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This is a Bill, not an Act. For current law, see the Acts databases.

BROADCASTING SERVICES AMENDMENT (DIGITAL TELEVISION AND DATACASTING) BILL 2000

1998-1999-2000

The Parliament of the
Commonwealth of Australia

HOUSE OF REPRESENTATIVES

Presented and read a first time

Broadcasting Services Amendment (Digital Television and Datacasting) Bill 2000

No. , 2000

(Communications, Information Technology and the Arts)

A Bill for an Act to amend the Broadcasting Services Act 1992, and for other purposes

ISBN: 0642 435839

Contents

Part 1—Amendments 3

Part 2—Transitional provisions 96

Part 1—Amendments 99

Part 2—Transitional provisions 119

Australian Security Intelligence Organisation Act 1979 120

Freedom of Information Act 1982 120

Retirement Savings Accounts Act 1997 120

Superannuation Industry (Supervision) Act 1993 120

Tobacco Advertising Prohibition Act 1992 120

A Bill for an Act to amend the Broadcasting Services Act 1992, and for other purposes

The Parliament of Australia enacts:

1 Short title

This Act may be cited as the Broadcasting Services Amendment (Digital Television and Datacasting) Act 2000.

2 Commencement

(1) The following provisions commence on the day on which this Act receives the Royal Assent:

(a) sections 1, 2 and 3;

(b) items 75, 137, 142 and 143 of Schedule 1.

(2) Subject to subsection (3), the remaining provisions of this Act commence on a day to be fixed by Proclamation.

(3) If the remaining provisions of this Act 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.

3 Schedule(s)

Subject to section 2, each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

Schedule 1—Amendment of the Broadcasting Services Act 1992

Part 1—Amendments

1 Title

After “broadcasting services”, insert “, datacasting services”.

2 Before paragraph 3(1)(k)

Insert:

(jb) to promote the availability to people throughout Australia of datacasting services that supplement radio and television services; and

3 Subsection 4(1)

After “broadcasting services” (wherever occurring), insert “, datacasting services”.

4 Subsection 4(2)

After “broadcasting services” (wherever occurring), insert “and datacasting services”.

5 Subparagraph 4(2)(c)(i)

After “broadcasting technologies”, insert “and datacasting technologies,”.

6 Paragraph 5(1)(a)

After “broadcasting industry”, insert “, the datacasting industry”.

7 Subsection 6(1) (at the end of the definition of associate)

Add:

Note: Licence is given an extended meaning by this subsection.

8 Subsection 6(1) (definition of commercial radio broadcasting licence)

After “a licence”, insert “under Part 4”.

9 Subsection 6(1) (definition of commercial television broadcasting licence)

After “a licence”, insert “under Part 4”.

10 Subsection 6(1) (definition of community broadcasting licence)

After “a licence”, insert “under Part 6 or 6A”.

11 Subsection 6(1)

Insert:

datacasting licence means a licence under Schedule 6 to provide a datacasting service.

12 Subsection 6(1)

Insert:

datacasting service means a service that delivers content:

(a) whether in the form of text; or

(b) whether in the form of data; or

(d) whether in the form of visual images (animated or otherwise); or

(e) whether in any other form; or

(f) whether in any combination of forms;

to persons having equipment appropriate for receiving that content, where the delivery of the service uses the broadcasting services bands.

13 Subsection 6(1)

Insert:

datacasting transmitter licence has the same meaning as in the Radiocommunications Act 1992, and includes an authorisation under section 114 of that Act by the licensee of such a licence.

14 Subsection 6(1) (definition of licence)

Repeal the definition, substitute:

licence means:

(a) in the definition of associate, section 7, Part 5 and Schedule 1:

(i) a licence allocated by the ABA under this Act (other than a class licence); or

(ii) a datacasting transmitter licence; and

(b) in any other provision of this Act—a licence allocated by the ABA under this Act (other than a class licence).

15 Subsection 6(1)

Insert:

subscription television broadcasting licence means a licence under Part 7 to provide one or more subscription television broadcasting services.

16 At the end of section 7

Add:

Note: Licence is given an extended meaning by subsection 6(1).

17 After section 8

Insert:

8A Captioning taken to be part of program

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

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

18 Section 28

Before “licences”, insert “broadcasting”.

19 At the end of section 28A

Add “or 38B”.

Note: The heading to section 28A is altered by adding at the end “or 38B”.

20 After subsection 34(4)

Insert:

(4A) Each part determined under subsection (3) must be 6 MHz or 7 MHz. However, this rule does not prevent a particular part from being determined even if it adjoins:

(a) another part that is also specified in the determination; or

(b) 2 other parts that are also specified in the determination.

21 Subsection 34(5)

Repeal the subsection, substitute:

(5) For the purposes of the application of this section to the availability of the spectrum before 1 January 2007, a datacasting service is a datacasting service provided under, and in accordance with the conditions of, a datacasting licence.

(6) For the purposes of the application of this section to the availability of the spectrum on or after 1 January 2007, a datacasting service is:

(a) a datacasting service provided under, and in accordance with the conditions of, a datacasting licence; or

(b) a datacasting service provided under any other licence allocated by the ABA under this Act; or

22 At the end of subsection 38A(2)

Add:

, so long as:

(a) all of the following conditions are satisfied:

(i) no licence for the licence area previously allocated under this section to the existing licensee has been cancelled because of a breach of the condition set out in paragraph 7(1)(i) of Schedule 2;

(ii) no licence for the licence area previously held by the existing licensee has been cancelled because of a breach of the condition set out in subsection (9);

(iii) no licence for the licence area previously held by the existing licensee has been surrendered; or

(b) both:

(i) paragraph (a) does not apply; and

(ii) the ABA is satisfied that there are exceptional circumstances.

23 After section 38A

Insert:

38B Additional commercial television licences in 2-station markets

(1) If:

(a) a particular licence area is the licence area of only 2 commercial television broadcasting licences (the parent licences) that are in force; and

(b) neither of those licences was allocated under section 38A; and

the existing licensees may, within 90 days after the commencement of this section, give to the ABA:

(d) a joint written notice stating that:

(i) a company specified in the notice (the joint-venture company) will apply for an additional commercial television broadcasting licence for the licence area; and

(ii) the joint-venture company is jointly owned by the existing licensees; and

(iii) the joint-venture company is formed in Australia or an external Territory and has a share capital; or

(e) a joint written notice stating that each of the existing licensees will apply separately for an additional commercial television broadcasting licence for the licence area; or

(f) a joint written notice stating that only the existing licensee specified in the notice will apply for an additional commercial television broadcasting licence for the licence area.

Application by joint-venture company

(2) If a notice is given under paragraph (1)(d), the joint-venture company may, within 12 months after the commencement of this section, apply in writing to the ABA for an additional commercial television broadcasting licence for the licence area.

Separate applications by existing licensees

(3) If a notice is given under paragraph (1)(e), each existing licensee may, within 12 months after the commencement of this section, apply in writing to the ABA for an additional commercial television broadcasting licence for the licence area.

Application by only one of the existing licensees

(4) If a notice is given under paragraph (1)(f), the existing licensee specified in the notice may, within 12 months after the commencement of this section, apply in writing to the ABA for an additional commercial television broadcasting licence for the licence area.

Allocation of additional licence to joint-venture company

(5) As soon as practicable after receiving an application under subsection (2), the ABA must allocate an additional commercial television broadcasting licence to the joint-venture company for the licence area, so long as the ABA is satisfied that the joint-venture company is jointly owned by the existing licensees.

Allocation of additional licence to existing licensee

(6) If the ABA has received applications from both of the existing licensees under subsection (3), the ABA must allocate an additional commercial television broadcasting licence to one of those licensees for the licence area in accordance with a price-based system determined under subsection (10).

(7) If, by the end of the 12-month period beginning at the commencement of this section:

(a) the ABA has received an application from only one existing licensee (the first licensee) under subsection (3); and

(b) the ABA has not received a notice from the other existing licensee stating that it will not be applying under subsection (3);

the ABA must, as soon as practicable after the end of that 12-month period, allocate an additional commercial television broadcasting licence to the first licensee for the licence area.

(8) If the ABA has received:

(a) an application from an existing licensee (the first licensee) under subsection (3); and

(b) a notice from the other existing licensee stating that it will not be applying under subsection (3);

the ABA must, as soon as practicable after both have been received, allocate an additional commercial television broadcasting licence to the first licensee for the licence area.

(9) As soon as practicable after receiving an application under subsection (4), the ABA must allocate an additional commercial television broadcasting licence to the existing licensee concerned for the licence area.

Price-based system for allocating licences where separate applications have been received

(10) The ABA may determine in writing a price-based system for allocating commercial television broadcasting licences under subsection (6).

(11) The Minister may give specific directions to the ABA for the purpose of a determination.

(12) Directions may be to include in a determination specified reserve prices for licences, and those reserve prices may be different for licences in different licence areas.

(13) If a commercial television broadcasting licence is allocated under subsection (6), the ABA must, unless the allocation system adopted was public, publish in the Gazette:

(a) the name of the successful applicant; and

(b) the amount that the applicant agreed to pay to the Commonwealth for the allocation of the licence.

Amalgamation of licence areas in some cases

(14) The ABA may, by writing, determine that, if:

(a) more than 30% of the licence area population of a specified licence area is attributable to a specified overlap area; or

(b) a specified licence area is entirely within another specified licence area;

this section applies as if the 2 licence areas were one.

(15) A determination under subsection (14) has effect accordingly.

(16) A determination under subsection (14) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

Fee for additional licence

(17) On allocation of the additional licence under subsection (5), (7), (8) or (9), the applicant must pay to the ABA a fee determined by the ABA. The fee must not be more than the amount that, in the opinion of the ABA, represents the costs (including planning costs) incurred by the ABA in allocating the additional licence.

Licence conditions

(18) Each additional licence allocated under this section is subject to the following conditions:

(a) the licensee may only provide the commercial television broadcasting service concerned in digital mode (within the meaning of Schedule 4); and

(b) the licensee will commence to provide the commercial television broadcasting service concerned in SDTV digital mode (within the meaning of Schedule 4) by whichever is the earlier of the following times:

(i) the time that is notified in writing to the licensee by the ABA;

(ii) the start of 1 January 2004.

(19) Paragraphs 7(1)(i), 7(1)(l) and 7(1)(m) of Schedule 2 do not apply to an additional licence allocated under this section.

(20) On the allocation of an additional licence under subsection (5), it becomes a condition of:

(a) the additional licence; and

(b) each parent licence;

that the licensee concerned will continue to provide services under the licence concerned for at least 2 years after the commencement of the provision of the commercial television broadcasting service under the additional licence.

(21) On the allocation of an additional licence under subsection (6), (7), (8) or (9), it becomes a condition of:

(a) the additional licence; and

(b) the parent licence concerned;

that the licensee will continue to provide services under those licences for at least 2 years after the commencement of the provision of the commercial television broadcasting service under the additional licence.

Restrictions on transfer of licences

(22) During the period of 2 years after the date of allocation of an additional licence under subsection (5), any attempt by any person to transfer the additional licence is of no effect.

(23) During the period of 2 years after the date of allocation of an additional licence under subsection (6), (7), (8) or (9), any attempt by any person to transfer either:

(a) the additional licence; or

(b) the parent licence concerned;

is of no effect unless both of those licences are transferred at the same time by the same person to the same transferee.

Section 37 restrictions apply

(24) This section has effect subject to section 37.

Jointly owned company

(25) For the purposes of this section, a company (the first company) is jointly owned by 2 other companies if, and only if, each share in the first company is beneficially owned by either or both of those other companies.

24 At the end of section 41

Add:

(4) This section 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).

25 Part 5 (heading)

Repeal the heading, substitute:

Part 5—Control of commercial broadcasting licences and datacasting transmitter licences

26 Before section 53

Insert:

Subdivision A—Commercial broadcasting licences

27 After section 54

Insert:

Subdivision B—Commercial television broadcasting licences and datacasting transmitter licences

54A Limitation on control of commercial television broadcasting licences and datacasting transmitter licences

A person must not be in a position to exercise control of:

(a) a commercial television broadcasting licence; and

(b) a datacasting transmitter licence.

28 Before section 55

Insert:

Subdivision A—Television and radio

29 After section 56

Insert:

Subdivision B—Television and datacasting

56A Limitation on directorships—television and datacasting

(1) A person must not be a director of:

(a) a company that is in a position to exercise control of a commercial television broadcasting licence; and

(b) a company that is in a position to exercise control of a datacasting transmitter licence.

(2) A person must not:

(a) be in a position to exercise control of a commercial television broadcasting licence; and

(b) be a director of a company that is in a position to exercise control of a datacasting transmitter licence.

