BROADCASTING SERVICES AMENDMENT ACT (NO. 3) 1999 NO. 198, 1999 - SCHEDULE 1 - Eligible drama expenditure rules for subscription television broadcasting

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BROADCASTING SERVICES AMENDMENT ACT (NO. 3) 1999 NO. 198, 1999 - SCHEDULE 1

- Eligible drama expenditure rules for subscription television broadcasting Part 1—Amendments commencing on Royal Assent

Broadcasting Services Act 1992

1 Section 102

Repeal the section.

2 After Division 2 of Part 7

Insert:

Division 2A—Eligible drama expenditure

Subdivision A—Introduction

103A Simplified outline

The following is a simplified outline of this Division:

* This Division requires subscription television broadcasting licensees to ensure the maintenance of minimum levels of expenditure on new eligible drama programs .

* An eligible drama program is a drama program that is an Australian program, an Australian/New Zealand program, a New Zealand program or an Australian official co-production.

* If a licensee provides a subscription TV drama service, expenditure on new eligible drama programs for each financial year must be at least 10% of total program expenditure.

* If a channel provider supplies a channel that is televised on a subscription TV drama service, the 10% expenditure requirement is calculated by reference to the expenditure incurred by the channel provider.

* If a channel provider supplies a channel that is televised on a subscription TV drama service and the 10% expenditure requirement is not met for a particular financial year, the shortfall will have to be made up in the next financial year.

* Licensees and channel providers are required to lodge annual returns about their program expenditure.

103B Definitions

In this Division:

acquiring , in relation to a drama program, includes acquiring rights in relation to the program.

Australian Content Standard means:

(a): the Broadcasting Services (Australian Content) Standard 1999 as in force from time to time; or
(b): if the standard mentioned in paragraph (a) is not in force, but there is in force another standard that is a successor (whether immediate or not) to the standard mentioned in paragraph (a)—that other standard as in force from time to time.

channel means a continuous stream of programs.

channel provider has the meaning given by section 103C.

compliance certificate means a certificate under section 103ZE.

drama program means a program that has a fully scripted screenplay in which the dramatic elements of character, theme and plot are introduced and developed to form a narrative structure, and includes:

(a): a fully scripted sketch comedy program; or
(b): an animated drama; or
(c): a dramatised documentary;

but does not include:

(d): a program that involves the incidental use of actors; or
(e): advertising or sponsorship matter (whether or not of a commercial kind).

eligible drama program means:

(a): a drama program that is an Australian program (within the meaning of the Australian Content Standard); or
(b): a drama program that is an Australian/New Zealand program (within the meaning of the Australian Content Standard); or
(c): a drama program that is a New Zealand program (within the meaning of the Australian Content Standard); or
(d): a drama program that is an Australian official co-production (within the meaning of the Australian Content Standard).

: Note: Section 103ZK sets out a special rule for 1999-2000.

expenditure , in relation to a program or program material, means:

(a): expenditure incurred in acquiring the program or program material; or
(b): expenditure incurred in producing the program or program material; or
(c): pre-production expenditure incurred in relation to the program or program material; or
(d): expenditure incurred by way of the making of an investment in the program or program material;

and includes nil expenditure.

: Note: Section 103H sets out a special rule for pre-production expenditure.

financial year means:

(a): the financial year beginning on 1 July 1999; or
(b): a later financial year.

incidental matter means:

(a): advertising or sponsorship matter (whether or not of a commercial kind); or
(b): a program promotion; or
(c): an announcement; or
(d): a hosting; or
(e): any other interstitial program.

licensee means a subscription television broadcasting licensee.

new , in relation to an eligible drama program, has the meaning given by section 103K.

part-channel provider has the meaning given by section 103D.

part-pass-through provider has the meaning given by section 103F.

pass-through provider has the meaning given by section 103E.

pre-production expenditure , in relation to a program or program material, means:

(a): expenditure incurred in developing the screenplay for the program or program material; or
(b): any other expenditure incurred by way of pre-production costs for the program or program material.

program material does not include advertising or sponsorship matter (whether or not of a commercial kind).

registered auditor means a person registered as an auditor, or taken to be registered as an auditor, under Part 9.2 of the Corporations Law.

subscription TV drama service means a subscription television broadcasting service devoted predominantly to drama programs.

103C Channel providers

For the purposes of this Division, a channel provider , in relation to a subscription TV drama service provided by a licensee, is a person who:

(a): packages a channel (which may include programs produced by the person); and
(b): supplies the licensee with the channel; and
(c): carries on a business in Australia, by means of a principal office or of a branch, that involves the supply of the channel;

where, apart from any breaks for the purposes of the transmission of incidental matter, the channel is televised by the licensee on the subscription TV drama service.

103D Part-channel providers

For the purposes of this Division, a part-channel provider , in relation to a subscription TV drama service provided by a licensee, is a person who:

(a): assembles a package of programs (which may include programs produced by the person); and
(b): supplies the licensee with the package; and
(c): carries on a business in Australia, by means of a principal office or of a branch, that involves the supply of the package;

where:

(d): the package consists predominantly of drama programs; and
(e): the package constitutes a significant proportion of the program material that is televised by the licensee on the subscription TV drama service; and
(f): there is neither:

(i): a channel provider; nor
(ii): a pass-through provider;

in relation to the subscription TV drama service.

103E Pass-through providers

For the purposes of this Division, a pass-through provider , in relation to a subscription TV drama service provided by a licensee, is a person who:

(a): packages a channel (which may include programs produced by the person); and
(b): supplies the licensee with the channel; and
(c): does not carry on a business in Australia, by means of a principal office or of a branch, that inv olves the supply of the channel;

where, apart from any breaks for the purposes of the transmission of incidental matter, the channel is televised by the licensee on the subscription TV drama service.

