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2004-2005-2006
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
COMMUNICATIONS LEGISLATION AMENDMENT
(ENFORCEMENT POWERS) BILL 2006
EXPLANATORY MEMORANDUM
(Circulated by authority of Senator the Hon. Helen Coonan,
Minister for Communications, Information Technology and the Arts)
COMMUNICATIONS LEGISLATION AMENDMENT
(ENFORCEMENT POWERS) BILL 2006
OUTLINE
The Government considers that the range of enforcement powers available to the
Australian Communications and Media Authority (the ACMA) to regulate the
broadcasting industry do not provide an appropriate range of enforcement options, and
therefore are not adequate to enable it to fulfil the objects of the Broadcasting Services
Act 1992 (BSA). The Bill will not create new offences, but will enhance the ACMA's
broadcasting regulatory powers under the BSA by providing the ACMA with key new
powers:
· civil penalties;
· injunctions;
· enforceable undertakings; and
· infringement notices.
The Bill will also require the ACMA to develop guidelines relating to the exercise of
its broadcasting enforcement powers.
Civil Penalties
Currently breaches of many provisions of the BSA, or of basic licence conditions
established by the BSA, are subject only to criminal penalty, requiring the ACMA to
refer prosecutions to the Commonwealth Director of Public Prosecutions (DPP),
establish the breach to the criminal standard of proof and demonstrate intent to breach.
The Bill will establish civil penalties in relation to a number of breaches of the BSA
and licence conditions, enabling the ACMA to initiate Federal Court action against
licensees and requiring a lower (civil) standard of proof.
The Bill also replaces the existing powers in sections 137 and 141 of the BSA with
new powers to issue remedial directions. Sections 137 and 141 of the BSA
empowered the ACMA to issue notices requiring broadcasters to cease providing
unlicensed services and to cease breaching licence conditions and certain codes of
practice. These powers will be replaced with powers for the ACMA to issue remedial
directions. The new remedial directions powers enable the ACMA to direct licensees
to take action directed towards ensuring that they do not provide unlicensed services or
breach licence conditions or certain codes of practice in the future, and are more
consistent with other powers the ACMA has under clause 53 of Schedule 6 of the BSA
and the Telecommunications Act 1997 (Tel Act). A failure to comply with such a
direction would incur either a civil or criminal penalty.
Civil penalties imposed in the past will also be added to those matters that the ACMA
will take into account in determining suitability to hold a licence.
2
Injunctions
The ACMA will be granted a further power to seek an order from the Federal Court to
prevent unlicensed broadcasting. Injunctions to prevent unlicensed broadcasts are
principally aimed at licensees outside commercial broadcasting categories, such as
narrowcasters (which are licensed to provide only niche services) that provide
commercial broadcasting services.
Enforceable Undertakings
The Bill will provide the ACMA with a general power to accept enforceable
undertakings in relation to its broadcasting, content or datacasting regulatory functions.
The ACMA can currently accept voluntary undertakings in these areas but they are not
enforceable; in contrast, the ACMA can accept enforceable undertakings in relation to
telecommunications matters, and other regulators such as the Australian Competition
and Consumer Commission (ACCC) use enforceable undertakings as a key regulatory
tool. Undertakings will remain voluntary, but breaches of undertakings, once made,
will lead to potential Federal Court action.
The ACMA will also be granted a similar power to accept enforceable undertakings in
relation to regulatory obligations under the Radiocommunications Act 1992 (Radcom
Act).
Infringement Notices
The Bill will provide the ACMA with the power to issue infringement notices in
relation to the following types of breaches:
· failure to report changes of control and directorships; and
· failure to submit annual financial returns, keep records and make records
available to the ACMA.
These are currently areas of regular non-compliance, and infringement notices will
give the ACMA additional flexibility in pursuing breaches. The infringement notice
scheme would be implemented in accordance with the Australian Law Reform
Commission (ALRC) guidelines.
Guidelines
The ACMA will also be required to develop guidelines, in consultation with industry,
regarding the appropriate use of enforceable undertakings, infringement notices and
civil penalties. In developing such guidelines, the ACMA can also issue guidelines in
relation to its exercise of existing enforcement powers, such as referral for criminal
prosecution or suspension or cancellation of licences.
FINANCIAL IMPACT STATEMENT
The amendments contained in the Bill have no significant financial impact.
3
REGULATION IMPACT STATEMENT
BACKGROUND
1. The Australian Communications and Media Authority (the ACMA) is an
independent statutory authority established under section 6 of the Australian
Communications and Media Authority Act 2005 (the ACMA Act).1 The ACMA's
functions include broadcasting, content and datacasting regulation (s. 10). A
significant number of the ACMA's functions are provided for in the Broadcasting
Services Act 1992 (the BSA).
2. The objects of the BSA are contained in section 3 and include:
to promote the availability to audiences throughout Australia of a diverse
range of radio and television services offering entertainment, education and
information;
to provide a regulatory environment that will facilitate the development of a
broadcasting industry in Australia that is efficient, competitive and responsive
to audience needs;
to encourage diversity and control of the more influential broadcasting
services;
to ensure that Australians have effective control of the more influential
broadcasting services;
to promote the role of broadcasting services in developing and reflecting a
sense of Australian identity, character and cultural diversity;
to promote the provision of high quality and innovative programming by
providers of broadcasting services;
to encourage providers of commercial and community broadcasting services
to be responsive to the need for a fair and accurate coverage of matters of
public interest and for an appropriate coverage of matters of local
significance;
to encourage providers of broadcasting services to respect community
standards in the provision of program material; and
to encourage the provision of means for addressing complaints about
broadcasting services.
3. It is stated in section 5 of the BSA that Parliament "charges the ACMA with
responsibility for monitoring the broadcasting industry, the datacasting industry and
the internet industry" and that Parliament confers on the ACMA a range of functions
and powers that will:
produce regulatory arrangements that are stable and predictable; and
deal effectively with breaches of the rules established by the BSA.
Where the ACMA uses its powers to deal with a breach of the BSA or regulations, the
ACMA must use its powers in a manner that is "commensurate with the seriousness of
the breach concerned."
1
The ACMA was established on 1 July 2005 following the merger of the Australian Broadcasting
Authority and the Australian Communications Authority. For convenience, "the ACMA" is used
throughout this Regulation Impact Statement, including when discussing the actions of the Australian
Broadcasting Authority.
4
4. Section 4 of the BSA identifies the regulatory policy underpinning the BSA. It
is stated in section 4 that:
(1) The Parliament intends that different levels of regulatory control be applied across the
range of broadcasting services, datacasting services and internet services according to the
degree of influence that different types of broadcasting services, datacasting services and
internet services are able to exert in shaping community views in Australia.
(2) The Parliament also intends that broadcasting and datacasting services in Australia be
regulated in a manner that, in the opinion of the ACMA:
(a) enables public interest considerations to be addressed in a way that does not
impose unnecessary financial and administrative burdens on providers of broadcasting
services and datacasting services; and
(b) will readily accommodate technological change; and
(c) encourages:
(i) the development of broadcasting technologies and datacasting technologies
and their applications; and
(ii) the provision of services made practicable by those technologies to the
Australian community.
5. For some time, the ACMA has been concerned that its enforcement powers are
not sufficient to enable it to fulfil the objects of the BSA in a manner consistent with
this regulatory policy. It has argued that its powers should be amended to enable it to
deal more effectively with breaches of the rules established by the BSA.
6. In the ACMA's final report in relation to the Commercial Radio Inquiry
(August 2000) the ACMA identified a number of proposals that it said might assist in
the prevention and/or enforcement of future breaches of codes of practice. The
proposals identified in the report included additional administrative remedies (such as
advertising-free periods) and the introduction of sanctions against presenters.
7. In early 2001, the Department of Communications, Information Technology
and the Arts issued a discussion paper titled Final Report of the Australian
Broadcasting Authority's Commercial Radio Inquiry: Proposed Options for
Legislative Reform and Related Issues. The discussion paper outlined a number of
legislative options proposed by the ACMA to strengthen its enforcement powers. The
submissions that were received in response to the paper, particularly the submissions
received from the Federation of Australian Commercial Television Stations (FACTS -
now FreeTV) and the Federation of Australian Radio Broadcasters (FARB - now
Commercial Radio Australia), were generally critical of the proposals, and none of the
proposals was implemented at that time.
8. Since that time, further events have prompted renewed consideration of
whether the ACMA has adequate enforcement powers. For example, the experience of
the ACMA in its attempt to prosecute the licensee of commercial radio service 2UE for
multiple breaches of the Broadcasting Services (Commercial Radio Current Affairs
Disclosure) Standard 2000 indicates some of the difficulties confronted by the ACMA
5
because of its limited enforcement powers. There was also controversy in 2005 over
the ACMA's response to a breach of the commercial television industry's code of
practice by the Ten Network on the Big Brother program.
9. In 2004, the ACMA asked Professor Ian Ramsay to examine the effectiveness
of the ACMA's existing enforcement powers and consider whether any reforms were
needed in relation to these powers. His report has formed the basis of the
Government's consideration of reforms to the ACMA's broadcasting regulatory
powers.2
10. In summary, Professor Ramsay's report recommended amendments be made to
the BSA to provide the ACMA with:
a power to accept enforceable undertakings;
a power to seek an injunction in circumstances where a person has failed to
comply with requirements relating to the provision of broadcasting services
without a licence;
a power to seek civil penalties for certain breaches of the BSA, breaches of
either licence conditions provided in the BSA or imposed on licensees by the
ACMA, or breaches of notices to cease providing an unlicensed broadcasting
service or to cease breaching a licence condition or certain code of practice,
all of which are currently subject to criminal penalties in certain
circumstances;
a power to issue infringement notices for breaches of the control notification
provisions of the BSA, non-compliance with the annual financial returns
requirements of the BSA, and the late payment of licence fees; and
a power to require on-air statements of ABA investigation findings.
11. The ACMA endorsed the recommendations of the report and forwarded it to
the Minister for Communications, Information Technology and the Arts (the Minister).
CONSULTATION
12. On 9 November 2005, the Government released a discussion paper on the
reform of the ACMA's broadcasting regulatory powers for public comment. The
paper sought comments on the recommendations made by Prof Ramsay. Submissions
closed on 9 December, and twelve submissions were received. The submissions are
briefly summarised at Attachment A.3 The Government has since undertaken further
consultations with industry and the ACMA.
2
The Ramsay Report is available from the ACMA website:
http://www.acma.gov.au/acmainterwr/aba/newspubs/radio_tv/investigations/documents/enforcementpo
wers.pdf.
3
The submissions can be seen at the DCITA website:
http://www.dcita.gov.au/broad/policy_reviews/proposed_reforms_to_the_broadcasting_regulatory_pow
ers_of_the_australian_communications_and_media_authority.
6
PROBLEM
13. Attachment B describes the ACMA's broadcasting and regulatory functions
and powers in detail. In summary, the ACMA has the following range of broadcasting
enforcement powers:
to make recommendations to national broadcasters in relation to breaches of
national broadcasters' codes of practice;
to issue notices requiring compliance with certain industry codes of practice,
licence conditions or industry standards;
to impose an industry standard or licence condition;
to require the cessation of the provision of an unlicensed service;
to seek criminal penalties for certain breaches of the BSA, licence conditions
or standards, or for non-compliance with notices to comply; or
to suspend or cancel licences.
14. The Ramsay Report discusses how enforcement powers of regulators are
ideally described in terms of a hierarchy of integrated sanctions which escalate in
severity in response to more serious contraventions of the law. The ACMA's concerns
centre on the existing concentration of its powers at the higher end of the hierarchy (eg
criminal sanctions, and suspension or cancellation of a licence) and a lack of middle
range penalties to address those breaches which are not considered serious enough to
warrant the imposition of a criminal penalty or suspension or cancellation of a licence.
15. Of key concern has been the adequacy of the ACMA's enforcement powers in
relation to:
enforcement of licence conditions;
enforcement of codes of practice;
enforcement of the categories of broadcasting services; and
enforcement of reporting and notification requirements.
Enforcement of licence conditions
16. Currently, breaches of those licence conditions set out in subclauses 7(1), 8(1),
9(1), 10(1) and 11(1) of Schedule 2 to the BSA, which identify the general conditions
applicable to commercial, community and subscription television and radio licensees,
are subject to criminal penalties under section 139. In relation to other licence
conditions, the ACMA can issue notices directing licensees to comply with licence
conditions, and a failure to comply with such a notice is a criminal offence (ss. 141 and
142).
17. The ACMA has indicated its concerns about use of the criminal penalty
provisions currently available to it:
criminal sanctions may be disproportionately punitive given the nature of the
breach;
criminal sanctions require referral to the Director of Public Prosecutions
(DPP). Not only will this require use of DPP resources, but the DPP itself
may not consider that the circumstance warrants the imposition of a penalty;
and
7
the process of establishing sufficient evidence to prove the elements of an
offence to the criminal standard of proof is also problematic.
