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BROADCASTING SERVICES ACT 1992

BROADCASTING SERVICES ACT 1992



Compilation Information

Broadcasting Services Act 1992 Act No. 110 of 1992 as amended

This compilation was prepared on 7 September 2004
taking into account amendments up to Act No. 127 of 2004
The text of any of those amendments not in force
on that date is appended in the Notes section
The operation of amendments that have been incorporated may be
affected by application provisions that are set out in the Notes section
Prepared by the Office of Legislative Drafting,
Attorney-General's Department, Canberra



Contents

Volume 1 includes: Table of Contents
sections 1 - 218
Schedules 1 - 3
Volume 2 includes: Schedules 4 - 6
Table of Acts
Act Notes
Table of Amendments
End Notes
Table A

Long Title

An Act relating to broadcasting services, datacasting services and online services, and for related purposes

BROADCASTING SERVICES ACT 1992
Part 1—Preliminary

BROADCASTING SERVICES ACT 1992
- SECT 1
Short title see Note 1]

This Act may be cited as the Broadcasting Services Act 1992.

BROADCASTING SERVICES ACT 1992
- SECT 2
Commencement [see Note 1]

(1)
Section 1, this section, sections 3 and 6 commence on the day on which this Act receives the Royal Assent.
(2)
The remaining provisions of this Act commence on a day to be fixed by Proclamation.
(3)
If those provisions do not commence under subsection (2) within the period of 6 months beginning on the day on which this Act receives the Royal Assent, those provisions commence on the first day after the end of that period.

BROADCASTING SERVICES ACT 1992
- SECT 3
Objects of this Act

(1)
The objects of this Act are:

(a) to promote the availability to audiences throughout Australia of a diverse range of radio and television services offering entertainment, education and information; and
(aa) to promote the availability to audiences and users throughout Australia of a diverse range of datacasting services; and
(b) 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; and
(ba) to provide a regulatory environment that will facilitate the development of a datacasting industry in Australia that is efficient, competitive and responsive to audience and user needs; and
(c) to encourage diversity in control of the more influential broadcasting services; and
(d) to ensure that Australians have effective control of the more influential broadcasting services; and
(e) to promote the role of broadcasting services in developing and reflecting a sense of Australian identity, character and cultural diversity; and
(f) to promote the provision of high quality and innovative programming by providers of broadcasting services; and
(fa) to promote the provision of high quality and innovative content by
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providers of datacasting services; and
(g) 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; and
(h) to encourage providers of broadcasting services to respect community standards in the provision of program material; and
(i) to encourage the provision of means for addressing complaints about broadcasting services; and
(j) to ensure that providers of broadcasting services place a high priority on the protection of children from exposure to program material which may be harmful to them; and
(ja) to ensure that international broadcasting services are not provided contrary to Australia's national interest; and
(k) to provide a means for addressing complaints about certain Internet content; and
(l) to restrict access to certain Internet content that is likely to cause offence to a reasonable adult; and
(m) to protect children from exposure to Internet content that is unsuitable for children; and
(n) to ensure the maintenance and, where possible, the development of diversity, including public, community and indigenous broadcasting, in the Australian broadcasting system in the transition to digital broadcasting.

(2)
In this section:

Internet content has the same meaning as in Schedule 5.

BROADCASTING SERVICES ACT 1992
- SECT 4
Regulatory policy

(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 services and datacasting services in Australia be regulated in a manner that, in the opinion of the ABA:

(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 application; and
(ii) the provision of services made practicable by those technologies to the Australian community.

(3)
The Parliament also intends that Internet content hosted in Australia, and Internet carriage services supplied to end-users in Australia, be regulated in a manner that:

(a) enables public interest considerations to be addressed in a way that does not impose unnecessary financial and administrative burdens on Internet content hosts and Internet service providers; and
(b) will readily accommodate technological change; and
(c) encourages:
(i) the development of Internet technologies and their application; and
(ii) the provision of services made practicable by those technologies to the Australian community; and
(iii) the supply of Internet carriage services at performance standards that reasonably meet the social, industrial and commercial needs of the Australian community.

(3A)
This section does not apply to Part 8B (which deals with international broadcasting services).
(4)
In this section:

Internet carriage service has the same meaning as in Schedule 5.

Internet content has the same meaning as in Schedule 5.

Internet content host has the same meaning as in Schedule 5.

Internet service provider has the same meaning as in Schedule 5.


