COMMUNICATIONS LEGISLATION AMENDMENT (PROMINENCE AND ANTI-SIPHONING) BILL 2023

2022-2023

The Parliament of the

Commonwealth of Australia

HOUSE OF REPRESENTATIVES

Presented and read a first time

Communications Legislation

Amendment (Prominence and

Anti-siphoning) Bill 2023

No. , 2023

(Infrastructure, Transport, Regional Development, Communications and the Arts)

A Bill for an Act to amend the law relating to

communications, and for related purposes

No. , 2023

Communications Legislation Amendment (Prominence and Anti-

siphoning) Bill 2023

Contents

Short title ........................................................................................... 1

Commencement ................................................................................. 1

Schedules ........................................................................................... 2

Schedule 1

Prominence framework

Part 1

Main amendments

Broadcasting Services Act 1992

Part 2

Consequential amendments and application provisions

Australian Communications and Media Authority Act 2005

Broadcasting Services Act 1992

Schedule 2

Anti-siphoning

Broadcasting Services Act 1992

No. , 2023

Communications Legislation Amendment (Prominence and Anti-

siphoning) Bill 2023

A Bill for an Act to amend the law relating to

communications, and for related purposes

The Parliament of Australia enacts:

1 Short title

This Act is the

Communications Legislation Amendment

(Prominence and Anti-siphoning) Act 2023

2 Commencement

(1) Each provision of this Act specified in column 1 of the table

commences, or is taken to have commenced, in accordance with

column 2 of the table. Any other statement in column 2 has effect

according to its terms.

Communications Legislation Amendment (Prominence and Anti-

siphoning) Bill 2023

No. , 2023

Commencement information

Column 1

Column 2

Column 3

Provisions

Commencement

Date/Details

1. Sections 1 to 3

and anything in

this Act not

elsewhere covered

by this table

The day after this Act receives the Royal

Assent.

2. Schedule 1

The day after this Act receives the Royal

Assent.

3. Schedule 2

A single day to be fixed by Proclamation.

However, if the provisions do not commence

within the period of 6 months beginning on

the day this Act receives the Royal Assent,

they commence on the day after the end of

that period.

Note:

This table relates only to the provisions of this Act as originally

enacted. It will not be amended to deal with any later amendments of

this Act.

(2) Any information in column 3 of the table is not part of this Act.

Information may be inserted in this column, or information in it

may be edited, in any published version of this Act.

3 Schedules

Legislation 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.

Prominence framework

Schedule 1

Main amendments

Part 1

No. , 2023

Communications Legislation Amendment (Prominence and Anti-

siphoning) Bill 2023

Schedule

1--Prominence framework

Part

1--Main amendments

Broadcasting Services Act 1992

1 After Part 9D

Insert:

Part

9E--Prominence framework

Division

1--Introduction

130ZZF Simplified outline of this Part

The following is a simplified outline of this Part:

•

This Part sets up a framework to regulate the accessibility and

prominent display of certain broadcasting services and

broadcasting video on demand services (called

regulated

television services

) on devices designed for viewing television

(called

regulated television devices

•

The main rules are that a person who is a manufacturer of a

regulated television device, or a related body corporate of a

manufacturer:

(a) must not supply the device in Australia if the device

does not comply with the minimum prominence

requirements for a regulated television service; and

(b) must ensure the device continues to comply with those

requirements after the device is supplied; and

in relation to the device complying with those

requirements; and

(d) must take reasonable steps to ensure that the audiovisual

content provided by a regulated television service is not

altered or interfered with.

Schedule 1

Prominence framework

Part 1

Main amendments

Communications Legislation Amendment (Prominence and Anti-

siphoning) Bill 2023

No. , 2023

There are exceptions to these rules.

•

A person who contravenes these rules may be liable to a civil

penalty.

•

Regulated television services include national television

broadcasting services, commercial television broadcasting

services, community television broadcasting services and

certain broadcasting video on demand services provided free

to the public.

•

The regulations may prescribe the minimum prominence

requirements for a regulated television service.

•

The ACMA has information gathering and enforcement

functions and powers in relation to this Part.

•

There is to be a review of the operation of this Part.

130ZZG Objects

The objects of this Part are to ensure that audiences throughout

Australia are able to access free-to-air television content in order to:

(a)

support Australia's representative democracy by informing

Australians of issues or events that are relevant to public

debate and democratic decision-making; and

(b) ensure that audiences throughout Australia are able to access

content that is of public significance at a local, regional or

national level; and

Australia's multicultural society, including ethnic, Aborigin

and Torres Strait Islander communities.

130ZZH Definitions

In this Part:

audiovisual content

includes television programs.

Australia

, when used in a geographical sense, includes all the

external Territories.

Prominence framework

Schedule 1

Main amendments

Part 1

No. , 2023

Communications Legislation Amendment (Prominence and Anti-

siphoning) Bill 2023

broadcasting video on demand service

has the meaning given by

section 130ZZK.

community television broadcasting service

means a community

broadcasting service that provides television programs.

listed carriage service

has the same meaning as in the

Telecommunications Act 1997

manufacturer

has the same meaning as in the

Competition and

Consumer Act 2010

minimum prominence requirements

: see section 130ZZO.

national television broadcasting service

has the same meaning as

in Schedule 4.

offered

has a meaning affected by subsection 130ZZN(9).

primary user interface

: see section 130ZZL.

regulated television device

has the meaning given by section

130ZZI.

regulated television service

has the meaning given by section

130ZZJ.

regulated television service provider

means a person that provides

a regulated television service.

related body corporate

has the same meaning as in the

Corporations Act 2001

supply

has the same meaning as in the

Competition and Consumer

Act 2010

130ZZI Regulated television devices

Meaning of

regulated television device

(1) For the purposes of this Part, a

regulated television device

means:

(a) domestic reception equipment that:

(i) is capable of connecting to the internet and providing

access to broadcasting video on demand services; and

Schedule 1

Prominence framework

Part 1

Main amendments

Communications Legislation Amendment (Prominence and Anti-

siphoning) Bill 2023

No. , 2023

(ii) is designed for the primary purpose of facilitating the

viewing of audiovisual content; or

(b) specified domestic reception equipment that the ACMA

determines, under subsection (2), is a regulated television

device;

but does not include specified domestic reception equipment that

the ACMA determines, under subsection (3), is not a regulated

television device.

