoke a nominated datacaster declaration if:

                     (a)  the licensee of the datacasting transmitter licence; or

                     (b)  the licensee of the datacasting licence;

gives the ACMA a written notice stating that the licensee does not consent to the continued operation of the declaration.

             (3)  The ACMA must give a copy of the revocation to:

                     (a)  the licensee of the datacasting transmitter licence; and

                     (b)  the licensee of the datacasting licence.

             (4)  A revocation under subclause (1) or (2) takes effect on the date specified in the revocation.

             (5)  The ACMA must not revoke a nominated datacaster declaration under subclause (1) unless the ACMA has first:

                     (a)  given the licensee of the datacasting transmitter licence a written notice:

                              (i)  setting out a proposal to revoke the declaration; and

                             (ii)  inviting the licensee to make a submission to the ACMA on the proposal; and

                     (b)  given the licensee of the datacasting licence a written notice:

                              (i)  setting out a proposal to revoke the declaration; and

                             (ii)  inviting the licensee to make a submission to the ACMA on the proposal; and

                     (c)  considered any submission that was received under paragraph (a) or (b) within the time limit specified in the notice concerned.

             (6)  A time limit specified in a notice under subclause (5) must run for at least 7 days.

             (7)  A person must not enter into a contract or arrangement under which the person or another person is:

                     (a)  prevented from giving a notice under subclause (2); or

                     (b)  subject to any restriction in relation to the giving of a notice under subclause (2).

             (8)  A contract or arrangement entered into in contravention of subclause (7) is void.

48   Register of nominated datacaster declarations

             (1)  The ACMA is to maintain a register in which the ACMA includes particulars of all nominated datacaster declarations currently in force.

             (2)  The Register may be maintained by electronic means.

             (3)  The Register is to be made available for inspection on the internet.

Part 8 -- Remedies for breaches of licensing provisions

Division 1 -- Providing a designated datacasting service without a licence

49   Prohibition on providing a designated datacasting service without a licence

             (1)  A person commits an offence if the person:

                     (a)  intentionally provides a designated datacasting service; and

                     (b)  does not have a datacasting licence to provide the service.

Penalty:  20,000 penalty units.

             (2)  A person who contravenes subclause (1) commits a separate offence in respect of each day (including a day of a conviction for the offence or any later day) during which the contravention continues.

             (3)  A person must not provide a designated datacasting service if the person does not have a datacasting licence to provide that service.

             (4)  Subclause (3) is a civil penalty provision.

             (5)  A person who contravenes subclause (3) commits a separate contravention of that subclause in respect of each day (including a day of the making of a relevant civil penalty order or any subsequent day) during which the contravention continues.

Note 1:       For exemptions for broadcasters, see clause 51.

Note 2:       For exemptions for designated teletext services, see clause 51A.

50   Remedial directions--unlicensed datacasting services

             (1)  If the ACMA is satisfied that a person has breached, or is breaching, subclause 49(3), the ACMA may, by written notice given to the person, direct the person to take action directed towards ensuring that the person does not breach that subclause, or is unlikely to breach that subclause, in the future.

Note 1:       For exemptions for broadcasters, see clause 51.

Note 2:       For exemptions for designated teletext services, see clause 51A.

Offence

             (2)  A person commits an offence if:

                     (a)  the person has been given a notice under subclause (1); and

                     (b)  the person engages in conduct; and

                     (c)  the person's conduct contravenes a requirement in the notice.

Penalty:  20,000 penalty units.

             (3)  A person who contravenes subclause (2) commits a separate offence in respect of each day (including a day of a conviction for the offence or any subsequent day) during which the contravention continues.

Civil penalty

             (4)  A person must comply with a notice under subclause (1).

             (5)  Subclause (4) is a civil penalty provision.

             (6)  A person who contravenes subclause (4) commits a separate contravention of that subclause in respect of each day (including a day of the making of a relevant civil penalty order or any subsequent day) during which the contravention continues.