103F Part-pass-through providers

For the purposes of this Division, a part-pass-through provider , in relation to a subscription TV drama service provided by a licensee, is a person who:

(a): assembles a package of programs (which may include programs produced by the person); and
(b): supplies the licensee with the package; and
(c): does not carry on a business in Australia, by means of a principal office or of a branch, that involves the supply of the package;

where:

(d): the package consists predominantly of drama programs; and
(e): the package constitutes a significant proportion of the program material that is televised by the licensee on the subscription TV drama service; and
(f): there is neither:

(i): a channel provider; nor
(ii): a pass-through provider;

in relation to the subscription TV drama service.

103G Supply of channel or package

For the purposes of this Division, a person is taken to have supplied a channel, or a package of programs, to a licensee if the channel or package, as the case may be, is supplied to the licensee by the person:

(a): directly; or
(b): indirectly through one or more interposed persons.

103H Pre-production expenditure not to be counted unless principal photography has commenced

For the purposes of this Division, pre-production expenditure is not to be counted unless principal photography has commenced for the program or program material concerned.

103J Cash-based accounting—when expenditure is incurred

(1): For the purposes of this Division:

(a): if the whole of an item of expenditure (other than pre-production expenditure) is paid at a particular time—the expenditure is incurred when the expenditure is paid; and
(b): if different parts of an item of expenditure (other than pre-production expenditure) are paid at different times—each part is incurred when the part is paid.

(2): For the purposes of this Division:

(a): if the whole of an item of pre-production expenditure is paid at a particular time—the expenditure is incurred at whichever is the later of the following times:

(i): the time when the expenditure is paid;
(ii): the commencement of principal photography for the program or program material concerned; and

(b): if different parts of an item of pre-production expenditure are paid at different times—each part is incurred at whichever is the later of the following times:

(i): the time when the part is paid;
(ii): the commencement of principal photography for the program or program material concerned.

103K When expenditure incurred on a new eligible drama program

(1): For the purposes of this Division, if a person incurs expenditure on an eligible drama program, the eligible drama program is new if, and only if, the whole or a substantial part of the program has not been televised in Australia or New Zealand on a broadcasting service at any time before the expenditure is incurred.
(2): For the purposes of subsection (1), it is to be assumed that the definition of broadcasting service in subsection 6(1) extended to matters and things in New Zealand.

103L ABA may make determinations about what constitutes program expenditure

Program material

(1): The ABA may make a written determination providing that, for the purposes of this Division, specified expenditure is taken to be expenditure incurred on program material (other than eligible drama programs).
(2): The ABA may make a written determination providing that, for the purposes of this Division, specified expenditure is taken not to be expenditure incurred on program material (other than eligible drama programs).

Eligible drama programs

(3): The ABA may make a written determination providing that, for the purposes of this Division, specified expenditure is taken to be expenditure incurred on an eligible drama program.
(4): The ABA may make a written determination providing that, for the purposes of this Division, specified expenditure is taken not to be expenditure incurred on an eligible drama program.

Determination has effect

(5): A determination under this section has effect accordingly.

Determination to be of a legislative character

(6): A determination under this section is to be an instrument of a legislative character.

Disallowable instrument

(7): A determination under this section is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901 .

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

103M Expenditure to be nominated only once in meeting licence conditions

Channel provider and part-channel provider

(1): If:

(a): either:

(i): a person is a channel provider in relation to a subscription TV drama service provided by a licensee because the person supplies a channel; or
(ii): a person is a part-channel provider in relation to a subscription TV drama service provided by a licensee because the person supplies a package of programs; and

(b): the person nominates the whole or a part of particular expenditure for the purposes of the application of a particular provision of this Division in relation to the subscription TV drama service;

the whole or part, as the case may be, of the expenditure must not be nominated by the person for the purposes of:

(c): the application of any other provision of this Division in relation to that service; or
(d): the application of any provision of this Division in relation to another subscription TV drama service provided by the licensee; or
(e): the application of any provision of this Division in relation to another subscription TV drama service provided by another licensee.

(2): However, the rule in paragraph (1)(e):

(a): does not apply in relation to a person who is a channel provider if:

(i): the person supplies the same or a substantially similar channel to the other licensee; and
(ii): apart from any breaks for the purposes of the transmission of incidental matter, the same or a substantially similar channel supplied by the person is televised by the other licensee on the other subscription TV drama service; and

(b): does not apply in relation to a person who is a part-channel provider if:

(i): the person supplies the same or a substantially similar package of programs to the other licensee; and
(ii): apart from any breaks for the purposes of the transmission of incidental matter, the same or a substantially similar package of programs supplied by the person is televised by the other licensee on the other subscription TV drama service.

Licensee

(3): If:

(a): a licensee provides a subscription TV drama service; and
(b): the licensee nominates the whole or a part of particular expenditure for the purposes of the application of a particular provision of this Division in relation to the subscription TV drama service;

the whole or part, as the case may be, of the expenditure must not be nominated by the licensee for the purposes of:

(c): the application of any other provision of this Division in relation to that service; or
(d): the application of any provision of this Division in relation to another subscription TV drama service provided by the licensee.

Subdivision B—Channel provider supplies channel

103N 10% minimum eligible drama expenditure—channel provider supplies channel

(1): If:

(a): a licensee provides a subscription TV drama service; and
(b): a person is a channel provider in relation to the subscription TV drama service because the person supplies a channel;

it is a condition of the licence that, for each financial year of operation, the channel provider's new eligible drama expenditure in relation to the subscription TV drama service equals or exceeds 10% of the channel provider's total program expenditure in relation to the channel.