18. The difficulties associated with criminal sanctions were highlighted following
the ACMA's findings in December 2003 that the licensee of Sydney commercial radio
service 2UE had breached the Broadcasting Services (Commercial Radio Current
Affairs Disclosure) Standard 2000 on 19 occasions. Compliance with program
standards is a condition of a commercial radio broadcaster's licence under
subclause 8(1) of Schedule 2, breach of which is a criminal offence. On 29 June 2004,
the ACMA announced that it had received advice from the DPP that on the evidence
available there would be no reasonable prospect of a conviction of 2UE in relation to
breaches of the disclosure standard, and that the matter would not be approved for
prosecution.
19. The ACMA also has the power to suspend or cancel a licence in certain
circumstances. Subsection 143(1) provides that the ACMA may suspend or cancel a
licence if a commercial television broadcasting licensee, a commercial radio
broadcasting licensee, a subscription television broadcasting licensee or a community
broadcasting licensee:
fails to comply with a notice issued under section 141 requiring compliance
with a condition of a licence; or
breaches a condition of the licence (regardless of whether a breach of that
condition is a criminal offence or not).
20. However, suspension or cancellation of a licence is a severe penalty which
impacts on consumers of the service, as well as broadcasters, who would be expected
to suffer significant economic loss as a consequence of such a penalty. The ACMA
has never used this power in respect of breaches by commercial broadcasters.
Enforcement of codes of practice
21. The BSA requires the ACMA to investigate complaints regarding compliance
with codes of practice on satisfaction of certain preconditions (including prior
complaint to the broadcaster).
22. If the ACMA is satisfied that a subscription or open narrowcasting service has
been provided `in deliberate disregard' of a relevant code of practice, the ACMA may
issue a notice directing that action is taken to ensure compliance (s. 141(2)). Failure to
comply with such a notice is an offence (s.142).
23. However, there are no specific provisions in the BSA relating to code
non-compliance for commercial services, community services or subscription
television broadcasting services. Currently, if the ACMA is satisfied that a code of
practice is not operating to provide appropriate community safeguards, it may,
pursuant to subsection 125(1), determine an industry standard in relation to that matter.
However, the imposition of a standard affects the whole sector and is thus of limited
use in responding to breaches by individual licensees. General provisions do permit
the ACMA to impose additional conditions on licences, including conditions relating
8
to code compliance (ss. 43, 44, 87, 92J and 120). However, if an additional licence
condition is breached, this does not constitute an automatic criminal offence.4 The
ACMA must issue a notice requiring compliance with the additional condition
pursuant to s.141. Only a failure to comply with such a notice (i.e. a third breach) is an
offence pursuant to s.142.5
Enforcement of the categories of broadcasting services
24. The BSA provides significant criminal penalties for provision of a commercial
broadcasting service without a licence, as well as criminal penalties for provision of
other types of broadcasting service without an appropriate licence (ss. 131 - 135). The
BSA also provides for the ACMA to issue `stop notices', requiring a person found to
be providing an unlicensed service to desist from providing that service (s.137). The
criminal penalties for breaching a stop notice are the same as for a breach of the
substantive offence (s.138).
25. However, the ACMA has found its penalty powers to enforce the categories of
broadcasting services ineffective in those cases where a service provider has not
complied with a `stop notice'; a particular area of difficulty has been open
narrowcasters providing commercial services. A `stop notice' can only be issued in
relation to a service that the ACMA is satisfied is an unlicensed commercial service.
A change of programming on the relevant service - even relatively slight - may be
sufficient to mean that a new, different service is being provided. As a result, any
complaint relating to the service must be the subject of a fresh investigation to
determine whether it remains a commercial service.
26. Further difficulties have been experienced with the remaining sanctions
available to the ACMA in such circumstances - suspension or cancellation of a
licence, or criminal sanctions. Open narrowcasters operate under a class licence, so
the ACMA is not empowered to suspend or cancel a licence as a means of
enforcement.6
27. As noted above, the ACMA has also experienced practical difficulties in
effectively utilising the criminal sanctions provided in the BSA. Criminal penalties are
provided in ss.131 and 133 for operating a commercial broadcasting service without a
licence. In the period 1993 to 2003, 43 investigations were conducted in relation to
narrowcasters operating outside the terms of their licence, 36 of which related to the
operation of a commercial service. A breach was detected in 17 of these cases.
However, to date, the ACMA has not referred a matter to the DPP concerning the
operation by an open narrowcaster of a commercial broadcasting service; the ACMA
has not been satisfied that it could provide a sufficient brief of evidence to the DPP
that would make out a case of an offence of providing a commercial broadcasting
service without a licence.
4
Breaches of "basic" licence conditions (subclauses 7(1), 8(1), 9(1), 10(1) and11(1) of Schedule 2) are
subject to criminal penalties.
5
The ACMA may also suspend or cancel the licence pursuant to s 143.
6
However, s 144 enables the ACMA to apply to the Federal Court for an order to have a person cease
providing a subscription radio or narrowcasting service.
9
Enforcement of notification and reporting requirements
28. The ACMA has indicated that on average, 10 (out of 261) commercial radio
licensees lodge annual financial returns late. The returns are required by 31 December
each year pursuant to s 205B of the BSA. Failure by a commercial television licensee
or commercial radio licensee to report will result in a breach of the licence conditions
at clauses 7(1)(ia) and 8(1)(ha) of Schedule 2 respectively.
29. Commercial radio and television licensees are also required to provide the
ACMA with details of persons in a position to control the licence, the names of
directors of the licensee, and, in the case of commercial television or radio
broadcasting licensees, the name of each foreign director (s. 62). Commercial radio
and television licensees and persons assuming control of these licences are required to
notify the ACMA of changes in control within seven days of becoming aware of them
occurring (ss. 63 and 64).
30. There is also a requirement for persons who control commercial television and
radio licences to notify the ACMA annually of any interests they hold in a newspaper
associated with the licence area (s. 65) and for subscription television broadcasting
licensees to notify the ACMA of foreign persons with company interests exceeding
20% in the licensee (s. 112). Breaches of these provisions attract criminal penalties.
31. The ACMA estimates that each year there are around 20 late notifications
under the control and foreign interest notification requirements, and 30 incomplete
notifications. Referral of such matters to the DPP would be disproportionate and
unlikely to be warranted on public interest grounds.
Conclusion
32. These problems have several consequences for the ACMA's capacity to
effectively regulate the broadcasting sector:
breaches of licence conditions, failures to comply with the ACMA notices and
the provision of unlicensed services are not prosecuted due to concerns about
criminal penalties, which are thus of limited value as deterrents to non-
compliant behaviour;
breaches of codes of practice or additional licence conditions by commercial
or community broadcasters have no direct sanction, and may only be
addressed through a complex process potentially leading to criminal
prosecution;
The ACMA's capacity to engage in negotiations with industry that might
produce better compliance by licensees is hampered by a lack of regulatory
alternatives to criminal penalties. Both the ACMA and industry face
additional costs from a regulatory framework that relies on prosecution, in the
absence of alternative options; and
the credibility of the ACMA with the public, Parliament and industry is
undermined when the ACMA is unwilling or unable to pursue sanctions for or
refer for prosecution mid-range breaches, particularly when breaches have
attracted public attention. This is particularly the case in relation to breaches
of industry codes of practice, for which there is currently no direct sanction,
unless the ACMA chooses to impose a licence condition on the licensee
10
responsible for the breach, or impose a standard on the relevant industry as a
whole.
OBJECTIVES
33. Sections 4 and 5 of the BSA require that the regulation of broadcasting services
by the ACMA should enable public interest considerations to be addressed in a way
that does not impose unnecessary financial and administrative burdens on
broadcasters, and that, in dealing with breaches by licensees, the ACMA should use its
powers "in a manner that, in the opinion of the ACMA, is commensurate with the
seriousness of the breach concerned". The current structure of powers available to the
ACMA in relation to broadcasting does not enable the regulator to fully meet the
requirements of these sections or operate in accordance with their intent.
34. It is intended to provide the ACMA with a more appropriate gradation of
regulatory sanctions, particularly in relation to unlicensed broadcasting, mid-range
breaches of licence conditions, minor reporting, notification and fee payment breaches,
and in relation to breaches of industry codes of practice. It is also intended to provide
the ACMA with alternatives to sanctions where they may lead to better compliance
outcomes and better serve the public interest.
35. This will enable the ACMA to more effectively meet the requirements of
sections 4 and 5 of the BSA.
Options
36. Options for each of the Ramsay Report recommendations are considered
separately.
Enforceable undertakings
37. The Ramsay Report recommended that the ACMA be given a power to accept
enforceable undertakings in relation to its broadcasting regulatory functions. The
ACMA may currently accept non-enforceable undertakings. Enforceable undertakings
would not directly provide additional sanctions for the ACMA, but provide an
alternative regulatory tool for achieving compliance.
38. Three options have been considered:
Option A: no amendment to the ACMA's powers;
Option B: give the ACMA a power to accept enforceable undertakings in relation
to some of its powers; or
Option C: accept the recommendation.
Option A
39. In their submission to the November 2005 discussion paper, both FreeTV and
CRA argued that the current framework under which the ACMA has the power to
accept unenforceable undertakings is operating effectively, and that enforceable
undertakings will lead to increased litigation.
11
40. The ACMA agrees that unenforceable undertakings are working relatively
effectively and that, to date, there have been few breaches of undertakings by any
licensees. The option of enforceability is intended to operate in addition to the current
framework, and enforceable undertakings would only be used in circumstances where
the ACMA has concerns about the capacity or willingness of the undertaking party to
fulfil the undertaking, and where enforcement via an agreement is desirable and
proportionate to the breach that has occurred and in circumstances where a more
punitive approach is not appropriate.
41. Changes to the media regulatory framework currently proposed by the
Government may provide further opportunities for the use of enforceable undertakings,
such as in relation to media transactions. A general power to accept enforceable
undertakings would potentially be valuable in providing the ACMA and industry with
a means to guarantee future conduct that may not be addressed by current provisions of
the BSA and which, in absence of enforceability, the ACMA may be unwilling to
approve.
42. Enforceable undertakings will also remain voluntary in the sense that a person
cannot be compelled to offer enforceable undertakings. However, once enforceable
undertakings are accepted, they would be binding.
Option B
43. It is not clear that there are advantages in limiting the ACMA's power to accept
enforceable undertakings to specific areas of its functions. While non-enforceable
undertakings from broadcasters currently mostly relate to code of practice or licence
condition breaches, they are also used in relation to licence renewals to facilitate
certain changes in the operations of a licensee. As noted above, a deregulated media
ownership framework may provide opportunities for the use of enforceable
undertakings in other areas of the ACMA's activities. Limiting the areas in which
enforceable undertakings may be accepted would potentially forestall the development
of enforceable undertakings as a regulatory tool in areas restricted from their use,
would limit the benefits which both the regulator and industry can obtain from
undertakings, and add complexity to undertakings which may address a range of
compliance issues across both enforceable and non-enforceable areas.
Option C
44. Industry has not been able to identify specific disadvantages of enforceable
undertakings, merely that the current system is operating effectively. However, there
is evidence that industry benefits from enforceable undertakings. A review of the
ACCC's use of enforceable undertakings demonstrated that undertakings "provided a
quicker and more cost-effective mechanism for resolution than court proceedings."7
The Australian Law Reform Commission (ALRC) has stated:
7
D Watt, `Evaluation of the Use of s 87B Undertakings' (1998) 13 ACCC Journal 7, cited in ALRC 95
Principled Regulation: Civil and Administrative Penalties in Australian Federal Regulation.
12
Undertakings are... popular with the regulated community. It was observed in one consultation
that enforceable undertakings for corporations are `a nice way' of warning and giving the
regulated entity `another chance'. It was also stated that enforceable undertakings encourage
greater candour and promote compliance.8
45. The Ramsay report separately identifies other advantages of enforceable
undertakings:
It has also been said that the advantages of negotiated settlements, such as enforceable
undertakings, include:
· saving time, financial costs and court resources;
· allowing compromise;
· allowing flexibility and the opportunity for change;
· encouraging learning;
· allowing defendants a say in the outcome;
· strengthening an organisation's internal compliance systems;
· encouraging regulatory cooperation; and
· allowing internal discipline systems to work.9
46. Industry has argued that, should the ACMA be given the power to accept
enforceable undertakings, guidelines should be prepared by the ACMA for its exercise
of that power. The ACMA already has in place guidelines in relation to enforceable
undertakings in the telecommunications sector, and is currently consulting with
industry on guidelines for enforceable undertakings guidelines in broadcasting,
pending Parliament's consideration of these proposals. Guidelines would be broad in
nature and intended to provide industry with an understanding of the ACMA's general
approach to the use of undertakings.
