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This is a Bill, not an Act. For current law, see the Acts databases.
2016-2017
The Parliament of the
Commonwealth of Australia
THE SENATE
Presented and read a first time
Communications Legislation
Amendment (Online Content Services
and Other Measures) Bill 2017
No. , 2017
(Communications and the Arts)
A Bill for an Act to amend the law relating to
communications, and for other purposes
No. , 2017
Communications Legislation Amendment (Online Content Services and
Other Measures) Bill 2017
i
Contents
1
Short title ........................................................................................... 1
2
Commencement ................................................................................. 1
3
Schedules ........................................................................................... 2
Schedule 1--Online content services
3
Australian Communications and Media Authority Act 2005
3
Broadcasting Services Act 1992
3
Enhancing Online Safety Act 2015
34
No. , 2017
Communications Legislation Amendment (Online Content Services and
Other Measures) Bill 2017
1
A Bill for an Act to amend the law relating to
1
communications, and for other purposes
2
The Parliament of Australia enacts:
3
1 Short title
4
This Act is the Communications Legislation Amendment (Online
5
Content Services and Other Measures) Act 2017.
6
2 Commencement
7
(1) Each provision of this Act specified in column 1 of the table
8
commences, or is taken to have commenced, in accordance with
9
column 2 of the table. Any other statement in column 2 has effect
10
according to its terms.
11
12
2
Communications Legislation Amendment (Online Content Services and
Other Measures) Bill 2017
No. , 2017
Commencement information
Column 1
Column 2
Column 3
Provisions
Commencement
Date/Details
1. The whole of
this Act
The day after this Act receives the Royal
Assent.
Note:
This table relates only to the provisions of this Act as originally
1
enacted. It will not be amended to deal with any later amendments of
2
this Act.
3
(2) Any information in column 3 of the table is not part of this Act.
4
Information may be inserted in this column, or information in it
5
may be edited, in any published version of this Act.
6
3 Schedules
7
Legislation that is specified in a Schedule to this Act is amended or
8
repealed as set out in the applicable items in the Schedule
9
concerned, and any other item in a Schedule to this Act has effect
10
according to its terms.
11
Online content services Schedule 1
No. , 2017
Communications Legislation Amendment (Online Content Services and
Other Measures) Bill 2017
3
Schedule 1--Online content services
1
2
Australian Communications and Media Authority Act 2005
3
1 After paragraph 10(1)(m)
4
Insert:
5
(ma) to monitor compliance with the online content service
6
provider rules;
7
2 Paragraph 53(2)(k)
8
After "Part 9C of that Act", insert ", a notice under Schedule 8 to that
9
Act or a notice under any other provision of that Act so far as that
10
provision relates to Schedule 8 to that Act".
11
Broadcasting Services Act 1992
12
3 After paragraph 3(1)(ha)
13
Insert:
14
(hb) to ensure online content service providers respect community
15
standards in relation to gambling promotional content; and
16
4 After paragraph 3(1)(i)
17
Insert:
18
(ia) to provide a means for addressing complaints about gambling
19
promotional content provided on online content services; and
20
5 Subsection 3(2)
21
Insert:
22
gambling promotional content has the same meaning as in
23
Schedule 8.
24
online content service has the same meaning as in Schedule 8.
25
online content service provider has the same meaning as in
26
Schedule 8.
27
Schedule 1 Online content services
4
Communications Legislation Amendment (Online Content Services and
Other Measures) Bill 2017
No. , 2017
6 Subsection 4(1)
1
Omit "and internet services" (wherever occurring), substitute ", internet
2
services and online content services".
3
7 After subsection 4(3AA)
4
Insert:
5
(3AB) The Parliament also intends that gambling promotional content
6
provided on online content services be regulated in a manner that:
7
(a) enables public interest considerations in relation to gambling
8
promotional content to be addressed in a way that does not
9
impose unnecessary financial and administrative burdens on
10
the providers of online content services; and
11
(b) will readily accommodate technological change; and
12
(c) encourages the provision of online content services to the
13
Australian community; and
14
(d) encourages the development of technologies relating to
15
online content services.
16
8 Subsection 4(4)
17
Insert:
18
gambling promotional content has the same meaning as in
19
Schedule 8.
20
online content service has the same meaning as in Schedule 8.
21
online content service provider has the same meaning as in
22
Schedule 8.
23
9 Paragraph 5(1)(a)
24
Omit "and the commercial content service industry", substitute ", the
25
commercial content service industry and the online content service
26
industry".
27
10 Subsection 5(4)
28
Insert:
29
online content service has the same meaning as in Schedule 8.
30
Online content services Schedule 1
No. , 2017
Communications Legislation Amendment (Online Content Services and
Other Measures) Bill 2017
5
11 Subsection 6(1)
1
Insert:
2
gambling promotion program standard means a standard
3
determined by the ACMA under section 125A.
4
12 Subsection 6(1) (at the end of the definition of program
5
standards)
6
Add ", and includes a gambling promotion program standard".
7
13 After section 125
8
Insert:
9
125A ACMA must determine a gambling promotion program
10
standard if directed by the Minister
11
Ministerial direction
12
(1) The Minister may, by legislative instrument, give the ACMA a
13
direction to:
14
(a) determine a gambling promotion program standard that
15
complies with the requirements specified in the direction; and
16
(b) do so within a period specified in the direction.
17
(2) The ACMA must comply with a direction under subsection (1).
18
(3) The ACMA must not determine a gambling promotion program
19
standard unless it does so in accordance with a direction under
20
subsection (1).
21
Determination of a gambling promotion program standard
22
(4) The ACMA may, by legislative instrument, determine a standard,
23
to be known as a gambling promotion program standard,
24
prescribing matters required or permitted by this Act to be
25
prescribed by a gambling promotion program standard.