(2): In this section:

channel provider's new eligible drama expenditure , in relation to the subscription TV drama service, means so much of the total expenditure incurred by the channel provider during the financial year on new eligible drama programs as the channel provider nominates for the purposes of the application of subsection (1) in relation to the subscription TV drama service.

channel provider's total program expenditure , in relation to the channel, means the total expenditure incurred by the channel provider during the financial year on the program material that is included, or available to be included, in the channel.

(3): Division 3 of Part 10 (which deals with breaches of conditions) does not apply to the condition set out in subsection (1).

: Note: If the channel provider's new eligible drama expenditure is less than 10% of the channel provider's total program expenditure, the shortfall will have to be made up in the next financial year—see sections 103P and 103Q.

103P Shortfall of eligible drama expenditure—channel provider supplies channel exclusively to licensee

(1): This section applies if:

(a): a licensee (the first licensee ) provides a subscription TV drama service (the first subscription TV drama service ); and
(b): a person is a channel provider in relation to the subscription TV drama service because the person supplies a channel (the first channel ); and
(c): it is not the case that the channel provider supplies the same or a substantially similar channel to another licensee in circumstances where, apart from any breaks for the purposes of the transmission of incidental matter, the same or substantially similar channel supplied by the channel provider is televised by the other licensee on another subscription TV drama service; and
(d): the channel provider's new eligible drama expenditure (within the meaning of section 103N) in relation to the first subscription TV drama service for a particular financial year (the shortfall year ) is less than 10% of the channel provider's total program expenditure (within the meaning of section 103N) in relation to the first channel for the shortfall year.

Shortfall amount to be made up next financial year

(2): It is a condition of the first licensee's licence that, for the next financial year (the make-up year ):

(a): the channel provider's make-up expenditure is equal to the shortfall amount; or
(b): the first licensee's make-up expenditure is equal to the shortfall amount; or
(c): the sum of:

(i): the channel provider's make-up expenditure; and
(ii): the first licensee's make-up expenditure;

is equal to the shortfall amount.

Definitions

(3): In this section:

channel provider's make-up expenditure means so much of the total expenditure incurred by the channel provider during the make-up year on new eligible drama programs as the channel provider nominates for the purposes of the application of subsection (2) in relation to the first subscription TV drama service.

first licensee's make-up expenditure means so much of the total expenditure incurred by the first licensee during the make-up year on new eligible drama programs not included, or available to be included, in the first channel as the first licensee nominates for the purposes of the application of subsection (2) in relation to the first subscription TV drama service.

shortfall amount means the amount by which the channel provider's new eligible drama expenditure (within the meaning of section 103N) in relation to the first subscription TV drama service for the shortfall year fell short of 10% of the channel provider's total program expenditure (within the meaning of section 103N) in relation to the first channel for the shortfall year.

103Q Shortfall of eligible drama expenditure—channel provider supplies channel to multiple licensees

(1): This section applies if:

(a): a licensee (the first licensee ) provides a subscription TV drama service (the first subscription TV drama service ); and
(b): a person is a channel provider in relation to the first subscription TV drama service because the person supplies a channel (the first channel ); and
(c): the channel provider supplies the same or a substantially similar channel to one or more other licensees (the additional licensees ) in circumstances where, apart from any breaks for the purposes of the transmission of incidental matter, the same or substantially similar channel supplied by the channel provider is televised by the additional licensees on subscription TV drama services (the additional subscription TV drama services ); and
(d): the channel provider's new eligible drama expenditure (within the meaning of section 103N) in relation to the first subscription TV drama service for a particular financial year (the shortfall year ) is less than 10% of the channel provider's total program expenditure (within the meaning of section 103N) in relation to the first channel for the shortfall year.

Shortfall amount to be made up next financial year

(2): It is a condition of the first licensee's licence that, for the next financial year (the make-up year ):

(a): the channel provider's make-up expenditure is equal to the shortfall amount; or
(b): the first licensee's make-up expenditure is equal to the first licensee's subscriber percentage of the shortfall amount; or
(c): if the channel provider's make-up expenditure is less than the shortfall amount—the first licensee's make-up expenditure is equal to the first licensee's subscriber percentage of the difference between the shortfall amount and the channel provider's make-up expenditure.

Definitions

(3): In this section:

first licensee's subscriber percentage means the percentage worked out using the following formula:

monthly subscriber number , for a subscription TV drama service for a particular month, means the number worked out using the following formula:

subscribers of additional licensees means the sum of the monthly subscriber numbers for the additional subscription TV drama services for each month of operation during the shortfall year.

subscribers of first licensee means the sum of the monthly subscriber numbers for the first subscription TV drama service for each month of operation during the shortfall year.

Subdivision C—Pass-through provider supplies channel

103R 10% minimum eligible drama expenditure—pass-through provider supplies channel

(1): If:

(a): a licensee provides a subscription TV drama service; and
(b): a person is a pass-through provider in relation to the subscription TV drama service because the person supplies a channel;

it is a condition of the licence that, for each financial year of operation, the licensee's new eligible drama expenditure in relation to the subscription TV drama service equals or exceeds 10% of the licensee's total program expenditure in relation to the channel.

(2): In this section:

licensee's new eligible drama expenditure , in relation to the subscription TV drama service, means the sum of:

(a): so much of the total expenditure incurred by the licensee during the financial year on new eligible drama programs as the licensee nominates for the purposes of the application of subsection (1) in relation to the subscription TV drama service; and
(b): so much of the total expenditure incurred by the pass-through provider during the financial year on new eligible drama programs as the licensee nominates for the purposes of the application of subsection (1) in relation to the subscription TV drama service.

licensee's total program expenditure , in relation to the channel, means the total expenditure incurred by the licensee during the financial year in respect of the supply by the pass-through provider of the channel.