47. Option C is thus recommended. There are separate measures associated with
this recommendation, discussed at paragraphs 92-93.
Civil Penalties
48. The Ramsay Report recommended that breaches of certain provisions of the
BSA, breaches of licence conditions, or breaches of the ACMA notices, that are
currently subject to criminal penalties (or suspension or cancellation of licence) be
subject to civil monetary penalties. The Report did not recommend that all criminal
offences in the BSA be made subject to civil penalties, but only those offences where
8
ALRC 95 Principled Regulation: Civil and Administrative Penalties in Australian Federal Regulation
16.59.
9
C Dellit and B Fisse, "Civil and Criminal Liability under Australian Securities Regulation: The
Possibility of Strategic Enforcement" in G Walker and B Fisse (eds), Securities Regulation in Australia
and New Zealand (1994), 602-603, cited in Ramsay.
13
an ongoing compliance problem has been identified. Civil monetary penalties - which
would be imposed by the court - would thus apply where:
(a) an open narrowcaster provides a service that is not in accordance with the
relevant class licence10;
(b) there is a breach of standard licence conditions which, if breached, are
currently subject to criminal penalties under s 139:
subclause 7(1) of Schedule 2 (relating to commercial television
broadcasting licences);
subclause 8(1) of Schedule 2 (relating to commercial radio broadcasting
licences);
subclause 9(1) of Schedule 2 (relating to community broadcasting
licences);
subclause 9(1) of Schedule 2, other than paragraph 9(1)(h) of Schedule
2 (relating to temporary community broadcasting licences);
subclause 10(1) of Schedule 2 and a number of other provisions of the
BSA (relating to subscription television broadcasting licences); and
subclause 11(1) of Schedule 2 (relating to subscription radio
broadcasting services, subscription narrowcasting services and open
narrowcasting services provided under class licences).
(c) there is a breach of an additional licence condition imposed by the ACMA
pursuant to ss. 43, 87, 87A, 92J, 99(2) or 120(1)11;
(d) there is a breach of s 137 (this section provides that if the ACMA is
satisfied that a person is providing a commercial television broadcasting
service, a commercial radio broadcasting service, a subscription television
broadcasting service, or a community broadcasting service, without a
licence to provide that service, the ACMA may issue a written notice to the
person directing them to cease providing that service);
(e) there is a breach of s 141(1) (this section provides that the ACMA may, by
notice in writing given to a person, direct the person to take action to
ensure that a service is provided in a way that conforms to the
requirements of the relevant licence or class licence);
(f) there is a breach of s 141(2) (this section provides that if a subscription or
open narrowcasting service or subscription radio broadcasting service is
provided "in deliberate disregard" of a relevant code of practice, the
10
This is not explicitly an offence under the current provisions of the BSA; rather, the ACMA may
issue a "stop notice" in response to such behaviour (see para 46(d) below). However, the circumstances
addressed by the Ramsay Report are addressed in ss 131-135, which prohibit any person from providing
a commercial, subscription or community broadcasting service unless licensed to do so. Accordingly, it
is proposed to provide for civil penalties in addition to the criminal penalties currently provided under
sections 131-135.
11
Currently the ACMA may respond to a breach of an additional licence condition by issuing a "stop
notice" ) or suspending or cancelling the relevant licence; such a breach is not currently subject to
criminal penalties.
14
ACMA may issue a notice directing that action is taken to ensure
compliance).
49. Three options have been considered:
Option A: no amendment to the BSA;
Option B: accept the recommendation; or
Option C: accept the recommendation, and extend civil penalties to all criminal
offences identified in the BSA.
Option A
50. CRA and FreeTV both argued in their submission against the inclusion of civil
penalties in the BSA on the basis that the current enforcement regime works
effectively.
51. In fact there is considerable evidence that the current enforcement regime is not
operating as effectively as possible. In 2004-05, the number of total breaches found by
the ACMA was higher than in any year since 2001-02. This included a substantial rise
in codes of practice breaches. Breaches by commercial broadcasters of codes of
practice in relation to accuracy and fair representation were also higher than at any
point in the previous five years.
52. While licence condition breaches are relatively rare at this time, it is likely that
a greater number of enforcement actions will be undertaken under a reformed set of the
ACMA powers, as licence condition and other regulatory breaches which the ACMA
has previously been unable or unwilling to pursue are addressed. The ACMA will also
have access to more options for pursuing breaches of additional licence conditions, or
industry standards, imposed on licensees in response to serious code of practice
breaches.
Option B
53. There are benefits both for the regulator and industry in providing the option of
civil penalties. Criminal sanctions require proof of the offence `beyond reasonable
doubt'; civil penalties will require proof to `the balance of probabilities' standard,
making sanctions potentially more accessible for the regulator. However, criminal
sanctions may be disproportionate in their potential impact, in the event of a
conviction, and expose industry to a potentially draconian and inappropriate sanction
given the nature of the offences. Similarly, cancellation or suspension of a licence is
likely to cause significant economic loss to a licensee far in excess of that merited by a
breach.
54. Civil penalties would also complement enforceable undertakings by providing
two further mid-range enforcement options for the ACMA and industry to consider in
the event that a breach has been committed. Civil penalties would also bring the
ACMA's broadcasting regulatory functions into alignment with the sanctions available
to other regulators such as the ACCC and ASIC, which have access to both civil and
criminal penalties, and to the ACMA itself in relation to telecommunications matters.
15
Option C
55. While a range of other criminal offences are identified in the BSA, neither the
Ramsay Report nor the ACMA have identified compliance or prosecution concerns in
relation to those offences. In the absence of a clear reason for extending civil penalties
to these offences at this time, Option B is preferable.
56. Option B is thus recommended. However, in order to provide greater certainty
to industry about the impact of civil penalties and their potential use by the ACMA, it
is intended that the ACMA should be legislatively required to develop guidelines on
the use of civil penalties and their interaction with criminal penalties.
57. In drafting the Communications Legislation Amendment (Enforcement
Powers) Bill 2006, the Government will also replace the ACMA's existing powers in
ss 137 and 141 of the BSA with new powers to issue remedial directions. Sections 137
and 141 of the BSA empowered the ACMA to issue notices requiring broadcasters to
cease providing unlicensed services and to cease breaching licence conditions and
certain codes of practice. The new remedial directions powers will (similar to the
powers they will replace) enable the ACMA to direct licensees to take action directed
towards ensuring that they do not provide unlicensed services or breach licence
conditions or certain codes of practice in the future, and are more consistent with other
powers the ACMA has under clause 53 of Schedule 6 of the BSA and the
Telecommunications Act 1997. A failure to comply with such a direction would incur
either a civil or criminal penalty.
58. During drafting, and following advice from the ACMA, it was decided to
amend s 202 to provide for criminal penalties. Currently s.202 of the BSA requires a
penalty of imprisonment for one year for failure to comply with a request by the
ACMA for evidence or information, which is an inappropriately draconian sanction
given the nature of the breach. Consistent with Cabinet's decision that the BSA be
amended to allow for civil penalties for some criminal offences in the Act, provision of
a civil penalty for s.202 would provide a more appropriate and flexible sanction.
59. The Bill also adds civil penalties to those matters that the ACMA will take into
account in determining the suitability of licensees. Currently, under s 41, the ACMA
must take into account whether a company or person controlling a licence has been
convicted of an offence against the Act or associated regulations in assessing whether
they are a suitable licensee. The Bill will add civil penalties as matter that must be
considered.
Injunctions
60. The Ramsay Report recommended that the ACMA be given a power to seek an
injunction in circumstances where a person has provided a commercial, subscription or
community broadcasting services without a licence. This would be achieved by giving
the ACMA a power to seek an injunction in relation to ss 131-135.12
61. Two options have been considered
12
As discussed in paragraph 48(a) and footnote 9, ss 131-135 will also be the subject of civil penalties.
16
Option A: no amendment to the BSA; or
Option B: accept the recommendation.
Option A
62. As discussed above, the ACMA's capacity to prevent unlicensed broadcasts,
particularly the broadcast of commercial services by licensees in other categories, is
restricted by the current drafting of the BSA and the ease with which broadcasters
providing an unlicensed commercial service may alter the service, in effect
re-commencing the enforcement process each time.
63. The provision of unlicensed commercial radio services potentially has a
significant impact on commercial licensees within the affected licence area.
Commercial radio licences are allocated via auction and, particularly in metropolitan
areas, may cost tens of millions of dollars. This imposes substantial costs on licensees,
and any loss of revenue to a competitor unburdened by the cost of a commercial
licence or associated financing may significantly affect the commercial viability of the
licensee. The provision of unlicensed services is also inconsistent with the
administrative moratorium placed on the allocation of new commercial radio licences
by the ACMA, and the moratorium on the allocation of new commercial television
licences until the end of 2006.
64. Option A would therefore continue the current, unsatisfactory circumstance of
the ACMA being unable to fulfil its regulatory role in relation to preventing unlicensed
broadcasts.
Option B
65. Industry supports providing the ACMA with an injunctive power in
circumstances covered by s.137.
66. Option B is recommended as the best means to address an ongoing problem in
the BSA of preventing the potentially harmful provision of unlicensed commercial
broadcasting services.
Infringement notices
67. The Ramsay Report recommended that the ACMA be given a power to issue
infringement notices for breaches of:
section 62 (requires commercial broadcasting licensees and datacasting
transmitter licensees to provide the ACMA each financial year with details of
controllers and directors of the licence, and in the case of commercial
broadcasting licensees, the details of foreign directors);
sections 63 and 64 (requires commercial broadcasting licensees, datacasting
transmitter licensees and persons in a position to control those licences to
notify the ACMA of any changes in control of the licence);
section 65 (requires persons in control of commercial broadcasting licences to
notify the ACMA of any interests held in a newspaper that is associated with
the licence area of the relevant licence);
17
section 112 (requires subscription television broadcasting licensees to provide
the ACMA each financial year with details of controllers of the licence;
requires notification of any changes in control of the licence; requires
notification each financial year of foreign interests in the licence); and
section 205B (requires commercial broadcasting licensees to provide the
ACMA each year with specific financial details).
68. Two options have been considered
Option A: no amendment to the BSA; or
Option B: accept the recommendation.
Option A
69. As discussed above, there is a minor but ongoing problem of late notification of
information required under the BSA to the ACMA, and late reporting of financial
results and payment of licence fees.
70. These are minor regulatory requirements, and (correctly), the ACMA has in the
past judged that pursuing criminal penalties for such breaches would be an
inappropriate use of resources, and be unlikely to be supported by the DPP. This
clearly demonstrates the poor structure of the ACMA's currently regulatory options.
Option B
71. Infringement notices would provide the regulator with a regulatory alternative
to address late notification and reporting that would preserve the existing rights of
industry.
72. It is proposed that upon payment of the specified penalty, liability would be
discharged and the licensee would not be regarded as having been convicted of the
non-compliance (although the original requirement to report would remain). However,
it would be necessary to ensure that further proceedings could be taken by the ACMA
if there was non-compliance with the infringement notice.
73. Industry supports the proposal, on the condition that the ACMA adheres to
guidelines developed by the ALRC for infringement notices, and that the ACMA
issues a written warning prior to issuing the notice. The provision of a written
warning, while adding an additional layer of process, would ensure that inadvertent
breaches by licensees of reporting requirements were not subject to sanction.
74. Accordingly, Option B is recommended.
75. ALRC guidelines for infringement notices are discussed at length in the
Ramsay Report. 13 The Government considers the guidelines appropriate for the
infringement notice scheme proposed for the ACMA.
13
The guidelines, and a discussion on the merits of infringement notices, can be found at
http://www.austlii.edu.au/au/other/alrc/publications/reports/95/12.Infringement_notices.html#heading0.
18
Impact Analysis
76. The four proposals for amendments to the BSA would provide a more
appropriate gradation of regulatory powers. However, they would not create
additional offences, but rather provide additional regulatory options for the ACMA in
relation to existing offences.
Civil penalties
77. As noted above, none of the proposals will establish new offences under the
BSA, but relate to existing offences. The provision of civil penalties for the offences
that currently attract criminal penalties will increase the possibility of successful
sanctions being imposed on licensees. However, by providing alternatives to the use
of arguably draconian criminal penalties, it may reduce the impact of sanctions on
licensees.
Injunctions
78. As with civil penalties, injunctive powers in relation to the provision of
unlicensed broadcasts will not establish new offences, but increase the possibility of
successful action by the ACMA to address breaches of existing requirements. In doing
so, the ACMA will be better placed to minimise or eliminate the impact of unlicensed
commercial services on the viability of commercial broadcasters.
Infringement notices
79. Infringement notices will enable the ACMA to better address an ongoing lack
of compliance with reporting and notification requirements. To the extent that such
requirements are not enforced fully at this time, infringement notices will impose a
heavier regulatory burden on the small number of licensees responsible for ongoing
breaches. However, it is anticipated that, given the nature of the breaches, the
maximum quantum of penalties levied via infringement notices would be small, and
licensees could elect to contest the notices in any event.