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BROADCASTING SERVICES ACT 1992
- SECT 5
Role of the ABA

(1)
In order to achieve the objects of this Act in a way that is consistent with the regulatory policy referred to in section 4, the Parliament:

(a) charges the ABA with responsibility for monitoring the broadcasting industry, the datacasting industry and the Internet industry; and
(b) confers on the ABA a range of functions and powers that are to be used in a manner that, in the opinion of the ABA, will:
(i) produce regulatory arrangements that are stable and predictable; and
(ii) deal effectively with breaches of the rules established by this Act.

(2)
Where it is necessary for the ABA to use any of the powers conferred on it by this Act to deal with a breach of this Act or the regulations, the Parliament intends that the ABA use its powers, or a combination of its powers, in a manner that, in the opinion of the ABA, is commensurate with the seriousness of the breach concerned.
(3)
This section does not, by implication, limit the functions and powers of:

(a) the Australian Communications Authority; or
(b) the Australian Competition and Consumer Commission; or
(c) any other body or person who has regulatory responsibilities in relation to the Internet industry.

BROADCASTING SERVICES ACT 1992
- SECT 6
Interpretation

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

ABA means the Australian Broadcasting Authority.

ACA means the Australian Communications Authority.

amount paid on shares, in relation to a company, includes an amount treated by the company as having been so paid.

associate, in relation to a person in relation to control of a licence or a newspaper, or control of a company in relation to a licence or a newspaper, means:

(a) the person's spouse (including a de facto spouse) or a parent, child, brother or sister of the person; or
(b) a partner of the person or, if a partner of the person is a natural person, a spouse or a child of a partner of the person; or
(c) if the person or another person who is an associate of the person under another paragraph receives benefits or is capable of benefiting under a trust—the trustee of the trust; or
(d) a person (whether a company or not) who:
(i) acts, or is accustomed to act; or
(ii) under a contract or an arrangement or understanding (whether formal or informal) is intended or expected to act;
in accordance with the directions, instructions or wishes of, or in concert with, the first-mentioned person or of the first-mentioned person and another person who is an associate of the first-mentioned person under another paragraph; or
(e) if the person is a company—another company if:
(i) the other company is a related body corporate of the person for the purposes of the Corporations Act 1990; or
(ii) the person, or the person and another person who is an associate of the person under another paragraph, are in a position to exercise control of the other company;

but persons are not associates if the ABA is satisfied that they do not act together in any relevant dealings relating to that company, licence or newspaper, and neither of them is in a position to exert influence over the business dealings of the other in relation to that company, licence or newspaper.

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

associate member means an associate member of the ABA.

broadcasting service means a service that delivers television programs or radio programs to persons having equipment appropriate for receiving that service, whether the delivery uses the radiofrequency spectrum, cable, optical fibre, satellite or any other means or a combination of those means, but does not include:


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(a) a service (including a teletext service) that provides no more than data, or no more than text (with or without associated still images); or
(b) a service that makes programs available on demand on a point-to-point basis, including a dial-up service; or
(c) a service, or a class of services, that the Minister determines, by notice in the Gazette, not to fall within this definition.

broadcasting services bands means that part of the radiofrequency spectrum that:

(a) is designated under section 31 of the Radiocommunications Act 1992 as being primarily for broadcasting purposes; and
(b) is referred by the Minister under that section to the ABA for planning.

broadcasting services bands licence means a commercial television broadcasting licence, a commercial radio broadcasting licence or a community broadcasting licence that uses the broadcasting services bands as a means of delivering broadcasting services.

census count means a census count of the Australian population published by the Australian Statistician.

CER Trade in Services Protocol:

(a) means the Protocol on Trade in Services to the Australia New Zealand Closer Economic Relations Trade Agreement (being that Protocol as in force from time to time); and
(b) includes an instrument under that Protocol (being that instrument as in force from time to time).

Chairperson means the Chairperson of the ABA.

class licence means a class licence determined by the ABA under section 117.

commercial broadcasting service has the meaning given by section 14.

commercial radio broadcasting licence means a licence under Part 4 to provide a commercial broadcasting service that provides radio programs.

commercial television broadcasting licence means a licence under Part 4 to provide a commercial broadcasting service that provides television programs.

community broadcasting licence means a licence under Part 6 or 6A to provide a community broadcasting service that provides radio programs or television programs.

community broadcasting service has the meaning given by section 15.

company interests, in relation to a person who has a shareholding interest, a voting interest, a dividend interest or a winding-up interest in a company, means the percentage of that interest or, if the person has 2 or more of those interests, whichever of those interests has the greater or greatest percentage.

control includes control as a result of, or by means of, trusts, agreements, arrangements, understandings and practices, whether or not having legal or equitable force and whether or not based on legal or equitable rights.

CTV licence means a community broadcasting licence under Part 6 to provide a service that provides television programs but is not targeted, to a significant extent, to one or more remote Indigenous communities.

