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2016-2017
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
COMMUNICATIONS LEGISLATION AMENDMENT (ONLINE CONTENT
SERVICES AND OTHER MEASURES) BILL 2017
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Communications,
Senator the Honourable Mitch Fifield)
COMMUNICATIONS LEGISLATION AMENDMENT (ONLINE
CONTENT SERVICES AND OTHER MEASURES) BILL 2017
OUTLINE
In May 2017 the Government announced the Broadcast and Content Reform Package. The
Package includes reforms that are intended to improve the sustainability of Australia's free-to-
air broadcasting sector, support the creation of high quality Australian content and modernise
broadcasting and content regulation. The Package also includes community safeguards in the
form of additional restrictions on gambling promotions during live coverage of sporting events
provided on broadcast, subscription and online platforms. The additional restrictions will
prohibit gambling promotions from five minutes before the scheduled start of the sporting event
until five minutes after the conclusion of the sporting event, where the event occurs between the
hours of 5:00am and 8:30pm.
The Communications Legislation Amendment (Online Content Services and Other Measures)
Bill 2017 (Online Content Services Bill) will establish a legislative framework that can be used
to apply these gambling promotions restrictions to 'online content services'.
It is intended that the new gambling promotions restrictions will be applied to broadcasting
services regulated under the Broadcasting Services Act 1992 (BSA) via amendments to relevant
industry codes of practice. However, the Online Content Services Bill will also establish a
regulatory mechanism that can be used to apply the new gambling promotions restrictions to
broadcasting services should negotiations to amend industry codes of practice fail.
Specifically the Online Content Services Bill will:
create a regulatory framework (online content service provider rules) which can be used
by the Australian Communications and Media Authority (ACMA) to impose gambling
promotions restrictions on online content service providers; and
provide the ACMA with the power to (if directed by the Minister) determine program
standards about gambling promotional content which apply to certain broadcasters and
subscription providers.
Schedule 8 (Online content services)
The Online Content Services Bill proposes to add Schedule 8 to the BSA. Schedule 8 is an
enabling framework that will allow the ACMA to make rules which set out the gambling
promotions restrictions that apply to online content service providers. The online content service
provider rules will be a legislative instrument for the purposes of the Legislation Act 2003, and
subject to parliamentary scrutiny and disallowance.
Application of Schedule 8
New Schedule 8 defines 'online content service provider' to mean a person who provides an
online content service. In general terms, an online content service is a service that: delivers, or
allows end-users to access, content using an internet carriage service; is provided to the public;
and, has a geographical link to Australia. A service will have a geographical link to Australia if
an ordinary reasonable person would conclude that: the service is targeted at individuals who
are physically present in Australia; or, any of the content provided on the service is likely to
appeal to the public, or a section of the public, in Australia.
Rules determined under Schedule 8 will not apply to 'exempt online simulcast services' as
defined in the Schedule. A service will be an exempt online simulcast service where it does no
2
more than provide a stream of content that is identical (disregarding differences due to technical
characteristics and watermarks) to that provided on one of the listed categories of broadcasting
services, and the stream of content is provided simultaneously or almost simultaneously with
the content provided on the broadcast service.
Service provider rules
Under Schedule 8 the ACMA will be able to make service provider rules for or in relation to
prohibiting or regulating 'gambling promotional content' provided on online content services
'in conjunction with' 'live' 'coverage' of a 'sporting event'. Schedule 8 defines, or gives
guidance on the meaning of, the terms 'gambling promotional content', 'live', 'coverage', 'in
conjunction with', and 'sporting event'.
The term 'gambling promotional content' is defined in a manner that is intended to include in-
program promotions, program sponsorship announcements and spot advertisements. The term
'live', in relation to coverage of a sporting event, would include both real time and delayed
coverage where the delayed coverage is provided as if it were live, as long as that coverage
commences before the conclusion of the actual sporting event. The term 'sporting event' is
defined to include the Olympic Games, Commonwealth Games, and other similar games, and
the online content service provider rules may, for certainty, provide that a specified thing is
taken to be (or not to be) a 'sporting event' for the purposes of Schedule 8. This means that the
rules may specify that particular activities, for example horse racing events, are not sporting
events for the purposes of Schedule 8. The term 'sporting event' otherwise has its ordinary
meaning.
Schedule 8 provides that, for the purposes of the schedule, gambling promotional content that
consists of commentator betting odds promotions or a gambling service provider representative
venue-based promotion will be regarded as being provided in conjunction with live coverage of
a sporting event if it is provided during the period beginning 30 minutes before the scheduled
start of the sporting event and ending 30 minutes after the conclusion of the sporting event. This
reflects existing gambling promotions restrictions in relevant broadcasting industry codes.
Further, all other gambling promotional content will be taken to be provided on an online
content service 'in conjunction with' live coverage of a sporting event if the content is provided
on the service during the period beginning five minutes before the scheduled start of the
sporting event and ending five minutes after the conclusion of the sporting event, reflecting the
Government's intended additional restrictions.
Given the online content service provider rules may regulate live coverage of a wide variety of
sporting events, the rules will also be able to provide that, for the purposes of the application of
Schedule 8 to a specific sporting event, 'scheduled start' and 'conclusion' has the meaning set
out in the rules.
Exemptions
The Government recognises that there are a wide variety of online content services, with
different business models and technical characteristics, and that the online content service
provider rules will not need to regulate all online content services.