Enforceable undertakings
80. The provision of enforceable undertakings will add no regulatory burden to
licensees as undertakings will remain voluntary. Rather, the addition of enforceability
will enable both the regulator and industry to consider alternatives to sanctions more
widely than currently, potentially lightening the regulatory burden on industry when
undertakings are used in place of criminal or civil penalties. Enforceability will also
enable the ACMA to employ undertakings in areas beyond their current use, including
in relation to media transactions that may occur following liberalisation of the
cross-media ownership restrictions proposed elsewhere by the Government.
Implementation and Review
81. The ACMA will be required under legislation associated with the proposals to
consult with industry in preparing guidelines for the use of enforceable undertakings,
civil penalties and infringement notices.
19
Enforceable undertakings
82. Preliminary consultation has been undertaken with industry on guidelines for
the ACMA's use of undertakings (both enforceable and unenforceable) in broadcasting
regulation. The ACMA currently has enforceable undertakings guidelines in relation
to its telecommunications regulatory powers.
Civil penalties
The ALRC14 has discussed the need for guidelines in relation to the
83.
administration of civil (and thus by extension criminal) penalties in the Australian
regulatory environment.
84. The ACMA is currently considering the development of guidelines on to how it
will assess cases to determine whether to pursue civil or criminal penalties, and
associated issues such as its relationship with the DPP, and the role of regulatory
alternatives (in particular, enforceable undertakings).
Infringement notices
85. The Ramsay Report discusses ALRC guidelines relating to infringement
notices. It is considered that these provide a sound basis for guidelines the ACMA will
be required to develop, in consultation with industry. As with guidelines in relation to
previous proposals, these would be broad in nature and intended to provide industry
with an understanding of the ACMA's general approach to its enforcement options.
86. The Bill intends that the ACMA should not be prevented from developing a
comprehensive enforcement policy covering not merely the three areas discussed
above, but all of the ACMA's enforcement options.
Associated measures
87. As a consequence of other reforms to the digital broadcasting regulatory
framework, it is proposed that licences for new digital services using datacasting
spectrum will be allocated from 2007. In order to ensure that licensees that may
commence services from 2007 or later are not disadvantaged compared to broadcasting
licensees, it is proposed that the ACMA also be given the power to accept enforceable
undertakings in relation to its datacasting regulatory functions. This will enable
datacasting licensees to benefit from the additional regulatory flexibility provided by
undertakings.
88. The ACMA's broadcasting and datacasting regulatory functions are described
in section 10 of the Australian Communications and Media Authority Act 2005, which
also describes the ACMA's internet regulatory functions. The emergence of online
content provision, both by established content providers such as broadcasting
licensees, and by others outside the traditional broadcasting regulatory framework, has
14
ALRC 95: Principled Regulation: Civil and Administrative Penalties in Australian
Federal Regulation, 2002.
20
posed challenges for that framework. Given the growing provision of content by a
single provider over both broadcasting spectrum and online, it is appropriate that a
power to accept enforceable undertakings also be extended to the ACMA's internet
regulatory functions as described in section 10. This will ensure a level of consistency
in relation to the use of enforceable undertakings in relation to both traditional and
emerging forms of content provision.
21
Attachment A
Summary of submissions to Proposed Reforms To The Broadcasting Regulatory
Powers Of The Australian Communications And Media Authority, November 2005
ABC and SBS oppose any reform that would permit the ACMA to require the broadcast
of on-air statements by them (this was not proposed in the discussion paper).
The Australian Caption Centre (ACC), Friends of the ABC (WA), the Media,
Entertainment & Arts Alliance and Young Media Australia (YMA) all support the
proposals. The Australian Narrowcast Radio Association (ANRA) supports the
proposed reforms, subject to seeing the Bill implementing them. The Australian Film
Commission (AFC) supports the proposals but suggests that the class of breaches
which would be subject to on-air statements be stipulated.
The Centre for Media and Communications Law (CMCL) supports all the reform
proposals except on-air statements. The submission recommends an examination of
on-air statements in the UK and New Zealand.
The Screen Producers' Association of Australia (SPAA) submission primarily focused
on local content issues rather than the proposed reforms. SPAA claims the current
regulatory framework is operating effectively and that any additional compliance
burden, such as fines, may be pushed by broadcasters onto producers.
Commercial Radio Association (CRA)
Both CRA and FreeTV's submissions make arguments that are similar to those raised
in relation to possible reform options considered in 2001 following the Commercial
Radio Inquiry.
CRA opposes the proposals, except for injunctions in relation to the provision of
unlicensed services, and infringement notices. CRA's submission argues that the
current regulatory framework operates effectively, reflected in the low level of breach
findings and audience satisfaction with radio services, and that the proposals represent
a significant departure from the existing approach to broadcasting regulation. CRA
also argues for a more restrictive legislative definition of narrowcast services (ANRA
has expressed concern about this, but has not responded in detail as it was outside the
scope of the paper).
Free TV Australia
FreeTV supports injunctions in relation to providing unlicensed services, and
infringement notices. FreeTV also supports the application of civil penalties in
relation to the provision of a service without a licence, and the provision of an open
narrowcast service contrary to the conditions of the class licence. The submission
argues that otherwise the current regulatory framework operates effectively.
22
Attachment B
Overview of the ACMA's functions and powers
Establishment
The Australian Broadcasting Authority (ABA) was established by s.154(1) of the
Broadcasting Services Act 1992 (BSA), and began operations on 5 October 1992. On
1 July 2005 the ABA and the Australian Communications Authority (ACA) were
merged to form the Australian Communications and Media Authority (ACMA).
The ACMA is an independent statutory authority established under section 6 of the
Australian Communications and Media Authority Act 2005 (the ACMA Act), and it is
responsible through the Minister for Communications, Information Technology and
the Arts to the Parliament.
Functions
The primary functions of the ACMA are set out in ss.7-11 of the ACMA Act. The
ACMA's broadcasting, content and datacasting functions are set out in section 10:
10 ACMA's broadcasting, content and datacasting functions
(1) The ACMA's broadcasting, content and datacasting functions are as follows:
(a) to regulate broadcasting services, Internet content and datacasting services
in accordance with the Broadcasting Services Act 1992;
(b) to plan the availability of segments of the broadcasting services bands on
an area basis;
(c) to allocate, renew, suspend and cancel licences and to take other
enforcement action under the Broadcasting Services Act 1992;
(d) to conduct investigations or hearings relating to the allocating of licences
for community radio and community television services;
(e) to conduct investigations as directed by the Minister under section 171 of
the Broadcasting Services Act 1992;
(f) to design and administer price-based systems for the allocation of
commercial television broadcasting licences and commercial radio
broadcasting licences;
(g) to collect any fees payable in respect of licences;
(h) to conduct or commission research into community attitudes on issues
relating to programs and datacasting content;
(i) to assist broadcasting service providers and datacasting service providers
to develop codes of practice that, as far as possible, are in accordance
with community standards;
(j) to monitor compliance with those codes of practice;
(k) to develop program standards relating to broadcasting in Australia;
(l) to monitor compliance with those standards;
(m) to monitor and investigate complaints concerning broadcasting services
(including national broadcasting services) and datacasting services;
(n) to inform itself and advise the Minister on technological advances and
service trends in the broadcasting industry, Internet industry and
datacasting industry;
23
(o) such other functions as are conferred on the ACMA by or under:
(i) the Australian Broadcasting Corporation Act 1983; or
(ii) the Broadcasting Services Act 1992; or
(iii) the Interactive Gambling Act 2001; or
(iv) the Radio Licence Fees Act 1964; or
(v) the Special Broadcasting Service Act 1991; or
(vi) subsection 158F(1) of the Telecommunications (Consumer
Protection and Service Standards) Act 1999; or
(vii) the Television Licence Fees Act 1964;
(p) such other functions as are conferred on the ACMA by or under the
following provisions of the Radiocommunications Act 1992:
(i) paragraph 102B(b), 109A(1)(g) or (ga), or 131ACA(b);
(ii) subsection 106(6A), 109A(1A) or (1B), 114(3C) or (3E), or 128C(1);
(iii) section 128D;
(q) to report to, and advise, the Minister in relation to the broadcasting
industry, Internet industry and datacasting industry;
(r) to monitor, and to report to the Minister on, the operation of each Act
specified in paragraph (o) or (p), to the extent it is so specified;
(s) to do anything incidental to or conducive to the performance of any of the
above functions.
For the purpose of exercising its powers and functions under the BSA, the ACMA is
obliged to take account of:
· the objects of the BSA and the regulatory policy set out in the BSA;
· any directions given to the ACMA by the Minister; and
· Australia's obligations under the Protocol on Trade in Services to the Australia
New Zealand Closer Economic Relations Trade Agreement.
Overview of the ACMA's current enforcement powers in relation to
broadcasting15
Codes of practice
Industry-developed codes of practice cover most areas of program content except those
dealt with by program standards (i.e. Australian content and children's programs on
commercial television, and the three Commercial Radio Standards). The code
framework is co-regulatory in the sense that industry develops codes but the ACMA
has a role in assessing and approving them.
Subsection 123(1) of the BSA provides that it is the intention of Parliament that radio
and television industry groups representing:
· commercial broadcasting licensees;
· community broadcasting licensees (with some exceptions);
· providers of subscription broadcasting services;
· providers of subscription narrowcasting services; and
15
This overview draws significantly on the Ramsay Report.
24
· providers of open narrowcasting services;
develop, in consultation with the ACMA, codes of practice that are to be applicable to
the broadcasting operations of each of those sections of the industry. Subsection
123(2) provides that codes of practice may cover a broad range of matters such as:
· preventing the broadcasting of programs that, in accordance with community
standards, are not suitable to be broadcast;
· methods of ensuring that the protection of children from exposure to program
material which may be harmful to them is a high priority;
· promoting accuracy and fairness in news and current affairs;
· methods of handling complaints from the public about program content or
compliance with codes of practice and reporting to the ACMA on complaints so
made;
· in the case of codes of practice developed by commercial broadcasting licensees
- broadcasting time devoted to advertising time; and
· in the case of codes of practice developed by commercial radio broadcasting
licensees - the broadcasting of Australian music.
Codes of practice developed under s.123 must be included in the Register of codes of
practice maintained by the ACMA. The requirements for inclusion in the Register
include that:
· the code provides appropriate community safeguards for the matters covered by
the code;
· the code is endorsed by a majority of the providers of broadcasting services in
that section of the industry; and
· members of the public have been given an adequate opportunity to comment on
the code: s.123(4).
The ACMA may determine program standards if it is satisfied that a registered code of
practice is not providing appropriate community safeguards for a matter referred to in
s.123(2) or if no code of practice has been registered for a matter referred to in
s.123(2): s.125. The ACMA must determine a standard in relation to the matter if, in
addition to the above, it is satisfied that it should determine a standard in relation to the
matter: s.125.
The ACMA is also required to determine program standards for commercial television
broadcasting licensees that relate to programs for children and the Australian content
of programs (s.122).
Investigations into programming matters - overview
If the ACMA receives a complaint about a possible breach of the BSA or of a licence
condition, it must, subject to certain conditions, investigate the complaint. The ACMA
may itself initiate investigations into breaches of the BSA or of licence conditions or
codes under s.170 of the BSA. The ACMA has information gathering powers under
Part 13, Division 1 of the BSA and investigation powers under Part 13, Division 2 of
the BSA.
25
The breach of some standard licence conditions is an offence (s.139). This applies
primarily to the subclause (1) conditions in Schedule 2 which set out the general
licence conditions for the various types of licences.
Where a breach of a licence condition is an offence, the ACMA may refer the matter to
the DPP for prosecution. If prosecution is successful, monetary penalties apply.
Breaches of other licence conditions, including an additional licence condition
imposed on a commercial radio or television broadcaster under s.43, are not automatic
offences.
However, in relation to all licence conditions, the ACMA could suspend or cancel the
licence if a breach was found by the ACMA (s.143). Alternatively in both cases, the
ACMA can issue a notice that the person take action within a stated period (of no more
than one month), to comply with the licence condition (s.141(1)). Failure to comply
with a s.141 notice is an offence (s.142).
If the person does not comply with the notice, the ACMA then has the option of
referring the failure to comply to the DPP for prosecution (s.142), or of suspending or
cancelling the licence (s.143).
The BSA requires the ACMA to investigate complaints regarding compliance with
codes of practice on satisfaction of certain preconditions (including prior complaint to
the broadcaster). The ACMA must notify the complainant of the results of the
investigation (ss.148, 149, 150, 151 and 152). The position with regard to enforcement
mechanisms differs somewhat according to broadcaster type.