(3): If:

(a): the licensee nominates the whole or a part of particular expenditure under paragraph (a) of the definition of licensee's new eligible drama expenditure in subsection (2); and
(b): the whole or part, as the case may be, of the expenditure is attributable to a new eligible drama program on which expenditure was incurred by the pass-through provider;

that new eligible drama program is to be disregarded in determining the expenditure that may be nominated by the licensee under paragraph (b) of that definition.

(4): Division 3 of Part 10 (which deals with breaches of conditions) does not apply to the condition set out in subsection (1).

: Note: If the licensee's new eligible drama expenditure is less than 10% of the licensee's total program expenditure, the shortfall will have to be made up in the next financial year—see section 103S.

103S Shortfall of eligible drama expenditure—pass-through provider supplies channel

(1): This section applies if:

(a): a licensee provides a subscription TV drama service; and
(b): a person is a pass-through provider in relation to the subscription TV drama service because the person supplies a channel; and
(c): the licensee's new eligible drama expenditure (within the meaning of section 103R) in relation to the subscription TV drama service for a particular financial year (the shortfall year ) is less than 10% of the licensee's total program expenditure (within the meaning of section 103R) in relation to the channel for the shortfall year.

Shortfall amount to be made up next financial year

(2): It is a condition of the licensee's licence that, for the next financial year (the make-up year ), the licensee's make-up expenditure is equal to the shortfall amount.

Definitions

(3): In this section:

licensee's make-up expenditure , in relation to the subscription TV drama service, means the sum of:

(a): so much of the total expenditure incurred by the licensee during the make-up year on new eligible drama programs as the licensee nominates for the purposes of the application of subsection (2) in relation to the subscription TV drama service; and
(b): so much of the total expenditure incurred by the pass-through provider during the make-up year on new eligible drama programs as the licensee nominates for the purposes of the application of subsection (2) in relation to the subscription TV drama service.

shortfall amount means the amount by which the licensee's new eligible drama expenditure (within the meaning of section 103R) in relation to the subscription TV drama service for the shortfall year fell short of 10% of the licensee's total program expenditure (within the meaning of section 103R) in relation to the channel for the shortfall year.

Double counting

(4): If:

(a): the licensee nominates the whole or a part of particular expenditure under paragraph (a) of the definition of licensee's make-up expenditure in subsection (3); and
(b): the whole or part, as the case may be, of the expenditure is attributable to a new eligible drama program on which expenditure was incurred by the pass-through provider;

that new eligible drama program is to be disregarded in determining the expenditure that may be nominated by the licensee under paragraph (b) of that definition.

Subdivision D—Licensee supplies all program material

103T 10% minimum eligible drama expenditure—licensee supplies all program material

(1): If:

(a): a licensee provides a subscription TV drama service; and
(b): there is none of the following:

(i): a channel provider;
(ii): a pass-through provider;
(iii): a part-channel provider;
(iv): a part-pass-through provider;

in relation to the subscription TV drama service;

(2): In this section:

licensee's new eligible drama expenditure , in relation to the subscription TV drama service, means so much of the total expenditure incurred by the licensee during the financial year on new eligible drama programs as the licensee nominates for the purposes of the application of subsection (1) in relation to the subscription TV drama service.

licensee's total program expenditure , in relation to the subscription TV drama service, means the total expenditure incurred by the licensee during the financial year on program material that is for televising, or available for televising, by the licensee on the subscription TV drama service.

: Note: Section 103ZL sets out a special rule for 1999-2000.

Subdivision E—Part-channel provider supplies package of programs

103U 10% minimum eligible drama expenditure—part-channel provider supplies package of programs

(1): If:

(a): a licensee provides a subscription TV drama service; and
(b): a person is a part-channel provider in relation to the subscription TV drama service because the person supplies a package of programs;

it is a condition of the licence that, for each financial year of operation, the part-channel provider's new eligible drama expenditure in relation to the subscription TV drama service equals or exceeds 10% of the part-channel provider's total program expenditure in relation to the package of programs.

(2): In this section:

part-channel provider's new eligible drama expenditure , in relation to the subscription TV drama service, means so much of the total expenditure incurred by the part-channel provider during the financial year on new eligible drama programs as the part-channel provider nominates for the purposes of the application of subsection (1) in relation to the subscription TV drama service.

part-channel provider's total program expenditure , in relation to the package of programs, means the total expenditure incurred by the part-channel provider during the financial year on the program material that is included, or available to be included, in the package of programs.

(3): Division 3 of Part 10 (which deals with breaches of conditions) does not apply to the condition set out in subsection (1).

: Note: If the part-channel provider's new eligible drama expenditure is less than 10% of the part-channel provider's total program expenditure, the shortfall will have to be made up in the next financial year—see sections 103V and 103W.

103V Shortfall of eligible drama expenditure—part-channel provider supplies a package of programs exclusively to licensee

(1): This section applies if:

(a): a licensee (the first licensee ) provides a subscription TV drama service (the first subscription TV drama service ); and
(b): a person is a part-channel provider in relation to the subscription TV drama service because the person supplies a package of programs (the first package of programs ); and
(c): it is not the case that the part-channel provider supplies the same or a substantially similar package of programs to another licensee in circumstances where, apart from any breaks for the purposes of the transmission of incidental matter, the same or substantially similar package of programs supplied by the part-channel provider is televised by the other licensee on another subscription TV drama service; and
(d): the part-channel provider's new eligible drama expenditure (within the meaning of section 103U) in relation to the first subscription TV drama service for a particular financial year (the shortfall year ) is less than 10% of the part-channel provider's total program expenditure (within the meaning of section 103U) in relation to the first package of programs for the shortfall year.