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

datacasting service means a service that delivers content:

(a) whether in the form of text; or
(b) whether in the form of data; or
(c) whether in the form of speech, music or other sounds; or
(d) whether in the form of visual images (animated or otherwise); or
(e) whether in any other form; or
(f) whether in any combination of forms;

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

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

Deputy Chairperson means the Deputy Chairperson of the ABA.

Federal Court means the Federal Court of Australia.

foreign person means:


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(a) a natural person who is not an Australian citizen; or
(b) a company, wherever incorporated, where natural persons who are not Australian citizens hold company interests in the company exceeding 50%; or
(c) a company, wherever incorporated, where:
(i) a company referred to in paragraph (b); or
(ii) natural persons who are not Australian citizens and a company or companies referred to in paragraph (b);
hold company interests in the company exceeding 50%.

international broadcasting guidelines means guidelines in force under section 121FP.

international broadcasting licence means a licence to provide an international broadcasting service.

international broadcasting service has the meaning given by section 18A.

legislature of a Territory means:

(a) the Legislative Assembly for the Australian Capital Territory; or
(b) the Legislative Assembly of the Northern Territory; or
(c) such other Territory legislative bodies as are prescribed.

licence means:

(a) in the definition of associate, section 7, Part 5 and Schedule 1:
(i) a licence allocated by the ABA under this Act (other than a class licence); or
(ii) a datacasting transmitter licence; and
(b) in any other provision of this Act—a licence allocated by the ABA under this Act (other than a class licence).

licence area means an area designated by the ABA under section 29, 40 or 92G.

licence area population, in relation to a licence area, means the population of the licence area determined under section 30.

line has the same meaning as in the Telecommunications Act 1997.

MDS system means a system for transmitting radiocommunications on a frequency or frequencies within:

(a) the frequency band from 2076 Megahertz up to and including 2111 Megahertz; or
(b) the frequency band from 2300 Megahertz up to and including 2400 Megahertz.

member means a member of the ABA, and includes the Chairperson and the Deputy Chairperson.

Minister for Foreign Affairs means the Minister administering the Diplomatic Privileges and Immunities Act 1967.

national broadcaster means the provider of a national broadcasting service referred to in paragraph 13(1)(a) or (b).

national broadcasting service has the meaning given by section 13.

newspaper means a newspaper that is in the English language and is published on at least 4 days in each week, but does not include a publication if less than 50% of its circulation is by way of sale.

offence against this Act includes an offence against section 136.1 or 137.1 of the Criminal Code that relates to this Act.

open narrowcasting radio service means an open narrowcasting service that provides radio programs.

open narrowcasting service has the meaning given by section 18.

open narrowcasting television service means an open narrowcasting service that provides television programs.

overlap area, in relation to a licence area part of which is within another licence area, means the area of overlap between the 2 licence areas.

Parliament means:

(a) the Parliament of the Commonwealth; or
(b) a State Parliament; or
(c) the legislature of a Territory.

political party means an organisation whose objects or activities include the promotion of the election of candidates endorsed by it to a Parliament.

population of Australia means the Australian population determined by the ABA under section 30.

program, in relation to a broadcasting service, means:


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(a) matter the primary purpose of which is to entertain, to educate or to inform an audience; or
(b) advertising or sponsorship matter, whether or not of a commercial kind.

program standards means standards determined by the ABA relating to the content or delivery of programs.

remote Indigenous community has the meaning given by section 8B.

satellite subscription television broadcasting licence means a licence under Part 7 to provide a subscription television broadcasting service with the use of a subscription television satellite.

shares, in relation to a company, means shares in, or stock forming part of, the capital of the company.

subscription broadcasting service has the meaning given by section 16.

subscription fee includes any form of consideration.

subscription narrowcasting service has the meaning given by section 17.

subscription radio broadcasting service means a subscription broadcasting service that provides radio programs.

subscription radio narrowcasting service means a subscription narrowcasting service that provides radio programs.

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

subscription television broadcasting service means a subscription broadcasting service that provides television programs.

subscription television narrowcasting service means a subscription narrowcasting service that provides television programs.

subscription television satellite means a satellite that was, at any time before 1 July 1997, operated under the general telecommunications licence that was granted to AUSSAT Pty Ltd and notified on 26 November 1991 in Gazette No. S323.

telecommunications carrier means a carrier (within the meaning of the Telecommunications Act 1997).

temporary community broadcasting licence means a community broadcasting licence that:

(a) is a broadcasting services bands licence; and
(b) is allocated under Part 6A.

transaction includes:

(a) arrangements under which a person becomes a director of a company; and
(b) the acquisition of things by gift or inheritance.