Note:

The ACMA may also make guidelines about regulated television

devices: see section 130ZZM.

ACMA may determine specified regulated television devices

(2) For the purposes of paragraph (1)(b), the ACMA may, by

legislative instrument, determine that specified domestic reception

equipment is a

regulated television device

Note:

For specification by class, see subsection 13(3) of the

Legislation Act

2003

(3) For the purposes of subsection (1), the ACMA may, by legislative

instrument, determine that specified domestic reception equipment

is not a

regulated television device

Note:

For specification by class, see subsection 13(3) of the

Legislation Act

2003

130ZZJ Regulated television services

Meaning of

regulated television service

(1) For the purposes of this Part, each of the following is a

regulated

television service

(a) the following broadcasting services:

(i) national television broadcasting services provided by

the Australian Broadcasting Corporation;

(ii) national television broadcasting services provided by

the Special Broadcasting Service Corporation;

(iii) commercial television broadcasting services provided

by a commercial television broadcasting licensee (other

than a licensee who holds a licence allocated under

section 38C or subsection 40(1));

Prominence framework

Schedule 1

Main amendments

Part 1

No. , 2023

Communications Legislation Amendment (Prominence and Anti-

siphoning) Bill 2023

(iv) community television broadcasting services provided by

a community television broadcasting licensee;

(b) a broadcasting video on demand service provided by any of

the following, using an application that is covered by

subsection (5) of this section:

(i) the Australian Broadcasting Corporation;

(ii) the Special Broadcasting Service Corporation;

(iii) a commercial television broadcasting licensee (other

than a licensee who holds a licence allocated under

section 38C or subsection 40(1));

(iv) a related body corporate of a commercial television

broadcasting licensee (other than a licensee who holds a

licence allocated under section 38C or

subsection 40(1));

subsection (2) of this section, is a regulated television

service;

but does not include a specified service that the Minister

determines, under subsection (3) of this section, is not a regulated

television service.

Minister may determine specified services

(2) For the purposes of paragraph (1)(c), the Minister may, by

legislative instrument, determine that a specified service is a

regulated television service

Note:

For specification by class, see subsection 13(3) of the

Legislation Act

2003

(3) For the purposes subsection (1), the Minister may, by legislative

instrument, determine that a specified service is not a

regulated

television service

Note:

For specification by class, see subsection 13(3) of the

Legislation Act

2003

ACMA may give advice

(4) The ACMA may provide advice to the Minister on any matter

relevant to:

Schedule 1

Prominence framework

Part 1

Main amendments

Communications Legislation Amendment (Prominence and Anti-

siphoning) Bill 2023

No. , 2023

(a) the determination, by the Minister, that a specified service is

a regulated television service; or

(b) the determination, by the Minister, that a specified service is

not a regulated television service.

Broadcasting video on demand service applications

(5) For the purposes of paragraph (1)(b), an application is covered by

this subsection if the application is designed for the purpose of

providing access to a particular broadcasting video on demand

service.

130ZZK Broadcasting video on demand service

For the purposes of this Part, a

broadcasting video on demand

service

means a service that:

(a) makes audiovisual content available on demand using a listed

carriage service; and

(b) is made available free to the general public.

130ZZL Primary user interface

Meaning of

primary user interface

(1) For the purposes of this Part, the

primary user interface

of a

regulated television device means the interface of the device that:

(a) is either or both of the following:

(i) the home screen or main screen of the device;

(ii) the main interface most commonly used to access

broadcasting video on demand services; and

(b) meets the description or requirements (if any) determined by

the ACMA under subsection (3).

(2) For the avoidance of doubt, the

primary user interface

of a

regulated television device does not include any ancillary hardware

or equipment for the device.

ACMA may specify interface requirements

(3) For the purposes of paragraph (1)(b), the ACMA may, by

legislative instrument, do either or both of the following:

Prominence framework

Schedule 1

Main amendments

Part 1

No. , 2023

Communications Legislation Amendment (Prominence and Anti-

siphoning) Bill 2023

(a) describe an interface;

(b) determine requirements relating to an interface.

(4) Without limiting subsection 33(3A) of the

Acts Interpretation Act

1901

, the ACMA may describe an interface, or determine

requirements relating to an interface, differently in relation to:

(a) different regulated television devices or kinds of regulated

television devices; or

(b) different kinds of things or circumstances.

Note:

For specification by class, see subsection 13(3) of the

Legislation Act

2003

(5) Despite subsection 14(2) of the

Legislation Act 2003

, an instrument

under subsection (3) of this section may make provision in relation

to a matter by applying, adopting or incorporating, with or without

modification, any matter contained in an instrument or other

writing as in force or existing from time to time.

(6) If an instrument under subsection (3) makes provision in relation to

a matter by applying, adopting or incorporating, with or without

modification, a matter contained in an instrument or writing, the

ACMA must ensure that the text of the matter applied, adopted or

incorporated is published on its website.

