BROADCASTING SERVICES ACT 1992
Broadcasting Services Act 1992 REPRINT No. 2

Consolidated to 1 July 1997

Contents
BROADCASTING SERVICES ACT 1992 -An Act relating to broadcasting
services
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 .
ROADCASTING 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
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

(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

(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

(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.






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 according to the degree of
influence that different types of broadcasting services are able to exert in
shaping community views in Australia.

(2) The Parliament also intends that broadcasting 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

(b) will readily accommodate technological change; and

(c) encourages:

(i) the development of broadcasting technologies and their application; and

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






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; 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.






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.

"associate member" means an associate member of the ABA.

"Australian drama program" , in relation to a subscription television
broadcasting licence, means a drama program:

(a) that:

(i) has been made wholly or substantially in Australia or an external
Territory; and

(ii) has a significant Australian content; and

(iii) in relation to which there is no declaration in force under
subsection (3); or

(b) that has been made in pursuance of an agreement or arrangement entered
into between the Government of Australia or an authority of the Government of
Australia and the Government of another country or an authority of the
Government of another country; or

(c) that is to be treated as an Australian program under an agreement
between Australia and another country; or

(d) in relation to which a certificate under Division 10BA of Part III of
the Income Tax Assessment Act 1936 has been issued; or

(e) that would, if it were not a program of the kind referred to in
paragraph (d) or (e) of the definition of"drama program" , be entitled to such a
certificate; or

(f) would be an Australian drama program for the purposes of a standard
relating to Australian content that is in force under paragraph 122(2)(b).

"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:

(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.

"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 to provide a commercial
broadcasting service that provides radio programs.

"commercial television broadcasting licence" means a licence to provide a
commercial broadcasting service that provides television programs.

"community broadcasting licence" means a licence 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.

"Deputy Chairperson" means the Deputy Chairperson of the ABA.

"drama program" , in relation to a subscription television broadcasting licence,
includes:

(a) a feature film of the kind that is commonly screened as a main
attraction in commercial cinemas; and

(b) a film that is similar in nature to a feature film but was produced for
broadcasting on television; and

(c) a mini series produced for broadcasting on television comprising an
extended but self-contained drama and that is designed to be broadcast in 2 or
more sequential parts; and

(d) a drama series produced for broadcasting on television that comprises a
potentially unlimited number of episodes each of which:

(i) has a self-contained plot; and

(ii) can be broadcast in any order; and

(e) a continuing drama series produced for broadcasting on television that
comprises a potentially unlimited number of episodes that are arranged into a
consecutive series for broadcasting.

"Federal Court" means the Federal Court of Australia.

"foreign person" means:

(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%.

"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 licence allocated by the ABA under this Act, but does not
include a class licence.

"licence area" means an area designated by the ABA under section 29 or 40.

"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.

"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.

"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:

(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.

"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 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 ).

"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 .

(3) The ABA may, if it is satisfied that a drama program of the kind
referred to in subparagraphs (a)(i) and (ii) of the definition of"Australian drama
program" in subsection (1) has non-Australian content of such significance that it
should not be treated as an Australian drama program, declare that it is not an
Australian drama program.






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.






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

(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 (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 (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 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.






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.






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




(1) Commercial broadcasting services, community broadcasting services and
subscription television broadcasting services require individual licences.

(2) Other broadcasting services (other than national broadcasting services)
are 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:

(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




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.






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 18;
or

(b) clarify the criteria specified in sections 14 to 18;

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 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 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 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 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--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 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 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.






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