Subscription or open narrowcasting services; subscription radio broadcasting
services
If a service is provided `in deliberate disregard of' a relevant code of practice, the
ACMA may issue a notice directing that action is taken to ensure compliance
(s.141(2)). Failure to comply with such a notice is an offence (s.142).
Commercial services; community services; subscription TV broadcasting services
There are no specific provisions in the BSA relating to code non-compliance. General
provisions permit the ACMA to impose conditions on licences including conditions
relating to code compliance (ss 43, 44, 87, 92J, 99 and 120). The ACMA, may under
s.125, determine program standards where it is satisfied that codes of practice are not
providing appropriate community safeguards or where no codes of practice have been
developed.
National broadcasters
The ACMA has only limited powers in relation to breaches by the national
broadcasters. They are not affected by the proposals addressed in this Statement.
26
Other breaches of the BSA16
Some breaches of the BSA carry criminal penalties and must be referred to the DPP
for prosecution. Breaches of the BSA include breaches of control provisions and of
licensing provisions.
Examples of Criminal Penalties under the BSA, not taking into account the
amendments in this Bill
Offences concerning control of commercial TV/ commercial radio and
datacasting transmitter licences
Provision of
Offence Max. Penalty Units Max. Penalty Units
BSA
NB 1 penalty unit = commercial TV commercial radio
broadcasting/
$110 broadcasting licence
datacasting licence
Failure to notify the 500 50 62
ACMA of control
and directorships
Failure by licensee to 500 50 63
notify changes in
control
Failure by person 500 50 64
who obtains control
of licence to notify
the ACMA of that
position
Failure by person in 500 (commercial TV 50 65
control of a licence broadcasting licences
to notify newspaper only)
interests
Breach of control/ 20,000 2,000 66
audience reach/
foreign control/
cross-media rules
Breach of notice 20,000 2,000 69
under s.67 specifying
time to rectify breach
of control etc rules
16
This overview draws significantly on the Ramsay Report.
27
Breach of notice 20,000 2,000 72
under s.70 specifying
time to rectify breach
of control etc rules
Offences concerning Pay TV broadcasting licences
Maximum
Offence Provision of BSA
Penalty Units
(1 unit =
$110.00)
Failure by licensee to lodge annual 1,000 103ZA
return concerning eligible drama
expenditure
Failure by channel provider or part- 1,000 103ZB
channel provider to lodge annual return
concerning eligible drama expenditure
Breach of control etc rules relating to 20,000 111
subscription TV broadcasting services
Breach of notification provisions 500 112
relating to control of subscription TV
broadcasting services
Offences concerning International broadcasting licences
Maximum Penalty Provision of
Offence
Units BSA
(1 unit = $110.00)
Providing an international broadcasting 20,000 121FG
service without a licence
Failure to comply with a notice 20,000 121FH
directing a person to cease providing
service without a licence
Breach of condition of international 2,000 121FJ
broadcasting licence
Breach of conditions of nominated 2,000 121FLF
broadcaster declaration
28
Other offences
Offence Max Penalty Provision
Intentional or reckless contravention of anti- 2,000 penalty 146F BSA
hoarding rule units
1 year
Disruption of the ACMA hearing 201 BSA
imprisonment
Non-compliance with requirement to give 1 year 202 BSA
evidence imprisonment
50 penalty
Breach of online provider rules Sch 5, cl 82 BSA
units
Breach of direction to comply with online 50 penalty Sch 5, cl 83 BSA
provider rules units
Criminal Code cl
Misleading or deceptive conduct
136.1
Criminal Code cl
137.1
29
NOTES ON CLAUSES
Clause 1 - Short title
Clause 1 provides for the citation of the Communications Legislation Amendment
(Enforcement Powers) Act 2006 (the Act).
Clause 2 - Commencement
Schedule 1 of this Bill commences on a single day to be fixed by Proclamation.
However, if any of the provisions do not commence within the period of 3 months
beginning on the day on which the Act receives Royal Assent, they commence on the
first day after the end of that period. All other sections of this Bill commence on the
day on which the Act receives Royal Assent.
Clause 3 - Schedule(s)
By virtue of this clause, provisions of the Broadcasting Services Act 1992 (BSA) and
Radiocommunications Act 1992 (Radcom Act) are amended as set out in the Schedules
to the Bill.
Schedule 1 - Amendments
Part 1 - Amendments
Broadcasting Services Act 1992
Item 1 - Subsection 6(1)
Item 1 inserts a new definition of "authorised infringement notice officer" in
subsection 6(1) of the BSA.
This Item is related to Item 48, which inserts new Part 14E of the BSA. New Part 14E
provides for the issue of infringement notices by the Australian Communications and
Media Authority (the ACMA). Item 1 ensures that the Chair is authorised to issue
infringement notices under Part 14E. Further, where a member of staff is appointed by
the ACMA under new section 205ZE to be an authorised infringement notice officer,
that staff member may issue infringement notices under new Part 14E.
Item 2 - Subsection 6(1)
Item 3 - Subsection 6(1)
Items 2 and 3 insert new definitions of "civil penalty order" and "civil penalty
provision" in subsection 6(1) of the BSA. These Items are consequential to Item 48,
which inserts new Part 14B. New Part 14B introduces procedural machinery to
support civil penalties for certain contraventions of the BSA.
30
Item 4 - Subsection 6(1)
Item 4 inserts a new definition of "designated infringement notice provision" in
subsection 6(1) of the BSA.
This Item is consequential to Item 48, which inserts new Part 14E. New Part 14E
provides for infringement notices and formal warnings to be given for contraventions
of a designated infringement notice provision under the BSA.
Item 5 - Subsection 6(1)
Item 5 inserts a new definition of "evidential burden" in subsection 6(1) of the BSA.
This new definition is consistent with the definition of "evidential burden" in
subsection 13.3(6) of the Criminal Code Act 1995 (Criminal Code).
This Item is consequential to Items 42 and 48. Item 42 inserts new
subsection 202(2B), which provides that a person who wishes to rely on
subsection 202(2A) in proceedings for a civil penalty order bears an evidential burden
in relation to that matter. Item 48 inserts new Part 14B, which provides, under new
section 205Q, that a person who wishes to rely on subsections 205Q(1) or (2) in
proceedings for a civil penalty order bears an evidential burden in relation to that
matter. New Part 14B also inserts new subsection 205PAA(3), which provides that a
person who wishes to rely on subsections 205PAA(1) or (2) in proceedings for a civil
penalty order bears an evidential burden in relation to that matter.
Item 6 - Subsection 6(1)
Item 6 inserts a new definition of "infringement notice" in subsection 6(1) of the BSA.
This Item is consequential to Item 48, which inserts new Part 14E of the BSA. New
Part 14E provides for infringement notices and formal warnings to be given for
contraventions of a designated infringement notice provision under the BSA.
Item 7 - Subsection 6(1)
Item 7 inserts a new definition of "penalty unit" in subsection 6(1) of the BSA. This
definition relies on section 4AA of the Crimes Act 1914, which currently provides that
one penalty unit equates to $110.
Item 8 - Subsection 6(1)
Item 8 inserts a new definition of "registered code of practice" in subsection 6(1) of
the BSA.
This Item is consequential to Item 48, which inserts new Part 14D. New Part 14D
empowers the ACMA to accept enforceable undertakings in relation to compliance
with the BSA and codes of practice registered under the BSA for the broadcasting,
Internet and datacasting industries.
31
Item 9 - After paragraph 41(2)(a)
Item 10 - At the end of subsection 41(3)
Currently, past criminal convictions for breaches of the BSA are relevant to a person's
suitability to hold a licence. These Items amend section 41 so that past civil penalties
will also be relevant to suitability.
Item 11 - At the end of Division 6 of Part 5
Item 11 inserts new sections 65A and 65B of the BSA. New section 65A provides that
an offence against sections 62, 63, 64 and 65 of the BSA is an offence of strict
liability. Offences against these provisions will be offences of strict liability, which
means that there will be no requirement to prove a fault element (eg intention) for any
of the physical elements of these offences. However, the defence of mistake of fact in
addition to the general defences will be available.
The offences covered by new section 65A (sections 62-65 of the BSA) relate to
requirements to report changes of control of commercial television, commercial radio
and Associated Newspapers to the ACMA.
As breaches of sections 62, 63, 64 and 65 of the BSA are offences, prior to this
amendment, subsection 5.6(1) of the Criminal Code applied, by default, as these
offence provisions did not specify a fault element. Subsection 5.6(1) of the Criminal
Code operates so that if a law creating an offence does not specify a fault element for a
physical element that consists only of conduct, intention is the fault element for that
physical element. This Item removes the requirement to prove a fault element (ie
intention) for these offences.
Under the proposed Broadcasting Services Amendment (Media Ownership) Bill 2006,
which will implement the Government's decisions in relation to changes to the media
ownership regulatory framework, the ACMA will be required to establish a Register of
Controlled Media Groups, which will be the primary vehicle for the implementation of
the diversity protection measures that will replace the cross-media rules (the "5/4
test"). The Register of Controlled Media Groups will rely heavily on sections 62-65 of
the BSA, as timely and accurate reporting of changes in control will be critical to both
the ACMA's and the media industry's understanding of the level of media diversity in
each licence area, and therefore whether media transactions may proceed.
The sections all require notification to the ACMA and non-compliance therefore
would relate to a failure to notify the ACMA (or inaccurate notification of the
ACMA). In both cases, proof of intent to fail to notify, or to notify inaccurately, may
be difficult to obtain. In effect it would only be where a person consciously decided
not to comply with the notification obligations that there would be an offence. This
would perversely reward those with inadequate governance and compliance systems in
place. The onus will be on media operators to put systems in place to ensure they
comply.
New section 65B declares sections 62, 63, 64 and 65 as designated infringement notice
provisions. This Item is consequential to Item 48, which inserts new Part 14E.
32
Part 14E provides for infringement notices and formal warnings to be given for
contraventions of a designated infringement notice provision under the BSA. The
ACMA is required by new section 215 (Item 50) to develop guidelines in relation to
the use of its enforcement powers, including in relation to issuing formal warnings and
infringement notices.
Item 12 - After paragraph 83(2)(a)
Item 13 - At the end of subsection 83(3)
Item 14 - After paragraph 92D(2)(a)
Item 15 - At the end of subsection 92D(3)
Item 16 - After paragraph 98(2)(a)
Item 17 - At the end of subsection 98(3)
Item 18 - After paragraph 121FC(1)(a)
Item 19 - At the end of subsection 121FC(2)
These Items make amendments to the suitability provisions for other categories of
broadcasting licences, that correspond to the amendments made to section 41 by
Items 9 and 10 above.
Item 20 - At the end of section 121FG
Item 20 inserts new subsections 121FG(3), (4) and (5) of the BSA. Currently,
section 121FG provides that a person is guilty of an offence if that person intentionally
provides an international broadcasting service without an international broadcasting
licence to provide that service, and is reckless as to that fact.
This Item introduces a separate civil penalty where a person provides an international
broadcasting service without an international broadcasting licence to provide that
service. By introducing civil penalties for breaches of particular provisions of the BSA
where criminal offences already exist for those breaches, the ACMA will be able to
determine the most appropriate sanction for that particular breach. In addition, it will
not be necessary for the ACMA to prove the element of fault in taking action under the
new civil penalty provisions.
The ACMA is required by new section 215 (Item 50) to develop guidelines in relation
to the use of its enforcement powers under Division 4 of Part 8B of the BSA, including
in relation to commencing civil penalty proceedings.
Item 21 - Section 121FH
Item 21 repeals section 121FH and substitutes new sections 121FH, 121FHA and
121FHB of the BSA.
33
New section 121FH allows the ACMA, where a person provides an international
broadcasting service without a licence, to give a notice directing that the person take
action towards ensuring that they do not provide that service without a licence in the
future.
This amendment allows the ACMA to give remedial directions in relation to breaches
of new subsection 121FG(3). The remedial directions provisions have been modelled
on the remedial directions provisions in clause 53 of Schedule 6 of the BSA and the
Telecommunications Act 1997 (the Tel Act) (eg sections 69 and 102). This ensures
that the ACMA's powers in relation to these types of notices are consistent.
This amendment is also consequential to Item 20. Item 20 inserts new
subsection 121FG(3), which provides that a person must not provide an international
broadcasting service if that person does not have a licence to provide that service.
Item 20 also inserts new subsection 121FG(4), which provides that new
subsection 121FG(3) is a civil penalty provision.
By introducing civil penalty provisions and remedial directions for particular breaches
of the BSA, the ACMA will have more flexibility regarding what action they choose to
take in relation to these breaches.
The power to give remedial directions in relation to a breach is in addition to separate
action which may arise as a result of the actual breach itself, either imposing a civil
penalty or prosecuting an offence under section 121FG.
This Item inserts new section 121FHA, which is consequential to the repeal of
section 121FH. New section 121FHA is equivalent to old subsections 121FH(2), (3)
and (4).