Definition

             (7)  In this clause:

"engage in conduct" means:

                     (a)  do an act; or

                     (b)  omit to perform an act.

51   Exemption for broadcasting licensees etc.

             (1)  Clauses 49 and 50 do not apply to the provision of a broadcasting service under, and in accordance with the conditions of:

                     (a)  a licence allocated by the ACMA under this Act (other than this Schedule); or

                     (b)  a class licence.

             (2)  Clauses 49 and 50 do not apply to the provision of a national broadcasting service.

51A   Exemption for designated teletext services

                   Clauses 49 and 50 do not apply to the provision of a designated teletext service.

Division 2 -- Breaches of licence conditions

52   Offence for breach of conditions

             (1)  A person commits an offence if:

                     (a)  the person is a datacasting licensee; and

                     (b)  the person intentionally engages in conduct; and

                     (c)  the person's conduct breaches a condition of the licence set out in clause 14, 16, 21 or 24.

Penalty:  2,000 penalty units.

             (2)  A person who contravenes subclause (1) commits a separate offence in respect of each day (including a day of a conviction for the offence or any later day) during which the contravention continues.

52A   Civil penalty provision relating to breach of conditions of datacasting licences

             (1)  A datacasting licensee must not breach a condition of the licence set out in clause 14, 16, 21 or 24.

             (2)  Subclause (1) is a civil penalty provision.

             (3)  A person who contravenes subclause (1) commits a separate contravention of that subclause in respect of each day (including a day of the making of a relevant civil penalty order or any subsequent day) during which the contravention continues.

53   Remedial directions--breach of conditions

             (1)  If a datacasting licensee has breached, or is breaching, a condition of the licence (other than the condition set out in clause 25), the ACMA may, by written notice given to the licensee, direct the licensee to take action directed towards ensuring that the licensee does not breach the condition, or is unlikely to breach the condition, in the future.

             (2)  The following are examples of the kinds of direction that may be given to a licensee under subclause (1):

                     (a)  a direction that the licensee implement effective administrative systems for monitoring compliance with a condition of the licence;

                     (b)  a direction that the licensee implement a system designed to give the licensee's employees, agents and contractors a reasonable knowledge and understanding of the requirements of a condition of the licence, in so far as those requirements affect the employees, agents or contractors concerned.

             (3)  A person is not required to comply with a notice under subclause (1) until the end of the period specified in the notice. That period must be reasonable.

             (4)  A person commits an offence if:

                     (a)  a person has been given a notice under subclause (1); and

                     (b)  the person intentionally engages in conduct; and

                     (c)  the person's conduct contravenes a requirement in the notice.

Penalty:  20,000 penalty units.

             (5)  A person who contravenes subclause (4) commits a separate offence in respect of each day (including a day of a conviction for the offence or any later day) during which the contravention continues.

             (6)  A person must comply with a notice under subclause (1).

             (7)  Subclause (6) is a civil penalty provision.

             (8)  A person who contravenes subclause (6) commits a separate contravention of that subclause in respect of each day (including a day of the making of a relevant civil penalty order or any subsequent day) during which the contravention continues.

54   Suspension and cancellation

             (1)  If a person who is a datacasting licensee:

                     (a)  fails to comply with a notice under clause 53; or

                     (b)  breaches a condition of the licence;

the ACMA may, by written notice given to the person:

                     (c)  suspend the licence for such period, not exceeding 3 months, as is specified in the notice; or

                     (d)  cancel the licence.

             (2)  If a datacasting licence is suspended because of a breach of a condition set out in clause 14, 16 or 21, the ACMA may take such action, by way of suspending one or more datacasting licences held by:

                     (a)  the licensee; or

                     (b)  a related body corporate of the licensee;

as the ACMA considers necessary to ensure that the same, or a substantially similar, datacasting service is not transmitted by the licensee or the related body corporate, as the case may be, during the period of suspension.