(7) Subsection (6) does not apply if the publication would infringe

130ZZM ACMA may make guidelines about regulated television

devices

(1) The ACMA may make written guidelines to assist in determining

whether particular kinds of domestic reception equipment are

regulated television devices.

Note:

For specification by class, see subsection 33(3AB) of the

Acts

Interpretation Act 1901

(2) The Minister may direct the ACMA to make guidelines under

subsection (1).

(3) Guidelines made under subsection (1) are not a legislative

instrument.

Schedule 1

Prominence framework

Part 1

Main amendments

Communications Legislation Amendment (Prominence and Anti-

siphoning) Bill 2023

No. , 2023

(4) Guidelines made under subsection (1) must be published on the

ACMA's website.

(5) Guidelines under subsection (1) that are inconsistent with this Act,

the regulations or a legislative instrument made under subsection

130ZZI(2) or (3) have no effect to the extent of the inconsistency.

Division

2--Minimum prominence requirements

130ZZN Regulated television devices must comply with minimum

prominence requirements

Must carry obligations

(1) A person must not supply a regulated television device if:

(a) the person is the manufacturer of the device or a related body

corporate of the manufacturer of the device; and

(b) the device is supplied to another person in Australia; and

requirements for a regulated television service that is offered

by a regulated television service provider.

Note 1:

In relation to paragraph (b), supply does not include supply for use

outside Australia (see the definition of

supply

and subsection 95A(2)

of the

Competition and Consumer Act 2010

Note 2:

In relation to paragraph (c), see subsection (9) for when a service is or

is not taken to be

offered

(2) A person who is subject to a requirement under subsection (1) in

relation to a regulated television device must take reasonable steps

to ensure that the device continues to comply with the minimum

prominence requirements for a regulated television service during

the period:

(a) beginning immediately after the time the device is supplied;

and

(b) ending at the earliest of the following times:

(i) the time when an action by a user of the device results

in the device not complying with those requirements;

(ii) the time when the software used on the device is no

longer provided, updated or supported by the

Prominence framework

Schedule 1

Main amendments

Part 1

No. , 2023

Communications Legislation Amendment (Prominence and Anti-

siphoning) Bill 2023

manufacturer, or by another person on behalf of the

manufacturer;

(iii) the time when the regulated television service is no

longer offered by the regulated television service

provider.

Note:

In relation to subparagraph (b)(iii), see subsection (9) for when a

service is or is not taken to be

offered

(3) A person who is subject to a requirement under subsection (1) or

(2) in relation to a regulated television device complying with the

minimum prominence requirements for a regulated television

service must not require the regulated television service provider to

pay a fee, charge or any other consideration for, or in connection

with, the device complying with those requirements.

(4) A person who is subject to a requirement under subsection (1) or

(2) in relation to a regulated television device complying with the

minimum prominence requirements for a regulated television

service, must take reasonable steps to ensure that the audiovisual

content provided by that service, including any advertising or

sponsorship matter, is not altered or interfered with.

Civil penalty provisions

(5) Subsections (1), (2), (3) and (4) are civil penalty provisions.

Exception

(6) Subsection (1) or (2) does not apply to a person if:

(a) the person is subject to a requirement under that subsection;

and

(b) the person fails to comply with that requirement; and

outside the control of the person.

Warnings

(7) If the ACMA is satisfied that a person has contravened

subsection (1), (2), (3) or (4), the ACMA may issue a formal

warning to the person.

Schedule 1

Prominence framework

Part 1

Main amendments

Communications Legislation Amendment (Prominence and Anti-

siphoning) Bill 2023

No. , 2023

(8) For the purposes of this Act and the

Australian Communications

and Media Authority Act 2005

, a warning under subsection (6) is

taken to be a notice under this Part.

ACMA may prescribe when a regulated television service is

offered

(9) For the purposes of this section, the ACMA may, by legislative

instrument:

(a) determine circumstances in which a regulated television

service is or is not taken to be

offered

; and

(b) without limiting subsection 33(3A) of the

Acts Interpretation

Act 1901

, determine different circumstances in relation to

different regulated television services or kinds of regulated

television services.

Note:

For specification by class, see subsection 13(3) of the

Legislation Act

2003

130ZZO Regulations may prescribe minimum prominence

requirements

(1) The regulations may prescribe requirements (the

minimum

prominence requirements

), with which a regulated television

device must comply, in relation to any or all of the following:

(a) access to regulated television services on the device;

(b) the display, location or positioning on the device or the

primary user interface of the device of:

(i) regulated television services; or

(ii) applications, covered by subsection 130ZZJ(5), that are

used to access regulated television services; or

(iii) any other thing used to access regulated television

services;

subsection 130ZZJ(5), that are used to access regulated

television services;

(d) the availability for installation on the device of such

applications;

(e) the updating of such applications that are installed on the

device;

Prominence framework

Schedule 1

Main amendments

Part 1

No. , 2023

Communications Legislation Amendment (Prominence and Anti-

siphoning) Bill 2023

(f) any electronic program guide on the device that provides

information about or access to regulated television services.

(2) Without limiting subsection 33(3A) of the

Acts Interpretation Act

1901

, the regulations may prescribe:

(a) different requirements in relation to different regulated

television devices or kinds of regulated television devices; or

(b) different requirements in relation to different regulated

television services or kinds of regulated television services;

or circumstances.

Note:

For specification by class, see subsection 13(3) of the

Legislation Act

2003

(3) Despite subsection 14(2) of the

Legislation Act 2003

, regulations

made for the purposes of this section may make provision in

relation to a matter by applying, adopting or incorporating, with or

without modification, any matter contained in an instrument or

other writing as in force or existing from time to time.