(3) A person must not:

(a) be a director of a company that is in a position to exercise control of a commercial television broadcasting licence; and

(b) be in a position to exercise control of a datacasting transmitter licence.

30 Subsection 62(1)

Omit “and commercial radio broadcasting licensee”, substitute “, commercial radio broadcasting licensee and datacasting transmitter licensee”.

31 Paragraph 62(1)(c)

Before “the name of”, insert “in the case of a commercial television broadcasting licensee or a commercial radio broadcasting licensee—”.

32 Section 62 (penalty)

After “commercial television broadcasting licence”, insert “or datacasting transmitter licence”.

33 Subsection 63(1)

Omit “or commercial radio broadcasting licensee”, substitute “, commercial radio broadcasting licensee or datacasting transmitter licensee”.

34 Section 63 (penalty)

After “commercial television broadcasting licence”, insert “or datacasting transmitter licence”.

35 Subsection 64(1)

Omit “or a commercial radio broadcasting licence”, substitute “, a commercial radio broadcasting licence or a datacasting transmitter licence”.

Note: The heading to section 64 is altered by omitting “commercial” and substituting “a”.

36 Section 64 (penalty)

After “commercial television broadcasting licence”, insert “or datacasting transmitter licence”.

37 Subsection 66(1) (penalty)

After “commercial television broadcasting licence”, insert “or datacasting transmitter licence”.

38 Section 69 (penalty)

After “commercial television broadcasting licence”, insert “or datacasting transmitter licence”.

39 Section 72 (penalty)

After “commercial television broadcasting licence”, insert “or datacasting transmitter licence”.

40 At the end of section 73

Add:

(2) This section does not apply to the licences at any time after either of the licences is first held by a different person (whether or not it continues to be held by a different person).

41 After section 73

Insert:

73A Additional licence under section 38B not to result in breach of ownership limits

(1) If an additional licence has been allocated under subsection 38B(6), (7), (8) or (9) to the holder of an existing licence, the existing licence and additional licence are to be treated, for the purposes of this Part, as being only one licence.

(2) Subsection (1) does not apply to the licences at any time after either of the licences is first held by a different person (whether or not it continues to be held by a different person).

(3) If an additional licence has been allocated under subsection 38B(5) to a company, then, while:

(a) the company remains:

(i) the holder of the additional licence; and

(ii) partly owned by another company that was the holder of one of the existing licences at the time of the allocation; and

(b) the other company remains the holder of the existing licence;

the existing licence and the additional licence are to be treated, for the purposes of this Part, as being only one licence.

(4) For the purposes of this section, a company (the first company) is partly owned by another company if, and only if, at least one share in the first company is beneficially owned by the other company.

42 Paragraphs 74(1)(a) and (b)

Before “a newspaper”, insert “a datacasting transmitter licence,”.

43 Subsection 74(2)

Before “the newspaper”, insert “the datacasting transmitter licence,”.

44 Paragraph 75(1)(aa)

After “38A”, insert “or 38B”.

45 At the end of section 83

Add:

46 At the end of section 92D

Add:

47 At the end of section 98

Add:

48 Paragraph 158(g)

After “programs”, insert “and datacasting content”.

49 Paragraph 158(h)

After “broadcasting service providers”, insert “and datacasting service providers”.

50 Paragraph 158(l)

After “(including national broadcasting services)”, insert “and datacasting services”.

51 Paragraph 158(m)

After “the broadcasting industry”, insert “and the datacasting industry”.

52 Paragraph 202(4)(c)

Repeal the paragraph, substitute:

(i) a television or radio program; or

(ii) datacasting content.

53 Subsection 202(5)

Repeal the subsection, substitute:

(5) For the purposes of this section, journalist means a person engaged in the profession or practice of reporting for, photographing, editing, recording or making:

(a) television or radio programs; or

(b) datacasting content;

of a news, current affairs, information or documentary character.

54 Section 204 (after table item dealing with refusal to allocate an additional licence)

Insert:

Refusal to allocate an additional licence

Section 38B

The applicant

55 Section 206

After “broadcasting”, insert “or datacasting”.

Note: The heading to section 206 is altered by inserting “or datacasting” after “Broadcasting”.

56 Subsection 214(1)

After “section 140”, insert “or subclause 49(2), 50(3), 52(2) or 53(5) of Schedule 6”.

57 After section 216B

Insert:

216C Schedule 6 (datacasting services)

Schedule 6 has effect.

58 Subclause 1(1) of Schedule 1

Before “newspapers”, insert “datacasting transmitter licences, ”.

59 Subclause 1(2) of Schedule 1

Omit “industry” (first occurring), substitute “and datacasting industries”.

60 Subclause 1(2) of Schedule 1

Omit “the industry”, substitute “those industries”.

61 Paragraph 2(1)(b) of Schedule 1

After “licence” (first occurring), insert “(other than a datacasting transmitter licence)”.

62 After paragraph 2(1)(b) of Schedule 1

Insert:

(ba) in the case of a datacasting transmitter licence:

(i) the person is the licensee; or

(ii) the person, either alone or together with an associate of the person, is in a position to exercise (whether directly or indirectly) control of the selection or provision of a significant proportion of the datacasting content transmitted by the licensee; or

(iii) the person, either alone or together with an associate of the person, is in a position to exercise (whether directly or indirectly) control of a significant proportion of the operations of the licensee in transmitting datacasting services under the licence; or

63 After subclause 2(2) of Schedule 1

Insert:

(2A) Paragraph (1)(ba) does not apply to the provision of datacasting content by a person to a licensee under an agreement for the supply of datacasting content to the licensee if:

(a) the conditions of the agreement relate only to the datacasting content so supplied or its promotion; and

(b) the content so supplied is a minority of the datacasting content transmitted by the licensee.

64 Paragraph 4(2)(b) of Schedule 1

Before “controls”, insert “in the case of a licensee other than a datacasting transmitter licensee—”.

65 After paragraph 4(2)(b) of Schedule 1

Insert:

(ba) in the case of a datacasting transmitter licensee—controls the selection or provision of any of the datacasting content to be transmitted by the licensee; or

66 Subclause 4(4) of Schedule 1 (before paragraph (c) of the definition of media company)

Insert:

(bb) a company that holds a datacasting transmitter licence; or

67 Paragraph 7(1)(m) of Schedule 2

Omit “digital mode”, substitute “SDTV digital mode”.

68 Paragraph 7(1)(n) of Schedule 2

Omit “clause 37”, substitute “Division 1 of Part 4”.

69 After paragraph 7(1)(n) of Schedule 2

Insert:

(na) the licensee will comply with standards applicable to the licence under Division 2 of Part 4 of Schedule 4 (which deals with HDTV quotas);

70 At the end of subclause 18(2) of Schedule 3

Add:

; or (p) make, vary or revoke an instrument that is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901; or

(q) make or vary a digital channel plan under a scheme in force under clause 6 of Schedule 4; or

(r) make or vary a digital channel plan under a scheme in force under clause 19 of Schedule 4.

71 Clause 1 of Schedule 4

Omit “both analog mode and digital mode”, substitute “both analog mode and SDTV digital mode”.

72 Clause 1 of Schedule 4

Omit “High Definition Television (HDTV) format transmission of television programs in digital mode”, substitute “quotas for the transmission of programs in HDTV digital mode”.

73 Clause 1 of Schedule 4

After “1 January 2000”, insert “, 1 January 2004”.

74 Clause 2 of Schedule 4 (definition of datacasting service)

Repeal the definition.

75 Clause 2 of Schedule 4

Insert:

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 Schedule 6; and

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

76 Clause 2 of Schedule 4

Insert:

HDTV digital mode has the meaning given by clause 4A.

77 Clause 2 of Schedule 4

Insert:

SDTV digital mode has the meaning given by clause 4B.

78 Clause 2 of Schedule 4

Insert:

television broadcasting service means:

(a) a commercial television broadcasting service; or

(b) a national television broadcasting service.

79 After clause 4 of Schedule 4

Insert:

4A HDTV digital mode

For the purposes of this Schedule, a television program or a television broadcasting service is broadcast or transmitted in HDTV digital mode if the program or service is broadcast or transmitted in digital mode in a high definition format.

4B SDTV digital mode

For the purposes of this Schedule, a program or a television broadcasting service is broadcast or transmitted in SDTV digital mode if the program or service is broadcast or transmitted in digital mode in a standard definition format.

80 Paragraphs 6(3)(a), (b) and (c) of Schedule 4

Omit “digital mode”, substitute “SDTV digital mode”.

81 Paragraph 6(3)(e) of Schedule 4

Repeal the paragraph, substitute:

(e) the objective that each additional channel should occupy 7 MHz of bandwidth;

82 Paragraph 6(3)(f) of Schedule 4

Omit “digital mode”, substitute “SDTV digital mode”.

83 Paragraph 6(3)(h) of Schedule 4

Repeal the paragraph, substitute:

(h) the objective that, at the end of the simulcast period for a licence area, all transmissions of commercial television broadcasting services in analog mode in that area are to cease;

(ha) the objective that, after the end of the simulcast period for a licence area, each holder of a commercial television broadcasting licence for that area is to transmit the commercial television broadcasting service concerned in digital mode in that area using such channel or channels as the ABA allots under the scheme or a digital channel plan, having regard to:

(i) the need to plan the most efficient use of the spectrum; and

(ii) the other relevant policy objectives of the scheme;

84 Paragraph 6(3)(j) of Schedule 4

Omit “digital mode”, substitute “SDTV digital mode”.

85 At the end of paragraph 6(3)(k) of Schedule 4

Add “provided under, and in accordance with the conditions of, datacasting licences”.

86 After subclause 6(5) of Schedule 4

Insert:

(5A) If:

(a) the holder of a commercial television broadcasting licence holds another commercial television broadcasting licence; and

(b) the other licence was allocated under section 38A or 38B; and

(d) at or about the time when the other licence was allocated, the holder gave the ABA a written notice electing that this subclause apply to both of the commercial television broadcasting services concerned;

then:

(e) paragraphs (3)(d), (e) and (ha) do not apply to either of the commercial television broadcasting services concerned; and

(f) Part A of the commercial television conversion scheme must be directed towards ensuring the achievement of the objectives set out in subclause (5B).

(5B) The objectives mentioned in paragraph (5A)(f) are as follows:

(a) the objective that, throughout the simulcast period for the licence area, the holder should be authorised, under one or more transmitter licences, to use one or more particular channels to transmit both of the commercial television broadcasting services concerned in digital mode in that area using multi-channelling transmission capacity on each channel;

(b) the objective that each channel should occupy 7 MHz of bandwidth;

(c) the objective that, after the end of the simulcast period for the licence area, the holder is to transmit both of the commercial television broadcasting services concerned in digital mode in that area using multi-channelling transmission capacity of a channel or channels allotted by the ABA under the scheme or a digital channel plan, having regard to:

(i) the need to plan the most efficient use of the spectrum; and

(ii) the other relevant policy objectives of the scheme.

(5C) Paragraphs (3)(c), (d), (e), (f), (h) and (j) do not apply to a commercial television broadcasting service provided under a licence allocated under section 38B.

Note: Under section 38B, it is a condition of the licence that the service may only be transmitted in digital mode.

87 After subclause 6(6) of Schedule 4

Insert:

Remote licence areas—start-up of digital transmission

(6A) Part B of the commercial television conversion scheme must be directed towards ensuring the achievement of the policy objective that each holder of a commercial television broadcasting licence for a remote licence area is required to commence transmitting the commercial television broadcasting service concerned in SDTV digital mode in that area by such date as the ABA determines under the scheme.

88 Subclause 6(7) of Schedule 4

Omit “digital mode”, substitute “SDTV digital mode”.

89 After subclause 6(7) of Schedule 4

Insert:

(7A) The simulcast period for a particular remote licence area:

(a) is to begin on the date determined in relation to that area in accordance with subclause (6A); and

(b) is to run for such period as the ABA determines under the scheme.

90 Subclause 6(8) of Schedule 4

Omit “digital mode”, substitute “SDTV digital mode”.

91 At the end of subclause 6(8) of Schedule 4

Add:

; and (c) ignore any category A digital program-enhancement content (as defined by subclause (14)) and any category B digital program-enhancement content (as defined by subclause (15)); and

(d) ignore a particular television program transmitted using multi-channelling transmission capacity, where:

(i) the program is a scheduled program that provides live coverage of a designated event (as defined by subclause (20)); and

(ii) the other television program broadcast using that multi-channelling transmission capacity was scheduled at least one week before the start of the designated event; and

(iii) the end of the designated event is delayed for reasons that are not within the control of the licensee or of the person (if any) who supplied the first-mentioned program to the licensee (either directly or indirectly through one or more interposed persons); and

(iv) the sole purpose of the use of the multi-channelling transmission capacity is to allow viewers of the SDTV version of the commercial television broadcasting service to choose between viewing the other television program and viewing so much of the designated event as overlaps the other television program; and

(e) ignore an electronic program guide (as defined by subclause (24)).