26
Schedule 1 Online content services
6
Communications Legislation Amendment (Online Content Services and
Other Measures) Bill 2017
No. , 2017
Prohibiting or regulating gambling promotional content
1
(5) A gambling promotion program standard may make provision for
2
or in relation to prohibiting or regulating the broadcast of gambling
3
promotional content:
4
(a) on broadcasting services provided by any or all of the
5
following:
6
(i) commercial television broadcasting licensees;
7
(ii) commercial radio broadcasting licensees;
8
(iii) subscription television broadcasting licensees;
9
(iv) providers of subscription radio narrowcasting services;
10
(v) providers of subscription television narrowcasting
11
services; and
12
(b) in conjunction with live coverage of a sporting event.
13
Note:
See also subsection 33(3A) of the Acts Interpretation Act 1901.
14
Explanatory matter
15
(6) A gambling promotion program standard may make provision for
16
or in relation to requiring any or all of the following:
17
(a) commercial television broadcasting licensees;
18
(b) commercial radio broadcasting licensees;
19
(c) subscription television broadcasting licensees;
20
(d) providers of subscription radio narrowcasting services;
21
(e) providers of subscription television narrowcasting services;
22
to ensure that, if live coverage of a sporting event is, or is to be,
23
broadcast on a broadcasting service provided by the licensee or
24
provider, explanatory matter that relates to the following is
25
provided by the licensee or provider in a manner specified in the
26
standard:
27
(f) whether a gambling promotion program standard made for
28
the purposes of subsection (5) applies in relation to that live
29
coverage;
30
(g) if so, how the gambling promotion program standard applies
31
in relation to that live coverage.
32
Online content services Schedule 1
No. , 2017
Communications Legislation Amendment (Online Content Services and
Other Measures) Bill 2017
7
Record-keeping
1
(7) A gambling promotion program standard may make provision for
2
or in relation to requiring any or all of the following:
3
(a) commercial television broadcasting licensees;
4
(b) commercial radio broadcasting licensees;
5
(c) subscription television broadcasting licensees;
6
(d) providers of subscription radio narrowcasting services;
7
(e) providers of subscription television narrowcasting services;
8
to ensure that, if live coverage of a sporting event is, or is to be,
9
broadcast on a broadcasting service provided by the licensee or
10
provider, the licensee or provider will:
11
(f) make records that:
12
(i) are of a kind or kinds specified in the standard; and
13
(ii) are sufficient to enable compliance by the licensee or
14
provider with a gambling promotion program standard
15
made for the purposes of subsection (5) or (6) to be
16
readily ascertained; and
17
(g) retain those records for the period ascertained in accordance
18
with the first-mentioned standard; and
19
(h) make those retained records available to the ACMA on
20
request.
21
Note:
See also subsection 33(3A) of the Acts Interpretation Act 1901.
22
(8) For the purposes of subparagraph (7)(f)(i), each of the following is
23
an example of a kind of record:
24
(a) a written record;
25
(b) an audio record;
26
(c) an audio-visual record.
27
Accidental or incidental broadcast of gambling promotional
28
content
29
(9) A gambling promotion program standard does not apply in relation
30
to the broadcasting of gambling promotional content on a
31
broadcasting service if:
32
(a) the gambling promotional content is broadcast as an
33
accidental or incidental accompaniment to the broadcasting
34
of other matter; and
35
Schedule 1 Online content services
8
Communications Legislation Amendment (Online Content Services and
Other Measures) Bill 2017
No. , 2017
(b) the licensee or provider of the broadcasting service does not
1
receive any direct or indirect benefit (whether financial or
2
not) for broadcasting the gambling promotional content (in
3
addition to any direct or indirect benefit that the licensee or
4
provider receives for broadcasting the other matter).
5
Live coverage of a sporting event
6
(10) For the purposes of this section, if:
7
(a) live coverage of a sporting event is broadcast on a
8
broadcasting service; and
9
(b) there is an unscheduled break in the sporting event;
10
any matter broadcast on the service during the break is taken to be
11
live coverage of the sporting event.
12
Gambling promotional content broadcast in conjunction with live
13
coverage of a sporting event
14
(11) For the purposes of this section, gambling promotional content
15
(other than a commentator betting odds promotion or a
16
representative venue-based promotion) is broadcast on a
17
broadcasting service in conjunction with live coverage of a
18
sporting event if, and only if, the content is broadcast on the
19
service during the period:
20
(a) beginning 5 minutes before the scheduled start of the sporting
21
event; and
22
(b) ending 5 minutes after the conclusion of the sporting event.
23
(12) However, if coverage of the sporting event is delayed, this section
24
has effect as if there were a corresponding delay to the period
25
mentioned in subsection (11).
26
(13) For the purposes of this section, gambling promotional content that
27
consists of a commentator betting odds promotion or a
28
representative venue-based promotion is broadcast on a
29
broadcasting service in conjunction with live coverage of a
30
sporting event if, and only if, the promotion is broadcast on the
31
service during the period:
32
(a) beginning 30 minutes before the scheduled start of the
33
sporting event; and
34
(b) ending 30 minutes after the conclusion of the sporting event.
35
Online content services Schedule 1
No. , 2017
Communications Legislation Amendment (Online Content Services and
Other Measures) Bill 2017
9
(14) However, if coverage of the sporting event is delayed, this section
1
has effect as if there were a corresponding delay to the period
2
mentioned in subsection (13).
3
Administrative decisions
4
(15) A gambling promotion program standard may make provision for
5
or in relation to a particular matter by empowering the ACMA to
6
make decisions of an administrative character.
7
This section does not limit section 125
8
(16) This section does not limit the operation of section 125.
9
Implied freedom of political communication
10
(17) The provisions of:
11
(a) this section; and
12
(b) a gambling promotion program standard;
13
have no effect to the extent (if any) that their operation would
14
infringe any constitutional doctrine of implied freedom of political
15
communication.