This Item also inserts new section 121FHB, which introduces a separate civil penalty
where a person does not comply with a notice given under section 121FH.
Item 22 - After section 121FJ
Item 22 inserts new sections 121FJA, 121FJB, 121FJC and 121FJD of the BSA.
Section 121FJ provides that a person is guilty of an offence if that person is an
international broadcasting licensee and the person engages in conduct which breaches
a condition of the licence.
New section 121FJA introduces a civil penalty where an international broadcasting
licensee breaches a condition of the licence.
New section 121FJB allows the ACMA, where an international broadcasting licensee
breaches a condition of the licence, to give a remedial direction by notice in writing,
directing that the person take action towards ensuring that they do not breach that
condition in the future.
The remedial directions provisions have been modelled on the remedial directions
provisions in clause 53 of Schedule 6 of the BSA and the Tel Act (eg sections 69 and
34
102). This ensures that the ACMA's powers in relation to these types of notices are
consistent.
New subsection 121FJB(2) provides examples of the kinds of directions that may be
given to a licensee under subsection (1). These examples are not an exhaustive list of
the kinds of directions the ACMA may give in a subsection 121FJB(1) remedial
direction (see section 15AD of the Acts Interpretation Act 1901).
New section 121FJC provides that a breach of a section 121FJB notice is an offence.
Making non-compliance of a section 121FJB notice, which deals with breaches of
licence conditions, an offence is consistent with the offence provision in new
section 142 for non-compliance of notices given in relation to breaches of licence
conditions under new section 141 of the BSA. The penalty of 2,000 penalty units in
new section 121FJC is also consistent with the penalty for an offence under
section 121FJ of the BSA.
New section 121FJD introduces a separate civil penalty where a person does not
comply with a notice under new section 121FJB.
Item 23 - Subsection 132(1)
Item 23 omits the subsection number "(1)" from section 132 of the BSA.
This Item is a technical amendment consequential to Item 26, which repeals
subsection 132(2) of the BSA.
Item 24 - Subsection 132(1)
Item 24 is a technical amendment to subsection 123(1) of the BSA. This amendment
makes the formulation of the provision consistent with the other provisions in
Division 1 of Part 10 relating to unlicensed services.
Item 25 - Subsection 132(1) (penalty)
Item 25 repeals the current penalty, which distinguishes between a service that is
provided with the use of a satellite (20,000 penalty units) and any other subscription
television broadcasting service (2,000 penalty units). This Item substitutes a standard
penalty of 2,000 penalty units for all unlicensed subscription television broadcasting.
The distinction between satellite and other subscription television broadcasting
services is no longer important, so all subscription television broadcasting is to be
treated the same.
Item 26 - Subsection 132(2)
Item 26 repeals subsection 132(2) of the BSA, which provides that a person must not,
before 1 July 1997, provide a subscription television broadcasting service with the use
of a satellite unless the service is provided through a subscription television satellite.
Subsection 132(2) is now inoperative.
35
Item 27 - After Division 1 of Part 10
Item 27 inserts new Division 1A of Part 10 of the BSA, which provides civil penalties
for unlicensed services.
New sections 136A-136E of the BSA create civil penalty provisions for the conduct
covered by the existing criminal offences in Division 1 of Part 10 of the BSA (sections
131-136). Where a person provides a broadcasting service without an appropriate
licence, the person could be prosecuted for an offence under the relevant provision of
Division 1, or the ACMA could commence an action in the Federal Court seeking the
imposition of a civil penalty for a breach of the relevant provision of new Division 1A.
Item 28 - Sections 137 and 138
Item 28 repeals sections 137 and 138 and substitutes new sections 137, 138 and 138A
of the BSA.
New section 137 allows the ACMA, where a person breaches new section 136A,
136B, 136C, 136D or 136E, to give a remedial direction by notice in writing, directing
that the person take action towards ensuring that they do not breach that section in the
future. This amendment is consequential to Item 27, which inserts new Division 1A of
Part 10 of the BSA (new sections 136A - 136E), which provides civil penalties for
unlicensed services.
The power to give remedial directions in relation to a breach is in addition to separate
action which may arise as a result of the actual breach itself, either imposing a civil
penalty or prosecuting an offence under new sections 136A, 136B, 136C, 136D or
136E and sections 131, 132, 133, 134 and 135 respectively.
New section 138 amends the wording of the current offence provision for breaches of a
section 137 notice to reflect the amendment of section 137.
New section 138A introduces a separate civil penalty where a person does not comply
with a notice under section 137.
Item 29 - Paragraph 139(1)(c)
Item 30 - After subsection 139(1)
Item 31 - Paragraph 139(3)(c)
Item 32 - After subsection 139(3)
Section 139 is a general offence for breach of certain standard licence conditions.
These Items make special provision for breach of the licence conditions relating to
financial records and reporting (paragraphs 7(1)(ia) and 8(1)(ha) of Schedule 2).
Paragraphs 7(1)(ia) and 8(1)(ha) of Schedule 2 provide that a commercial television
broadcasting licensee and commercial radio broadcasting licensee respectively must
comply with the requirements set out in section 205B.
36
Section 205B sets out the requirements relating to keeping and maintaining financial
accounts in relation to the service provided under commercial television broadcasting
and commercial radio broadcasting licences.
These Items amend section 139 so that:
· a breach of these licence conditions will be an offence of strict liability, with a
lower maximum penalty; and
· those licence conditions will be designated infringement notice provisions.
Item 33 - After section 140
Item 33 inserts new section 140A, which is a civil penalty provision that mirrors the
existing criminal offences in section 139.
Under section 139, it is a criminal offence for a licensee to fail to comply with certain
specified licence conditions. Where a licensee breaches one or more of the specified
licence conditions, the licensee could be prosecuted for an offence under section 139,
or the ACMA could commence an action in the Federal Court seeking the imposition
of a civil penalty for a breach of new section 140A.
Item 34 - Sections 141 and 142
Item 34 repeals sections 141 and 142 and substitutes new sections 141, 142 and 142A
of the BSA.
This Item inserts new section 141, which gives the ACMA the power to give remedial
directions in relation to breaches of licence conditions for commercial, community and
subscription services, breaches of class licences and breaches of codes of practice for a
subscription radio broadcasting service, a subscription narrowcasting service or an
open narrowcasting service.
New subsection 141(1) allows the ACMA, where a commercial television
broadcasting licensee, a commercial radio broadcasting licensee, a community
broadcasting licensee or a subscription television broadcasting licensee breaches a
condition of the licence, to give a notice directing that the person take action towards
ensuring that they do not breach that condition in the future.
New subsection 141(3) allows the ACMA, where a person who is in a position to
exercise control of a commercial television broadcasting licence or a commercial radio
broadcasting licence has caused the licensee to breach a condition of the licence, to
give a notice directing that the person take action towards ensuring that there is no
further breach of that condition.
New subsection 141(4) allows the ACMA, where a person who provides a subscription
radio broadcasting service, a subscription narrowcasting service or an open
narrowcasting service breaches a condition of the relevant class licence, to give a
notice directing that the person take action towards ensuring that they do not breach
that condition in the future.
37
New subsection 141(6) allows the ACMA, where a person who provides a subscription
radio broadcasting service, a subscription narrowcasting service or an open
narrowcasting service breaches a registered code of practice that applies to that service,
to give a notice directing that the person take action towards ensuring that they do not
breach that code of practice in the future.
The remedial directions provisions have been modelled on the remedial directions
provisions in clause 53 of Schedule 6 of the BSA and the Tel Act (eg sections 69 and
102). This ensures that the ACMA's powers in relation to these types of notices are
consistent.
By introducing civil penalty provisions and remedial directions for particular breaches
of the BSA, the ACMA will have more flexibility regarding what action they choose to
take in relation to these breaches.
The power to give remedial directions in relation to a breach is in addition to separate
action which may arise as a result of the actual breach itself, either imposing a civil
penalty or prosecuting an offence under new section 140A and section 139
respectively.
New subsections 141(2), 141(5) and 141(7) provide examples of the kinds of
directions that may be given to a licensee under subsections 141(1), (4) and (6)
respectively. These examples are not an exhaustive list of the kinds of directions the
ACMA may give in a subsection 141(1), (4) or (6) remedial direction (see section
15AD of the Acts Interpretation Act 1901).
New section 142 amends the wording of the current offence provision for breaches of a
section 141 notice to reflect the amendment of section 141. The references to "satellite
subscription television broadcasting licensee" in section 142 have been removed as it
is intended that all subscription television broadcasting is to be treated the same.
Item 34 inserts new section 142A, which is a civil penalty provision that mirrors the
existing criminal offence in section 142.
Item 35 - Division 5 of Part 10
Item 35 repeals Division 5 of Part 10 (sections 145 and 146) because the provisions are
redundant.
Section 145 of the BSA deals with continuing offences and declares that section 4K of
the Crimes Act 1914 applies to the obligations under Part 10 to comply with a notice,
other than a notice under section 137. Sections 136 and 140 and new
subsections 138(4), 142(5) and 142A(3) of the BSA provide for continuing offences in
relation to each individual offence under Part 10, which is consistent with the current
operation of section 145. As continuing offence provisions are now dealt with
specifically under each offence provision, section 145 is redundant and is no longer
needed.
38
Section 146 of the BSA provides that a prosecution for an offence under Part 10
against a person in relation to a matter cannot be commenced if the ACMA has given
the person a notice under section 141 in relation to the matter and the time for
compliance with the notice has not expired.
Currently subsection 141(3) of the BSA provides that a notice given under section 141
is to specify a period, not exceeding one month, during which the relevant action must
be taken. Item 34 repeals section 141 and substitutes a new section 141, which no
longer stipulates that the notice must specify a period during which action must be
taken. Notices given under new section 141 may direct the person to take action
towards ensuring that they do not breach the condition in the future. It is a matter for
the ACMA as to whether they specify a period in the notice during which time action
must be taken.
Item 34 also repeals and substitutes section 142 of the BSA. New section 142 sets out
the various offences in relation to a breach of a requirement in a section 141 notice.
Prosecution can only commence in relation to a breach of a section 141 notice if an
offence has been committed under new section 142 (ie if the person's conduct
contravenes a requirement in the section 141 notice). If the ACMA specifies a time for
compliance with a section 141 notice, proceedings can only be commenced once this
time period has lapsed, as the person will not have committed an offence under new
section 142 until the time requirement in the notice has been contravened. For these
reasons, section 146 is redundant.
Item 36 - After paragraph 147(a)
Item 37 - After subparagraph 149(2)(b)(i)
These Items amend the complaints provisions, so that a person may complain to the
ACMA about a breach of a civil penalty provision.
Item 38 - After subsection 202(1)
Item 38 inserts new subsections 202(1A) and (1B) of the BSA.
Subsection 202(1) makes it a criminal offence for a person who is required to give
evidence or to produce documents at a hearing to:
· fail to attend as required by the notice; or
· fail to appear and report from day to day unless excused or released from
further attendance.
These Items introduce a separate civil penalty that mirrors the existing criminal
offence in subsection 202(1).
Item 39 - After subsection 202(2)
Item 39 inserts new subsections 202(2AA) and (2AB) of the BSA.
39
Subsection 202(2) provides that a person required to answer a question, to give
evidence or to produce documents under Part 13 of the BSA must not:
· when required to take an oath or make an affirmation, refuse or fail to take the
oath or make the affirmation;
· refuse or fail to answer a question that the person is required to answer; or
· refuse or fail to produce a document that the person is required to produce.
These Items introduce a separate civil penalty that mirrors the existing criminal
offence in subsection 202(2)..
Item 40 - Subsection 202(2A)
Item 40 inserts references to subsections 202(1A) and (2AA) in 202(2A) of the BSA,
which extends the defence of reasonable excuse to the new civil penalty provisions
under new subsections 202(1A) and (2AA).
Item 41 - Subsection 202(2A) (note)
Item 41 amends the note to subsection 202(2A) to clarify that a defendant in criminal
proceedings bears an evidential burden when relying on the defence in
subsection 202(2A) in relation to offences under subsection 202(1) and (2).
Item 42 - After subsection 202(2A)
Item 42 inserts new subsection 202(2B), which provides that a person who wishes to
rely on subsection 202(2A) in proceedings for a civil penalty order bears an evidential
burden in relation to that matter. Where civil penalties have been introduced for
particular breaches of the BSA and there is a defence of reasonable excuse or mistake
of fact provided for under the BSA, placing the burden of proving either defence on
the defendant is consistent with the position in relation to the criminal offences.
Item 43 - At the end of section 205B
Item 43 inserts a note at the end of section 205B which explains how section 205B is
enforced. This Item is consequential to Items 30 and 32.
Item 44 - Subsection 205D(1)
Item 45 - Subsection 205D(2)(e)
Under section 205D,if a licensee has not paid the relevant licence fee by the due date,
the licensee is subject to an additional fee equal to 20% per annum on the amount
unpaid.