92 After subclause 6(8) of Schedule 4

Insert:

(8A) For the purposes of this Act (other than paragraph (3)(c) or subclauses (7), (8) and (11) of this clause or Division 2 of Part 4 of this Schedule) and any other law of the Commonwealth, if the holder of a commercial television broadcasting licence transmits matter that is required to be ignored by paragraph (8)(c), (d) or (e) of this clause, that matter is taken to be part of the commercial television broadcasting service concerned.

93 Subclause 6(11) of Schedule 4

Omit “digital mode”, substitute “SDTV digital mode”.

94 At the end of clause 6 of Schedule 4

Add:

Category A digital program-enhancement content

(14) For the purposes of this clause, category A digital program-enhancement content is content:

(a) whether in the form of text; or

(b) whether in the form of data; or

(d) whether in the form of visual images (animated or otherwise); or

(e) whether in any other form; or

(f) whether in any combination of forms;

where:

(g) the content is transmitted using a digital modulation technique; and

(h) the sole purpose of the transmission of the content is to enhance a television program (the primary program); and

(i) the subject matter of the content is closely and directly linked to the subject matter of the primary program; and

(j) the licensee transmits simultaneously the content and the primary program; and

(k) either:

(i) the licensee transmits simultaneously the primary program in both analog mode and SDTV digital mode; or

(ii) the primary program is covered by a determination under subclause (9) or (10).

Note: For example, if the primary program is live coverage of a tennis match, the category A digital program-enhancement content could consist of any or all of the following:

(a) the match from different camera angles;

(b) each player’s results in past matches;

(d) each player’s ranking and career highlights.

Category B digital program-enhancement content

(15) For the purposes of this clause, category B digital program-enhancement content is a television program that provides live coverage of one or more sporting events (the first sporting events), where:

(a) the television program is transmitted in digital mode; and

(b) each of the first sporting events involves the same sport and takes place at the same venue; and

(c) the licensee transmits simultaneously another television program that provides live coverage of one or more other sporting events; and

(d) the other sporting events:

(i) involve the same sport as the first sporting events; and

(ii) take place at the same venue as the first sporting events; and

(iii) overlap the first sporting events; and

(e) either:

(i) the licensee transmits simultaneously the other television program in both analog mode and SDTV digital mode; or

(ii) the other television program is covered by a determination under subclause (10).

(16) The ABA may make a written determination providing that, for the purposes of subclause (15), each of 2 or more specified sporting events are taken to involve the same sport.

Note: For specification by class, see subsection 46(2) of the Acts Interpretation Act 1901.

(17) The ABA may make a written determination providing that, for the purposes of subclause (15), each of 2 or more specified sporting events are taken not to involve the same sport.

Note: For specification by class, see subsection 46(2) of the Acts Interpretation Act 1901.

(18) A determination under subclause (16) or (17) has effect accordingly.

(19) A determination under subclause (16) or (17) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

Designated event

(20) For the purposes of this clause, a designated event is:

(a) a sporting event; or

(b) a declared designated event (as defined by subclause (21)).

(21) The ABA may, by writing, determine that a specified event is a declared designated event for the purposes of this clause.

Note: For specification by class, see subsection 46(2) of the Acts Interpretation Act 1901.

(22) A determination under subclause (21) has effect accordingly.

(23) A determination under subclause (21) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

Electronic program guide

(24) For the purposes of this clause, an electronic program guide is matter transmitted using a digital modulation technique, where the matter consists of no more than:

(a) a schedule of the television programs provided by:

(i) any or all of the commercial television broadcasting services; or

(ii) any or all of the national television broadcasting services;

or both; or

(b) a combination of:

(i) a schedule covered by paragraph (a); and

(ii) items of factual information, and/or items of comment, about some or all of the programs in the schedule, where each item is brief and in the form of text; or

(i) a schedule covered by paragraph (a); and

(ii) a facility the sole purpose of which is to enable an end-user to select, and commence viewing, one or more of the programs in the schedule; or

(d) a combination of:

(i) a schedule covered by paragraph (a); and

(ii) items of factual information, and/or items of comment, about some or all of the programs in the schedule, where each item is brief and in the form of text; and

(iii) a facility the sole purpose of which is to enable an end-user to select, and commence viewing, one or more of the programs in the schedule.

95 After clause 7 of Schedule 4

Insert:

7A Scheme may confer power to make digital channel plans

(1) The commercial television conversion scheme may provide for the ABA to make one or more plans (digital channel plans) that:

(a) allot channels to holders of commercial television broadcasting licences; and

(b) set out any technical limitations on the use of a particular channel that the ABA believes should be shown in the plan; and

(2) The commercial television conversion scheme may provide that a digital channel plan may include other matters.

(3) The commercial television conversion scheme may provide for the ABA to vary a digital channel plan.

96 Subclauses 8(4), (5) and (6) of Schedule 4

Repeal the subclauses, substitute:

Return of spectrum at end of simulcast period

(4) If, at the end of the simulcast period for a licence area, the holder of a commercial television broadcasting licence for the area holds one or more transmitter licences that authorised the transmission of the commercial television broadcasting service concerned in that area, Part A of the commercial television conversion scheme must make provision for:

(a) requiring the holder to surrender the transmitter licence or licences, with effect from the end of the simulcast period; and

(b) requiring the ACA to issue, with effect from the end of the simulcast period, one or more transmitter licences that authorise the transmission of the commercial television broadcasting service concerned using the channel or channels mentioned in whichever of the following provisions is applicable:

(i) paragraph 6(3)(ha) of this Schedule;

(ii) paragraph 6(5B)(c) of this Schedule.

97 Paragraph 8(7)(a) of Schedule 4

Repeal the paragraph, substitute:

(a) the holder contravenes a standard under subclause 37(1) or 37A(1) or 37E(1) or (3); and

Note: The heading to subclause 8(7) of Schedule 4 is altered by inserting “format and” after “if”.

98 Subclause 8(8) of Schedule 4

Omit “the licence that was surrendered as mentioned in that subclause”, substitute “a licence that was surrendered on the grounds of a contravention of a standard under subclause 37A(1) or 37E(1) or (3)”.

99 Subclause 8(9) of Schedule 4

Repeal the subclause.

100 Subclause 8(10) of Schedule 4

Omit all the words after “if the holder”, substitute:

does not comply with:

(a) a specified requirement of that Part of the scheme; or

(b) a standard applicable to the holder under subclause 37B(1) or 37C(1) or 37G(1) or (2).

101 After subclause 8(10) of Schedule 4

Insert:

(10A) Subclause (10) does not prevent the commercial television conversion scheme from making provision for requiring the ACA to issue a transmitter licence to replace a licence that was surrendered on the grounds of a contravention of a standard under subclause 37C(1) or 37G(1) or (2). However, the amount of transmission capacity covered by the replacement licence must be less than the amount of transmission capacity covered by the surrendered licence.

102 Paragraphs 19(3)(a), (b) and (c) of Schedule 4

Omit “digital mode”, substitute “SDTV digital mode”.

103 Paragraph 19(3)(e) of Schedule 4

Repeal the paragraph, substitute:

(e) the objective that each additional channel should occupy 7 MHz of bandwidth;

104 Paragraph 19(3)(f) of Schedule 4

Omit “digital mode”, substitute “SDTV digital mode”.

105 Paragraph 19(3)(h) of Schedule 4

Repeal the paragraph, substitute:

(h) the objective that, at the end of the simulcast period for a coverage area, all transmissions of national television broadcasting services in analog mode in that area are to cease;

(ha) the objective that, after the end of the simulcast period for a coverage area, each national broadcaster is to transmit the national broadcasting service concerned in digital mode in that area using such channel or channels as the ABA allots under the scheme or a digital channel plan, having regard to:

(i) the need to plan the most efficient use of the spectrum; and

(ii) the other policy objectives of the scheme;

106 Paragraph 19(3)(j) of Schedule 4

Omit “digital mode”, substitute “SDTV digital mode”.

107 At the end of paragraph 19(3)(k) of Schedule 4

Add “provided under, and in accordance with the conditions of, datacasting licences”.

108 After subclause 19(6) of Schedule 4

Insert:

Remote coverage areas—start-up of digital transmission

(6A) Part B of the national television conversion scheme must be directed towards ensuring the achievement of the policy objective that each national broadcaster is required to commence transmitting the national television broadcasting service concerned in SDTV digital mode in a remote coverage area by such date as is ascertained in relation to that area in accordance with an implementation plan that was given by the broadcaster, and is in force, under clause 20.

109 Subclause 19(7) of Schedule 4

Omit “digital mode”, substitute “SDTV digital mode”.

110 After subclause 19(7) of Schedule 4

Insert:

(7A) The simulcast period for a particular remote coverage area:

(a) is to begin on the date mentioned in subclause (6A); and

(b) is to end at the end of the simulcast period (within the meaning of subclause 6(7)) for the licence area that corresponds to that coverage area.

111 Subclause 19(8) of Schedule 4

Omit “digital mode”, substitute “SDTV digital mode”.

112 At the end of subclause 19(8) of Schedule 4

Add:

; and (c) ignore any category A digital program-enhancement content (as defined by subclause (14)) and any category B digital program-enhancement content (as defined by subclause (15)); and

(d) ignore a particular television program transmitted using multi-channelling transmission capacity, where:

(i) the program is a scheduled program that provides live coverage of a designated event (as defined by subclause (20)); and

(ii) the other television program broadcast using that multi-channelling transmission capacity was scheduled at least one week before the start of the designated event; and

(iii) the end of the designated event is delayed for reasons that are not within the control of the national broadcaster or of the person (if any) who supplied the first-mentioned program to the national broadcaster (either directly or indirectly through one or more interposed persons); and

(iv) the sole purpose of the use of the multi-channelling transmission capacity is to allow viewers of the SDTV version of the national television broadcasting service to choose between viewing the other television program and viewing so much of the designated event as overlaps the other television program; and

(e) ignore an electronic program guide (as defined by subclause (24)).

113 After subclause 19(8) of Schedule 4

Insert:

(8A) For the purposes of this Act (other than paragraph (3)(c) or subclauses (7), (8) and (11) of this clause or Division 2 of Part 4 of this Schedule) and any other law of the Commonwealth, if a national broadcaster transmits matter that is required to be ignored by paragraph (8)(c), (d) or (e) of this clause, that matter is taken to be part of the national television broadcasting service concerned.

114 Subclause 19(11) of Schedule 4

Omit “digital mode”, substitute “SDTV digital mode”.

115 At the end of clause 19 of Schedule 4

Add:

Category A digital program-enhancement content

(14) For the purposes of this clause, category A digital program-enhancement content is content:

(a) whether in the form of text; or

(b) whether in the form of data; or

(d) whether in the form of visual images (animated or otherwise); or

(e) whether in any other form; or

(f) whether in any combination of forms;

where:

(g) the content is transmitted using a digital modulation technique; and

(h) the sole purpose of the transmission of the content is to enhance a television program (the primary program); and

(i) the subject matter of the content is closely and directly linked to the subject matter of the primary program; and

(j) the national broadcaster transmits simultaneously the content and the primary program; and

(k) either:

(i) the national broadcaster transmits simultaneously the primary program in both analog mode and SDTV digital mode; or

(ii) the primary program is covered by a determination under subclause (9) or (10).

Note: For example, if the primary program is live coverage of a tennis match, the category A digital program-enhancement content could consist of any or all of the following:

(a) the match from different camera angles;

(b) each player’s results in past matches;

(d) each player’s ranking and career highlights.

Category B digital program-enhancement content

(a) the television program is transmitted in digital mode; and

(b) each of the first sporting events involves the same sport and takes place at the same venue; and

(c) the national broadcaster transmits simultaneously another television program that provides live coverage of one or more other sporting events; and

(d) the other sporting events:

(i) involve the same sport as the first sporting events; and

(ii) take place at the same venue as the first sporting events; and

(iii) overlap the first sporting events; and

(e) either:

(i) the national broadcaster transmits simultaneously the other television program in both analog mode and SDTV digital mode; or

(ii) the other television program is covered by a determination under subclause (10).

(16) The ABA may make a written determination providing that, for the purposes of subclause (15), each of 2 or more specified sporting events are taken to involve the same sport.

Note: For specification by class, see subsection 46(2) of the Acts Interpretation Act 1901.

(17) The ABA may make a written determination providing that, for the purposes of subclause (15), each of 2 or more specified sporting events are taken not to involve the same sport.