(4) If regulations under this section make provision in relation to a

matter by applying, adopting or incorporating, with or without

modification, a matter contained in an instrument or writing, the

Minister must ensure that the text of the matter applied, adopted or

incorporated is published on the Department's website.

(5) Subsection (4) does not apply if the publication would infringe

130ZZP Remedial directions

contravention of minimum

prominence requirements

Scope

(1) This section applies if the ACMA is satisfied that a person has

contravened, or is contravening, subsection 130ZZN(1), (2), (3) or

(4).

Schedule 1

Prominence framework

Part 1

Main amendments

Communications Legislation Amendment (Prominence and Anti-

siphoning) Bill 2023

No. , 2023

Remedial directions

(2) The ACMA may give the person a written direction requiring the

person to take specified action directed towards ensuring that the

person does not contravene subsection 130ZZN(1), (2), (3) or (4),

or is unlikely to contravene that subsection, in the future.

Note:

For variation and revocation, see subsection 33(3) of the

Acts

Interpretation Act 1901

(3) A person must not contravene a direction under subsection (2).

Civil penalty provision

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

(5) A person who contravenes subsection (3) commits a separate

contravention of that subsection in respect of each day (including a

day of the making of a relevant civil penalty order or any

subsequent day) during which the contravention continues.

Designated infringement notice provision

(6) Subsection (3) is a designated infringement notice provision.

Notice

(7) For the purposes of this Act and the

Australian Communications

and Media Authority Act 2005

, a direction under subsection (2) is

taken to be a notice under this Part.

Division

3--Information gathering

130ZZQ ACMA may obtain information and documents

Scope

(1) This section applies to a person who:

(a) is a manufacturer of a regulated television device; or

(b) is a related body corporate of a manufacturer of a regulated

television device; or

if:

Prominence framework

Schedule 1

Main amendments

Part 1

No. , 2023

Communications Legislation Amendment (Prominence and Anti-

siphoning) Bill 2023

(d) the ACMA has reason to believe that the person has

information or a document that is relevant to:

(i) monitoring compliance with this Part; or

(ii)

the performance of the ACMA's functions under

paragraph 10(1)(a), (la), (lb), (lc), (ld), (n) or (q) of the

Australian Communications and Media Authority Act

2005

ACMA may require information or documents

(2) The ACMA may, by written notice given to the person, require the

person to do any of the following:

(a) to give to the ACMA, within the period and in the manner

and form specified in the notice, any such information;

(b) to produce to the ACMA, within the period and in the

manner specified in the notice, any such documents;

ACMA, within the period and in the manner specified in the

notice, those copies.

(3) A person must comply with a requirement under subsection (2).

Civil penalty provision

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

(5) A person who contravenes subsection (3) commits a separate

contravention of that subsection in respect of each day (including a

day of the making of a relevant civil penalty order or any

subsequent day) during which the contravention continues.

Designated infringement notice provision

(6) Subsection (3) is a designated infringement notice provision.

Requirements for notice

(7) A period specified under paragraph (2)(a), (b) or (c) must not be

shorter than 14 days after the notice is given.

Schedule 1

Prominence framework

Part 1

Main amendments

Communications Legislation Amendment (Prominence and Anti-

siphoning) Bill 2023

No. , 2023

130ZZR Copies of documents

(1) The ACMA may inspect a document or copy produced under this

Part and may make and retain copies of, or take and retain extracts

from, such a document.

(2) The ACMA may retain possession of a copy of a document

produced in accordance with a requirement covered by paragraph

130ZZQ(2)(c).

Division

4--Miscellaneous

130ZZS Service of notices by electronic means

Paragraphs 9(1)(d) and (2)(d) of the

Electronic Transactions Act

1999

do not apply to:

(a) a notice under this Part; or

(b) a notice under any other provision of this Act, so far as that

provision relates to this Part.

Note:

Paragraphs 9(1)(d) and (2)(d) of the

Electronic Transactions Act 1999

deal with the consent of the recipient of information to the information

being given by way of electronic communication.

130ZZT Relationship with other laws

This Part does not limit the operation of any other provision of this

Act.

130ZZU Concurrent operation of State and Territory laws

It is the intention of the Parliament that this Part is not to apply to

the exclusion of a law of a State or Territory to the extent to which

that law is capable of operating concurrently with this Part.

Prominence framework

Schedule 1

Main amendments

Part 1

No. , 2023

Communications Legislation Amendment (Prominence and Anti-

siphoning) Bill 2023

Division

5--Review of this Part etc.

130ZZV Review of this Part

Review of this Part

(1) The Minister must cause a review to be conducted of the operation,

effectiveness and implications of:

(a) this Part; and

(b) the remaining provisions of this Act to the extent to which

they relate to this Part; and

(d) any legislative instruments made under subsection 130ZZI(2)

or (3), 130ZZJ(2) or (3), 130ZZL(3) or 130ZZN(9); and

(e) any guidelines made under subsection 130ZZM(1).

(2) The review must commence as soon as practicable after the end of

the 3 year period starting on the day that is 18 months after the

commencement of this Part.

Report

(3) The persons undertaking the review must give the Minister a

written report of the review. The report must not include

information that is commercially sensitive.

(4) The Minister must cause copies of the report to be tabled in each

House of the Parliament within 15 sittings days of that House after

receiving the report.