16
(18) Subsection (17) does not limit the application of section 15A of the
17
Acts Interpretation Act 1901 to this Act.
18
Acquisition of property
19
(19) The provisions of:
20
(a) this section; and
21
(b) a gambling promotion program standard;
22
have no effect to the extent (if any) to which their operation would
23
result in an acquisition of property (within the meaning of
24
paragraph 51(xxxi) of the Constitution) from a person otherwise
25
than on just terms (within the meaning of that paragraph).
26
Sporting event
27
(20) Subclause 19(1) of Schedule 8 applies in relation to this section in
28
a corresponding way to the way in which it applies in relation to
29
that Schedule.
30
Schedule 1 Online content services
10
Communications Legislation Amendment (Online Content Services and
Other Measures) Bill 2017
No. , 2017
(21) Online content service provider rules made for the purposes of
1
subclause 19(2) of Schedule 8 apply in relation to this section in a
2
corresponding way to the way in which they apply in relation to
3
that Schedule.
4
(22) Online content service provider rules made for the purposes of
5
subclause 19(3) of Schedule 8 apply in relation to this section in a
6
corresponding way to the way in which they apply in relation to
7
that Schedule.
8
Scheduled start of a sporting event
9
(23) Online content service provider rules made for the purposes of
10
clause 22 of Schedule 8 apply in relation to this section in a
11
corresponding way to the way in which they apply in relation to
12
that Schedule.
13
Conclusion of a sporting event
14
(24) Online content service provider rules made for the purposes of
15
clause 23 of Schedule 8 apply in relation to this section in a
16
corresponding way to the way in which they apply in relation to
17
that Schedule.
18
Definitions
19
(25) In this section:
20
commentator betting odds promotion means gambling
21
promotional content to the extent to which it consists of the
22
provision of betting odds (however described) by a commentator.
23
conclusion, in relation to a sporting event, has a meaning affected
24
by subsection (24).
25
coverage has the same meaning as in Schedule 8.
26
gambling promotional content means:
27
(a) advertising matter; or
28
(b) sponsorship matter; or
29
(c) promotional matter;
30
that relates to a gambling service.
31
Online content services Schedule 1
No. , 2017
Communications Legislation Amendment (Online Content Services and
Other Measures) Bill 2017
11
gambling service has the same meaning as in Schedule 8.
1
gambling service provider means a person who provides a
2
gambling service.
3
in conjunction with, when used in relation to live coverage of a
4
sporting event, has the meaning given by subsections (11) to (14).
5
live, in relation to coverage of a sporting event, has the same
6
meaning as in Schedule 8.
7
representative venue-based promotion means gambling
8
promotional content to the extent to which it consists of:
9
(a) visual images (whether animated or otherwise) of a
10
representative of a gambling service provider; or
11
(b) speech of a representative of a gambling service provider;
12
where those visual images, or that speech, as the case may be,
13
gives the impression that the representative is at, or around, the
14
venue of a sporting event.
15
scheduled start, in relation to a sporting event, has a meaning
16
affected by subsection (23).
17
sporting event has a meaning affected by subsections (20), (21)
18
and (22).
19
14 Subsection 204(1) (at the end of the table)
20
Add:
21
22
Refusal to make an
exemption
determination
Subclause 15(1) or
(2) of Schedule 8
The provider of the
online content service
to which the
determination relates
Variation of an
exemption
determination
Subclause 15(1) or
(2) of Schedule 8
The provider of the
online content service
to which the
determination relates
Revocation of an
exemption
determination
Subclause 15(1) or
(2) of Schedule 8
The provider of the
online content service
to which the
determination relates
Schedule 1 Online content services
12
Communications Legislation Amendment (Online Content Services and
Other Measures) Bill 2017
No. , 2017
Refusal to make an
exemption
determination
Subclause 15(3) or
(4) of Schedule 8
The person to whom
the determination
relates
Variation of an
exemption
determination
Subclause 15(3) or
(4) of Schedule 8
The person to whom
the determination
relates
Revocation of an
exemption
determination
Subclause 15(3) or
(4) of Schedule 8
The person to whom
the determination
relates
To give a remedial
direction
Subclause 26(2) of
Schedule 8
The person to whom
the direction was
given
Variation of a
remedial direction
Subclause 26(2) of
Schedule 8
The person to whom
the direction was
given
Refusal to revoke a
remedial direction
Subclause 26(2) of
Schedule 8
The person to whom
the direction was
given
15 At the end of section 204
1
Add:
2
Decisions under a gambling promotion program standard
3
(3) An application may be made to the Administrative Appeals
4
Tribunal for review of a decision made by the ACMA under a
5
gambling promotion program standard, so long as the standard
6
provides that the decision is a reviewable decision for the purposes
7
of this section.
8
Decisions under the online content service provider rules
9
(4) An application may be made to the Administrative Appeals
10
Tribunal for review of a decision made by the ACMA under the
11
online content service provider rules, so long as those rules provide
12
that the decision is a reviewable decision for the purposes of this
13
section.
14
Online content service provider rules
15
(5) In this section:
16
Online content services Schedule 1
No. , 2017
Communications Legislation Amendment (Online Content Services and
Other Measures) Bill 2017
13
online content service provider rules has the same meaning as in
1
Schedule 8.
2
16 Subsection 205F(4)
3
After "205E(1)", insert "or subclause 25(1) or 26(4) of Schedule 8".
4
17 Subsection 205F(5)
5
After "205AG(1)", insert "or subclause 25(1) or 26(4) of Schedule 8".
6
18 After subsection 205F(5B)
7
Insert:
8
(5C) The pecuniary penalty payable by a person in respect of:
9
(a) a contravention of subclause 25(1) of Schedule 8; or
10
(b) a contravention of section 205E that relates to a
11
contravention of subclause 25(1) of Schedule 8;
12
must not exceed:
13
(c) if the person is a body corporate--300 penalty units; or
14
(d) if the person is not a body corporate--60 penalty units.