(2)
A determination under paragraph (c) of the definition of broadcasting service in subsection (1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

BROADCASTING SERVICES ACT 1992
- SECT 7
Interpretation—meaning of control

Schedule 1 sets out mechanisms that are to be used in:

(a) deciding whether a person is in a position to exercise control of a licence, a company or a newspaper for the purposes of this Act; and
(b) tracing company interests of persons.

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

BROADCASTING SERVICES ACT 1992
- SECT 8
Interpretation—shareholding interests, voting interests, dividend
interests and winding-up interests

(1)
For the purposes of this Act:

(a) a person has a shareholding interest in a company if the person is beneficially entitled to, or to an interest in, shares in the company, whether or not any part of the legal ownership of the shares is vested in the person; and

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(b) the percentage of the interest is the value of the shares, or of the interest in the shares, as the case may be, on the basis that the value of the shares is equal to the amount paid on the shares, expressed as a percentage of the total of all amounts paid on shares in the company.

(2)
For the purposes of this Act:

(a) a person has a voting interest in a company if the person is in a position to exercise control of votes cast on a poll at a meeting of the company; and
(b) the percentage of the interest is the greatest percentage of the number of votes, expressed as a percentage of the total number of votes that could be cast on any issue at a meeting of the company, the casting of which the person is in a position to control.

(3)
For the purposes of this Act:

(a) a person has a dividend interest in a company if:
(i) the person is, or would become if a dividend were declared, beneficially entitled to be paid or credited a dividend by the company; or
(ii) under the memorandum and articles of association of the company, a share of any profits of the company is to be, or may be, paid or credited to the person otherwise than as dividends on shares; and
(b) the percentage of the interest is:
(i) if subparagraph (paragraph (a)(i) applies—the amount of the dividend to which the person is beneficially entitled or will become beneficially entitled expressed as a percentage of the total of all dividends to which members of the company become entitled at that time; or
(ii) if subparagraph (paragraph (a)(ii) applies—the amount of the maximum share of any profits of the company that could be paid or credited to the person at a particular time expressed as a percentage of the total of all shares of profits that could be paid or credited to all members of the company at that time.

(4)
For the purposes of this Act:

(a) a person has a winding-up interest in a company if the person would be entitled to a share of the property of the company that could be distributed among members of the company if property of the company were distributed among members, whether as a result of a winding-up or otherwise; and
(b) the percentage of the interest is the percentage that the value of that part of the property of the company to which the person would be so entitled bears to the total value of the property of the company.

(5)
A person may have a voting interest, a dividend interest or a winding-up interest in a company even if the person does not have a beneficial entitlement to, or to an interest in, shares in the company.

BROADCASTING SERVICES ACT 1992
- SECT 8A
Captioning taken to be part of program

(1)
For the purposes of this Act, if a television program is captioned for the deaf and hearing impaired, the captioning is taken to be part of the program.
(2)
Subsection (1) is enacted for the avoidance of doubt.

BROADCASTING SERVICES ACT 1992
- SECT 8B
Remote Indigenous community

(1)
An Indigenous community is a remote Indigenous community for the purposes of this Act if the ABA so determines in writing.
(2)
A determination under subsection (1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

BROADCASTING SERVICES ACT 1992
- SECT 9
Act to bind the Crown

This Act binds the Crown in right of the Commonwealth, of each of the States, of the Australian Capital Territory and of the Northern Territory, but nothing in this Act renders the Crown liable to be prosecuted for an offence.

BROADCASTING SERVICES ACT 1992
- SECT 10
Extension of Act to the external Territories

This Act extends to all the external Territories.


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BROADCASTING SERVICES ACT 1992
- SECT 10A
Application of the Criminal Code

(1)
Chapter 2 of the Criminal Code applies to all offences against this Act.

Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

(2)
Despite subsection (1), Part 2.5 of the Criminal Code does not apply to an offence against Schedule 5 to this Act.

BROADCASTING SERVICES ACT 1992
Part 2—Categories of broadcasting services

BROADCASTING SERVICES ACT 1992
- SECT 11
Categories of broadcasting services

The following categories of broadcasting services are broadcasting services to which this Act relates:

(a) national broadcasting services;
(b) commercial broadcasting services;
(c) community broadcasting services;
(d) subscription broadcasting services;
(e) subscription narrowcasting services;
(f) open narrowcasting services;
(fa) international broadcasting services.

BROADCASTING SERVICES ACT 1992
- SECT 11A
Dual categorisation of international broadcasting
services

An international broadcasting service may also fall into another category of broadcasting services.

BROADCASTING SERVICES ACT 1992
- SECT 12
Method of regulating particular services

(1)
Commercial broadcasting services, community broadcasting services, subscription television broadcasting services and international broadcasting services require individual licences.
(2)
Other broadcasting services (other than national broadcasting services) are to be provided under the relevant class licence.