             (3)  If a datacasting licence is cancelled because of a breach of a condition set out in clause 14, 16 or 21, the ACMA may take such action, by way of cancelling one or more datacasting licences held by:

                     (a)  the licensee; or

                     (b)  a related body corporate of the licensee;

as the ACMA considers necessary to ensure that the same, or a substantially similar, datacasting service is not transmitted by the licensee or the related body corporate, as the case may be, at a time after the cancellation.

             (4)  If the ACMA proposes to take action against a person under subclause (1), (2) or (3), the ACMA must give to the person:

                     (a)  written notice of its intention; and

                     (b)  a reasonable opportunity to make representations to the ACMA in relation to the proposed action.

55   Injunctions

Restraining injunctions

             (1)  If a person who is a datacasting licensee has engaged, is engaging or is proposing to engage, in any conduct in contravention of a condition of the licence (other than a condition set out in clause 25), the Federal Court may, on the application of the ACMA, grant an injunction:

                     (a)  restraining the person from engaging in the conduct; and

                     (b)  if, in the court's opinion, it is desirable to do so--requiring the person to do something.

             (2)  If a person has engaged, is engaging or is proposing to engage, in any conduct in contravention of clause 49, the Federal Court may, on the application of the ACMA, grant an injunction:

                     (a)  restraining the person from engaging in the conduct; and

                     (b)  if, in the court's opinion, it is desirable to do so--requiring the person to do something.

Performance injunctions

             (3)  If:

                     (a)  a person who is a datacasting licensee has refused or failed, or is refusing or failing, or is proposing to refuse or fail, to do an act or thing; and

                     (b)  the refusal or failure was, is or would be a contravention of a condition of the licence (other than a condition set out in clause 25);

the Federal Court may, on the application of the ACMA, grant an injunction requiring the person to do that act or thing.

56   Federal Court's powers relating to injunctions

Grant of interim injunction

             (1)  If an application is made to the Federal Court for an injunction under clause 55, the court may, before considering the application, grant an interim injunction restraining a person from engaging in conduct of a kind referred to in that clause.

No undertakings as to damages

             (2)  The Federal Court is not to require an applicant for an injunction under clause 55, as a condition of granting an interim injunction, to give any undertakings as to damages.

Discharge etc. of injunctions

             (3)  The Federal Court may discharge or vary an injunction granted under clause 55.

Certain limits on granting injunctions do not apply

             (4)  The power of the Federal Court under clause 55 to grant an injunction restraining a person from engaging in conduct of a particular kind may be exercised:

                     (a)  if the court is satisfied that the person has engaged in conduct of that kind--whether or not it appears to the court that the person intends to engage again, or to continue to engage, in conduct of that kind; or

                     (b)  if it appears to the court that, if an injunction is not granted, it is likely that the person will engage in conduct of that kind--whether or not the person has previously engaged in conduct of that kind and whether or not there is an imminent danger of substantial damage to any person if the person engages in conduct of that kind.

             (5)  The power of the Federal Court under clause 55 to grant an injunction requiring a person to do an act or thing may be exercised:

                     (a)  if the court is satisfied that the person has refused or failed to do that act or thing--whether or not it appears to the court that the person intends to refuse or fail again, or to continue to refuse or fail, to do that act or thing; or

                     (b)  if it appears to the court that, if an injunction is not granted, it is likely that the person will refuse or fail to do that act or thing--whether or not the person has previously refused or failed to do that act or thing and whether or not there is an imminent danger of substantial damage to any person if the person refuses or fails to do that act or thing.

Other powers of the court unaffected

             (6)  The powers conferred on the Federal Court under clause 55 are in addition to, and not instead of, any other powers of the court, whether conferred by this Act or otherwise.

57   Stay of proceedings relating to additional licence conditions, remedial directions and suspension/cancellation decisions

             (1)  For the purposes of this clause, an eligible decision is:

                     (a)  a decision under clause 26 to impose or vary a condition of a datacasting licence; or

                     (b)  a decision to give a direction under clause 53 (which deals with remedial directions); or

                     (c)  a decision to suspend or cancel a datacasting licence under clause 54.