130ZZW Minister may request report

The Minister may, by written notice given to the ACMA, request

the ACMA to:

(a) prepare a report about any one or more of the following:

(i) regulated television devices;

(ii) regulated television services;

(iii) technological developments that relate to regulated

television devices or regulated television services;

Schedule 1

Prominence framework

Part 1

Main amendments

Communications Legislation Amendment (Prominence and Anti-

siphoning) Bill 2023

No. , 2023

(iv) access to regulated television services by users of

regulated television devices;

(v) developments in the broadcasting service industry and

broadcasting video on demand service industry; and

(b) give the report to the Minister.

(2) The ACMA must comply with a request under subsection (1).

130ZZX Minister may direct ACMA about the exercise of its powers

(1) The Minister may, by legislative instrument, give a direction to the

ACMA about the exercise of the powers conferred on the ACMA

by this Part.

(2) The ACMA must comply with a direction under subsection (1).

Prominence framework

Schedule 1

Consequential amendments and application provisions

Part 2

No. , 2023

Communications Legislation Amendment (Prominence and Anti-

siphoning) Bill 2023

Part

2--Consequential amendments and application

provisions

Australian Communications and Media Authority Act 2005

2 Section 3 (subparagraph (b)(i) of the definition of

authorised disclosure information

)

After "7", insert ", 9E".

3 Paragraph 10(1)(a)

After "broadcasting services", insert ", broadcasting video on demand

services".

4 After paragraph 10(1)(l)

Insert:

(la) to develop guidelines and make determinations about

regulated television devices under Part 9E of the

Broadcasting Services Act 1992

;

(lb) to advise the Minister about regulated television services

under Part 9E of the

Broadcasting Services Act 1992

;

(lc) to monitor compliance with the minimum prominence

requirements;

(ld) to conduct investigations relating to compliance with the

minimum prominence requirements;

5 Paragraphs 10(1)(n) and (q)

After "broadcasting industry,", insert "broadca

sting video on demand

industry,".

6 After paragraph 53(2)(j)

Insert:

(ja) make, vary or revoke a determination about regulated

television devices under subsection 130ZZI(2) or (3) of that

Act;

(jb) make, vary or revoke an instrument about primary user

interfaces under subsection 130ZZL(3) of that Act;

Schedule 1

Prominence framework

Part 2

Consequential amendments and application provisions

Communications Legislation Amendment (Prominence and Anti-

siphoning) Bill 2023

No. , 2023

(jc) determine, vary or revoke guidelines about regulated

television devices under section 130ZZM of that Act;

7 Paragraph 53(2)(k)

After "

Part 9

C", insert "or

E".

Broadcasting Services Act 1992

8 Title

After "

broadcasting services,

", insert "

broadcasting video on

demand services,

9 After paragraph 3(1)(h)

Insert:

(ha) to promote access to certain broadcasting services and

broadcasting video on demand services that are made

available free to Australian audiences and users; and

10 Subsection 3(2)

Insert:

broadcasting video on demand services

has the same meaning as

in Part 9E.

11 Subsections 4(1) and (2)

After "broadcasting services"

(wherever occurring),

insert "

broadcasting video on demand servic

es".

12 Subparagraph 4(2)(c)(i)

After "broadcasting technologies", insert "

, broadcasting video on

demand technologies".

13 Subsection 4(4)

Insert:

broadcasting video on demand service

has the same meaning as in

Part 9E.

Prominence framework

Schedule 1

Consequential amendments and application provisions

Part 2

No. , 2023

Communications Legislation Amendment (Prominence and Anti-

siphoning) Bill 2023

14 Paragraph 5(1)(a)

After "broadcasting industry", insert "

, the broadcasting video on

demand industry".

15 Subsection 5(4)

Insert:

broadcasting video on demand service

has the same meaning as in

Part 9E.

16 Subsection 204(1) (before table item dealing with

section 143)

Insert:

To give a remedial

direction

Subsection

130ZZP(2)

The person to whom

the direction was

given

Variation of a

remedial direction

Subsection

130ZZP(2)

The person to whom

the direction was

given

Refusal to revoke a

remedial direction

Subsection

130ZZP(2)

The person to whom

the direction was

given

17 After subsection 205F(5AA)

Insert:

(5AB) The pecuniary penalty payable by a person in respect of:

(a) a contravention of subsection 130ZZN(1), (2), (3) or (4); or

(b) a contravention of section 205E that relates to a

contravention of subsection 130ZZN(1), (2), (3) or (4);

must not exceed:

whichever of the

following is greatest:

(i) 10,000 penalty units;

(ii) if the Federal Court can determine the value of the

benefit that the body corporate, and any body corporate

Schedule 1

Prominence framework

Part 2

Consequential amendments and application provisions

Communications Legislation Amendment (Prominence and Anti-

siphoning) Bill 2023

No. , 2023

related to the body corporate, has obtained directly or

indirectly and that is reasonably attributable to the

contravention

3 times the value of that benefit;

(iii) if the Federal Court cannot determine the value of that

benefit

2% of the annual turnover of the body

corporate during the period (the

turnover period

) of 12

months ending at the end of the month in which the

contravention occurred; or

(d) if the person is not a body corporate

2,000 penalty units.

(5AC) The pecuniary penalty payable by a person in respect of:

(a) a contravention of subsection 130ZZP(3); or

(b) a contravention of section 205E that relates to a

contravention of subsection 130ZZP(3);

must not exceed:

5,000 penalty units; and

(d) if the person is not a body corporate

1,000 penalty units.

(5AD) The pecuniary penalty payable by a person in respect of:

(a) a contravention of subsection 130ZZQ(3); or

(b) a contravention of section 205E that relates to a

contravention of subsection 130ZZQ(3);

must not exceed:

40 penalty units; and

(d) if the person is not a body corporate

30 penalty units.