Dual categorisation of international broadcasting services

(3)
An international broadcasting service that also falls into the category of commercial broadcasting services requires both:

(a) an international broadcasting licence; and
(b) either:
(i) a commercial radio broadcasting licence; or
(ii) a commercial television broadcasting licence.

(4)
An international broadcasting service that also falls into the category of community broadcasting services requires both:

(a) an international broadcasting licence; and
(b) a community broadcasting licence.

(5)
An international broadcasting service that also falls into the category of subscription television broadcasting services requires both:

(a) an international broadcasting licence; and
(b) a subscription television broadcasting licence.

(6)
Both of the following rules apply to an international broadcasting service that also falls into a category of broadcasting services covered by subsection (2):


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(a) the service requires an international broadcasting licence;
(b) the service is to be provided under the relevant class licence.

BROADCASTING SERVICES ACT 1992
- SECT 13
National broadcasting services

(1)
National broadcasting services are:

(a) broadcasting services provided by the Australian Broadcasting Corporation in accordance with section 6 of the Australian Broadcasting Corporation Act 1983; or
(b) broadcasting services provided by the Special Broadcasting Service Corporation in accordance with section 6 of the Special Broadcasting Service Act 1991; or
(c) broadcasting services provided under the Parliamentary Proceedings Broadcasting Act 1946.

(2)
National broadcasting services do not include subscription broadcasting services or subscription or open narrowcasting services provided by the Australian Broadcasting Corporation or the Special Broadcasting Service Corporation.
(3)
Subsection (2) does not apply to services specified by the Minister by notice in the Gazette.
(4)
A specification under subsection (3) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
(5)
Except as expressly provided by this Act, the regulatory regime established by this Act does not apply to national broadcasting services.

BROADCASTING SERVICES ACT 1992
- SECT 14
Commercial broadcasting services

Commercial broadcasting services are broadcasting services:

(a) that provide programs that, when considered in the context of the service being provided, appear to be intended to appeal to the general public; and
(b) that provide programs that:
(i) are able to be received by commonly available equipment; and
(ii) are made available free to the general public; and
(c) that are usually funded by advertising revenue; and
(d) that are operated for profit or as part of a profit-making enterprise; and
(e) that comply with any determinations or clarifications under section 19 in relation to commercial broadcasting services.

BROADCASTING SERVICES ACT 1992
- SECT 15
Community broadcasting services

Community broadcasting services are broadcasting services that:

(a) are provided for community purposes; and
(b) are not operated for profit or as part of a profit-making enterprise; and
(c) that provide programs that:
(i) are able to be received by commonly available equipment; and
(ii) are made available free to the general public; and
(d) comply with any determinations or clarifications under section 19 in relation to community broadcasting services.

BROADCASTING SERVICES ACT 1992
- SECT 16
Subscription broadcasting services

Subscription broadcasting services are broadcasting services that:

(a) provide programs that, when considered in the context of the service being provided, appear to be intended to appeal to the general public; and
(b) are made available to the general public but only on payment of subscription fees (whether periodical or otherwise); and
(c) comply with any determinations or clarifications under section 19 in relation to subscription broadcasting services.

BROADCASTING SERVICES ACT 1992
- SECT 17
Subscription narrowcasting services

Subscription narrowcasting services are broadcasting services:


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(a) whose reception is limited:
(i) by being targeted to special interest groups; or
(ii) by being intended only for limited locations, for example, arenas or business premises; or
(iii) by being provided during a limited period or to cover a special event; or
(iv) because they provide programs of limited appeal; or
(v) for some other reason; and
(b) that are made available only on payment of subscription fees (whether periodical or otherwise); and
(c) that comply with any determinations or clarifications under section 19 in relation to subscription narrowcasting services.

BROADCASTING SERVICES ACT 1992
- SECT 18
Open narrowcasting services

(1)
Open narrowcasting services are broadcasting services:

(a) whose reception is limited:
(i) by being targeted to special interest groups; or
(ii) by being intended only for limited locations, for example, arenas or business premises; or
(iii) by being provided during a limited period or to cover a special event; or
(iv) because they provide programs of limited appeal; or
(v) for some other reason; and
(b) that comply with any determinations or clarifications under section 19 in relation to open narrowcasting services.

(2)
A multi-channelled national television broadcasting service (within the meaning of Schedule 4) is not an open narrowcasting service.