Note: For specification by class, see subsection 46(2) of the Acts Interpretation Act 1901.

(18) A determination under subclause (16) or (17) has effect accordingly.

(19) A determination under subclause (16) or (17) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

Designated event

(20) For the purposes of this clause, a designated event is:

(a) a sporting event; or

(b) a declared designated event (as defined by subclause (21)).

(21) The ABA may, by writing, determine that a specified event is a declared designated event for the purposes of this clause.

Note: For specification by class, see subsection 46(2) of the Acts Interpretation Act 1901.

(22) A determination under subclause (21) has effect accordingly.

(23) A determination under subclause (21) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

Electronic program guide

(24) For the purposes of this clause, an electronic program guide is matter transmitted using a digital modulation technique, where the matter consists of no more than:

(a) a schedule of the television programs provided by:

(i) any or all of the national television broadcasting services; or

(ii) any or all of the commercial television broadcasting services;

or both; or

(b) a combination of:

(i) a schedule covered by paragraph (a); and

(ii) items of factual information, and/or items of comment, about some or all of the programs in the schedule, where each item is brief and in the form of text; or

(i) a schedule covered by paragraph (a); and

(ii) a facility the sole purpose of which is to enable an end-user to select, and commence viewing, one or more of the programs in the schedule; or

(d) a combination of:

(i) a schedule covered by paragraph (a); and

(ii) items of factual information, and/or items of comment, about some or all of the programs in the schedule, where each item is brief and in the form of text; and

(iii) a facility the sole purpose of which is to enable an end-user to select, and commence viewing, one or more of the programs in the schedule.

116 After clause 22 of Schedule 4

Insert:

22A Scheme may confer power to make digital channel plans

(1) The national television conversion scheme may provide for the ABA to make one or more plans (digital channel plans) that:

(a) allot channels to national broadcasters; and

(b) set out any technical limitations on the use of a particular channel that the ABA believes should be shown in the plan; and

(2) The national television conversion scheme may provide that a digital channel plan may include other matters.

(3) The national television conversion scheme may provide for the ABA to vary a digital channel plan.

117 Subclauses 23(4), (5) and (6) of Schedule 4

Repeal the subclauses, substitute:

Return of spectrum at end of simulcast period

(4) If, at the end of the simulcast period for a coverage area, a national broadcaster holds one or more transmitter licences that authorised the transmission of the national television broadcasting service concerned in that area, Part A of the national television conversion scheme must make provision for:

(a) requiring the national broadcaster to surrender the licence or licences, with effect from the end of the simulcast period; and

(b) requiring the ACA to issue, with effect from the end of the simulcast period, one or more transmitter licences that authorise the transmission of the national broadcasting service concerned using the channel or channels mentioned in paragraph 19(3)(ha) of this Schedule.

118 Paragraph 23(7)(a) of Schedule 4

Repeal the paragraph, substitute:

(a) the national broadcaster contravenes a standard under subclause 37(1) or 37A(1) or 37F(1) or (3); and

Note: The heading to subclause 23(7) of Schedule 4 is altered by inserting “format and” after “if”.

119 Subclause 23(8) of Schedule 4

120 Subclause 23(9) of Schedule 4

Repeal the subclause.

121 Subclause 23(10) of Schedule 4

Omit all the words after “if the national broadcaster”, substitute:

does not comply with:

(a) a specified requirement of that Part of the scheme; or

(b) a standard applicable to the national broadcaster under subclause 37B(1) or 37C(1) or 37H(1) or (2).

122 After subclause 23(10) of Schedule 4

Insert:

(10A) Subclause (10) does not prevent the national television conversion scheme from making provision for requiring the ACA to issue a transmitter licence to replace a licence that was surrendered on the grounds of a contravention of a standard under subclause 37C(1) or 37H(1) or (2). However, the amount of transmission capacity covered by the replacement licence must be less than the amount of transmission capacity covered by the surrendered licence.

123 Subclause 35(1) of Schedule 4

Omit “digital mode”, substitute “SDTV digital mode”.

124 Subclause 36(2) of Schedule 4

Repeal the subclause.

125 Clause 36A of Schedule 4

Repeal the clause.

126 Clause 37 of Schedule 4

Repeal the clause, substitute:

Division 1—Digital television format standards

37 Non-remote areas—SDTV format standards

(1) The regulations may determine standards that are to be observed by:

(a) commercial television broadcasting licensees; and

(b) national broadcasters;

in relation to the format in which television programs are to be transmitted in SDTV digital mode.

(2) Subclause (1) applies in relation to the transmission of a commercial television broadcasting service in a licence area that is not a remote licence area, where that service is transmitted in digital mode in that area.

(3) Subclause (1) applies in relation to the transmission of a national television broadcasting service in a coverage area that is not a remote coverage area, where that service is transmitted in digital mode in that area.

37A Non-remote areas—HDTV format standards

(1) The regulations may determine standards that are to be observed by:

(a) commercial television broadcasting licensees; and

(b) national broadcasters;

in relation to the format in which television programs are to be transmitted in HDTV digital mode.

(2) Subclause (1) applies in relation to the transmission of a commercial television broadcasting service in a licence area that is not a remote licence area, where:

(a) that service is transmitted in digital mode in that area; and

(b) that service is not transmitted using a transmitter operated under the authority of a transmitter licence issued as mentioned in subclause 8(8).

(3) Subclause (1) applies in relation to the transmission of a national television broadcasting service in a coverage area that is not a remote coverage area, where:

(a) that service is transmitted in digital mode in that area; and

(b) that service is not transmitted using a transmitter operated under the authority of a transmitter licence issued as mentioned in subclause 23(8).

37B Remote areas—SDTV format standards

(1) The regulations may determine standards that are to be observed by:

(a) commercial television broadcasting licensees; and

(b) national broadcasters;

in relation to the format in which television programs are to be transmitted in SDTV digital mode.

(2) Subclause (1) applies in relation to the transmission of a commercial television broadcasting service in a remote licence area, where that service is transmitted in digital mode in that area.

(3) Subclause (1) applies in relation to the transmission of a national television broadcasting service in a remote coverage area, where that service is transmitted in digital mode in that area.

37C Remote areas—HDTV format standards

(1) The regulations may determine standards that are to be observed by:

(a) commercial television broadcasting licensees; and

(b) national broadcasters;

in relation to the format in which television programs are to be transmitted in HDTV digital mode.

(2) Subclause (1) applies in relation to the transmission of a commercial television broadcasting service in a remote licence area, where:

(a) that service is transmitted in digital mode in that area; and

(b) that service is not transmitted using a transmitter operated under the authority of a transmitter licence issued as mentioned in subclause 8(10A).

(3) Subclause (1) applies in relation to the transmission of a national television broadcasting service in a remote coverage area, where:

(a) that service is transmitted in digital mode in that area; and

(b) that service is not transmitted using a transmitter operated under the authority of a transmitter licence issued as mentioned in subclause 23(10A).

37D Compliance by national broadcasters

A national broadcaster must comply with a standard under this Division that is applicable to the broadcaster.

Note: For compliance by licensees, see clause 7 of Schedule 2.

Division 2—HDTV quota standards

37E Non-remote areas—HDTV quotas for commercial television broadcasting licensees

(1) The regulations must determine standards that require each commercial television broadcasting licensee:

(a) in addition to transmitting a version of the commercial television broadcasting service concerned in SDTV digital mode in the licence area concerned, to transmit another version (the HDTV version) of the service in digital mode in that area; and

(b) to meet specified quotas in relation to the extent to which high-definition television programs, or specified kinds of high-definition television programs, are transmitted in HDTV digital mode on the HDTV version of that service in that area; and

(c) if the licence was not allocated under section 38B—to ensure that a particular television program transmitted on the HDTV version of that service in that area during the simulcast period for that area is the same as:

(i) a program (the analog program) that is transmitted simultaneously by the licensee on that service in analog mode in that area and that is not covered by a determination under subclause 6(9) or (10); or

(ii) a program (the SDTV program) that is transmitted simultaneously by the licensee on that service in SDTV digital mode in that area and that is covered by a determination under subclause 6(9) or (10); and

(d) if the licence was allocated under section 38B—to ensure that a particular television program transmitted on the HDTV version of that service in that area during the simulcast period for that area is the same as a program (the SDTV program) that is transmitted simultaneously by the licensee on that service in SDTV digital mode in that area.

(2) Standards made for the purposes of subclause (1) must be directed towards ensuring the achievement of the following policy objectives:

(a) the objective that the transmission mentioned in paragraph (1)(a) is to commence:

(i) as soon as practicable after the licensee begins to transmit the commercial television broadcasting service concerned in SDTV mode in that area; and

(ii) in any event, within the 2-year period beginning when the licensee is required to commence transmitting the commercial television broadcasting service concerned in SDTV digital mode in that area;

(b) the objective that, after the end of that 2-year period, each holder of a commercial television broadcasting licence for a licence area is required to transmit at least 20 hours per week of high-definition television programs in HDTV digital mode in that area on the HDTV version of the commercial television broadcasting service concerned.

Prime viewing hours quotas

(3) The regulations may determine standards that require commercial television broadcasting licensees to meet specified quotas in relation to the extent to which high-definition television programs, or specified kinds of high-definition television programs, are transmitted in HDTV digital mode in prime viewing hours on the HDTV version of the commercial television broadcasting service concerned.

Application

(4) Subclauses (1), (2) and (3) apply in relation to the transmission of a commercial television broadcasting service in a licence area that is not a remote licence area, where:

(a) that service is transmitted in digital mode in that area; and

(b) that service is not transmitted using a transmitter operated under the authority of a transmitter licence issued as mentioned in subclause 8(8); and

Note 1: For high-definition television program, see clause 37L.

Note 2: For prime viewing hours, see clause 37M.

37F Non-remote areas—HDTV quotas for national broadcasters

(1) The regulations must determine standards that require each national broadcaster:

(a) in addition to transmitting a version of the national television broadcasting service concerned in SDTV digital mode in the coverage area concerned, to transmit another version (the HDTV version) of the service in digital mode in that area; and

(c) to ensure that a particular television program transmitted on the HDTV version of that service in that area during the simulcast period for that area is the same as:

(i) a program (the analog program) that is transmitted simultaneously by the broadcaster on that service in analog mode in that area and that is not covered by a determination under subclause 19(9) or (10); or

(ii) a program (the SDTV program) that is transmitted simultaneously by the broadcaster on that service in SDTV digital mode in that area and that is covered by a determination under subclause 19(9) or (10).

(2) Standards made for the purposes of subclause (1) must be directed towards ensuring the achievement of the following policy objectives:

(a) the objective that the transmission mentioned in paragraph (1)(a) is to commence:

(i) as soon as practicable after the broadcaster begins to transmit the national television broadcasting service concerned in SDTV mode in that area; and

(ii) in any event, within the 2-year period beginning when the broadcaster is required to commence transmitting the national television broadcasting service concerned in SDTV digital mode in that area;

(b) the objective that, after the end of that 2-year period:

(i) the Australian Broadcasting Corporation is required to transmit at least 20 hours per week of high-definition television programs in HDTV digital mode in a coverage area on the HDTV version of the national television broadcasting service concerned; and

(ii) until 1 January 2006, at least 4 of those 20 hours per week of high-definition television programs must consist of programs that are covered by paragraph 37L(2)(c) or (d);

(c) the objective that, after the end of that 2-year period, the Special Broadcasting Service Corporation is required to transmit at least 20 hours per week of high-definition television programs in HDTV digital mode in a coverage area on the HDTV version of the national television broadcasting service concerned.

Prime viewing hours quotas

(3) The regulations may determine standards that require national broadcasters to meet specified quotas in relation to the extent to which high-definition television programs, or specified kinds of high-definition television programs, are transmitted in HDTV digital mode in prime viewing hours on the HDTV version of the national television broadcasting service concerned.

Application

(4) Subclauses (1), (2) and (3) apply in relation to the transmission of a national television broadcasting service in a coverage area that is not a remote coverage area, where:

(a) that service is transmitted in digital mode in that area; and

(b) that service is not transmitted using a transmitter operated under the authority of a transmitter licence issued as mentioned in subclause 23(8).

Note 1: For high-definition television program, see clause 37L.

Note 2: For prime viewing hours, see clause 37M.

37G Remote areas—HDTV quotas for commercial television broadcasting licensees

(1) The regulations may determine standards that require each commercial television broadcasting licensee:

Prime viewing hours quotas

(2) The regulations may determine standards that require commercial television broadcasting licensees to meet specified quotas in relation to the extent to which high-definition television programs, or specified kinds of high-definition television programs, are transmitted in HDTV digital mode in prime viewing hours on the HDTV version of the commercial television broadcasting service concerned.