             (2)  An order must not be made under paragraph 15(1)(a) or 15A(1)(a) of the Administrative Decisions (Judicial Review) Act 1977 in relation to an eligible decision if:

                     (a)  the order has the effect of suspending the operation of the eligible decision for more than 3 months; or

                     (b)  the order and any previous order or orders made under the paragraph concerned have the combined effect of suspending the operation of the eligible decision for more than 3 months.

             (3)  An order must not be made under paragraph 15(1)(b) or 15A(1)(b) of the Administrative Decisions (Judicial Review) Act 1977 in relation to an eligible decision if:

                     (a)  the order has the effect of staying particular proceedings under the eligible decision for more than 3 months; or

                     (b)  the order and any previous order or orders made under the paragraph concerned have the combined effect of staying particular proceedings under the eligible decision for more than 3 months.

             (4)  If:

                     (a)  a person applies to the Federal Court under subsection 39B(1) of the Judiciary Act 1903 for a writ or injunction in relation to an eligible decision; and

                     (b)  an order could be made staying, or otherwise affecting the operation or implementation of, the eligible decision pending the finalisation of the application;

such an order must not be made if:

                     (c)  the order has the effect of staying, or otherwise affecting the operation or implementation of, the eligible decision for more than 3 months; or

                     (d)  the order and any previous order or orders covered by paragraph (b) have the combined effect of staying, or otherwise affecting the operation or implementation of, the eligible decision for more than 3 months.

             (5)  If:

                     (a)  a person applies to the Administrative Appeals Tribunal for review of an eligible decision; and

                     (b)  an order could be made under subsection 41(2) of the Administrative Appeals Tribunal Act 1975 staying, or otherwise affecting the operation or implementation of, the eligible decision;

such an order must not be made if:

                     (c)  the order has the effect of staying, or otherwise affecting the operation or implementation of, the eligible decision for more than 3 months; or

                     (d)  the order and any previous order or orders covered by paragraph (b) have the combined effect of staying, or otherwise affecting the operation or implementation of, the eligible decision for more than 3 months.

Part 9 -- Review of decisions

   

58   Review by the Administrative Appeals Tribunal

                   An application may be made to the Administrative Appeals Tribunal for a review of a decision set out in the second column of the table made under the provision of this Schedule set out in the third column, but such an application may only be made by the person described in the fourth column.

 

Reviewable decisions

Item

Decision

Provision

Person who may apply

1

refusal to allocate datacasting licence

clause 7 or 8

the applicant

2

that a person is not a suitable applicant

subclause 9(1)

the person

2A

that an internet carriage service is a declared internet carriage service

subclause 23B(1)

the licensee

3

that a person is not a suitable licensee

subclause 25(3)

the licensee

4

Variation of datacasting licence conditions or imposition of new conditions

subclause 26(1)

the licensee

4A

refusal to make an exemption order

clause 27B

the licensee

5

refusal to include a code of practice in the Register

subclause 28(6)

the relevant industry group

6

refusal to make a nominated datacaster declaration

clause 45

the licensee of the datacasting transmitter licence or the licensee of the datacasting licence

7

revocation of a nominated datacaster declaration

clause 47

the licensee of the datacasting transmitter licence or the licensee of the datacasting licence

8

to give or vary, or to refuse to revoke, a direction

clause 53

the licensee

9

suspension or cancellation of datacasting licence

clause 54

the licensee

59   Notification of decisions to include notification of reasons and appeal rights

                   If the ACMA makes a decision that is reviewable under clause 58, the ACMA is to include in the document by which the decision is notified:

                     (a)  a statement setting out the reasons for the decision; and

                     (b)  a statement to the effect that an application may be made to the Administrative Appeals Tribunal for a review of the decision.



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