BROADCASTING SERVICES ACT 1992
- SECT 18A
International broadcasting services

(1)
International broadcasting services are broadcasting services that are targeted, to a significant extent, to audiences outside Australia, where:

(a) the means of delivering the services involves the use of a radiocommunications transmitter in Australia (whether alone or in combination with any other means); and
(b) the services comply with any determinations or clarifications under section 19 in relation to international broadcasting services.

(2)
A broadcasting service is not an international broadcasting service if the broadcasting service is:

(a) provided by the Australian Broadcasting Corporation in accordance with section 6 of the Australian Broadcasting Corporation Act 1983; or
(b) provided by the Special Broadcasting Service Corporation in accordance with section 6 of the Special Broadcasting Service Act 1991; or
(c) an exempt broadcasting service (as defined by subsection (3)).

(3)
For the purposes of this section, a broadcasting service is an exempt broadcasting service if:

(a) the service delivers only programs packaged outside Australia (which may include programs produced in Australia); and
(b) all relevant programming decisions are made outside Australia; and
(c) the service is transmitted from a place outside Australia to an earth station in Australia for the sole purpose of being immediately re-transmitted to a satellite; and
(d) the satellite is a means of delivering the service (whether alone or in combination with any other means).

(4)
The references in this section to localities do not, by implication, affect the application of paragraph 21(b) of the Acts Interpretation Act 1901 and section 10 of this Act to a provision of this Act that deals with a category of broadcasting services other than international broadcasting services.
(5)
In this section:

Australia includes the external Territories.

radiocommunications transmitter has the same meaning as in the Radiocommunications Act 1992.


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BROADCASTING SERVICES ACT 1992
- SECT 19
ABA may determine additional criteria or clarify existing
criteria

(1)
The ABA may, by notice in the Gazette:

(a) determine additional criteria to those specified in sections 14 to 18A; or
(b) clarify the criteria specified in sections 14 to 18A;

for the purpose of distinguishing between categories of broadcasting services.

(2)
Different criteria or clarifications may be determined or made for radio services and television services.
(3)
The Minister may give specific directions to the ABA as to the making of determinations and clarifications, and the ABA must observe those directions.

BROADCASTING SERVICES ACT 1992
- SECT 20
Determinations and clarifications to be disallowable by the
Parliament

Determinations and clarifications under section 19 are disallowable instruments for the purposes of section 46A of the Acts Interpretation Act 1901.

BROADCASTING SERVICES ACT 1992
- SECT 21
Requests to ABA to decide which category a broadcasting service
falls into

(1)
A person who is providing, or who proposes to provide, a broadcasting service may apply to the ABA for an opinion as to which category, or categories, of broadcasting services the service falls into.
(2)
An application must be in accordance with a form approved in writing by the ABA, and must state the applicant's opinion as to which category, or categories, of broadcasting services the service falls into.
(3)
If the ABA considers that additional information is required before an opinion can be given, the ABA may, by notice in writing given to the applicant within 30 days after receiving the application, request the applicant to provide that information.
(4)
The ABA must, as soon as practicable after:

(a) receiving the application; or
(b) if the ABA has requested further information—receiving that further information;

give the applicant, in writing, its opinion as to which category, or categories, of broadcasting services the service falls into.

(5)
If the ABA has given an opinion under this section to the provider of a broadcasting service, neither the ABA nor any other Government agency may, while the circumstances relating to the broadcasting service remain substantially the same as those advised to the ABA in relation to the application for the opinion:

(a) take any action against the provider of the service during the period of 5 years commencing on the day on which the opinion is given on the basis that the service falls into a different category, or different categories, of broadcasting services than that advised in the opinion; or
(b) unless the ABA has made a determination or clarification under section 19 after that opinion was given that places the broadcasting service in a different category or different categories—take any action against the provider of the service after the end of that period on the basis that the service falls into a different category, or different categories, of broadcasting services.

(6)
If the ABA does not, within 45 days after:

(a) receiving the application; or
(b) if the ABA has requested further information—receiving that further information;

give the applicant, in writing, its opinion as to which category, or categories, of broadcasting services the service falls into, the ABA is taken to have given an opinion at the end of that period that accords with the applicant's opinion.

(7)
The ABA may charge a fee for providing an opinion under this section.
(8)
The ABA must not give an opinion under this section that a particular broadcasting service falls into more than one category of broadcasting services unless one of the categories is international broadcasting services.
(9)
A person must not, in an application under this section, state an opinion that a particular broadcasting service falls into more than one category of broadcasting services unless one of the categories is international broadcasting services.