Application

(3) Subclauses (1) and (2) apply in relation to the transmission of a commercial television broadcasting service in a remote licence area, where:

(a) that service is transmitted in digital mode in that area; and

(b) that service is not transmitted using a transmitter operated under the authority of a transmitter licence issued as mentioned in subclause 8(10A).

Note 1: For high-definition television program, see clause 37L.

Note 2: For prime viewing hours, see clause 37M.

37H Remote areas—HDTV quotas for national broadcasters

(1) The regulations may determine standards that require each national broadcaster:

(c) to ensure that a particular television program transmitted on the HDTV version of that service in that area during the simulcast period for that area is the same as:

Prime viewing hours quotas

(2) The regulations may determine standards that require national broadcasters to meet specified quotas in relation to the extent to which high-definition television programs, or specified kinds of high-definition television programs, are transmitted in HDTV digital mode in prime viewing hours on the HDTV version of the national television broadcasting service concerned.

(3) Subclauses (1) and (2) apply in relation to the transmission of a national television broadcasting service in a remote coverage area, where:

(a) that service is transmitted in digital mode in that area; and

(b) that service is not transmitted using a transmitter operated under the authority of a transmitter licence issued as mentioned in subclause 23(10A).

Note 1: For high-definition television program, see clause 37L.

Note 2: For prime viewing hours, see clause 37M.

37J HDTV version

To avoid doubt, a HDTV version of a commercial television broadcasting service or of a national television broadcasting service need not transmit all of the television programs that are broadcast on the version of the service that is transmitted in SDTV digital mode.

Note: For example, a HDTV version of a particular service could consist of programs transmitted in HDTV digital mode. In such a case, receivers would pick up the remaining programs from the version of the service that is transmitted in SDTV digital mode.

37K Compliance by national broadcasters

A national broadcaster must comply with a standard under this Division that is applicable to the broadcaster.

Note: For compliance by licensees, see clause 7 of Schedule 2.

37L High-definition television programs

(1) For the purposes of:

(a) the application of this Division to a commercial television broadcasting licensee; and

(b) the application of this Division to the Australian Broadcasting Corporation on or after 1 January 2006;

a high-definition television program is:

(d) a television program that:

(i) was originally produced in a non-video format (for example, 16 mm or 35 mm film) that was of equivalent picture quality to a high-definition digital video format; and

(ii) has been converted to a high-definition digital video format;

where the conversion has not resulted in a significant reduction in picture quality.

(2) For the purposes of:

(a) the application of this Division to the Special Broadcasting Service Corporation; and

(b) the application of this Division to the Australian Broadcasting Corporation before 1 January 2006;

a high-definition television program is:

(d) a television program that:

(i) was originally produced in a non-video format (for example, 16 mm or 35 mm film) that was of equivalent picture quality to a high-definition digital video format; and

(ii) has been converted to a high-definition digital video format;

where the conversion has not resulted in a significant reduction in picture-quality; or

(e) a television program that:

(i) was originally produced in a standard definition digital video format; and

(ii) has been converted to a high-definition digital video format; or

(f) a television program that:

(i) was originally produced in an analog video format; and

(ii) has been converted to a standard definition digital video format;

where the converted program was subsequently converted to a high-definition digital video format.

37M Prime viewing hours

For the purposes of this Division, prime viewing hours are the hours:

(a) beginning at 6 pm each day or, if another time is prescribed, beginning at that prescribed time each day; and

(b) ending at 10.30 pm on the same day or, if another time is prescribed, ending at that prescribed time on the same day.

Division 3—Captioning standards

127 After subclause 38(4) of Schedule 4

Insert:

(4A) Subclause (4) has effect subject to subclause (4B).

128 Before subclause 38(5) of Schedule 4

Insert:

(4B) Standards under subclause (1) must not require the provision of a captioning service for:

(a) a television program, or a part of a television program, that is wholly in a language other than English; or

(b) a television program, or a part of a television program, the audio component of which consists only of music that has no human vocal content that is recognisable as being in the English language; or

(4C) For the purposes of paragraphs (4B)(a) and (b), disregard minor and infrequent uses of the English language.

129 After clause 38 of Schedule 4

Insert:

Division 4—Technical standards

130 Subclause 39(2) of Schedule 4

Repeal the subclause, substitute:

(2) Standards under subclause (1), to the extent that they deal with conditional access systems, must be directed towards ensuring the achievement of the policy objective that, as far as is practicable, those systems should be open to all providers of eligible datacasting services.

(2A) For the purposes of this clause, an eligible datacasting service is:

(a) a datacasting service provided under, and in accordance with the conditions of, a datacasting licence; or

(b) a television broadcasting service transmitted in digital mode using the broadcasting services bands.

131 Subclause 39(5) of Schedule 4 (definition of conditional access system)

Repeal the definition, substitute:

conditional access system means a conditional access system that:

(a) relates to the provision of one or more eligible datacasting services; and

(b) allows a provider of an eligible datacasting service to determine whether an end-user is able to receive a particular eligible datacasting service.

132 Clause 40 of Schedule 4

Repeal the clause.

133 Before clause 41 of Schedule 4

Insert:

Division 5—Miscellaneous

134 Clause 41A of Schedule 4

Repeal the clause.

135 Clause 43 of Schedule 4 (definition of datacaster)

Repeal the definition, substitute:

datacaster means a person who holds a datacasting transmitter licence.

136 Clause 43 of Schedule 4

Insert:

datacasting transmitter licence does not include an authorisation under section 114 of the Radiocommunications Act 1992.

137 After subclause 53(2) of Schedule 4

Insert:

(2A) The report must be directed towards ensuring the achievement of the policy objective that only datacasting services that:

(a) are authorised by datacasting licences; and

(b) are not designated teletext services;

are to be taken into account in calculating the amount of charge.

138 At the end of subclause 60(1) of Schedule 4

Add:

; (g) whether the following provisions (which deal with additional commercial television broadcasting licences) should be amended or repealed:

(i) section 28A;

(ii) section 38A;

(iii) section 38B;

(iv) section 73;

(v) section 73A;

(vi) subclauses 6(5A), (5B) and (5C) of this Schedule;

(vii) paragraph 37E(1)(d) of this Schedule;

(viii) paragraph 37E(4)(c) of this Schedule;

(ix) paragraph 37G(1)(d) of this Schedule;

(h) the regulatory arrangements that should apply to the operation of a radiocommunications transmitter on or after 1 January 2007 for transmitting a datacasting service under a datacasting transmitter licence, where:

(i) there is in force a licence (other than a datacasting licence) allocated by the ABA under this Act authorising the provision of that service; or

(ii) that service is provided in accordance with a class licence;

(i) the arrangements that should apply in relation to revenue (if any) to be raised by the Commonwealth (whether by way of taxation or otherwise) in connection with the operation of a radiocommunications transmitter on or after 1 January 2007 for transmitting a datacasting service under a datacasting transmitter licence, where:

(i) there is in force a licence (other than a datacasting licence) allocated by the ABA under this Act authorising the provision of that service; or

(ii) that service is provided in accordance with a class licence.

139 After clause 60 of Schedule 4

Insert:

60A Reviews before 1 January 2004

(1) Before 1 January 2004, the Minister must cause to be conducted a review of the following matters:

(a) whether Division 2 of Part 4 of this Schedule (which deals with HDTV quotas) should be amended or repealed;

(b) the regulatory arrangements that should apply to:

(i) the transmission of television programs by commercial television broadcasting licensees in HDTV digital mode in remote licence areas; and

(ii) the transmission of television programs by national broadcasters in HDTV digital mode in remote coverage areas.

(2) The Minister must cause to be prepared a report of a review under subclause (1).

(3) The Minister must cause copies of a report to be laid before each House of the Parliament within 15 sitting days of that House after the completion of the preparation of the report.

140 At the end of the Act

Add:

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.

• Datacasting service providers must hold datacasting licences.

• Datacasting content will be subject to restrictions. Those restrictions are designed to encourage datacasting licensees to provide a range of 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;

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

(e) Parliamentary broadcasts;

(f) ordinary electronic mail;

(g) Internet content.

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

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

• The ABA is to 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.

current affairs program means a program, where:

(a) the sole or dominant purpose of the program is to provide analysis, commentary or discussion on social, economic or political issues of current relevance to the general community; and

(b) the program is hosted by one or more on-screen presenters.

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 bulletin 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 bulletin includes a sports news bulletin.

nominated datacaster declaration means a declaration under clause 45.

ordinary electronic mail does not include a posting to a newsgroup.

qualified entity means:

(a) a company that:

(i) is formed in Australia or in an external Territory; and

(ii) has a share capital; or

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

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.

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

(d) whether the matter is required or recommended for viewing or listening in connection with a course of study or instruction; and

(e) any other relevant matters;

it would be concluded that the sole or dominant purpose of the matter is to assist a course of study or instruction.

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

ABA determinations

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

(4) The ABA may make a written 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.

(6) A determination under subclause (3) or (4) is to be an instrument of a legislative character.

(7) A determination under subclause (3) or (4) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

Note: For specification by class, see subsection 46(2) of the Acts Interpretation Act 1901.

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 about any or all 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 people to carry out transactions;

or both, where there is little or no emphasis on dramatic impact or entertainment value.

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

ABA determinations

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

(4) The ABA may make a written 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.

(6) A determination under subclause (3) or (4) is to be an instrument of a legislative character.

(7) A determination under subclause (3) or (4) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

Note: For specification by class, see subsection 46(2) of the Acts Interpretation Act 1901.

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

transactions includes:

(a) commercial transactions; and

(b) banking transactions; and

(d) dealings about employment matters; and

(e) dealings with governments and government authorities.

5 Foreign-language news bulletins

(1) For the purposes of this Schedule, a foreign-language news bulletin is a news bulletin 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.

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

Part 2—Datacasting licences

7 Allocation of datacasting licence

(1) The ABA 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 ABA; and

(b) be accompanied by the application fee determined in writing by the ABA.

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

(2) The ABA 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 ABA to consider the application of clause 9 in relation to an applicant before allocating a licence to the applicant.

9 Unsuitable applicant

(1) The ABA 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

(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 ABA 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.

(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 ABA of the transfer.

Penalty: 50 penalty units.

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

11 Surrender of datacasting licences

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

12 ABA to maintain Register of datacasting licences

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

(a) particulars of datacasting licences; and

(b) such information about transmitter licences as the ABA 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;

(b) a current affairs 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.

ABA genre determinations

(4) The ABA may make a written 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 ABA may make a written 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.

(7) A determination under subclause (4) or (5) is to be an instrument of a legislative character.

(8) A determination under subclause (4) or (5) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

Note: For specification by class, see subsection 46(2) of the Acts Interpretation Act 1901.

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

(b) the extract is not fully self-contained; 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).

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 bulletin;

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

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

(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;

ABA genre determinations

(4) The ABA may make a written 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 ABA may make a written 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.

(7) A determination under subclause (4) or (5) is to be an instrument of a legislative character.

(8) A determination under subclause (4) or (5) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

Note: For specification by class, see subsection 46(2) of the Acts Interpretation Act 1901.

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 presenter-based bulletin, so long as:

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

(b) if:

(i) an earlier presenter-based bulletin covered by subclause (1) was transmitted by the licensee; and

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

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

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

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

(b) one of the following applies:

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

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

(iii) the bulletin is a weather bulletin; and

(4) In this clause:

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

(a) one or more introductory segments spoken by a presenter who is visible on screen; and

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

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

(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

(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.

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 electronic mail

(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; or

(b) the transmission of ordinary electronic mail.

(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

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

ABA determinations

(4) The ABA may make a written 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 ABA may make a written 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.

(7) A determination under subclause (4) or (5) is to be an instrument of a legislative character.

(8) A determination under subclause (4) or (5) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

Note: For specification by class, see subsection 46(2) of the Acts Interpretation Act 1901.

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.

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

(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

(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.

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;

(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, X or NVE by the Classification Board;

(f) the licensee will not transmit datacasting content that has been classified R 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 technical standards applicable to the licensee under clause 60;

(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.

(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 electronic mail.

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

(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

(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 ABA.

(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 electronic mail.

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 ABA has not decided that subclause (3) applies to the person.

(3) The ABA 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 ABA 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

(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 ABA

(1) The ABA 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 ABA proposes to vary or revoke a condition or to impose a new condition, the ABA 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 ABA in relation to the proposed action; and

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

(a) clause 14; or

(b) clause 16; or

(d) clause 24; or

(e) clause 25.

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

(5) Without limiting the range of conditions that may be imposed, the ABA 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.

ABA to maintain Register of conditions

(6) The ABA 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

(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 ABA may, by written 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 46(2) of the Acts Interpretation Act 1901.