Shortfall amount to be made up next financial year

(2): It is a condition of the first licensee's licence that, for the next financial year (the make-up year ):

(a): the part-channel provider's make-up expenditure is equal to the shortfall amount; or
(b): the first licensee's make-up expenditure is equal to the shortfall amount; or
(c): the sum of:

(i): the part-channel provider's make-up expenditure; and
(ii): the first licensee's make-up expenditure;

is equal to the shortfall amount.

Definitions

(3): In this section:

first licensee's make-up expenditure means so much of the total expenditure incurred by the first licensee during the make-up year on new eligible drama programs not included, or available to be included, in the first package of programs as the first licensee nominates for the purposes of the application of subsection (2) in relation to the first subscription TV drama service.

part-channel provider's make-up expenditure means so much of the total expenditure incurred by the part-channel provider during the make-up year on new eligible drama programs as the part-channel provider nominates for the purposes of the application of subsection (2) in relation to the first subscription TV drama service.

shortfall amount means the amount by which the part-channel provider's new eligible drama expenditure (within the meaning of section 103U) in relation to the first subscription TV drama service for the shortfall year fell short of 10% of the part-channel provider's total program expenditure (within the meaning of section 103U) in relation to the first package of programs for the shortfall year.

103W Shortfall of eligible drama expenditure—part-channel provider supplies a package of programs to multiple licensees

(1): This section applies if:

(a): a licensee (the first licensee ) provides a subscription TV drama service (the first subscription TV drama service ); and
(b): a person is a part-channel provider in relation to the first subscription TV drama service because the person supplies a package of programs (the first package of programs ); and
(c): the part-channel provider supplies the same or a substantially similar package of programs to one or more other licensees (the additional licensees ) in circumstances where, apart from any breaks for the purposes of the transmission of incidental matter, the same or substantially similar package of programs supplied by the part-channel provider is televised by the additional licensees on subscription TV drama services (the additional subscription TV drama services ); and
(d): the part-channel provider's new eligible drama expenditure (within the meaning of section 103U) in relation to the first subscription TV drama service for a particular financial year (the shortfall year ) is less than 10% of the part-channel provider's total program expenditure (within the meaning of section 103U) in relation to the first package of programs for the shortfall year.

Shortfall amount to be made up next financial year

(2): It is a condition of the first licensee's licence that, for the next financial year (the make-up year ):

(a): the part-channel provider's make-up expenditure is equal to the shortfall amount; or
(b): the first licensee's make-up expenditure is equal to the first licensee's subscriber percentage of the shortfall amount; or
(c): if the part-channel provider's make-up expenditure is less than the shortfall amount—the first licensee's make-up expenditure is equal to the first licensee's subscriber percentage of the difference between the shortfall amount and the part-channel provider's make-up expenditure.

Definitions

(3): In this section:

first licensee's make-up expenditure means so much of the total expenditure incurred by the first licensee during the make-up year on new eligible drama programs not included, or available to be included, in the first package of programs as the first licensee nominates for the purposes of the application of subsection (2) in relation to the first subscription TV drama service.

first licensee's subscriber percentage means the percentage worked out using the following formula:

monthly subscriber number , for a subscription TV drama service for a particular month, means the number worked out using the following formula:

subscribers of additional licensees means the sum of the monthly subscriber numbers for the additional subscription TV drama services for each month of operation during the shortfall year.

subscribers of first licensee means the sum of the monthly subscriber numbers for the first subscription TV drama service for each month of operation during the shortfall year.

Subdivision F—Part-pass-through provider supplies package of programs

103X 10% minimum eligible drama expenditure—part-pass-through provider supplies package of programs

(1): If:

(a): a licensee provides a subscription TV drama service; and
(b): a person is a part-pass-through provider in relation to the subscription TV drama service because the person supplies a package of programs;

(2): In this section:

licensee's new eligible drama expenditure , in relation to the subscription TV drama service, means the sum of:

(a): so much of the total expenditure incurred by the licensee during the financial year on new eligible drama programs as the licensee nominates for the purposes of the application of subsection (1) in relation to the subscription TV drama service; and
(b): so much of the total expenditure incurred by the part-pass-through provider during the financial year on new eligible drama programs as the licensee nominates for the purposes of the application of subsection (1) in relation to the subscription TV drama service.

licensee's total program expenditure , in relation to the package of programs, means the total expenditure incurred by the licensee during the financial year in respect of the supply by the part-pass-through provider of the package of programs.

(3): If:

(a): the licensee nominates the whole or a part of particular expenditure under paragraph (a) of the definition of licensee's new eligible drama expenditure in subsection (2); and
(b): the whole or part, as the case may be, of the expenditure is attributable to a new eligible drama program on which expenditure was incurred by the part-pass-through provider;

that new eligible drama program is to be disregarded in determining the expenditure that may be nominated by the licensee under paragraph (b) of that definition.

(4): Division 3 of Part 10 (which deals with breaches of conditions) does not apply to the condition set out in subsection (1).

: Note: If the licensee's new eligible drama expenditure is less than 10% of the licensee's total program expenditure, the shortfall will have to be made up in the next financial year—see section 103Y.

103Y Shortfall of eligible drama expenditure—part-pass-through provider supplies package of programs

(1): This section applies if:

(a): a licensee provides a subscription TV drama service; and
(b): a person is a part-pass-through provider in relation to the subscription TV drama service because the person supplies a package of programs; and
(c): the licensee's new eligible drama expenditure (within the meaning of section 103X) in relation to the subscription TV drama service for a particular financial year (the shortfall year ) is less than 10% of the licensee's total program expenditure (within the meaning of section 103X) in relation to the package of programs for the shortfall year.