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BROADCASTING SERVICES ACT 1992
- SECT 22
Matters to be considered by ABA

In making determinations or clarifications under section 19 in relation to broadcasting services, and in giving opinions under section 21 in relation to broadcasting services, the ABA is to have regard to:

(a) the geographic coverage of those services; and
(b) the number of persons who receive or are able to receive those services; and
(c) the accessibility of those services, including:
(i) whether those services are encrypted; and
(ii) whether their availability is otherwise restricted, whether because of the high cost of the equipment required to receive those services, the controlled supply of that equipment or otherwise; and
(iii) whether their comprehensibility is otherwise restricted; and
(d) the duration and frequency of the provision of those services, including whether those services are provided for a set period only; and
(e) the nature of the audience to which those services are targeted; and
(f) the nature of the programs being provided by those services, including:
(i) the level of interest in the subject matter of those programs; and
(ii) whether those programs are directed at a specialised audience; and
(iii) the social and cultural impact of those programs; and
(g) such other matters as the ABA thinks fit.

BROADCASTING SERVICES ACT 1992
Part 3—Planning of the broadcasting services bands

BROADCASTING SERVICES ACT 1992
- SECT 23
Planning criteria

In performing functions under this Part, the ABA is to promote the objects of this Act including the economic and efficient use of the radiofrequency spectrum, and is to have regard to:

(a) demographics; and
(b) social and economic characteristics within the licence area, within neighbouring licence areas and within Australia generally; and
(c) the number of existing broadcasting services and the demand for new broadcasting services within the licence area, within neighbouring licence areas and within Australia generally; and
(d) developments in technology; and
(e) technical restraints relating to the delivery or reception of broadcasting services; and
(f) the demand for radiofrequency spectrum for services other than broadcasting services; and
(g) such other matters as the ABA considers relevant.

BROADCASTING SERVICES ACT 1992
- SECT 24
ABA to determine priorities

(1)
Before preparing frequency allotment plans or licence area plans, the ABA must, by notice in writing, determine priorities, as between particular areas of Australia and as between different parts of the broadcasting services bands, for the preparation of those plans.
(2)
The ABA may, by notice in writing, vary priorities.

BROADCASTING SERVICES ACT 1992
- SECT 25
Preparation of frequency allotment plans

(1)
Where the Minister has, under section 31 of the Radiocommunications Act 1992, referred a part of the radiofrequency spectrum to the ABA for planning, the ABA must prepare in writing a frequency allotment plan that determines the number of channels that are to be available in particular areas of Australia to provide broadcasting services using that part of the radiofrequency spectrum.
(2)
The ABA may, by notice in writing, vary a frequency allotment plan.
(3)
In preparing or varying a frequency allotment plan, the ABA must comply with any directions, whether of a general or specific nature, given to the ABA in writing by the Minister.

BROADCASTING SERVICES ACT 1992
- SECT 26
Preparation of licence area plans

(1)
The ABA is to prepare in writing licence area plans that determine the number and characteristics, including technical specifications, of broadcasting services that are to be available in particular areas of Australia with the use of the broadcasting services bands, and those plans must be consistent with the relevant frequency allotment plan.
(2)
The ABA may, by notice in writing, vary a licence area plan.


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BROADCASTING SERVICES ACT 1992
- SECT 27
Processes to be public

(1)
In performing its functions under sections 24, 25 and 26, the ABA must make provision for wide public consultation.
(2)
The ABA is to keep a record of, and make available for public inspection, all advice received by the ABA, and all assumptions made by the ABA, in performing its functions under

sections 24, 25 and 26.

BROADCASTING SERVICES ACT 1992
- SECT 28
Limitation on allocation of commercial television broadcasting
licences

The ABA must not, after 25 June 1998, allocate any new commercial television broadcasting licences in any licence area before 31 December 2006.

BROADCASTING SERVICES ACT 1992
- SECT 28A
Section 28 does not apply to the allocation of a licence
under section 38A or 38B

The rule in section 28 does not apply to the allocation of a licence under section 38A or 38B.

BROADCASTING SERVICES ACT 1992
- SECT 29
Designation of licence areas

(1)
Before allocating a new commercial television broadcasting licence, commercial radio broadcasting licence or community broadcasting licence (other than a temporary community broadcasting licence) that is a broadcasting services bands licence, the ABA is to designate one of the areas referred to in section 26 as the licence area of the licence.
(2)
If the ABA varies a licence area plan, the ABA may vary the designation of the relevant licence areas.

BROADCASTING SERVICES ACT 1992
- SECT 30
ABA may determine population figures

(1)
The ABA may, by notice in writing, determine the licence area population of a licence area.
(2)
The ABA may, by notice in writing, determine a number that is to be the population of Australia for the purposes of this Act.
(3)
In making a determination, the ABA is to have regard to the most recently published census count prepared by the Australian Statistician.
(4)
The ABA is to make a new determination of the licence area population of a licence area if the licence area is changed.
(5)
The ABA is to specify, in a determination of the licence area population of a licence area:

(a) the percentage of the population of Australia constituted by that licence area population; and
(b) the percentage of that licence area population that is attributable to an overlap area.