(2) In making an instrument under subclause (1), the ABA 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 ABA considers relevant.

(3) An instrument under subclause (1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

Part 4—Codes of practice

28 Development of codes of practice

(1) The Parliament intends that:

(a) a group that the ABA 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 ABA; and

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

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

(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 ABA 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;

(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 preference, 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 ABA 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 ABA is satisfied represents datacasting licensees must ensure that films classified as “M” or “MA” do not portray material that goes beyond the previous “AO” classification criteria.

Registration of codes of practice

(6) If:

(a) the group that the ABA 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 ABA 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 ABA 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.

29 Review by the ABA

(1) The ABA must periodically conduct a review of the operation of subclause 28(4) to see whether that subclause is in accordance with prevailing community standards.

(2) If, after conducting such a review, the ABA concludes that subclause 28(4) is not in accordance with prevailing community standards, the ABA must recommend to the Minister appropriate amendments to this Act that would ensure that subclause 28(4) is in accordance with prevailing community standards.

(3) If the Minister receives a recommendation under subclause (2), the Minister must cause a copy of the recommendation to be tabled in each House of the Parliament within 15 sitting days of that House after receiving the recommendation.

30 ABA to maintain Register of codes of practice

(1) The ABA 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 ABA may determine standards where codes of practice fail or where no code of practice developed

(1) If:

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

the ABA must, in writing, 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 ABA is satisfied that it should determine a standard in relation to that matter;

the ABA must, by notice in writing, determine a standard in relation to that matter.

(3) A standard determined under this clause is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

32 Consultation on standards

The ABA 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 ABA determines or varies or revokes a standard, the ABA 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 ABA’s power in relation to standards

(1) The ABA 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 ABA or by a person or body appointed by the ABA.

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

35 This Part does not apply to Internet carriage services or ordinary electronic mail

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 electronic mail.

Part 5—Complaints to the ABA 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 ABA about the matter.

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

(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 ABA 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 electronic mail.

38 Investigation of complaints by the ABA

(1) The ABA must investigate the complaint.

(2) However, the ABA need not investigate the complaint if it is satisfied that:

(a) the complaint is frivolous or vexatious or was not made in good faith; or

(b) in the case of a complaint referred to in subclause 36(1)—the complaint does not relate to:

(i) an offence against this Act or the regulations; or

(ii) a breach of a condition of a licence.

(3) The ABA must notify the complainant of the results of such an investigation.

Part 6—ABC/SBS datacasting

39 Provision of datacasting services by the ABC etc.

(1) If:

(a) the Australian Broadcasting Corporation applies for a datacasting licence; and

(b) the licence is allocated to the Australian Broadcasting Corporation;

then, in addition to the functions conferred on the Australian Broadcasting Corporation by the Australian Broadcasting Corporation Act 1983, the Australian Broadcasting Corporation has the function of providing a datacasting service under, and in accordance with the conditions of, the licence.

(2) For the purposes of section 25A of the Australian Broadcasting Corporation Act 1983, the activity of providing a datacasting service under, and in accordance with the conditions of, a datacasting licence is taken to be an authorised business.

40 Provision of datacasting services by the SBS etc.

(1) If:

(a) the Special Broadcasting Service Corporation applies for a datacasting licence; and

(b) the licence is allocated to the Special Broadcasting Service Corporation;

then, in addition to the functions conferred on the Special Broadcasting Service Corporation by the Special Broadcasting Service Act 1991, the Special Broadcasting Service Corporation has the function of providing a datacasting service under, and in accordance with the conditions of, the licence.

(2) For the purposes of section 52 of the Special Broadcasting Service Act 1991, the activity of providing a datacasting service under, and in accordance with the conditions of, a datacasting licence is taken to be an authorised business.

41 Control of datacasting transmitter licences

(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.

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 ABA 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 ABA; 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 ABA.

45 Making a nominated datacaster declaration

(1) After considering the application, the ABA 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 ABA 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 ABA must give a copy of the declaration to:

(a) the applicant; and

(b) the licensee of the datacasting licence.

(3) If the ABA refuses to make a nominated datacaster declaration, the ABA 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 or clause 60 of this Schedule) 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 ABA must, by writing, revoke a nominated datacaster declaration if the ABA 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 ABA 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 ABA a written notice stating that the licensee does not consent to the continued operation of the declaration.

(3) The ABA 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 ABA must not revoke a nominated datacaster declaration under subclause (1) unless the ABA 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 ABA 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 ABA 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 ABA is to maintain a register in which the ABA 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 datacasting service without a licence

49 Prohibition on providing a datacasting service without a licence

(1) A person is guilty of an offence if the person:

(a) intentionally provides a 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) is guilty of 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.

Note: For exemptions for broadcasters, see clause 51.

50 Notice for providing a datacasting service without a licence

(1) If a person is providing a datacasting service without a datacasting licence that authorises the provision of that service, the ABA may, by notice in writing given to the person, direct the person to cease providing the service.

(2) A person is guilty of an offence if:

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

(b) the person intentionally engages in conduct; and

Penalty: 20,000 penalty units.

(3) A person who contravenes subclause (2) is guilty of 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.

Note: For exemptions for broadcasters, see clause 51.

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 ABA 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.

Division 2—Breaches of licence conditions

52 Offence for breach of conditions

(1) A person is guilty of an offence if:

(a) the person is a datacasting licensee; and

(b) the person intentionally engages in conduct; and

Penalty: 2,000 penalty units.

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 ABA 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 is guilty of an offence if:

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

(b) the person intentionally engages in conduct; and

Penalty: 20,000 penalty units.

(5) A person who contravenes subclause (4) is guilty of 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.

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 ABA may, by written notice given to the person:

(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 ABA 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 ABA 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 ABA 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;

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

(a) written notice of its intention; and

(b) a reasonable opportunity to make representations to the ABA 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 ABA, 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 ABA, 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 ABA, 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

(2) Paragraphs 15(1)(a) and (b) and 15A(1)(a) and (b) of the Administrative Decisions (Judicial Review) Act 1977 do not apply to an eligible decision.

(3) If 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, the court must not make any orders staying or otherwise affecting the operation or implementation of the decision pending the finalisation of the application.

(4) If a person applies to the Administrative Appeals Tribunal for review of an eligible decision, subsection 41(2) of the Administrative Appeals Tribunal Act 1975 does not apply to the eligible decision.

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

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

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

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
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
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 ABA makes a decision that is reviewable under clause 58, the ABA 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.

Part 10—Miscellaneous

60 Datacasting technical standards

(1) The regulations may determine technical standards:

(a) that are to be observed by datacasting licensees in relation to the provision by the licensees of datacasting services; and

(b) that are to be observed by holders of:

(i) datacasting transmitter licences; and

(ii) designated broadcasting transmitter licences;

in relation to the transmission by the holders of datacasting services, where there is in force a datacasting licence authorising the provision of the datacasting service concerned.

(3) If a transmitter licence is:

(a) a datacasting transmitter licence; or

(b) a designated broadcasting transmitter licence;

then, in addition to any conditions to which that licence is subject under the Radiocommunications Act 1992, the licence is taken to be subject to a condition that the holder of the transmitter licence, and any person authorised by the holder of the transmitter licence, must comply with a standard under subclause (1).

(4) Section 589 of the Telecommunications Act 1997 applies to regulations made for the purposes of this clause in a corresponding way to the way in which it applies to an instrument under that Act.

(5) In this clause:

conditional access system means a conditional access system that:

(a) relates to the provision of one or more eligible datacasting services; and

(b) allows a provider of an eligible datacasting service to determine whether an end-user is able to receive a particular eligible datacasting service.

designated broadcasting transmitter licence means a transmitter licence that, under section 100A, 100B, 102 or 102A of the Radiocommunications Act 1992, is taken to authorise the operation of a transmitter for transmitting datacasting services.

eligible datacasting service means:

(a) a datacasting service provided under, and in accordance with the conditions of, a datacasting licence; or

(b) a television broadcasting service transmitted in digital mode using the broadcasting services bands.

61 Review before 1 January 2004

(1) Before 1 January 2004, the Minister must cause to be conducted a review of whether any amendments of this Schedule should be made.

(2) The Minister must cause to be prepared a report of a review under subclause (1).

(3) The Minister must cause copies of a report to be laid before each House of the Parliament within 15 sitting days of that House after the completion of the preparation of the report.

Part 2—Transitional provisions

141 Transitional—section 34 of the Broadcasting Services Act 1992

(1) This item applies to an instrument if:

(a) the instrument was made under subsection 34(1) or (3) of the Broadcasting Services Act 1992; and

(b) the instrument was in force immediately before the commencement of this item.

(2) The instrument has effect, after the commencement of this item, as if it had been made under the corresponding provision of the Broadcasting Services Act 1992 as amended by this Schedule.

142 Transitional—variation of digital conversion schemes

(1) A power conferred by clause 16 or 30 of Schedule 4 to the Broadcasting Services Act 1992 may be exercised before Part 1 of this Schedule comes into operation as if that Part had come into operation.

(2) If, because of some or all of its provisions (the relevant provisions), an instrument under clause 16 of Schedule 4 to the Broadcasting Services Act 1992 is made in accordance with subitem (1), each relevant provision takes effect at the same time as the commencement of Part 1 of this Schedule.

(3) If, because of some or all of its provisions (the relevant provisions), an instrument under clause 30 of Schedule 4 to the Broadcasting Services Act 1992 is made in accordance with subitem (1), each relevant provision takes effect at whichever is the later of the following times:

(a) the same time as the commencement of Part 1 of this Schedule;

(b) the time when the provision is approved under clause 32 of Schedule 4 to the Broadcasting Services Act 1992.

(4) A reference in this item to Part 1 of this Schedule does not include a reference to items 75 and 137.

143 Transitional—allocation of datacasting licences

(1) A power conferred by Schedule 6 to the Broadcasting Services Act 1992 to allocate a datacasting licence may be exercised before that Schedule comes into operation as if that Schedule had come into operation.

(2) A datacasting licence allocated in accordance with subitem (1) takes effect at the same time as the commencement of Schedule 6 to the Broadcasting Services Act 1992.

144 Transitional—validation of digital channel plans

(1) If, before the commencement of this item, the ABA purported to make a scheme under clause 6 of Schedule 4 to the Broadcasting Services Act 1992 that included provisions relating directly or indirectly to digital channel plans:

(a) those provisions are as valid, and are taken to have been as valid, as they would have been; and

(b) anything done under those provisions (including the making or variation of a digital channel plan) is as valid, and is taken to have been as valid, as it would have been; and

if clause 7A of Schedule 4 to the Broadcasting Services Act 1992 had:

(d) been in force at the time the scheme was made; and

(e) contained an additional subclause that authorised the scheme to provide that a digital channel plan may deal with the allotment of channels to national broadcasters.

(2) If, before the commencement of this item, the ABA purported to make a scheme under clause 19 of Schedule 4 to the Broadcasting Services Act 1992 that included provisions relating directly or indirectly to digital channel plans:

(a) those provisions are as valid, and are taken to have been as valid, as they would have been; and

(b) anything done under those provisions (including the making, adoption or variation of a digital channel plan) is as valid, and is taken to have been as valid, as it would have been; and

if:

(d) clause 22A of Schedule 4 to the Broadcasting Services Act 1992 had been in force at the time the scheme was made; and

(e) clause 7A of Schedule 4 to the Broadcasting Services Act 1992 had:

(i) been in force at the time the commercial television conversion scheme was made; and

(ii) contained an additional subclause that authorised the commercial television conversion scheme to provide that a digital channel plan may deal with the allotment of channels to national broadcasters.

(3) Section 13 of the National Television Conversion Scheme 1999 has effect, and is taken to have had effect, as if the reference in that section to a digital channel plan made by the ABA under subsection 12(1) of the Commercial Television Conversion Scheme 1999 were, by express words, confined to so much of the digital channel plan as relates to national broadcasters.

(4) A notice published in the Gazette on 16 February 2000 purporting to be in accordance with section 13 of the National Television Conversion Scheme 1999 has effect, and is taken to have had effect, as if the reference in that notice to a digital channel plan made by the ABA pursuant to subsection 12(1) of the commercial scheme were, by express words, confined to so much of the digital channel plan as relates to national broadcasters.

145 Transitional—regulations

(1) The regulations may make provision for matters of a transitional nature arising from the amendments made by Part 1 of this Schedule.

(2) The Governor-General may make regulations for the purposes of subitem (1).

Schedule 2—Amendment of the Radiocommunications Act 1992

Part 1—Amendments

1 Section 5

Insert:

BSA datacasting licence means a datacasting licence under Schedule 6 to the Broadcasting Services Act 1992.