15
(5D) The pecuniary penalty payable by a person in respect of:
16
(a) a contravention of subclause 26(4) of Schedule 8; or
17
(b) a contravention of section 205E that relates to a
18
contravention of subclause 26(4) of Schedule 8;
19
must not exceed:
20
(c) if the person is a body corporate--2,000 penalty units; or
21
(d) if the person is not a body corporate--400 penalty units.
22
19 Before paragraph 205ZA(a)
23
Insert:
24
(aa) if the infringement notice relates to subclause 25(1) of
25
Schedule 8 and the person is a body corporate--60 penalty
26
units; or
27
20 Paragraph 205ZA(a)
28
After "if", insert "the infringement notice does not relate to
29
subclause 25(1) of Schedule 8 and".
30
Schedule 1 Online content services
14
Communications Legislation Amendment (Online Content Services and
Other Measures) Bill 2017
No. , 2017
21 After section 216D
1
Insert:
2
216E Schedule 8 (online content services)
3
Schedule 8 has effect.
4
22 At the end of the Act
5
Add:
6
Schedule 8--Online content services
7
Note:
See section 216E.
8
Part 1--Introduction
9
10
1 Simplified outline of this Schedule
11
•
The ACMA may make online content service provider rules
12
about gambling promotional content provided on an online
13
content service in conjunction with live coverage of a sporting
14
event.
15
•
The ACMA may exempt an online content service, or an
16
online content service provider, from the online content
17
service provider rules.
18
•
If an online content service provider contravenes the online
19
content service provider rules, the provider may become liable
20
to pay a civil penalty.
21
•
The ACMA may give a remedial direction to an online
22
content service provider if the provider contravenes the online
23
content service provider rules.
24
2 Definitions
25
In this Schedule:
26
Online content services Schedule 1
No. , 2017
Communications Legislation Amendment (Online Content Services and
Other Measures) Bill 2017
15
access includes:
1
(a) access that is subject to a pre-condition (for example, the use
2
of a password); and
3
(b) access by way of push technology; and
4
(c) access by way of a standing request.
5
account includes:
6
(a) a free account; and
7
(b) a pre-paid account; and
8
(c) anything that may reasonably be regarded as the equivalent
9
of an account.
10
Australia, when used in a geographical sense, includes all the
11
external Territories.
12
bet includes wager.
13
commentator betting odds promotion means gambling
14
promotional content to the extent to which it consists of the
15
provision of betting odds (however described) by a commentator.
16
conclusion, in relation to a sporting event, has a meaning affected
17
by clause 23.
18
content means content:
19
(a) whether in the form of text; or
20
(b) whether in the form of data; or
21
(c) whether in the form of speech, music or other sounds; or
22
(d) whether in the form of visual images (animated or
23
otherwise); or
24
(e) whether in any other form; or
25
(f) whether in any combination of forms.
26
coverage means coverage that involves either or both of the
27
following:
28
(a) animated visual images;
29
(b) audio.
30
exempt online simulcast service has the meaning given by
31
clause 4.
32
Schedule 1 Online content services
16
Communications Legislation Amendment (Online Content Services and
Other Measures) Bill 2017
No. , 2017
gambling promotional content means:
1
(a) advertising content; or
2
(b) sponsorship content; or
3
(c) promotional content;
4
that relates to a gambling service.
5
gambling service has the meaning given by clause 18.
6
gambling service provider means a person who provides a
7
gambling service.
8
game includes an electronic game.
9
geographical link to Australia has the meaning given by clause 5.
10
immediate circle has the same meaning as in the
11
Telecommunications Act 1997.
12
in conjunction with, when used in relation to live coverage of a
13
sporting event, has the meaning given by clause 21.
14
internet carriage service has the same meaning as in Schedule 5.
15
live, in relation to coverage of a sporting event, means:
16
(a) live (within the ordinary meaning of that expression); or
17
(b) delayed, so long as the coverage:
18
(i) is provided as if it were live (within the ordinary
19
meaning of that expression); and
20
(ii) begins no later than the conclusion of the sporting event.
21
lottery includes an electronic lottery.
22
online content service has the meaning given by clause 3.
23
online content service provider means a person who provides an
24
online content service.
25
Note:
See clause 6.
26
online content service provider rules means rules made under
27
clause 11.
28
provided on an online content service has the meaning given by
29
clause 7.
30
Online content services Schedule 1
No. , 2017
Communications Legislation Amendment (Online Content Services and
Other Measures) Bill 2017
17
provided to the public, in relation to a service, has the meaning
1
given by clause 8.
2
representative venue-based promotion means gambling
3
promotional content to the extent to which it consists of:
4
(a) visual images (whether animated or otherwise) of a
5
representative of a gambling service provider; or
6
(b) speech of a representative of a gambling service provider;
7
where those visual images, or that speech, as the case may be,
8
gives the impression that the representative is at, or around, the
9
venue of a sporting event.
10
scheduled start, in relation to a sporting event, has a meaning
11
affected by clause 22.
12
service includes a website.
13
Note:
See also clause 17.
14
sporting event has a meaning affected by clause 19.
15
ticket includes an electronic ticket.
16
using has a meaning affected by clause 9.
17
voice call includes:
18
(a) if a voice call is not practical for a particular end-user with a
19
disability--a call that is equivalent to a voice call; and
20
(b) a call that involves a recorded or synthetic voice.