BROADCASTING SERVICES ACT 1992
- SECT 31
Minister may reserve capacity for national broadcasters or
community broadcasters

(1)
The Minister may notify the ABA in writing that capacity in the broadcasting services bands is to be reserved for a specified number of:

(a) national broadcasting services; or
(b) community broadcasting services (other than services provided by temporary community broadcasting licensees);

but such a notice must not affect the provision of services in accordance with a licence already allocated by the ABA under this Act or in accordance with a class licence.

(2)
The ABA must not, except in accordance with section 34, allocate a licence or determine a class licence that would allow the provision of broadcasting services (other than services provided by national broadcasters or community broadcasting licensees) which would make use of reserved capacity in the broadcasting services bands.


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BROADCASTING SERVICES ACT 1992
- SECT 32
Reservations to be disallowable by the Parliament

A notice under section 31 is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

BROADCASTING SERVICES ACT 1992
- SECT 33
Development of technical planning guidelines

The ABA is to develop in writing guidelines for the technical planning of individual services that use the broadcasting services bands as a means of delivery.

BROADCASTING SERVICES ACT 1992
- SECT 34
Alternative uses of broadcasting services bands

(1)
If:

(a) the ABA has advertised under section 38 for applications for the allocation of one or more commercial television broadcasting licences or commercial radio broadcasting licences that are broadcasting services bands licences and that licence is not allocated or not all of those licences are allocated; or
(b) broadcasting services bands spectrum is available in a licence area but has not been made available for commercial television broadcasting licences or commercial radio broadcasting licences; or
(c) broadcasting services bands spectrum has been reserved under section 31 but has not been made available for the purpose for which it was reserved; or
(d) broadcasting services bands spectrum is available but the ABA has not commenced or completed planning and allocation processes in relation to that spectrum;

the ABA may, by written instrument, determine that the part or parts of the radiofrequency spectrum concerned is or are available for allocation, for a period specified by the ABA:

(e) for the temporary transmission or the re-transmission of programs; or
(ea) to temporary community broadcasting licensees; or
(f) to providers of subscription broadcasting services, subscription narrowcasting services or open narrowcasting services; or
(fa) for the transmission of datacasting services on a temporary basis; or
(g) for other purposes.

(2)
In making a determination under subsection (1), the ABA is to have regard to:

(a) the possible future demand for the use of that part of the radiofrequency spectrum; and
(b) such other matters as the ABA considers relevant.

(3)
The ABA may, by written instrument, determine that a part or parts of the broadcasting services bands spectrum is or are available for allocation for the purposes of the transmission of datacasting services.
(4)
In making a determination under subsection (3), the ABA is to have regard to:

(a) the possible future demand for the use of that part of the radiofrequency spectrum for the provision of commercial television broadcasting services; and
(b) such other matters as the ABA considers relevant.

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

(a) another part that is also specified in the determination; or
(b) 2 other parts that are also specified in the determination.

(5)
For the purposes of the application of this section to the availability of the spectrum before 1 January 2007, a datacasting service is a datacasting service provided under, and in accordance with the conditions of, a datacasting licence.
(6)
For the purposes of the application of this section to the availability of the spectrum on or after 1 January 2007, a datacasting service is:


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(a) a datacasting service provided under, and in accordance with the conditions of, a datacasting licence; or
(b) a datacasting service provided under any other licence allocated by the ABA under this Act; or
(c) a datacasting service provided in accordance with a class licence.

BROADCASTING SERVICES ACT 1992
- SECT 35
Notification of decisions under this Part

If the ABA makes an instrument under this Part, the ABA must publish in the Gazette a notice stating:

(a) that the instrument has been made; and
(b) the places where copies of the instrument can be purchased.

BROADCASTING SERVICES ACT 1992
Part 4—Commercial television broadcasting licences and commercial radio broadcasting licences

BROADCASTING SERVICES ACT 1992
- SECT 36
ABA to determine system for allocating licences

(1)
The ABA is to determine in writing a price-based system for allocating:

(a) commercial television broadcasting licences and commercial radio broadcasting licences that are broadcasting services bands licences; and
(b) other commercial television broadcasting licences before the date referred to in section 28.

(2)
The Minister may give specific directions to the ABA for the purpose of a determination.
(3)
Directions may be to include in a determination specified reserve prices for licences, and those reserve prices may be different for licences in different licence areas.
(4)
If a commercial television broadcasting licence or a commercial radio broadcasting licence referred to in subsection (1) is allocat