These Items amend section 205D to provide, in addition to the 20% penalty, an
additional $1,500 fee. This additional flat fee will apply irrespective of the amount of
the unpaid licence fees.
40
Item 46 - After subsection 205D(6)
Item 46 inserts new subsection 206D(6A). New subsection 206D(6A) clarifies that an
additional fee payable under new subsection 205D(1) or (2) is a debt due to the
Commonwealth and can be recovered in court. This complements existing
subsection 205D(6), which provides that the amount of the unpaid licence fee may be
recovered in court.
Item 47 - Paragraphs 205D(7)(c) and 8(c)
Item 47 is consequential to Items 44 and 45.
Item 48 - After Part 14A
Item 48 inserts new Parts 14B, 14C, 14D and 14E of the BSA.
New Part 14B - Civil penalties
New Part 14B of the BSA introduces machinery provisions to support the new civil
penalties introduced by other Items (in particular Items 20, 21, 22, 27, 28, 33, 34, 38
and 39).
Division 1 of new Part 14D provides for ancillary contraventions of the civil penalty
provisions.. Under new section 205E of the BSA, an ancillary contravention includes:
(a) an attempt to contravene a civil penalty provision;
(b) aiding, abetting, counselling or procuring a contravention by another person;
(c) inducing another person to contravene a civil penalty provision (eg. by
threatening the person);
(d) being knowingly concerned in or party to a contravention; and
(e) conspiring with others to contravene a civil penalty provision.
The ancillary contravention provisions in new section 205E are equivalent to the
provisions of Division 11 of Part 2.4 of the Criminal Code (Schedule to the Criminal
Code Act 1995). This ensures parity between the existing criminal offences under the
BSA and the new civil penalty provisions.
New section 205E is itself a civil penalty provision. Accordingly, if a person commits
an ancillary contravention of a civil penalty provision, the person may be subject to a
civil penalty order under Division 2 of Part 14B (see below).
New section 205EA is a simplified outline of Division 2 (containing sections 205EA-
205PAA).
Under new section 205F, the Federal Court may order a person to pay a pecuniary
penalty for a contravention of a civil penalty provision, known as a civil penalty order
(new subsections 205F(1) and (2)). In determining the pecuniary penalty, the Federal
Court is required to consider all relevant matters, including but not limited to the
nature and extent of the contravention and any loss or damage suffered as a result, the
circumstances of the contravention and any previous contraventions (new
subsection 205F(3)).
41
The maximum pecuniary penalty that may be imposed as a civil penalty is the
maximum penalty that could have been imposed for a conviction under the
corresponding criminal offence (new subsection 205F(4)). The following table sets
out the corresponding existing criminal offences and new civil penalty provisions, and
the relevant maximum penalties.
Conduct Criminal Civil penalty Maximum penalty
offence provision
Providing an unlicensed s.131 s.136A 20,000 penalty units
commercial television service
Providing an unlicensed s.132 s.136B 2,000 penalty units
subscription television service
Providing an unlicensed s.133 s.136C 2,000 penalty units
commercial radio service
Providing an unlicensed s.134 s.136D 50 penalty units
community television service
Providing an unlicensed s.135 s.136E 50 penalty units
community radio service
· 20,000 penalty units for
Failure to comply with a notice s.138 s.138A
directing the person to cease unlicensed commercial
providing an unlicensed service television services;
· 2,000 penalty units for
unlicensed commercial radio
and subscription television
services; or
· 50 penalty units for
unlicensed community
broadcasting services.
Breach of a licence condition in s.139(1) s.140A(1) 2,000 penalty units
subclause 7(1) of Schedule 2
(other than paragraph 7(1)(ia)) by
a commercial television licensee
Breach of a licence condition in s.139(1A) s.140A(1) 60 penalty units
paragraph 7(1)(ia) of Schedule 2
by a commercial television
licensee
Breach of a licence condition in s.139(2) s.140A(2) 1,000 penalty units
ss.103P, 103Q, 103S, 103T,
103V, 103W or subclause 10(1)
of Schedule 2 by a subscription
television licensee
Breach of a licence condition in s.139(3) s.140A(3) 500 penalty units
subclause 8(1) of Schedule 2
(other than paragraph 8(1)(ha) by
a commercial radio licensee
Breach of a licence condition in s.139(3A) s.140A(3) 60 penalty units
paragraph 8(1)(ha) of Schedule 2
by a commercial radio licensee
Breach of a licence condition in s.139(4) s.140A(4) 50 penalty units
subclause 9(1) of Schedule 2 by a
community broadcasting licensee
(other than a temporary
community broadcasting
licensee)
42
Conduct Criminal Civil penalty Maximum penalty
offence provision
Breach of a licence condition in s.139(5) s.140A(5) 50 penalty units
subclause 9(1) (other than
paragraph 9(1)(h)) of Schedule 2
by a temporary community
broadcasting licensee
Breach of a licence condition in s.139(6) s.140A(6) 50 penalty units
subclause 11(1) of Schedule 2 by
a subscription radio broadcaster,
a subscription narrowcaster or an
open narrowcaster
· 20,000 penalty units for a
Failure to comply with a notice s.142 s.142A
directing the person to comply commercial television licensee,
with a licence condition or certain a person in control of a
codes of practice commercial television licensee;
· 2,000 penalty units for a
subscription television
licensee;
· 500 penalty units for a
commercial radio licensee or a
person in control of a
commercial radio licensee; or
· 50 penalty units in any
other case.
Similarly, where a person commits an ancillary contravention under new
section 205E(1), the maximum pecuniary penalty that may be imposed is the
maximum penalty applicable to the corresponding civil penalty provision and criminal
offence (new subsection 205F(5)). For example, if a person conspired with others to
provide an unlicensed commercial television service, the person will have contravened
new paragraph 205E(1)(e). The maximum pecuniary penalty that could be imposed by
the Federal Court is the maximum penalty applicable to the civil penalty provision and
the criminal offence for providing an unlicensed commercial television service, which
is 20,000 penalty units.
If a person has engaged in conduct that contravenes 2 or more civil penalty provisions,
proceedings may be instituted in relation to each contravention. However, the person
can only be subject to a single pecuniary penalty for that conduct (new subsection
205F(6)). This provision ensures that a person subject to a civil penalty cannot receive
a disproportionate punishment for the wrongdoing where the same conduct
contravenes multiple civil penalty provisions.
A pecuniary penalty is a civil debt payable to the Commonwealth. The
Commonwealth may take action to recover a debt if a person fails to pay a penalty in
accordance with a civil penalty order ( new subsection 205F(7)).
New subsection 205G(1) provides that only the ACMA has standing to apply to the
Federal Court for a civil penalty order. However, new subsection 205G(2) clarifies
that subsection 205G(1) does not exclude the Commonwealth Director of Public
Prosecutions (DPP) from prosecuting criminal offences under the BSA.
43
Part 14B also provides for the following procedural matters:
· the Federal Court may direct that 2 or more proceedings for civil penalty orders are
to be heard together (new section 205H);
· proceedings for a civil penalty order must be started no later than 6 years after the
contravention (new section 205J);
· the Federal Court must apply the rules of evidence and procedure for civil matters
when hearing proceedings for a civil penalty order (new section 205K);
· the Federal Court must not make a civil penalty order against a person if the person
has been convicted of an offence that is substantially the same as the conduct
constituting the contravention of the civil penalty provision (new section 205L);
· civil penalty proceedings against a person must be stayed if criminal proceedings
are commenced, or have already commenced, against that person for a criminal
offence constituted by conduct that is substantially the same as the conduct alleged
to constitute the civil penalty contravention. Proceedings may be resumed if the
person is not convicted of the offence, otherwise, the proceedings are dismissed
(new section 205M);
· criminal proceedings may be started against a person for conduct which is
substantially the same as conduct constituting a civil penalty contravention
regardless of whether a civil penalty order has been made against the person (new
section 205N); and
· evidence of information given or documents produced by a person is not
admissible in criminal proceedings against that person if the person gave the
evidence or produced the documents in civil penalty proceedings and the conduct
alleged to constitute the offence is substantially the same as the conduct that was
claimed to constitute the civil penalty contravention. However, this does not apply
to criminal proceedings in respect of the falsity of the evidence given by the person
in the civil penalty proceedings (new section 205P).
New section 205PAA provides a person the defence of mistake of fact for
contraventions of a civil penalty provision, other than subsections 202(1A) or (2AA).
The mistake of fact defence provision in new section 205PAA is modelled on the
mistake of fact provision in clause 9.2 of the Criminal Code.
Accordingly, a person is not liable to have a civil penalty order made against them for
a contravention of a civil penalty provision (other than subsection 202(1A) or (2AA))
if at or before the time of the conduct constituting the contravention, the person
considered whether or not facts existed and was under a mistaken (but reasonable
belief) about those facts, and had those facts existed, the conduct would not have
constituted a contravention of the civil penalty provision.
New subsection 205PAA(2) deals with whether a person may be regarded as having
considered whether or not facts existed.
44
New subsection 205PAA(3) provides that a person who wishes to rely on new
subsections 205PAA(1) or (2) in civil proceedings bears an evidential burden in
relation to that matter.
The ACMA is required by new section 215 (Item 50) to develop guidelines in relation
to the use of its enforcement powers, including in relation to commencing civil penalty
proceedings.
New Part 14C - Injunctions
Part 14C enables the Federal Court to grant injunctions in relation to contraventions or
proposed contraventions of the provisions in the BSA which deal with unlicensed
broadcasting.
This Part is largely based on Part 30 of the Tel Act.
New section 205PA provides a simplified outline of Part 5 to assist readers.
New section 205Q provides that if a person has engaged, is engaging or is proposing to
engage, in any conduct in contravention of new subsection 121FG(3) or new sections
136A, 136B, 136C, 136D or 136E of the BSA (the new civil prohibitions on providing
unlicensed broadcasting services), the ACMA will be able to apply to the Federal
Court for an injunction to restrain the person from engaging in the conduct. If, in the
Federal Court's opinion, it is desirable to do so, the Court will also be able to require
the person to do something (new paragraph (205Q(b)).
It is anticipated that injunctions could be used in addition to a civil proceeding under
new Part 14B of the BSA, where the ACMA wishes not only to apply for a civil
penalty order for a breach, but also wants an order which could prevent a person from
contravening the provision in the future. Alternatively, an injunction may be sought
instead of a prosecution. This could be, for example, if the ACMA is of the view that
a person has been involved in a minor breach of the BSA and wishes to ensure that
they do not do so in the future.
New section 205R allows the Federal Court to grant interim injunctions before the
Court considers an application for a final injunction (new subsection 205R(1)). For an
injunction under new section 205Q, the Federal Court will not be able to require an
applicant, as a condition of granting an interim injunction, to give any undertakings as
to damages (new subsection 205R(2)).
New section 205S provides that the Federal Court may discharge or vary an injunction
granted under new Part 14C.
New section 205T provides that the power of the Federal Court to grant an injunction
restraining a person from engaging in conduct will be able to be exercised:
· where 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
continue to engage, in conduct of that kind; or
45
· where 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 imminent
danger of substantial damage to any person.
New section 205U provides that the powers conferred on the Federal Court under
Part 14C will not limit any other powers of the Court, whether conferred by the BSA
or otherwise.
New Part 14D - Enforceable undertakings
New Part 14D gives the ACMA the ability to accept undertakings to ensure
compliance with the BSA and registered codes of practice. Once accepted by the
ACMA, undertakings would be enforceable by the Federal Court.
This Part is based on Part 31A of the Tel Act.
Currently, the ACMA has a range of enforcement and compliance powers for dealing
with breaches of registered codes of practice, including:
· the power to refer matters to the DPP in relation to offences;
· the power to impose standards under section 125 of the BSA, which becomes a
licence condition under Schedule 2; and
· the power to impose additional licence conditions on individual licensees (eg under
section 43 of the BSA).
This Bill will provide additional enforcement and compliance powers for dealing with
circumstances in which the ACMA believes a person has breached the BSA:
· the power to give notices and remedial directions under new Part 14B;
· the power to impose civil penalties under new Part 14C;
· the power to apply to the Federal Court to grant an injunction under new Part 14D;
and
· the power to give formal warnings and infringement notices under new Part 14E.
The power to accept enforceable undertakings would complement the ACMA's
existing and new enforcement powers by providing the ACMA with a flexible and
efficient means of addressing concerns about a person's current and future compliance
with the BSA and registered codes of practice.
The acceptance of an undertaking could be used as an alternative, or in addition to, the
exercise of other enforcement powers and would provide the ACMA with a flexible
way of responding to breaches of the BSA and codes of practice and ensuring ongoing
compliance with those obligations into the future.