21
3 Online content service
22
(1) For the purposes of this Schedule, online content service means:
23
(a) a service that delivers content to persons having equipment
24
appropriate for receiving that content, where the delivery of
25
the service is by means of an internet carriage service; or
26
(b) a service that allows end-users to access content using an
27
internet carriage service;
28
where the service:
29
(c) is provided to the public (whether on payment of a fee or
30
otherwise); and
31
(d) has a geographical link to Australia;
32
Schedule 1 Online content services
18
Communications Legislation Amendment (Online Content Services and
Other Measures) Bill 2017
No. , 2017
but does not include a service to the extent to which it is:
1
(e) an exempt online simulcast service; or
2
(f) an exempt Parliamentary content service (within the meaning
3
of Schedule 7); or
4
(g) an exempt court/tribunal content service (within the meaning
5
of Schedule 7); or
6
(h) an exempt official-inquiry content service (within the
7
meaning of Schedule 7); or
8
(i) a service that enables end-users to communicate, by means of
9
voice calls, with other end-users; or
10
(j) a service that enables end-users to communicate, by means of
11
video calls, with other end-users; or
12
(k) a service that enables end-users to communicate, by means of
13
email, with other end-users; or
14
(l) an instant messaging service that enables end-users to
15
communicate with other end-users; or
16
(m) an SMS service that enables end-users to communicate with
17
other end-users; or
18
(n) an MMS service that enables end-users to communicate with
19
other end-users; or
20
(o) a service that delivers content by fax; or
21
(p) an exempt data storage service (within the meaning of
22
Schedule 7); or
23
(q) an exempt back-up service (within the meaning of
24
Schedule 7); or
25
(r) a service determined under subclause (2).
26
Note 1:
SMS is short for short message service.
27
Note 2:
MMS is short for multimedia message service.
28
(2) The ACMA may, by legislative instrument, determine one or more
29
services for the purposes of paragraph (1)(r).
30
4 Exempt online simulcast service
31
(1) For the purposes of this Schedule, exempt online simulcast service
32
means a service, or a part of a service, that is provided to end-users
33
using an internet carriage service, and that:
34
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19
(a) does no more than provide a stream of content that is
1
identical to the stream of programs transmitted on:
2
(i) a commercial television broadcasting service provided
3
under a commercial television broadcasting licence; or
4
(ii) a commercial radio broadcasting service provided under
5
a commercial radio broadcasting licence; or
6
(iii) a subscription television broadcasting service provided
7
under a subscription television broadcasting licence; or
8
(iv) a subscription radio narrowcasting service; or
9
(v) a subscription television narrowcasting service; or
10
(vi) a broadcasting service provided by the Special
11
Broadcasting Service Corporation; and
12
(b) provides that stream of content simultaneously, or almost
13
simultaneously, with the transmission of that stream of
14
programs.
15
(2) For the purposes of subclause (1), in determining whether a stream
16
of content is identical to a stream of programs, disregard any
17
differences that are attributable to the technical characteristics of
18
the provision or transmission (for example, video resolution or
19
sound quality).
20
(3) For the purposes of subclause (1), in determining whether a stream
21
of content is identical to a stream of programs, disregard the
22
presence or absence of:
23
(a) a watermark-type logo; or
24
(b) a watermark-type insignia;
25
that is not gambling promotional content.
26
5 Geographical link to Australia
27
(1) For the purposes of this Schedule, a service has a geographical
28
link to Australia if an ordinary reasonable person would conclude
29
that:
30
(a) the service is targeted at individuals who are physically
31
present in Australia; or
32
(b) any of the content provided on the service is likely to appeal
33
to the public, or a section of the public, in Australia.
34
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(2) For the purposes of this clause, content is provided on a service if
1
the content is:
2
(a) delivered by the service; or
3
(b) accessible to end-users using the service.
4
6 Online content service provider
5
(1) For the purposes of this Schedule, a person does not provide an
6
online content service merely because the person supplies an
7
internet carriage service that enables content to be delivered or
8
accessed.
9
(2) For the purposes of this Schedule, a person does not provide an
10
online content service merely because the person provides a billing
11
service, or a fee collection service, in relation to an online content
12
service.
13
7 When content is provided on an online content service
14
(1) For the purposes of this Schedule, content is provided on an online
15
content service if the content is:
16
(a) delivered by the online content service; or
17
(b) accessible to end-users using the online content service.
18
(2) For the purposes of this Schedule, content is provided on an online
19
content service to an end-user if the content is:
20
(a) delivered to the end-user by the online content service; or
21
(b) accessible to the end-user using the online content service.
22
8 When a service is provided to the public etc.
23
(1) For the purposes of this Schedule, a service is provided to the
24
public if, and only if, the service is provided to at least one person
25
outside the immediate circle of the person who provides the
26
service.
27
(2) For the purposes of this Schedule, a service that is provided to the
28
public is taken to be different from a service that is not provided to
29
the public, even if the content provided on the services is identical.
30
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9 Extended meaning of using
1
A reference in this Schedule to using a thing is a reference to using
2
the thing either:
3
(a) in isolation; or
4
(b) in conjunction with one or more other things.
5
10 Extra-territorial application
6
This Schedule extends to acts, omissions, matters and things
7
outside Australia.
8
Part 2--Online content service provider rules
9
10
11 Online content service provider rules
11
The ACMA may, by legislative instrument, make rules (the online
12
content service provider rules) prescribing matters required or
13
permitted by this Act to be prescribed by the online content service
14
provider rules.
15
12 Administrative decisions
16
The online content service provider rules may make provision for
17
or in relation to a particular matter by empowering the ACMA to
18
make decisions of an administrative character.
19
Part 3--Gambling promotional content
20
Division 1--Online content service provider rules relating
21
to gambling promotional content
22
13 Gambling promotional content
23
Prohibiting or regulating gambling promotional content
24
(1) The online content service provider rules may make provision for
25
or in relation to prohibiting or regulating gambling promotional
26
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Communications Legislation Amendment (Online Content Services and
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content provided on online content services in conjunction with
1
live coverage of a sporting event.
2
Note:
See also subsection 33(3A) of the Acts Interpretation Act 1901.