18 At the end of section 205F

Add:

Meaning of

annual turnover

(9) For the purposes of this section, the

annual turnover

of a body

corporate, during the turnover period, is the sum of the values of all

the supplies that the body corporate, and any body corporate

related to the body corporate, have made, or are likely to make,

during that period, other than the following supplies:

(a) supplies made from any of those bodies corporate to any

other of those bodies corporate;

(b) supplies that are input taxed;

Prominence framework

Schedule 1

Consequential amendments and application provisions

Part 2

No. , 2023

Communications Legislation Amendment (Prominence and Anti-

siphoning) Bill 2023

supplies under section 72-5 of the

A New Tax System (Goods

and Services Tax) Act 1999

);

(d) supplies that are not made in connection with an enterprise

that the body corporate carries on.

(10) For the purposes of subsection (9), it is immaterial whether the

supplies were made, or are likely to be made, within or outside

Australia.

(11) Expressions used in subsections (9) and (10) that are also used in

the

A New Tax System (Goods and Services Tax) Act 1999

have the

same meaning in those subsections as they have in that Act.

(12) The question whether 2 bodies corporate are related to each other

is to be determined for the purposes of subsection (9) in the same

way as for the purposes of the

Corporations Act 2001

19 Section 205XA

After "designated infringement notice provision", insert "(other than a

designated infringement notice provision in Part 9

E)".

20 Subsection 205Y(3)

Omit "

subsection (

4)", substitute "subsections

(4) and (5)".

21 At the end of section 205Y

Add:

(5) Subsection (4) does not apply in relation to a contravention of a

designated infringement notice provision in Part 9E.

22 Before paragraph 205ZA(1)(aa)

Insert:

(aaa) if the infringement notice relates to subsection 130ZZP(3)

and the person is a body corporate

60 penalty units; or

(aab) if the infringement notice relates to subsection 130ZZQ(3)

and the person is a body corporate

30 penalty units; or

Schedule 1

Prominence framework

Part 2

Consequential amendments and application provisions

Communications Legislation Amendment (Prominence and Anti-

siphoning) Bill 2023

No. , 2023

23 Paragraph 205ZA(1)(a)

Omit "subclause

25(1) of Schedule

8", substitute "a provision

mentioned in paragraph (aaa), (aab)

or (aa)".

24 Application of amendments

The amendments made by this Schedule apply in relation to a regulated

television device that:

(a) is manufactured on or after the day that is 18 months after the

commencement of this Schedule; and

(b) is supplied on or after that day.

Anti-siphoning

Schedule 2

No. , 2023

Communications Legislation Amendment (Prominence and Anti-

siphoning) Bill 2023

Schedule

2--Anti

siphoning

Broadcasting Services Act 1992

1 After paragraph 3(1)(ea)

Insert:

(eb) to promote the free availability to audiences throughout

Australia of television coverage of events of national

importance and cultural significance; and

2 Subsection 6(1) (definition of

anti-siphoning event

)

Omit "a notice under subsection

115(1). For this purpose, disregard

subsections

115(1AA) and (1B)", substitute "the anti

-siphoning list. For

this purpose, disregard subsections

146V(2) and (4)".

3 Section 115

Repeal the section.

4 After Part 10A

Insert:

Part

10B--Anti

siphoning scheme

Division

1--Introduction

146S Simplified outline

•

This Part sets up a scheme to promote the free availability to

audiences throughout Australia of television coverage of

events of national importance and cultural significance.

•

The Minister may, by legislative instrument (the

anti-siphoning list

), specify the events that are covered by this

Part. If an event is specified in the list, there is a period in

which media content service providers (other than national

broadcasters and certain Australian commercial television

Schedule 2

Anti-siphoning

Communications Legislation Amendment (Prominence and Anti-

siphoning) Bill 2023

No. , 2023

broadcasting licensees) are prohibited from acquiring the

rights to televise or otherwise provide coverage of a whole or

a part of the event. This ensures that national broadcasters and

certain Australian commercial television broadcasting

licensees have the opportunity to acquire the rights and

televise the event for free to the general public.

•

If the rights to an event are not acquired within the relevant

period, the event is automatically removed from the

anti-siphoning list, unless the Minister makes another

legislative instrument declaring that the event is to remain in

the list.

•

The Minister also has a general power to remove events from

the list if the Minister considers it appropriate to do so (for

example, if the Minister thinks that doing so is likely to have

the effect that the event will be televised to a greater extent

than if it remained in the list).

•

The ACMA has information gathering and enforcement

functions and powers in relation to this Part.

•

There is to be a review of the operation of this Part.

146T Definitions

In this Part:

anti-siphoning list

means the instrument made under

subsection 146V(1).

audiovisual content

includes television programs.

Australia

, when used in a geographical sense, includes all the

external Territories.

coverage

means coverage that involves audiovisual content or

moving visual content.

listed carriage service

has the same meaning as in the

Telecommunications Act 1997

Anti-siphoning

Schedule 2

No. , 2023

Communications Legislation Amendment (Prominence and Anti-

siphoning) Bill 2023

media content service

has the meaning given by section 146U.

media content service provider

means a person who provides a

media content service.

related body corporate

has the same meaning as in the

Corporations Act 2001

146U Media content service

(1) For the purposes of this Part,

media content service

means any of

the following:

(a) a broadcasting service;

(b) an online information service (for example, a dial-up

information service);

demand service or an interactive computer game service);

(d) any other online service that allows end-users to access

content using a listed carriage service;

(e) a specified service that the Minister determines, under

subsection (2), is a media content service;

but does not include a specified service that the Minister

determines, under subsection (3), is not a media content service.