Shortfall amount to be made up next financial year

(2): It is a condition of the licensee's licence that, for the next financial year (the make-up year ), the licensee's make-up expenditure is equal to the shortfall amount.

Definitions

(3): In this section:

licensee's make-up expenditure , in relation to the subscription TV drama service, means the sum of:

(a): so much of the total expenditure incurred by the licensee during the make-up year on new eligible drama programs as the licensee nominates for the purposes of the application of subsection (2) in relation to the subscription TV drama service; and
(b): so much of the total expenditure incurred by the part-pass-through provider during the make-up year on new eligible drama programs as the licensee nominates for the purposes of the application of subsection (2) in relation to the subscription TV drama service.

shortfall amount means the amount by which the licensee's new eligible drama expenditure (within the meaning of section 103X) in relation to the subscription TV drama service for the shortfall year fell short of 10% of the licensee's total program expenditure (within the meaning of section 103X) in relation to the package of programs for the shortfall year.

Double counting

(4): If:

(a): the licensee nominates the whole or a part of particular expenditure under paragraph (a) of the definition of licensee's make-up expenditure in subsection (3); and
(b): the whole or part, as the case may be, of the expenditure is attributable to a new eligible drama program on which expenditure was incurred by the part-pass-through provider;

that new eligible drama program is to be disregarded in determining the expenditure that may be nominated by the licensee under paragraph (b) of that definition.

Subdivision G—Licensee supplies part of program material

103Z 10% minimum eligible drama expenditure—licensee supplies part of program material

(1): If:

(a): a licensee provides a subscription TV drama service; and
(b): some, but not all, of the program material that is televised by the licensee on the subscription TV drama service consists of program material included in a package of programs supplied to the licensee by:

(i): a part-channel provider; or
(ii): a part-pass-through provider;

(c): the remainder of the program material that is televised by the licensee on the subscription TV drama service consists predominantly of drama programs;

(2): In this section:

licensee's new eligible drama expenditure , in relation to the subscription TV drama service, means so much of the total expenditure incurred by the licensee during the financial year on new eligible drama programs not included in that package as the licensee nominates for the purposes of the application of subsection (1) in relation to the subscription TV drama service.

(a): not included in that package; and
(b): for televising, or available for televising, by the licensee on the subscription TV drama service.

: Note: Section 103ZL sets out a special rule for 1999-2000.

Subdivision H—Annual returns

103ZA Licensee to lodge annual return

(1): A licensee who provides one or more subscription TV drama services must, within 60 days after the end of each financial year of operation, give to the ABA:

(a): a return, in the approved form, containing such information as is required by that form in relation to the application of this Division in connection with those services; and
(b): a certificate by a registered auditor, in the approved form, stating that, in the opinion of the auditor, the return, in so far as it relates to expenditure incurred by the licensee, is correct.

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

(a): the person is subject to a requirement under subsection (1); and
(b): the person intentionally contravenes that requirement.

Penalty: 1,000 penalty units.

(3): A reference in this section to an approved form is a reference to a form approved, in writing, by the ABA for the purposes of the provision in which the expression appears.

103ZB Channel provider and part-channel provider to lodge annual return

(1): If a person is a channel provider or a part-channel provider in relation to one or more subscription TV drama services provided by a licensee during a financial year, the person must, within 60 days after the end of that financial year, give to the ABA:

(a): a return, in the approved form, containing such information as is required by that form in relation to the application of this Division in connection with those services; and
(b): a certificate by a registered auditor, in the approved form, stating that, in the opinion of the auditor, the return is correct.

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

(a): the person is subject to a requirement under subsection (1); and
(b): the person intentionally contravenes that requirement.

Penalty: 1,000 penalty units.

(3): If:

(a): a person is a channel provider or a part-channel provider in relation to one or more subscription TV drama services provided by a licensee during a financial year; and
(b): the person contravenes subsection (1) in relation to the financial year;

the ABA must inform the licensee, in writing, of that contravention as soon as practicable after the ABA becomes aware of that contravention.

(4): A reference in this section to an approved form is a reference to a form approved, in writing, by the ABA for the purposes of the provision in which the expression appears.

103ZC ABA may inquire into the correctness of an annual return

The ABA may make whatever inquiries it thinks necessary or desirable in order to determine whether a return given to it under this Subdivision contains correct information.

103ZD Nominations to be attached to annual returns

Licensee

(1): A nomination that:

(a): is made by a licensee; and
(b): relates to the application of a provision of this Division in respect of a financial year;

must:

(c): be in writing; and
(d): accompany the return given by the licensee under section 103ZA for that financial year.

Channel provider and part-channel provider

(2): A nomination that:

(a): is made by a person who is a channel provider or a part-channel provider in relation to one or more subscription TV drama services provided by a licensee during a financial year; and
(b): relates to the application of a provision of this Division in respect of that financial year;

must:

(c): be in writing; and
(d): accompany the relevant return given by the channel provider or the part-channel provider, as the case may be, under section 103ZB for that financial year.

Subdivision I—Compliance certificates

103ZE ABA to issue compliance certificate

Channel provider

(1): If:

(a): a licensee provides a subscription TV drama service; and
(b): a person is a channel provider in relation to the subscription TV drama service because the person supplies a channel; and
(c): 60 days pass after the end of a particular financial year of operation;

then, as soon as practicable, the ABA must:

(d): give the licensee a written certificate stating:

(i): whether the channel provider's new eligible drama expenditure (within the meaning of section 103N) in relation to the subscription TV drama service for the financial year fell short of 10% of the channel provider's total program expenditure (within the meaning of section 103N) in relation to the channel for the financial year; and
(ii): if so, that an amount specified in the certificate is the amount of the shortfall; and

(e): give the channel provider a copy of that certificate.