3
Explanatory content
4
(2) The online content service provider rules may make provision for
5
or in relation to requiring online content services providers to
6
ensure that, if:
7
(a) the provider provides an online content service; and
8
(b) content that consists of live coverage of a sporting event is,
9
or is to be, provided on the service;
10
explanatory content that relates to the following is provided on the
11
service:
12
(c) whether online content service provider rules made for the
13
purposes of subclause (1) apply in relation to that live
14
coverage;
15
(d) if so, how those rules apply in relation to that live coverage.
16
Record-keeping
17
(3) The online content service provider rules may make provision for
18
or in relation to requiring online content service providers to ensure
19
that, if:
20
(a) the provider provides an online content service; and
21
(b) content that consists of live coverage of a sporting event is,
22
or is to be, provided on the service;
23
the provider will:
24
(c) make records that:
25
(i) are of a kind or kinds specified in those rules; and
26
(ii) are sufficient to enable compliance by the provider with
27
online content service provider rules made for the
28
purposes of subclause (1) or (2) to be readily
29
ascertained; and
30
(d) retain those records for the period ascertained in accordance
31
with the first-mentioned rules; and
32
(e) make those retained records available to the ACMA on
33
request.
34
Note:
See also subsection 33(3A) of the Acts Interpretation Act 1901.
35
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(4) For the purposes of subparagraph (3)(c)(i), each of the following is
1
an example of a kind of record:
2
(a) a written record;
3
(b) an audio record;
4
(c) an audio-visual record.
5
End-user physically present in Australia
6
(5) Online content service provider rules made for the purposes of
7
subclause (1) or (2) do not apply in relation to content provided on
8
an online content service to an end-user unless the end-user is
9
physically present in Australia.
10
14 Accidental or incidental provision of gambling promotional
11
content
12
The online content service provider rules do not apply in relation to
13
the provision of gambling promotional content on an online
14
content service if:
15
(a) the gambling promotional content is provided as an
16
accidental or incidental accompaniment to the provision of
17
other content; and
18
(b) the provider of the online content service does not receive
19
any direct or indirect benefit (whether financial or not) for
20
providing the gambling promotional content (in addition to
21
any direct or indirect benefit that the provider receives for
22
providing the other content).
23
15 Individual exemptions from online content service provider rules
24
(1) The ACMA may, by writing, determine that a specified online
25
content service is exempt from online content service provider
26
rules made for the purposes of subclause 13(1) or (2).
27
(2) The ACMA may, by writing, determine that a specified online
28
content service is exempt from one or more specified provisions of
29
online content service provider rules made for the purposes of
30
subclause 13(1) or (2).
31
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(3) The ACMA may, by writing, determine that a specified online
1
content service provider is exempt from online content service
2
provider rules made for the purposes of subclause 13(1) or (2).
3
(4) The ACMA may, by writing, determine that a specified online
4
content service provider is exempt from one or more specified
5
provisions of online content service provider rules made for the
6
purposes of subclause 13(1) or (2).
7
Decision-making criteria
8
(5) In deciding whether to make a determination under subclause (1)
9
or (2) in relation to an online content service, the ACMA must
10
have regard to:
11
(a) whether the online content service is a small online content
12
service; and
13
(b) whether a failure to make the determination would be likely
14
to have a substantial adverse effect on the financial
15
circumstances of the provider of the online content service;
16
and
17
(c) the likely impact of a failure to make the determination on
18
the quantity and quality of content provided on the online
19
content service; and
20
(d) such other matters (if any) as the ACMA considers relevant.
21
(6) In deciding whether to make a determination under subclause (3)
22
or (4) in relation to an online content service provider, the ACMA
23
must have regard to:
24
(a) whether the online content services provided by the provider
25
are small online content services; and
26
(b) whether a failure to make the determination would be likely
27
to have a substantial adverse effect on the financial
28
circumstances of the provider; and
29
(c) the likely impact of a failure to make the determination on
30
the quantity and quality of the content provided on the online
31
content services provided by the provider; and
32
(d) such other matters (if any) as the ACMA considers relevant.
33
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Small online content service
1
(7) For the purposes of this clause, in determining whether an online
2
content service is a small online content service, the ACMA must
3
have regard to:
4
(a) if the service has accounts for end-users--the number of
5
accounts that are held by end-users who are ordinarily
6
resident in Australia; and
7
(b) if the service does not have accounts for end-users--the
8
number of end-users who are ordinarily resident in Australia;
9
and
10
(c) such other matters (if any) as the ACMA considers relevant.
11
(8) For the purposes of paragraphs (7)(a) and (b), the ACMA may
12
make such assumptions and estimates as the ACMA considers
13
reasonable.
14
(9) The ACMA may publish on the ACMA's website a statement that
15
explains the ACMA's approach to the administration of
16
subclauses (7) and (8).
17
(10) A statement under subclause (9) is not a legislative instrument.
18
Other matters
19
(11) A determination under this clause may be:
20
(a) unconditional; or
21
(b) subject to such conditions (if any) as are specified in the
22
determination.
23
(12) If the ACMA makes a determination under subclause (1), (2), (3)
24
or (4), the ACMA must publish a copy of the determination on the
25
ACMA's website.
26
(13) Subsection 13(3) of the Legislation Act 2003 does not apply to
27
subclause (1), (2), (3) or (4).
28
(14) A determination made under subclause (1), (2), (3) or (4) is not a
29
legislative instrument.
30
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Communications Legislation Amendment (Online Content Services and
Other Measures) Bill 2017
No. , 2017
16 Class exemptions from online content service provider rules
1
(1) The ACMA may, by legislative instrument, determine that online
2
content services included in a specified class of online content
3
services are exempt from online content service provider rules
4
made for the purposes of subclause 13(1) or (2).
5
(2) The ACMA may, by legislative instrument, determine that online
6
content services included in a specified class of online content
7
services are exempt from one or more specified provisions of
8
online content service provider rules made for the purposes of
9
subclause 13(1) or (2).