(2) For the purposes of paragraph (1)(e), the Minister may, by

legislative instrument, determine that a specified service is a

media

content service

Note:

For specification by class, see subsection 13(3) of the

Legislation Act

2003

(3) For the purposes of subsection (1), the Minister may, by legislative

instrument, determine that a specified service is not a

media

content service

Note:

For specification by class, see subsection 13(3) of the

Legislation Act

2003

Schedule 2

Anti-siphoning

Communications Legislation Amendment (Prominence and Anti-

siphoning) Bill 2023

No. , 2023

Division

2--Anti

siphoning rules

146V Minister may protect the free availability of certain types of

programs

(1) The Minister may, by legislative instrument (the

anti-siphoning

list

), specify an event, or events of a kind, the televising of which

should, in the opinion of the Minister, be available free to the

general public.

Note:

An instrument made under this subsection can be varied or revoked

under subsection 33(3) of the

Acts Interpretation Act 1901

Delisting of events before the event occurs

(2) An event specified in the anti-siphoning list is taken to be removed

from the list 8,760 hours before the start of the event (the

delisting

time

), unless:

(a) the Minister, by legislative instrument, declares that the event

continues to be specified in the list; and

(b) does so before the delisting time.

(3) The Minister may make a declaration under subsection (2) only if

the Minister is satisfied that at least one commercial television

broadcasting licensee or national broadcaster has not had a

reasonable opportunity to acquire the right to televise the event

concerned.

Delisting of events after the event occurs

(4) An event specified in the anti-siphoning list is taken to be removed

from the list 168 hours after the end of the event (the

delisting

time

), unless:

(a) the Minister, by legislative instrument, declares that the event

continues to be specified in the list after the delisting time;

and

(b) does so before the delisting time.

Anti-siphoning

Schedule 2

No. , 2023

Communications Legislation Amendment (Prominence and Anti-

siphoning) Bill 2023

General power to delist events

(5) The Minister may, by legislative instrument, amend the

anti-

siphoning list to remove an event if, in the Minister's opinion,

it is appropriate in all the circumstances.

Examples: The following are examples of situations in which the Minister might

exercise the power to remove an event from the anti-siphoning list:

(a) The national broadcasters and commercial television

broadcasting licensees have had a real opportunity to acquire the

right to televise an event, but none of them has acquired the right

within a reasonable time. The Minister is of the opinion that

removing the event from the list is likely to have the effect that

the event will be televised to a greater extent than if it remained

in the list;

(b) A commercial television broadcasting licensee has acquired the

right to televise an event, but has failed to televise the event or

has televised only an unreasonably small proportion of the event.

The Minister is of the opinion that removing that event, or

another event, from the list is likely to have the effect that the

removed event will be televised to a greater extent than it would

be if it remained in the list.

146W Events in anti-siphoning list should be televised for free

(1) This section applies to a media content service provider, other

than:

(a) a commercial television broadcasting licensee (other than a

licensee who holds a licence allocated under section 38C or

subsection 40(1)); or

(b) a national broadcaster.

(2) A media content service provider must not acquire the right to

televise or otherwise provide coverage of the whole or a part of an

event that is included in the anti-siphoning list to end-users in

Australia unless:

(a) a national broadcaster has the right to televise the whole or a

part of the event on any of its broadcasting services; or

(b) both of the following apply:

(i) one or more commercial television broadcasting

licensees (other than licensees who hold licences

allocated under section 38C or subsection 40(1)) have

the right to televise the whole or a part of the event;

Schedule 2

Anti-siphoning

Communications Legislation Amendment (Prominence and Anti-

siphoning) Bill 2023

No. , 2023

(ii) the television broadcasting services of that licensee, or

of those licensees, cover a total of more than 50% of the

Australian population.

(3) Subsection (2) is a civil penalty provision.

Exception

(4) The Minister may, by legislative instrument, determine that

subsection (2) does not apply to a specified media content service

provider if the Minister is satisfied that it is appropriate to do so.

(5) In making such a determination, the Minister may have regard to

the following:

(a) the object in paragraph 3(1)(eb);

(b) the extent to which the application of subsection (2) of this

section to the provider would, in the circumstances, impose

an undue burden or restriction on the provider;

146X Extraterritorial application

This Part extends to acts, omissions, matters and things outside

Australia.

146Y Remedial directions

Scope

(1) This section applies if the ACMA is satisfied that a media content

service provider has contravened, or is contravening,

subsection 146W(2).

Remedial directions

(2) The ACMA may give the person a written direction requiring the

provider to take specified action directed towards ensuring that, in

the future:

(a) the provider does not contravene subsection 146W(2); or

(b) the provider is unlikely to contravene that subsection.

Anti-siphoning

Schedule 2

No. , 2023

Communications Legislation Amendment (Prominence and Anti-

siphoning) Bill 2023

(3) The following are examples of the kinds of direction that may be

given to a media content service provider under subsection (2):

(a) a direction that the provider implement effective

administrative systems for monitoring compliance with

subsection 146W(2);

(b) a direction that the provider implement a system designed to

give the provider's employees, agents and c

ontractors a

reasonable knowledge and understanding of the requirements

of subsection 146W(2), in so far as those requirements affect

the employees, agents or contractors concerned.

(4) A person must not contravene a direction under subsection (2).