46
Providing the ACMA with the power to accept enforceable undertakings in relation to
compliance with the BSA and codes of practice would be consistent with the
enforcement regime that is available to the ACMA in its role under the Tel Act. That
Act provides the ACMA with express powers to accept enforceable undertakings in
connection with specified matters relating to telecommunications. In addition, giving
the ACMA the power to accept enforceable undertakings would mirror the Australian
Competition and Consumer Commission's (ACCC) enforcement regime under the
Trade Practices Act 1974 (TPA). Section 87B of the TPA allows the ACCC to accept
enforceable undertakings.
New section 205V provides a simplified outline of the new Part 14D. New Part 14D
provides that a person may give the ACMA an enforceable undertaking about
compliance with the BSA or a registered code of practice.
New section 205W sets out the types of undertaking that the ACMA may accept from
a person. The ACMA may accept a written undertaking given by a person that the
person will:
· take specified action in order to comply with the BSA (new
paragraph 205W(1)(a)); or
· refrain from taking specified action in order to comply with the BSA (new
paragraph 205W(1)(b)); or
· take specified action directed towards ensuring that the person does not contravene
the BSA, or is unlikely to contravene the BSA, in the future (new
paragraph 205W(1)(c)); or
· take specified action in order to comply with a registered code of practice (new
paragraph 205W(1)(d)); or
· refrain from taking specified action in order to comply with a registered code of
practice (new paragraph 205W(1)(e)); or
· take specified action directed towards ensuring that the person does not contravene
a registered code of practice, or is unlikely to contravene a registered code of
practice, in the future (new paragraph 205W(1)(f)).
The effect of proposed new subsection 205W(1) would be that the ACMA may accept
an undertaking from a person that the person will rectify past conduct that was in
breach of the requirements of the BSA or a registered code of practice (new
paragraphs 205W(1)(a), (b), (d) and (e)). The ACMA could also accept an
undertaking from a person relating to their compliance with the BSA and registered
code of practice in the future, even where that person has not breached the
requirements of the BSA or code of practice (new paragraphs 205W(1)(c) and (f)).
The person who gives the undertaking may only withdraw or vary the undertaking
with the ACMA's consent (new subsection 205W(3)). Permitting the ACMA to allow
persons who give undertakings to the ACMA to vary or withdraw them will ensure
that the enforceable undertakings scheme instituted by new Part 14D is a flexible
enforcement mechanism. The requirement for the ACMA consent to the variation or
47
withdrawal of an undertaking will ensure effective oversight by the ACMA of
compliance with the BSA and codes of practice.
The ACMA would be able to cancel an undertaking at any time by giving a written
notice to the person (new subsection 205W(4)). This would allow the ACMA to
cancel an undertaking when it is no longer required to be met by the person who gave
it, or if it is no longer of any benefit. Equally, it will allow the ACMA to cancel an
undertaking given by a person if that undertaking is no longer effective - this would
mean that the relevant person could either give the ACMA a new undertaking or that
the ACMA could pursue other enforcement action against that person, if necessary.
New subsection 205W(5) provides that the ACMA may publish on its Internet site an
undertaking that it accepts from a person under new subsection 205W(1). Allowing
publication of the undertakings accepted by the ACMA will permit appropriate public
scrutiny of undertakings given by industry.
New section 205X would provide that undertakings under new section 205W are
enforceable in the Federal Court. New subsection 205X(1) provides that the ACMA
may apply to the Federal Court for an order if a person has given the ACMA an
undertaking under new section 205W, and the undertaking has not been withdrawn or
cancelled, and the ACMA considers that the person has breached the undertaking.
New subsection 205X(2) would provide for the sorts of orders that the Federal Court
may make in relation to an application by the ACMA under new subsection 205X(1).
These are the same types of orders provided for by subsection 572C(2) of the Tel Act
and subsection 87B(4) of the TPA. If the Federal Court is satisfied that the person has
breached the undertaking, it may make any or all of the following orders:
· an order directing the person to comply with the undertaking;
· an order directing the person to pay to the Commonwealth an amount up to the
amount of any financial benefit that the person has obtained directly or indirectly
and that is reasonably attributable to the breach;
· any order that the Court considers appropriate directing the person to compensate
any other person who has suffered loss or damage as a result of the breach; or
· any other order that the Court considers appropriate.
The ACMA is required by new section 215 (Item 50) to develop guidelines in relation
to the use of its enforcement powers, including in relation to accepting enforceable
undertakings.
New Part 14E - Infringement notices
Part 14E sets up a system of infringement notices for contraventions of designated
infringement notice provisions established under Items 11, 30 and 32. Infringement
notices will enable a more efficient means of dealing with minor contraventions as an
alternative to instituting court proceedings for breach of a designated infringement
notice provision. These amendments are consistent with the recommendations of the
48
Australian Law Reform Commission (ALRC) relating to infringement notices in its
report "ALRC 95 - Principled Regulation: Civil and Administrative Penalties in
Australian Federal Regulation".
This Part is largely based on Schedule 3 of the Spam Act 2003.
New section 205XAA provides a simplified outline of the new Part 14E.
New section 205XA provides that, if an authorised infringement notice officer (the
Chair of the ACMA or a member of the staff of the ACMA appointed under new
section 205ZE, see new definition in subsection 6(1)), has reasonable grounds to
believe that a person has contravened a designated infringement notice provision, they
may give that person a formal warning that:
· the conduct contravenes a designated infringement notice provision; and
· an infringement notice relating to the contravention may be given.
New section 205Y sets out when an infringement notice may be issued. It provides
that an infringement notice may be issued by an authorised infringement notice officer
if:
· he or she has reasonable grounds to suspect that a person has contravened a
designated infringement notice provision of the BSA; and
· a formal warning has previously been given under section 205XA.
An infringement notice must be given within 12 months of the day that the
contravention is alleged to have happened (new subclause 205Y(2)).
New section 205Z sets out the matters which must be included in an infringement
notice. In particular it provides that an infringement notice must:
· set out the name of the person to whom the notice is given, that is the person who
has allegedly contravened the designated infringement notice provision;
· set out the name of the person who gave the notice. It is anticipated that as a
matter of administrative practice the authorised infringement notice officer would
sign the notice;
· set out brief details of the alleged contravention and the date of when the
contravention is alleged to have occurred;
· set out that the Federal Court will not deal with the matters in the alleged
contraventions if the penalty is paid to the ACMA within the notified period
(either 28 days after the notice is given or longer, if an extension of time for
payment is granted by the ACMA);
· explain how the penalty may be paid;
49
· set out the effect of new section 205ZB (withdrawal of an infringement notice);
and
· set out any other matters (if any) which are specified in the regulations.
New section 205ZA sets out the pecuniary penalties payable under an infringement
notice. If the person is a commercial television broadcasting licensee or a subscription
television broadcasting licensee, the penalty is 60 penalty units (currently $6,600). In
any other case, the penalty is 10 penalty units (currently $1,100).
Section 205ZB allows an authorised infringement notice officer to withdraw an
infringement notice that has been given to a person in relation to a contravention of a
designated infringement notice provision. The withdrawal notice must be in writing
and must be given to the person within 28 days after the infringement notice was
given.
A withdrawal of a previously issued infringement notice may be considered for
example where further evidence has come to light since the issuing of the infringement
notice to suggest that a person has not contravened a designated infringement notice
provision, or alternatively that further evidence suggests that the breach is more
serious than initially believed and consequently would be more appropriately dealt
with by a court rather than an infringement notice.
If an infringement notice is withdrawn after the penalty specified in the notice has
already been paid, then the Commonwealth is liable to refund this amount. Section 28
of the Financial Management and Accountability Act 1997 provides for the
appropriation of the Consolidated Revenue Fund for the purposes of paying such a
refund.
New section 205ZC provides that if a person has been given an infringement notice
and the penalty has been paid in accordance with the notice, and the infringement
notice is not subsequently withdrawn, then any liability of the person for the alleged
contravention is discharged (new subclauses 205ZC(1) and (2)) and the ACMA cannot
institute proceedings for the alleged contravention (new subclause 205ZC(3)).
New section 205ZD specifically provides that nothing in Part 14E:
· requires an infringement notice to be given in relation to an alleged contravention
of a designated infringement notice provision. The decision whether or not to
issue an infringement notice is at the discretion of the authorised infringement
notice officer;
· affects the liability of a person to have proceedings brought against them for an
alleged contravention of a designated infringement notice provision, if the person
does not comply with an infringement notice, an infringement notice is not given
to a person, or an infringement notice is withdrawn;
· limits the Federal Court's discretion to determine the amount of a penalty to be
imposed on a person who is found in proceedings to have contravened a
designated infringement notice provision.
50
New section 205ZE enables the ACMA to appoint, in writing, a member of the staff of
the ACMA as an authorised infringement notice officer for the purposes of the BSA.
An authorised infringement notice officer is able to issue formal warnings,
infringement notices and may withdraw notices under Part 14E.
In addition to those staff specifically appointed as authorised infringement notice
officers under new section 205ZE, the Chair of the ACMA is an authorised
infringement notice officer for the purpose of this new Part 14E (see new definition of
an authorised infringement notice officer in subclause 6(1)).
New section 205ZF provides that the regulations may make further provision in
relation to infringement notices. A general regulation-making power is provided in
section 217 of the BSA.
The ACMA is required by new section 215 (Item 50) to develop guidelines in relation
to the use of its enforcement powers, including in relation to issuing formal warnings
and infringement notices.
Item 49 - Subsection 214(1)
Section 214 provides for multiple charges for certain continuing offences to be heard
together, and for a single penalty to be imposed.
Item 49 amends section 214 as a consequence of the amendments relating to the
offence provisions for remedial directions in Items 21, 22, 28 and 34.
Item 50 - After section 214
Item 50 inserts new section 215 of the BSA. Section 215 requires the ACMA to
develop, and have in force at all times, guidelines for the use of the new powers to:
· seek civil penalties under Division 4 of Part 8B, Part 10 and new Part 14B (eg
providing industry with guidance as to the matters the ACMA will take into account
in deciding whether to refer a matter to the DPP or to seek civil penalties);
· accept enforceable undertakings under new Part 14D; and
· issue formal warnings and infringement notices under new Part 14E.
The ACMA may also formulate guidelines for the use of its powers relating to
injunctions (new Part 14C) and information gathering, investigations and hearings
(Part 13).
The ACMA, and an authorised infringement notice officer, must have regard to any
guidelines in force when exercising the relevant powers or when deciding whether to
refer a matter to the DPP for action in relation to a possible offence against the BSA.
The guidelines are not intended to be prescriptive or limiting. The ACMA is to retain
the discretion to seek the sanctions it considers appropriate in light of the particular
51
circumstances of the case. The guidelines may include general guidance on the
ACMA's enforcement options and other matters that the ACMA considers relevant.
The ACMA is not required to have separate guidelines for each topic, rather the
ACMA could produce a single set of guidelines. Where the ACMA is required to
develop guidelines under this new section 215, these guidelines must be in the form of
a legislative instrument. The ACMA is required to consult publicly before issuing the
guidelines, to ensure that industry is able to contribute to the process, in accordance
with Part 3 of the Legislative Instruments Act 2003.
Radiocommunications Act 1992
Item 51 - At the end of section 231
Item 51 inserts a reference to new Part 5.8 in section 231 of the Radcom Act.
Section 231 of the Radcom Act provides an outline of Chapter 5 of that Act. This
amendment is consequential to Item 52.
Item 52 - At the end of Chapter 5
Item 52 inserts new Part 5.8 of the Radcom Act. Part 5.8 gives the ACMA the ability
to accept undertakings to ensure compliance with the Radcom Act. Once accepted by
the ACMA, undertakings would be enforceable by the Federal Court.
This Part is based on Part 31A of the Tel Act and mirrors new Part 14D of the BSA
which gives the ACMA the power to accept enforceable undertakings about
compliance with the BSA and registered codes of practice (Item 48). The provisions
in new Part 5.8 of the Radcom Act introduce the same regime as new Part 14D of the
BSA (see notes on those provisions).
Currently, the ACMA has a range of enforcement and compliance powers for dealing
with circumstances in which the ACMA believes a person has breached the Radcom
Act.
The power to accept enforceable undertakings would complement the ACMA's
existing and new broadcasting enforcement powers by providing the ACMA with a
flexible and efficient means of addressing concerns about a person's current and future
compliance with the Radcom Act. Given the relationship between broadcasting
services and radiocommunications regulation (particularly relating to spectrum
planning and apparatus licensing), it is important to extend the ACMA's new
enforceable undertaking powers to compliance with the Radcom Act.
Part 2 - Application of amendments
Item 53 - Application - additional fees
Item 53 provides that the amendments of section 205D of the BSA (Items 44, 45 and
46) apply to an additional fee that relates to a licence fee if the due date for the licence
fee is after the date on which this Item commences.
52
Item 54 - Application - infringement notices
Item 54 clarifies that the power to issue formal warnings and infringement notices
(new Part 14E) may only be exercised by the ACMA in relation to a contravention that
occurs after this Item commences.
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