10
(3) The ACMA may, by legislative instrument, determine that online
11
content service providers included in a specified class of online
12
content service providers are exempt from online content service
13
provider rules made for the purposes of subclause 13(1) or (2).
14
(4) The ACMA may, by legislative instrument, determine that online
15
content service providers included in a specified class of online
16
content service providers are exempt from one or more specified
17
provisions of online content service provider rules made for the
18
purposes of subclause 13(1) or (2).
19
(5) A determination under this clause may be:
20
(a) unconditional; or
21
(b) subject to such conditions (if any) as are specified in the
22
determination.
23
Division 2--Interpretive provisions
24
17 When a part of an online content service is taken to be an online
25
content service in its own right
26
(1) For the purposes of the application of this Schedule to a sporting
27
event, if content that consists of live coverage of the sporting event
28
is, or is to be, provided on a distinct part of an online content
29
service (the overall online content service):
30
(a) that part is taken to be an online content service in its own
31
right; and
32
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27
(b) that part is taken not to be included in the overall online
1
content service.
2
(2) For the purposes of subclause (1), it is immaterial whether:
3
(a) gambling promotional content; or
4
(b) any other content;
5
is, or is to be, provided on that part.
6
18 Gambling service
7
For the purposes of this Schedule, gambling service means:
8
(a) a service for the placing, making, receiving or acceptance of
9
bets; or
10
(b) a service the sole or dominant purpose of which is to
11
introduce individuals who wish to make or place bets to
12
individuals who are willing to receive or accept those bets; or
13
(c) a service for the conduct of a lottery; or
14
(d) a service for the supply of lottery tickets; or
15
(e) a service for the conduct of a game, where:
16
(i) the game is played for money or anything else of value;
17
and
18
(ii) the game is a game of chance or of mixed chance and
19
skill; and
20
(iii) a customer of the service gives or agrees to give
21
consideration to play or enter the game; or
22
(f) a gambling service (within the ordinary meaning of that
23
expression) that is not covered by any of the above
24
paragraphs.
25
19 Sporting event
26
(1) Each of the following is taken to be a sporting event for the
27
purposes of this Schedule:
28
(a) the Summer Olympic Games;
29
(b) the Winter Olympic Games;
30
(c) the Commonwealth Games;
31
(d) any similar games.
32
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Communications Legislation Amendment (Online Content Services and
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(2) The online content service provider rules may provide that a
1
specified thing is taken to be a sporting event for the purposes of
2
this Schedule.
3
(3) The online content service provider rules may provide that a
4
specified thing is taken not to be a sporting event for the purposes
5
of this Schedule.
6
(4) The following are examples of things that may be specified in the
7
online content service provider rules made for the purposes of
8
subclause (2) or (3):
9
(a) a match;
10
(b) a series of matches;
11
(c) a race;
12
(d) a series of races;
13
(e) a stage;
14
(f) a time trial;
15
(g) a qualification session;
16
(h) a tournament;
17
(i) a round.
18
(5) For the purposes of this clause, thing includes a series of things.
19
20 Live coverage of a sporting event
20
For the purposes of this Schedule, if:
21
(a) content that consists of live coverage of a sporting event is
22
provided on an online content service; and
23
(b) there is an unscheduled break in the sporting event;
24
any content provided on the service during the break is taken to be
25
content that consists of live coverage of the sporting event.
26
21 Gambling promotional content provided in conjunction with live
27
coverage of a sporting event
28
(1) For the purposes of this Schedule, gambling promotional content
29
(other than a commentator betting odds promotion or a
30
representative venue-based promotion) is provided on an online
31
content service in conjunction with live coverage of a sporting
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event if, and only if, the content is provided on the service during
1
the period:
2
(a) beginning 5 minutes before the scheduled start of the sporting
3
event; and
4
(b) ending 5 minutes after the conclusion of the sporting event.
5
(2) However, if coverage of the sporting event is delayed, this clause
6
has effect as if there were a corresponding delay to the period
7
mentioned in subclause (1).
8
(3) For the purposes of this Schedule, gambling promotional content
9
that consists of a commentator betting odds promotion or a
10
representative venue-based promotion is provided on an online
11
content service in conjunction with live coverage of a sporting
12
event if, and only if, the promotion is provided on the service
13
during the period:
14
(a) beginning 30 minutes before the scheduled start of the
15
sporting event; and
16
(b) ending 30 minutes after the conclusion of the sporting event.
17
(4) However, if coverage of the sporting event is delayed, this clause
18
has effect as if there were a corresponding delay to the period
19
mentioned in subclause (3).
20
22 Scheduled start of a sporting event
21
The online content service provider rules may provide that, for the
22
purposes of the application of this Schedule to a specified sporting
23
event, scheduled start has the meaning given by the online content
24
service provider rules.
25
Note:
For specification by class, see subsection 13(3) of the Legislation Act
26
2003.
27
23 Conclusion of a sporting event
28
The online content service provider rules may provide that, for the
29
purposes of the application of this Schedule to a specified sporting
30
event, conclusion has the meaning given by the online content
31
service provider rules.
32
Note:
For specification by class, see subsection 13(3) of the Legislation Act
33
2003.
34
Schedule 1 Online content services
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Communications Legislation Amendment (Online Content Services and
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No. , 2017
Part 4--Complaints
1
2
24 Complaints to ACMA--online content service provider rules
3
(1) If a person has reason to believe that an online content service
4
provider has contravened the online content service provider rules,
5
the person may make a complaint to the ACMA about the matter.
6
(2) The ACMA may conduct an investigation into the complaint if it
7
thinks that it is desirable to do so, but is not required to conduct an
8
investigation.
9
Note:
One of the ACMA's functions is to monitor compliance with the
10
online content service provider rules.
11
Part 5--Enforcement
12
13
25 Compliance with the online content service provider rules
14
(1) An online content service provider must not contravene the online
15
content service provider rules.