Pass-through provider

(2): If:

(a): a licensee provides a subscription TV drama service; and
(b): a person is a pass-through provider in relation to the subscription TV drama service because the person supplies a channel; and
(c): 60 days pass after the end of a particular financial year of operation;

then, as soon as practicable, the ABA must give the licensee a written certificate stating:

(d): whether the licensee's new eligible drama expenditure (within the meaning of section 103R) in relation to the subscription TV drama service for the financial year fell short of 10% of the licensee's total program expenditure (within the meaning of section 103R) in relation to the channel for the financial year; and
(e): if so, that an amount specified in the certificate is the amount of the shortfall.

Part-channel provider

(3): If:

(a): a licensee provides a subscription TV drama service; and
(b): a person is a part-channel provider in relation to the subscription TV drama service because the person supplies a package of programs; and
(c): 60 days pass after the end of a particular financial year of operation;

then, as soon as practicable, the ABA must:

(d): give the licensee a written certificate stating:

(i): whether the part-channel provider's new eligible drama expenditure (within the meaning of section 103U) in relation to the subscription TV drama service for the financial year fell short of 10% of the part-channel provider's total program expenditure (within the meaning of section 103U) in relation to the package of programs for the financial year; and
(ii): if so, that an amount specified in the certificate is the amount of the shortfall; and

(e): give the part-channel provider a copy of that certificate.

Part-pass-through provider

(4): If:

(a): a licensee provides a subscription TV drama service; and
(b): a person is a part-pass-through provider in relation to the subscription TV drama service because the person supplies a package of programs; and
(c): 60 days pass after the end of a particular financial year of operation;

then, as soon as practicable, the ABA must give the licensee a written certificate stating:

(d): whether the licensee's new eligible drama expenditure (within the meaning of section 103X) in relation to the subscription TV drama service for the financial year fell short of 10% of the licensee's total program expenditure (within the meaning of section 103X) in relation to the package of programs for the financial year; and
(e): if so, that an amount specified in the certificate is the amount of the shortfall.

: Note: For the evidentiary effect of a compliance certificate, see section 103ZF.

103ZF Compliance certificate to be prima facie evidence

(1): A compliance certificate is, in proceedings arising under this Act, prima facie evidence of the matters in the certificate.
(2): The ABA may certify that a document is a copy of a compliance certificate.
(3): This section applies to the certified copy as if it were the original.

Subdivision J—Miscellaneous

103ZG Anti-avoidance—transactions between persons not at arm's length

(1): If:

(a): a person has incurred expenditure in connection with a transaction where the parties to the transaction are not dealing with each other at arm's length in relation to the transaction; and
(b): apart from this section, the expenditure is counted for the purposes of the application of this Division; and
(c): the amount of the expenditure is greater or less than is reasonable;

the ABA may, by writing, determine that the amount of the expenditure is taken, for the purposes of the application of this Division in relation to the parties to the transaction, to be the amount that would have been reasonable if the parties were dealing with each other at arm's length.

(2): A determination under subsection (1) has effect accordingly.

103ZH Expenditure to be expressed in Australian currency

(1): For the purposes of this Division, expenditure is to be expressed in Australian currency.
(2): For the purposes of this Division, if expenditure is incurred otherwise than in Australian currency, the expenditure is to be expressed in Australian currency at a rate equal to whichever of the following is applicable:

(a): if the expenditure is incurred in connection with a transaction and the parties to the transaction have agreed on the exchange rate that is applicable to the expenditure—that exchange rate; or
(b): in any other case—the exchange rate applicable at the time when the expenditure is incurred.

103ZJ Review before 31 March 2003

(1): Before 31 March 2003, the Minister must cause to be conducted a review relating to Australian and New Zealand content on subscription television broadcasting services.
(2): The Minister must cause to be prepared a report of a review under subsection (1).
(3): The Minister must cause copies of a report under this section to be laid before each House of the Parliament within 15 sitting days of that House after the completion of the preparation of the report.

Subdivision K—Transitional

103ZK Extended meaning of eligible drama program

This Division has effect, in relation to expenditure incurred during the financial year beginning on 1 July 1999, as if a reference in this Division to an eligible drama program included a reference to an Australian drama program.

103ZL Licensee supplies program material during 1999-2000—enforcement of licence conditions

Division 3 of Part 10 (which deals with breaches of conditions) does not apply to the condition set out in subsection 103T(1) or 103Z(1) to the extent to which the condition relates to the operation of a subscription TV drama service during the financial year beginning on 1 July 1999.

: Note: If the licensee's new eligible drama expenditure for the financial year beginning on 1 July 1999 is less than 10% of the licence's total program expenditure, the shortfall will have to be made up in the next financial year—see sections 103ZM and 103ZN.

103ZM Licensee supplies all program material during 1999-2000—shortfall to be made up during 2000-2001

(1): This section applies if:

(a): a licensee provides a subscription TV drama service; and
(b): there is none of the following:

(i): a channel provider;
(ii): a pass-through provider;
(iii): a part-channel provider;
(iv): a part-pass-through provider;

(c): the licensee's new eligible drama expenditure (within the meaning of section 103T) in relation to the subscription TV drama service for the financial year beginning on 1 July 1999 (the shortfall year ) is less than 10% of the licensee's total program expenditure (within the meaning of section 103T) in relation to the subscription TV drama service for the shortfall year.

Shortfall amount to be made up next financial year

(2): It is a condition of the licence that, for the financial year beginning on 1 July 2000 (the make-up year ), the licensee's make-up expenditure is equal to the shortfall amount.

