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Communications Legislation Amendment (Enforcement Powers) Bill 2006

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Amendments and New Clauses to be Moved on Behalf of the Government

(Sheet Number QS389)














(Circulated by authority of Senator the Hon. Helen Coonan,

Minister for Communications, Information Technology and the Arts)








The Government considers that the range of broadcasting regulatory powers available to the Australian Communications and Media Authority (the ACMA) does not provide an appropriate gradation of enforcement options, and therefore is not adequate to enable it to fulfil the objects of the Broadcasting Services Act 1992 (BSA) The Bill will not create new offences, but will enhance the ACMA’s broadcasting regulatory powers under the BSA by providing the ACMA with several new powers in relation to:

·          civil penalties;


·          injunctions;


·          enforceable undertakings; and


·          infringement notices.


The Bill will also require the ACMA to develop guidelines relating to the exercise of its broadcasting enforcement powers. 

These amendments will:

·          extend the new injunction provisions for provision of unlicensed services to unlicensed datacasting;

·          extend the new provisions relating to ACMA guidelines on enforcement to apply to enforcement options available for datacasting licences;

·          extend the new civil penalty provisions to unlicensed datacasting and breach of datacasting licence conditions, and introduce associated remedial directions provisions. 




The amendments contained in the Bill have no significant financial impact.



Amendments (1) and (2)


New Part 14C of the BSA, inserted by the Bill, provides injunction powers to stop unlicensed broadcasting services.  In particular, see new section 205Q.  Providing an unlicensed datacasting service is an offence (see subclause 49(1) of Schedule 6 to the BSA).  New item 50C (added by amendment (7)) makes this conduct also subject to civil penalties (see new subclauses 49(3)-(5) of Schedule 6 to the BSA). 


Amendment (1) amends the simplified outline of new Part 14C as a result of amendment (2).


Amendment (2) extends section 205Q so that it also covers breach of subclause 49(3) of Schedule 6. 


Amendments (3)-(6)


New section 215 of the BSA, inserted by the Bill, provides for ACMA to formulate guidelines relating to its existing and new enforcement powers. 


Amendments (3)-(6) extend section 215 so that guidelines will also cover the enforcement provisions relating to datacasting in Part 8 of Schedule 6 to the BSA (clause 49 and following). 


Amendment (7)


Amendment (7) adds new items 50A-50F to Schedule 1 to the Bill. 


New items 50A and 50B - Clause 9 of Schedule 6


Allocation of a datacasting licence is subject to a suitability requirement, in common with other BSA licence categories (see clause 9 of Schedule 6 to the BSA).  Risk of criminal offences are relevant to suitability (see paragraph 9(1)(a) of Schedule 6). 


New items 50A and 50B amend clause 9 so that risk of breach of a civil penalty provision occurring is also relevant to the suitability of a person to hold a datacasting licence. 


New item 50C - Clause 49 of Schedule 6


As outlined in the notes on amendments (1) and (2), new item 50C adds new subclauses 49(3)-(5) into Schedule 6 so that providing an unlicensed datacasting service is subject to civil penalties. 


New item 50D - Clause 50 of Schedule 6


New item 50D replaces clause 50 of Schedule 6 with a new provision. 


New subclause 50(1) will allow ACMA to give a person a written remedial direction to take specific action to ensure they do not breach new subclause 49(3) in the future.  This replaces the current notice provision, which allows ACMA to simply give a notice to cease provision of the unlicensed service. 


Breach of a remedial direction will be an offence (new subclauses 50(2) and (3)) and subject to civil penalties (new subclauses 50(4)-(6)).


New item 50E - New clause 52A of Schedule 6


Currently, breach of many datacasting licence conditions in Schedule 6 is an offence (see clause 52 of Schedule 6). 


New item 50E adds new clause 52A to Schedule 6, which makes breach of these licence conditions subject to civil penalties. 


There is no reference in new clause 52A to clause 20B of Schedule 6.  This is because various provisions relating to technical standards, including clause 20B, will be replaced by new and broader provisions to be introduced by Government amendments to the Broadcasting Legislation Amendment (Digital Television) Bill 2006.  Those amendments will also delete the reference to clause 20B from existing clause 52. 


New item 50F - Clause 53 of Schedule 6


Currently, if a datacasting licensee breaches a licence condition, ACMA is able to give them a remedial direction to take specified action to ensure they do not breach that condition in future (see existing subclauses 53(1)-(3)).  Breach of such a direction is an offence (see subclauses 53(4) and (5)). 


New item 50F adds new subclauses 53(6)-(8) to Schedule 6 to make breach of a remedial direction under clause 53 subject to civil penalties.