16
Civil penalty provision
17
(2) Subclause (1) is a civil penalty provision.
18
(3) An online content service provider who contravenes subclause (1)
19
commits a separate contravention of that subclause in respect of
20
each day (including a day of the making of a relevant civil penalty
21
order or any subsequent day) during which the contravention
22
continues.
23
Designated infringement notice provision
24
(4) Subclause (1) is a designated infringement notice provision.
25
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26 Remedial directions--breach of the online content service
1
provider rules
2
Scope
3
(1) This clause applies if an online content service provider has
4
contravened, or is contravening, the online content service provider
5
rules.
6
Remedial directions
7
(2) The ACMA may give the provider a written direction requiring the
8
provider to take specified action directed towards ensuring that the
9
provider does not contravene the online content service provider
10
rules, or is unlikely to contravene the online content service
11
provider rules, in the future.
12
Note:
For variation and revocation, see subsection 33(3) of the Acts
13
Interpretation Act 1901.
14
(3) The following are examples of the kinds of direction that may be
15
given to an online content service provider under subclause (2):
16
(a) a direction that the provider implement effective
17
administrative systems for monitoring compliance with the
18
online content service provider rules;
19
(b) a direction that the provider implement a system designed to
20
give the provider's employees, agents and contractors a
21
reasonable knowledge and understanding of the requirements
22
of the online content service provider rules, in so far as those
23
requirements affect the employees, agents or contractors
24
concerned.
25
(4) An online content service provider must not contravene a direction
26
under subclause (2).
27
Civil penalty provision
28
(5) Subclause (4) is a civil penalty provision.
29
(6) An online content service provider who contravenes subclause (4)
30
commits a separate contravention of that subclause in respect of
31
each day (including a day of the making of a relevant civil penalty
32
Schedule 1 Online content services
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Communications Legislation Amendment (Online Content Services and
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No. , 2017
order or any subsequent day) during which the contravention
1
continues.
2
Notice
3
(7) For the purposes of this Act and the Australian Communications
4
and Media Authority Act 2005, a direction under subclause (2) is
5
taken to be a notice under this Schedule.
6
Part 6--Miscellaneous
7
8
27 Minister may direct the ACMA about the exercise of its powers
9
(1) The Minister may, by legislative instrument, give the ACMA a
10
direction about the exercise of the powers conferred on the ACMA
11
by this Schedule (other than Part 4 or 5).
12
(2) The ACMA must comply with a direction under subclause (1).
13
28 Service of notices by electronic means
14
Paragraphs 9(1)(d) and (2)(d) of the Electronic Transactions Act
15
1999 do not apply to:
16
(a) a notice under this Schedule; or
17
(b) a notice under any other provision of this Act, so far as that
18
provision relates to this Schedule.
19
Note:
Paragraphs 9(1)(d) and (2)(d) of the Electronic Transactions Act 1999
20
deal with the consent of the recipient of information to the information
21
being given by way of electronic communication.
22
29 Service of summons, process or notice on corporations
23
incorporated outside Australia
24
Scope
25
(1) This clause applies to:
26
(a) a summons or process in any proceedings under, or
27
connected with, this Schedule; or
28
(b) a notice under this Schedule; or
29
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33
(c) a notice under any other provision of this Act, so far as that
1
provision relates to this Schedule;
2
where:
3
(d) the summons, process or notice, as the case may be, is
4
required to be served on, or given to, a body corporate
5
incorporated outside Australia; and
6
(e) the body corporate does not have a registered office or a
7
principal office in Australia; and
8
(f) the body corporate has an agent in Australia.
9
Service
10
(2) The summons, process or notice, as the case may be, is taken to
11
have been served on, or given to, the body corporate if it is served
12
on, or given to, the agent.
13
(3) Subclause (2) has effect in addition to section 28A of the Acts
14
Interpretation Act 1901.
15
Note:
Section 28A of the Acts Interpretation Act 1901 deals with the service
16
of documents.
17
30 This Schedule does not limit Schedule 5 or 7
18
This Schedule does not limit the operation of Schedule 5 or 7.
19
31 Schedule 5 or 7 does not limit this Schedule
20
Schedule 5 or 7 does not limit the operation of this Schedule.
21
32 Implied freedom of political communication
22
(1) The provisions of:
23
(a) this Schedule; and
24
(b) the online content service provider rules;
25
have no effect to the extent (if any) that their operation would
26
infringe any constitutional doctrine of implied freedom of political
27
communication.
28
(2) Subclause (1) does not limit the application of section 15A of the
29
Acts Interpretation Act 1901 to this Act.
30
Schedule 1 Online content services
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Communications Legislation Amendment (Online Content Services and
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33 Acquisition of property
1
The provisions of:
2
(a) this Schedule; and
3
(b) the online content service provider rules;
4
have no effect to the extent (if any) to which their operation would
5
result in an acquisition of property (within the meaning of
6
paragraph 51(xxxi) of the Constitution) from a person otherwise
7
than on just terms (within the meaning of that paragraph).
8
34 Concurrent operation of State and Territory laws
9
It is the intention of the Parliament that this Schedule is not to
10
apply to the exclusion of a law of a State or Territory to the extent
11
to which that law is capable of operating concurrently with this
12
Schedule.
13
35 Schedule not to affect performance of State or Territory
14
functions
15
A power conferred by this Schedule must not be exercised in such
16
a way as to prevent the exercise of the powers, or the performance
17
of the functions, of government of a State, the Northern Territory
18
or the Australian Capital Territory.
19
Enhancing Online Safety Act 2015
20
23 Section 98 (heading)
21
Repeal the heading, substitute:
22
98 This Act does not limit Schedule 5, 7 or 8 to the Broadcasting
23
Services Act 1992
24
24 Section 98
25
Omit "or 7", substitute ", 7 or 8".
26
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