Definitions

(3): In this section:

licensee's make-up expenditure means so much of the total expenditure incurred by the licensee during the make-up year on new eligible drama programs as the licensee nominates for the purposes of the application of subsection (2) in relation to the subscription TV drama service.

shortfall amount means the amount by which the licensee's new eligible drama expenditure (within the meaning of section 103T) in relation to the subscription TV drama service for the shortfall year fell short of 10% of the licensee's total program expenditure (within the meaning of section 103T) in relation to the subscription TV drama service for the shortfall year.

103ZN Licensee supplies part of program material during 1999-2000—shortfall to be made up during 2000-2001

(1): This section applies if:

(a): a licensee provides a subscription TV drama service; and
(b): some, but not all, of the program material that is televised by the licensee on the subscription TV drama service consists of program material included in a package of programs supplied to the licensee by:

(i): a part-channel provider; or
(ii): a part-pass-through provider;

(c): the remainder of the program material that is televised by the licensee on the subscription TV drama service consists predominantly of drama programs; and
(d): the licensee's new eligible drama expenditure (within the meaning of section 103Z) in relation to the subscription TV drama service for the financial year beginning on 1 July 1999 (the shortfall year ) is less than 10% of the licensee's total program expenditure (within the meaning of section 103Z) in relation to the subscription TV drama service for the shortfall year.

Shortfall amount to be made up next financial year

(2): It is a condition of the licence that, for the financial year beginning on 1 July 2000 (the make-up year ), the licensee's make-up expenditure is equal to the shortfall amount.

Definitions

(3): In this section:

licensee's make-up expenditure means so much of the total expenditure incurred by the licensee during the make-up year on new eligible drama programs not included in that package as the licensee nominates for the purposes of the application of subsection (2) in relation to the subscription TV drama service.

shortfall amount means the amount by which the licensee's new eligible drama expenditure (within the meaning of section 103Z) in relation to the subscription TV drama service for the shortfall year fell short of 10% of the licensee's total program expenditure (within the meaning of section 103Z) in relation to the subscription TV drama service for the shortfall year.

3 Section 208

After "information,", insert "or in a return under section 103ZA or 103ZB,".

4 After paragraph 18(2)(i) of Schedule 3

Insert:

(ia): make, vary or revoke a determination under section 103L; or

5 Transitional—section 102 of the Broadcasting Services Act 1992

Despite the repeal of section 102 of the Broadcasting Services Act 1992 by this Part, that section continues to apply, in relation to program expenditure for a financial year earlier than the financial year beginning on 1 July 1999, as if that repeal had not happened.

Part 2—Amendments commencing on 1 July 2000

Broadcasting Services Act 1992

6 Subsection 6(1) (definition of Australian drama program )

Repeal the definition.

7 Subsection 6(1) (definition of drama program )

Repeal the definition.

8 Subsection 6(3)

Repeal the subsection.

9 Section 103B (note at the end of the definition of eligible drama program )

Repeal the note.

10 Section 103T (note)

Repeal the note.

11 Section 103Z (note)

Repeal the note.

12 Sections 103ZK and 103ZL

Repeal the sections.

13 Subsection 139(2)

After "Schedule 2", insert "or section 103P, 103Q, 103S, 103T, 103V, 103W, 103Y, 103Z, 103ZM or 103ZN".

14 After subsection 143(1)

Insert:

(1A): If:

(a): a subscription television broadcasting licensee provides a subscription TV drama service (within the meaning of Division 2A of Part 7); and
(b): the licence is suspended because of a breach of a condition set out in that Division;

the ABA may take such action, by way of suspending one or more subscription television broadcasting licences held by:

(c): the licensee; or
(d): a related body corporate of the licensee;

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

(1B): If:

(a): a subscription television broadcasting licensee provides a subscription TV drama service (within the meaning of Division 2A of Part 7); and
(b): the licence is cancelled because of a breach of a condition set out in that Division;

the ABA may take such action, by way of cancelling one or more subscription television broadcasting licences held by:

(c): the licensee; or
(d): a related body corporate of the licensee;

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

15 Subsection 143(2)

After "subsection (1)", insert ", (1A) or (1B)".

16 At the end of section 143

Add:

(3): In this section:

related body corporate has the same meaning as in the Corporations Law.

17 Section 204 (table item dealing with declaration that a program is not an Australian drama program)

Repeal the item.

18 Section 204 (table item dealing with suspension or cancellation of licence)

Omit "Subsection 143(1)", substitute "Section 143".

19 Transitional—expenditure incurred before 1 July 2000

(1) Despite the amendments of sections 6 and 204 of the Broadcasting Services Act 1992 made by this Part, those sections continue to apply, in relation to expenditure incurred during:

(a): the financial year beginning on 1 July 1999; or
(b): an earlier financial year;

as if those amendments had not been made.

(2) Despite the amendments of Division 2A of Part 7 of the Broadcasting Services Act 1992 made by this Part, that Act continues to apply, in relation to expenditure incurred during the financial year beginning on 1 July 1999, as if those amendments had not been made.

Part 3—Amendments commencing on 1 July 2001

Broadcasting Services Act 1992

20 Subdivision K of Division 2A of Part 7

Repeal the Subdivision.

21 Subsection 139(2)

Omit "103Y, 103Z, 103ZM or 103ZN", substitute "103Y or 103Z".

22 Transitional—expenditure incurred before 1 July 2001

Despite the amendments of the Broadcasting Services Act 1992 made by this Part, that Act continues to apply, in relation to expenditure incurred before the financial year beginning on 1 July 2001, as if those amendments had not been made.

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