Civil penalty provision

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

Division

3--Information gathering

146Z ACMA may obtain information and documents

Scope

(1) This section applies to a person who:

(a) is a media content service provider; or

(b) is a related body corporate of a media content service

provider;

if:

information or a document that is relevant to:

(i) monitoring compliance with this Part; or

(ii)

the performance of the ACMA's functions

under

paragraph 10(1)(a), (e), (n) or (q) of the

Australian

Communications and Media Authority Act 2005

ACMA may require information or documents

(2) The ACMA may, by written notice given to the person, require the

person to do any of the following:

Schedule 2

Anti-siphoning

Communications Legislation Amendment (Prominence and Anti-

siphoning) Bill 2023

No. , 2023

(a) to give to the ACMA, within the period and in the manner

and form specified in the notice, any such information;

(b) to produce to the ACMA, within the period and in the

manner specified in the notice, any such documents;

ACMA, within the period and in the manner specified in the

notice, those copies.

(3) A person must comply with a requirement under subsection (2).

Civil penalty provision

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

(5) A person who contravenes subsection (3) commits a separate

contravention of that subsection in respect of each day (including a

day of the making of a relevant civil penalty order or any

subsequent day) during which the contravention continues.

Designated infringement notice provision

(6) Subsection (3) is a designated infringement notice provision.

Requirements for notice

(7) A period specified under paragraph (2)(a), (b) or (c) must not be

shorter than 14 days after the notice is given.

146ZA Copies of documents

(1) The ACMA may inspect a document or copy produced under this

Part and may make and retain copies of, or take and retain extracts

from, such a document.

(2) The ACMA may retain possession of a copy of a document

produced in accordance with a requirement covered by

paragraph 146Z(2)(c).

Anti-siphoning

Schedule 2

No. , 2023

Communications Legislation Amendment (Prominence and Anti-

siphoning) Bill 2023

Division

4--Review of this Part

146ZB Review of this Part

(1) The Minister must cause a review to be conducted of the operation,

effectiveness and implications of:

(a) this Part; and

(b) the anti-siphoning list.

(2) The review must commence as soon as practicable after the end of

the 5 year period starting on the day on which this

Part commences.

Report

(3) The persons undertaking the review must give the Minister a

written report of the review. The report must not include

information that is commercially sensitive.

(4) The Minister must cause copies of the report to be tabled in each

House of the Parliament within 15 sittings days of that House after

receiving the report.

146ZC Minister may request report

(1) The Minister may, by written notice given to the ACMA, request

the ACMA to:

(a) prepare a report about any of the following:

(i) developments in the market for rights to provide

coverage of sporting events in Australia;

(ii) trends in the provision and consumption of coverage of

sporting events by audiences in Australia;

(iii) international developments in the regulation of the

rights to provide coverage of sporting events and in the

provision and consumption of such coverage;

(iv) technological developments that relate to media content

services in Australia; and

(b) give the report to the Minister.

(2) The ACMA must comply with a request under subsection (1).

Schedule 2

Anti-siphoning

Communications Legislation Amendment (Prominence and Anti-

siphoning) Bill 2023

No. , 2023

5 After Division 1 of Part 11

Insert:

Division

1A--Complaints relating to anti

siphoning

149A Complaints relating to anti-siphoning

If a person believes that a media content service provider to whom

section 146W applies has breached the civil penalty provision in

subsection (2) of that section, the person may make a complaint to

the ACMA about the matter.

Note:

Section 146W deals with anti-siphoning restrictions in relation to

persons who provide media content services, other than commercial

television broadcasting licensees and national broadcasters.

149B Investigation of complaints by the ACMA

The ACMA may investigate the complaint if the ACMA thinks

that it is desirable to do so.

6 Subsection 204(1) (after table item dealing with

Subsection 146D(4))

Insert:

To give a remedial

direction

Subsection 146Y(2)

The person to whom

the direction was

given

Variation of a

remedial direction

Subsection 146Y(2)

The person to whom

the direction was

given

Refusal to revoke a

remedial direction

Subsection 146Y(2)

The person to whom

the direction was

given

7 Before subsection 205F(5A)

Insert:

(5AE) The pecuniary penalty payable by a person in respect of a

contravention of subsection 146W(2) must not exceed:

Anti-siphoning

Schedule 2

No. , 2023

Communications Legislation Amendment (Prominence and Anti-

siphoning) Bill 2023

(a) if the person is a body corporate

whichever of the

following is greater:

(i) 10,000 penalty units;

(ii) if the Court can determine the value of the benefit that

the body corporate, and any body corporate related to

the body corporate, has obtained directly or indirectly

and that is reasonably attributable to the

contravention

3 times the value of that benefit;

(iii) if the Court cannot determine the value of that benefit

2% of the annual turnover of the body corporate during

the period (the

turnover period

) of 12 months ending at

the end of the month in which the contravention

occurred; or

(b) if the person is not a body corporate

2,000 penalty units.

(5AF) The pecuniary penalty payable by a person in respect of a

contravention of subsection 146Y(4) must not exceed:

(a) if the person is a body corporate

5,000 penalty units; or

(b) if the person is not a body corporate

1,000 penalty units.

(5AG) The pecuniary penalty payable by a person in respect of:

(a) a contravention of subsection 146Z(3); or

(b) a contravention of section 205E that relates to a

contravention of subsection 146Z(3);

must not exceed:

40 penalty units; and

(d) if the person is not a body corporate

30 penalty units.

8 After paragraph 205ZA(1)(aab)

Insert:

(aac) if the infringement notice relates to subsection 146Z(3) and

the person is a body corporate

30 penalty units; or

9 Paragraph 205ZA(1)(a)

Omit "paragraph

(aaa), (aab) or (aa)", substitute "paragraph

(aaa), (aab),

(aac) or (aa)".

Commonwealth of Australia Bills

COMMUNICATIONS LEGISLATION AMENDMENT (PROMINENCE AND ANTI-SIPHONING) BILL 2023