2 Section 5

Insert:

commercial television broadcasting licence has the same meaning as in the Broadcasting Services Act 1992.

3 Section 5 (definition of datacasting service)

Omit “Schedule 4 to”.

4 Section 5

Insert:

datacasting transmitter licence means a transmitter licence for a transmitter that is for use for transmitting a datacasting service, but does not include:

(a) a transmitter licence issued under section 102 or 102A; or

(b) an NBS transmitter licence; or

5 Section 5 (paragraph (b) of the definition of licensee)

Omit “the person to whom the licence was issued”, substitute “the person who holds the licence”.

6 Section 5

Insert:

qualified company means a company that:

(a) is formed in Australia; and

(b) has a share capital.

7 Section 5

Insert:

SDTV digital mode has the same meaning as in Schedule 4 to the Broadcasting Services Act 1992.

8 Subsection 96(7)

Omit “Division 6 is”, substitute “Divisions 6 and 6A are”.

9 Subsection 100(1)

Omit “and 102A”, substitute “, 102A and 102B”.

10 Subsections 100A(1A), (1B) and (1C)

Repeal the subsections, substitute:

(1A) Subsection (1) has effect subject to subsections (1B) and (1C).

(1B) The authorisation of the operation of the transmitter or transmitters concerned for transmitting a datacasting service in digital mode using those channels has no effect unless the licensee holds a BSA datacasting licence authorising the provision of that service.

(1C) The authorisation of the operation of the transmitter or transmitters concerned for transmitting a datacasting service (other than a test transmission) in digital mode in a particular coverage area using those channels does not take effect until whichever of the following first happens:

(a) the end of 12 months after the national broadcaster concerned was required, under a scheme in force under clause 19 of Schedule 4 to the Broadcasting Services Act 1992, to commence transmitting the broadcasting service concerned in SDTV digital mode in the coverage area;

(b) the first occasion on which a datacasting service (other than a test transmission in accordance with a determination under paragraph 34(1)(fa) of the Broadcasting Services Act 1992) was:

(i) provided by another person under, and in accordance with the conditions of, a BSA datacasting licence; and

(ii) transmitted under a datacasting transmitter licence;

in the coverage area.

11 Subsection 100A(2)

Insert:

coverage area has the same meaning as in Schedule 4 to the Broadcasting Services Act 1992.

12 Subsections 100B(2A), (2B) and (2C)

Repeal the subsections, substitute:

(2A) Subsection (2) has effect subject to subsections (2B) and (2C).

(2B) The authorisation of the operation of the transmitter or transmitters concerned for transmitting a datacasting service in digital mode using the channel or channels concerned has no effect unless the licensee holds a BSA datacasting licence authorising the provision of that service.

(2C) The authorisation of the operation of the transmitter or transmitters concerned for transmitting a datacasting service (other than a test transmission) in digital mode in a particular coverage area using the channel or channels concerned does not take effect until whichever of the following first happens:

(b) the first occasion on which a datacasting service (other than a test transmission in accordance with a determination under paragraph 34(1)(fa) of the Broadcasting Services Act 1992) was:

(i) provided by another person under, and in accordance with the conditions of, a BSA datacasting licence; and

(ii) transmitted under a datacasting transmitter licence;

in the coverage area.

13 Subsection 100B(3)

Insert:

coverage area has the same meaning as in Schedule 4 to the Broadcasting Services Act 1992.

14 After subsection 102(2)

Insert:

(2A) If:

(a) a transmitter licence (the first transmitter licence) was issued under this section; and

(b) the first transmitter licence authorises the operation of one or more specified radiocommunications transmitters for transmitting a particular commercial television broadcasting service (the first service) in accordance with a commercial television broadcasting licence held by a person (the first BSA licence); and

(c) another commercial television broadcasting licence (the additional BSA licence) is allocated to the person under section 38A or 38B of the Broadcasting Services Act 1992; and

(d) the first BSA licence and the additional BSA licence relate to the same licence area (within the meaning of whichever of those sections is applicable); and

(e) the additional BSA licence authorises the provision of another commercial television broadcasting service (the additional service); and

(f) the first service and the additional service are the subject of an election under subclause 6(5A) of Schedule 4 to the Broadcasting Services Act 1992;

then:

(g) despite subsection (1), the ACA is not required to issue to the person a new transmitter licence in relation to the additional service; and

(h) the first transmitter licence is taken to authorise the operation of the transmitter or transmitters concerned for transmitting the additional service in accordance with the additional BSA licence.

15 Subsections 102(3A), (3B) and (3C)

Repeal the subsections, substitute:

(4) Subsection (3) has effect subject to subsections (5) and (6).

(5) The authorisation of the operation of the transmitter or transmitters concerned for transmitting a datacasting service in digital mode using those channels has no effect unless the licensee holds a BSA datacasting licence authorising the provision of that service.

(6) The authorisation of the operation of the transmitter or transmitters concerned for transmitting a datacasting service in digital mode using those channels (other than a test transmission) does not take effect until whichever of the following first happens:

(a) the end of 12 months after the holder of the related licence was required, under a scheme in force under clause 6 of Schedule 4 to the Broadcasting Services Act 1992, to commence transmitting the broadcasting service concerned in SDTV digital mode in the licence area for the related licence;

(b) the first occasion on which a datacasting service (other than a test transmission in accordance with a determination under paragraph 34(1)(fa) of the Broadcasting Services Act 1992) was:

(i) provided by another person under, and in accordance with the conditions of, a BSA datacasting licence; and

(ii) transmitted under a datacasting transmitter licence;

in the licence area for the related licence.

(7) In this section, unless the contrary intention appears:

licence area has the same meaning as in Schedule 4 to the Broadcasting Services Act 1992.

16 After subsection 102A(2)

Insert:

(2A) If:

(a) a transmitter licence (the first transmitter licence) was issued under this section; and

(c) another commercial television broadcasting licence (the additional BSA licence) is allocated to the person under section 38A or 38B of the Broadcasting Services Act 1992; and

(d) the first BSA licence and the additional BSA licence relate to the same licence area (within the meaning of whichever of those sections is applicable); and

(e) the additional BSA licence authorises the provision of another commercial television broadcasting service (the additional service); and

(f) the first service and the additional service are the subject of an election under subclause 6(5A) of Schedule 4 to the Broadcasting Services Act 1992;

the first transmitter licence is taken to authorise the operation of the transmitter or transmitters concerned for transmitting the additional service in accordance with the additional BSA licence.

17 Subsections 102A(4), (5) and (6)

Repeal the subsections, substitute:

(4) Subsection (3) has effect subject to subsections (5) and (6).

(5) The authorisation of the operation of the transmitter or transmitters concerned for transmitting a datacasting service in digital mode using the channel or channels concerned has no effect unless the licensee holds a BSA datacasting licence authorising the provision of that service.

(6) The authorisation of the operation of the transmitter or transmitters concerned for transmitting a datacasting service in digital mode using the channel or channels concerned (other than a test transmission) does not take effect until whichever of the following first happens:

(b) the first occasion on which a datacasting service (other than a test transmission in accordance with a determination under paragraph 34(1)(fa) of the Broadcasting Services Act 1992) was:

(i) provided by another person under, and in accordance with the conditions of, a BSA datacasting licence; and

(ii) transmitted under a datacasting transmitter licence;

in the licence area for the related licence.

(7) In this section, unless the contrary intention appears:

licence area has the same meaning as in Schedule 4 to the Broadcasting Services Act 1992.

18 After section 102A

Insert:

102B Datacasting transmitter licences

(1) The ACA must not issue a datacasting transmitter licence to a person unless the person is a qualified company.

(2) If:

(a) the applicant for a datacasting transmitter licence is a qualified company; and

(b) the licence is not to be issued in accordance with a price-based allocation system determined under section 106;

the ACA must, within 14 days of receiving the application, refer the application to the ABA.

(3) If:

(a) an application for a datacasting transmitter licence is referred to the ABA under subsection (2); and

(b) the ABA is satisfied that the issue of the licence would result in a breach of the BSA control rules;

the ABA may, by written notice given to the ACA within 30 days after the application was referred to the ABA, direct the ACA not to issue the licence to the applicant, and the ACA must comply with the direction.

(4) If:

(a) an application for a datacasting transmitter licence is referred to the ABA under subsection (2); and

(b) the ABA is satisfied that the issue of the licence would not result in a breach of the BSA control rules;

the ABA must, by written notice given to the ACA, inform the ACA accordingly.

(5) If an application for a datacasting transmitter licence is referred to the ABA under subsection (2), the ACA must not issue, or refuse to issue, the licence until whichever of the following first happens:

(a) the ACA receives a notice from the ABA in relation to the application under subsection (3) or (4);

(b) the end of 30 days after the application was referred to the ABA.

(6) If the ACA refuses to issue a datacasting transmitter licence because of a direction under subsection (3), the notice of refusal must be accompanied by a copy of the direction.

(7) For the purposes of this section, the issue of a datacasting transmitter licence results in a breach of the BSA control rules if, and only if, the issue of the licence would result in a breach of:

(a) section 54A or 56A of the Broadcasting Services Act 1992; or

(b) clause 41 of Schedule 6 to the Broadcasting Services Act 1992.

19 Subsection 103(2)

After “102A”, insert “or a datacasting transmitter licence”.

20 At the end of section 103

Add:

(5) Subject to Divisions 6 and 6A, a datacasting transmitter licence remains in force for 10 years.

21 After subsection 106(6)

Insert:

(6A) A system so determined may provide that, before a datacasting transmitter licence is issued in accordance with the system, the ABA is to be given an opportunity to direct the ACA not to issue the licence if the ABA is satisfied that the issue of the licence would result in a breach of:

(a) section 54A or 56A of the Broadcasting Services Act 1992; or

(b) clause 41 of Schedule 6 to the Broadcasting Services Act 1992.

(6B) The ACA must comply with a direction given as mentioned in subsection (6A).

(6C) If the ACA refuses to issue a datacasting transmitter licence because of a direction given as mentioned in subsection (6A), the notice of refusal must be accompanied by a copy of the direction.

22 Subsection 106(7)

Omit “and (6)”, substitute “, (6) and (6A)”.

23 At the end of subsection 107(3)

Add “or to datacasting transmitter licences”.

24 At the end of subsection 108(5)

Add “or to datacasting transmitter licences”.

25 After section 109

Insert:

109A Conditions of datacasting transmitter licences

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

(a) a condition that the licensee must comply with this Act;

(b) a condition that the licensee meet all obligations (if any) of the licensee to pay:

(i) charges fixed by determinations under section 53 of the Australian Communications Authority Act 1997; and

(ii) amounts of apparatus licence tax;

(c) a condition that the licensee inform each person authorised by the licensee to operate a radiocommunications transmitter under the licence of the person’s obligations to comply with this Act and the conditions of the licence;

(d) a condition that the licensee, and any person so authorised, must not operate, or permit operation of, the transmitter except on a frequency or frequencies, or on a frequency channel, and at a constancy, specified in the licence;

(e) a condition that the licensee, and any person so authorised, must not operate, or permit operation of, such a transmitter except within:

(i) a part of the spectrum covered by a determination under subsection 34(3) of the Broadcasting Services Act 1992; or

(ii) a part of the spectrum covered by a determination under subsection 34(1) of the Broadcasting Services Act 1992 because of paragraph 34(1)(fa) of that Act;

(f) a condition that the licensee, and any person so authorised, must comply with guidelines developed by the ABA under section 33 of the Broadcasting Services Act 1992;

(g) a condition that the licensee, or a person so authorised, will commence to transmit a datacasting service within 1 year after the allocation of the licence or within such longer period as is notified in writing by the ABA;

(h) a condition that the licensee, and any person so authorised, must not operate, or permit the operation of, such a transmitter before 1 January 2007 for transmitting a datacasting service unless there is in force a BSA datacasting licence authorising the provision of that service;

(i) a condition that the licensee, and any person so authorised, must not operate, or permit the operation of, such a transmitter on or after 1 January 2007 for transmitting a datacasting service unless:

(i) there is in force a BSA datacasting licence, or another licence allocated by the ABA under the Broadcasting Services Act 1992, authorising the provision of that service; or

(ii) that service is provided in accordance with a class licence under the Broadcasting Services Act 1992;

(j) a condition that the licensee, and any person so authorised, will at all times have a constitution;

(k) such other conditions as are specified in the licence.

Constitution of licensee to contain certain provisions

(2) A datacasting transmitter licence is subject to the condition that the licensee’s constitution will at all times contain provisions under which:

(a) a person is not eligible to continue to be the holder of shares in the licensee if, because of holding those shares and of any other relevant circumstances, that or some other person would contravene Part 5 of the Broadcasting Services Act 1992; and

(b) the licensee may secure the disposal of shares held by a person to the extent necessary to prevent a contravention of Part 5 of the Broadcasting Services Act 1992 continuing; and

(c) a person who becomes the holder of shares in the licensee is required to provide to the licensee a statutory declaration:

(i) stating whether the shares are held by the person beneficially and, if not, who has beneficial interests in the shares; and

(ii) stating whether the person, or any person who has a beneficial interest in the shares, is in a position to exercise control of a commercial television broadcasting licence, and giving particulars of any such position; and

(d) a person holding shares in the licensee may be required by the licensee, from time to time, to provide to the licensee statutory declarations concerning matters relevant to the person’s eligibility to continue to be the holder of those shares having regard to the provisions of Part 5 of the Broadcasting Services Act 1992; and

(e) the licensee may secure the disposal of shares held by a person who refuses or fails to provide a statutory declaration under the provisions referred to in paragraph (c) or (d).

Constitution of authorised company to contain certain provisions

(3) A datacasting transmitter licence is subject to the condition that the constitution of a company authorised by the licensee to operate a radiocommunications transmitter under the licence will at all times contain provisions under which:

(a) a person is not eligible to continue to be the holder of shares in the company if, because of holding those shares and of any other relevant circumstances, that or some other person would contravene Part 5 of the Broadcasting Services Act 1992; and

(b) the company may secure the disposal of shares held by a person to the extent necessary to prevent a contravention of Part 5 of the Broadcasting Services Act 1992 continuing; and

(c) a person who becomes the holder of shares in the company is required to provide to the company a statutory declaration:

(i) stating whether the shares are held by the person beneficially and, if not, who has beneficial interests in the shares; and

(d) a person holding shares in the company may be required by the company, from time to time, to provide to the company statutory declarations concerning matters relevant to the person’s eligibility to continue to be the holder of those shares having regard to the provisions of Part 5 of the Broadcasting Services Act 1992; and

(e) the company may secure the disposal of shares held by a person who refuses or fails to provide a statutory declaration under the provisions referred to in paragraph (c) or (d).

Application of control rules

(4) Schedule 1 to the Broadcasting Services Act 1992 applies for the purposes of subparagraphs (2)(c)(ii) and (3)(c)(ii) of this section in a corresponding way to the way in which it applies for the purposes of Part 5 of that Act.

26 Section 110

Omit “or 109(1)(f)”, substitute “, 109(1)(f) or 109A(1)(k)”.

27 Paragraph 111(1)(c)

Omit “or 109(1)(f)”, substitute “, 109(1)(f) or 109A(1)(k)”.

28 Paragraph 111(1)(d)

After “102A”, insert “or a datacasting transmitter licence”.

29 Subsection 114(1)

Omit “and (3)”, substitute “, (3), (3A), (3B), (3D) and (3F)”.

30 After subsection 114(3)

Insert:

(3A) The licensee must not authorise a person if:

(a) the licence is a datacasting transmitter licence; and

(b) the person is not a qualified company.

(3B) The licensee must not authorise a person if:

(a) the licence is a datacasting transmitter licence; and

(b) the licensee did not, at least 30 days before the authorisation took place, give to the ABA a written notice stating the licensee’s intention to authorise the person.

(3C) If:

(a) the ABA receives a notice of intention under subsection (3B); and

(b) the ABA is satisfied that the authorisation would result in a breach of the BSA control rules;

the ABA may, by written notice given to the licensee within 30 days after the notice of intention was sent to the ABA, direct the licensee not to authorise the person.

(3D) The licensee must not authorise a person in breach of a direction under subsection (3C).

(3E) If:

(a) the ABA receives a notice of intention under subsection (3B); and

(b) the ABA is satisfied that the authorisation would not result in a breach of the BSA control rules;

the ABA must, by written notice given to the licensee, inform the licensee accordingly.

(3F) If the licensee gives a notice of intention to the ABA under subsection (3B), the licensee must not authorise the person concerned until whichever of the following first happens:

(a) the licensee receives a notice from the ABA in relation to the authorisation under subsection (3C) or (3E);

(b) the end of 30 days after the notice of intention was sent to the ABA.

31 At the end of section 114

Add:

(5) For the purposes of this section, an authorisation by the licensee of a datacasting transmitter licence results in a breach of the BSA control rules if, and only if, the authorisation would result in a breach of:

(a) section 54A or 56A of the Broadcasting Services Act 1992; or

(b) clause 41 of Schedule 6 to the Broadcasting Services Act 1992.

32 Paragraph 118(1)(c)

After “126(1)”, insert “or 128C(2)”.

33 Paragraph 118(1)(d)

Before “cancelling”, insert “or 128D(2)”.

34 Division 6 of Part 3.3 (heading)

Repeal the heading, substitute:

Division 6—Suspending and cancelling apparatus licences: general

35 Paragraph 125(1)(a)

After “condition of the licence”, insert “(other than a condition set out in paragraph 109A(1)(g), (h), (i) or (j) or subsection 109A(2) or (3))”.

36 After Division 6 of Part 3.3

Insert:

Division 6A—Suspending and cancelling datacasting transmitter licences: ABA direction

128C Suspending datacasting transmitter licences

(1) If the ABA is satisfied that:

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

(b) a person authorised by the licensee to operate a radiocommunications transmitter under the licence;

has contravened a condition of the licence set out in paragraph 109A(1)(g), (h), (i) or (j) or subsection 109A(2) or (3), the ABA may, by written notice given to the ACA, direct the ACA to suspend the licence for the period specified in the direction.

(2) If the ACA is given a direction under subsection (1), the ACA must:

(a) by written notice given to the licensee, suspend the licence; and

(b) specify in the notice of suspension, as the day on which the suspension ceases, the first day after the end of the period specified in the direction.

Note: A direction is reviewable under Part 5.6.

(3) A notice under subsection (2) must be accompanied by a copy of the direction under subsection (1).

(4) The ABA may, at any time, by written notice given to the ACA, direct the ACA to revoke the suspension of the licence concerned.

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

(6) Section 127 applies to a suspension under this section in a corresponding way to the way in which it applies to a suspension under section 126.

128D Cancelling datacasting transmitter licences

(1) If the ABA is satisfied that:

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

(b) a person authorised by the licensee to operate a radiocommunications transmitter under the licence;

(2) If the ACA is given a direction under subsection (1), the ACA must, by written notice given to the licensee, cancel the licence.

Note: A direction is reviewable under Part 5.6.

(3) A notice under subsection (2) must be accompanied by a copy of the direction under subsection (1).

128E Stay of proceedings relating to suspension or cancellation of datacasting transmitter licence

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

(a) a decision under subsection 128C(1) to give a direction requiring the ACA to suspend a datacasting transmitter licence on the grounds that there has been a contravention of the condition of the licence set out in paragraph 109A(1)(h); or

(b) a decision under subsection 128C(2) to suspend a datacasting transmitter licence in compliance with a direction covered by paragraph (a) of this subsection; or

(c) a decision under subsection 128D(1) to give a direction requiring the ACA to cancel a datacasting transmitter licence on the grounds that there has been a contravention of the condition of the licence set out in paragraph 109A(1)(h); or

(d) a decision under subsection 128D(2) to cancel a datacasting transmitter licence in compliance with a direction covered by paragraph (c) of this subsection.

(2) Paragraphs 15(1)(a) and (b) and 15A(1)(a) and (b) of the Administrative Decisions (Judicial Review) Act 1977 do not apply to an eligible decision.

(3) If 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, the Court must not make any orders staying or otherwise affecting the operation or implementation of the decision pending the finalisation of the application.

(4) If a person applies to the Administrative Appeals Tribunal for review of the eligible decision, subsection 41(2) of the Administrative Appeals Tribunal Act 1975 does not apply to the eligible decision.

37 After subsection 130(2A)

Insert:

(2B) The ACA must not renew the licence if:

(a) the licence is a datacasting transmitter licence; and

(b) the licence has already been renewed on a previous occasion.

38 At the end of section 131

Add:

(2) Subsection 103(5) applies to renewing a datacasting transmitter licence as if a reference in that subsection to 10 years were a reference to 5 years.

39 Subsection 131AB(1)

Omit “section 131AC”, substitute “sections 131AC and 131ACA”.

40 Paragraph 131AB(3)(a)

Omit “Division 6”, substitute “Divisions 6 and 6A”.

41 After section 131AC

Insert:

131ACA Datacasting transmitter licences

(1) The ACA must not transfer a datacasting transmitter licence to a person unless the person is a qualified company.

(2) If the proposed transferee of a datacasting transmitter licence is a qualified company, the ACA must, within 14 days after receiving the relevant application, refer the relevant application to the ABA.

(3) If:

(a) an application for the transfer of a datacasting transmitter licence is referred to the ABA under subsection (2); and

(b) the ABA is satisfied that the transfer of the licence would result in a breach of the BSA control rules;

the ABA may, by written notice given to the ACA within 30 days after the application was referred to the ABA, direct the ACA not to transfer the licence to the proposed transferee, and the ACA must comply with the direction.

(4) If:

(a) an application for the transfer of a datacasting transmitter licence is referred to the ABA under subsection (2); and

(b) the ABA is satisfied that the transfer of the licence would not result in a breach of the BSA control rules;

the ABA must, by written notice given to the ACA, inform the ACA accordingly.

(5) If an application for the transfer of a datacasting transmitter licence is referred to the ABA under subsection (2), the ACA must not transfer, or refuse to transfer, the licence until whichever of the following first happens:

(a) the ACA receives a notice from the ABA in relation to the application under subsection (3) or (4);

(b) the end of 30 days after the application was referred to the ABA.

(6) If the ACA refuses to transfer a datacasting transmitter licence because of a direction under subsection (3), the notice of refusal must be accompanied by a copy of the direction.

(7) For the purposes of this section, the transfer of a datacasting transmitter licence results in a breach of the BSA control rules if, and only if, the transfer of the licence would result in a breach of:

(a) section 54A or 56A of the Broadcasting Services Act 1992; or

(b) clause 41 of Schedule 6 to the Broadcasting Services Act 1992.

42 Division 9 of Part 3.3

Repeal the Division.

43 Paragraph 148(b)

After “126”, insert “or 128C”.

44 Paragraph 148(c)

Before “, or any”, insert “or 128D”.

45 Paragraph 238(3)(c)

Omit “or 109(1)(f)”, substitute “, 109(1)(f) or 109A(1)(k)”.

46 Before section 285

Insert:

Division 1—Review of ACA decisions

47 After paragraph 285(ea)

Insert:

(eb) refusal to issue a datacasting transmitter licence under section 102B otherwise than because of a direction under subsection 102B(3);

48 Paragraph 285(f)

Omit “or 109(1)(f)”, substitute “, 109(1)(f) or 109A(1)(k)”.

49 At the end of paragraph 285(ma)

Add “otherwise than because of a direction under subsection 131ACA(3)”.

50 After section 292

Insert:

Division 2—Review of ABA decisions

292A Review by the AAT

An application may be made to the AAT for a review of any of the following decisions made by the ABA:

(a) a decision to give a direction under subsection 102B(3);

(b) a decision to give a direction as mentioned in subsection 106(6A);

(d) a decision to give a direction under subsection 128C(1);

(e) a decision to give a direction under subsection 128D(1);

(f) a decision to give a direction under subsection 131ACA(3).

292B Notification of decisions to include notification of reasons and appeal rights

If the ABA makes a decision that is reviewable under section 292A, the ABA 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 AAT for a review of the decision.

Part 2—Transitional provisions

51 Transitional—regulations

(1) The regulations may make provision for matters of a transitional nature arising from the amendments made by Part 1 of this Schedule.

(2) The Governor-General may make regulations for the purposes of subitem (1).

Schedule 3—Amendment of other Acts

Australian Security Intelligence Organisation Act 1979

1 Subsection 92(2)

After “broadcasting”, insert “, datacasting”.

Freedom of Information Act 1982

2 Division 1 of Part II of Schedule 2

After “its program material” (wherever occurring), insert “and its datacasting content”.

Retirement Savings Accounts Act 1997

3 Paragraph 70(d)

Omit “or broadcasting”, substitute “, broadcasting or datacasting”.

4 Paragraph 71(a)

Omit “or broadcasting”, substitute “, broadcasting or datacasting”.

Superannuation Industry (Supervision) Act 1993

5 Paragraph 144(e)

Omit “or broadcasting”, substitute “, broadcasting or datacasting”.

6 Paragraph 145(a)

Omit “or broadcasting”, substitute “, broadcasting or datacasting”.

Tobacco Advertising Prohibition Act 1992

7 Section 8 (at the end of the definition of broadcast)

Add:

; or (c) a datacasting service within the meaning of the Broadcasting Services Act 1992.

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