Accordingly, Schedule 8 will empower the ACMA to, by writing, determine that a specific
online content service, or a specific online content service provider, is exempt from the online
content service provider rules. Schedule 8 sets out criteria the ACMA must have regard to when
making such an exemption decision. A refusal to make, as well as a decision to vary or revoke,
an individual exemption determination will be subject to merits review by the Administrative
Appeals Tribunal
3
Schedule 8 will also empower the ACMA to, by legislative instrument, determine that online
content services or online content service providers included in a specified class of online
content services are exempt from the online content service provider rules or from specified
provisions of these rules.
Compliance and enforcement
It is anticipated that investigations of potential breaches of the online content service provider
rules will be largely complaints driven. The online content service provider rules may also
require relevant online content service providers to keep records that will allow the ACMA to
ascertain whether they have been complying with the rules.
Part 5 of new Schedule 8 (in conjunction with existing BSA provisions) sets out the
mechanisms that may be used to enforce compliance with the online content service provider
rules. In particular:
if an online content service provider contravenes the online content service provider
rules, the provider may become liable to pay a civil penalty;
the ACMA may give a remedial direction to an online content service provider if the
provider contravenes the online content service provider rules; and
infringement notices may also be issued for contraventions of online content service
provider rules, as an alternative to the institution of court proceedings.
Program standards - Commercial and Subscription providers
Proposed new section 125A is intended to provide the Minister with the power to direct the
ACMA to apply the new gambling promotions restrictions to relevant broadcasting service
providers, in relation to their broadcasting services, should existing industry codes of practice
not be amended to include the restrictions.
New section 125A of the BSA will require the ACMA to, if directed by the Minister, determine
a program standard about the broadcasting of gambling promotional content. Such a program
standard may provide for or relate to prohibiting or regulating the broadcast of gambling
promotional content in conjunction with live coverage of a sporting event on services provided
by:
commercial television broadcasting licensees;
commercial radio broadcasting licensees;
subscription television broadcasting licensees;
providers of subscription radio narrowcasting services; and/or
providers of subscription television narrowcasting services.
A program standard made under section 125A is intended to only be made if existing industry
codes of practice are not amended to include the new gambling promotions restrictions. Section
125A contains similar terms, provisions, and concepts to Schedule 8 and it is anticipated that a
program standard made under section 125A would, to the extent appropriate, be similar to the
service provider rules made under Schedule 8.
FINANCIAL IMPACT STATEMENT
The measures in the Bill are not expected to have any direct financial impact on Commonwealth
revenue or expenditure.
4
REGULATION IMPACT STATEMENT
Gambling advertising - regulation impact statement
Context
The Commonwealth recognises that there is significant community concern with the scheduling
and quantity of gambling advertising during the broadcast of live sporting events on television,
particularly in the context of its impact on child audiences. This Regulation Impact Statement
considers the scope of the issue, its impact on audiences, potential options to restrict gambling
advertising and an identified course of action.
How is gambling advertising currently regulated?
Gambling services are promoted on broadcast services primarily through spot commercials or
advertisements, 'in-program' promotions and sponsorship announcements. The scheduling,
placement and content of gambling advertisements are currently regulated via broadcast
industry codes of practice, the Interactive Gambling Act 2001, a range of State and Territory
regulations, and via the self-regulatory framework for advertising established by the Australian
Association of National Advertisers. There are comparatively few regulatory requirements on
commercial radio and subscription television (largely limited to the promotion of betting odds
during live sports events), and none on competing online services, for example Optus Sport.
The broadcast co-regulatory framework responsibility for ensuring that broadcast codes of
practice reflect appropriate community standards, including matters relating to the placement
and scheduling of advertisements, lies with the Australian Communications and Media
Authority (ACMA). The Commonwealth does not have any formal role in the code review and
registration process.
The ACMA's role is limited to its responsibilities as part of the co-regulatory scheme for
broadcast industry codes of practice. It has no role in relation to the advertising self-regulatory
framework which governs the content of advertisements, or advertising in the print press.
Responsibility for gambling advertising in public spaces including thoroughfares and sporting
grounds, and on sports apparel, lies with the States and Territories.
The problem
While there are a number of 'time of day' and classification related restrictions on commercial
free-to-air television that are intended to reduce children's exposure to gambling promotions,
these do not apply to sports and news broadcasts. In addition, restrictions in relation to live
sporting events, outlined in Appendix 3 of the Commercial Television Industry Code of Practice
(the code), do not restrict broader gambling advertising immediately prior to the match and in
breaks with the result that there are significant levels of gambling advertising associated with
live sporting events.
There is less concern where these events are broadcast after 8:30 pm as children are less likely
to be viewing at this time however many sports events commence between 7pm and 8pm or
take place on weekend afternoons when there are significant child audiences. Children are thus
exposed to significant levels of gambling advertising on television which risks increasing
adolescents' desire to experiment with gambling. Increased exposure to gambling
5
advertisements has also been associated with more positive youth gambling attitudes and
intentions towards gambling.1
In a recent study, children aged 8-16 who regularly watched Australian Football League (AFL)
and National Rugby League (NRL) matches were more able to accurately recall the names of
sports betting brands (eg Sportsbet, TAB) compared to other sports like soccer. Further, many
children were able to describe gambling sponsorships associated with AFL and NFL player
uniforms.2 This demonstrates the 'normalising' effect of gambling and how intertwined it
becomes with the sport itself. Gambling and sport are no longer disparate entities in the eyes of
children but have become enmeshed.
The images associated with sport promote gambling as healthy, harmless fun which, like sport
relies on a player's skill to influence the outcome. Further, advertisements convey a message
that the excitement of watching a sporting match will be enhanced by betting on the outcome of
the game. This portrayal, combined with saturation advertising (on television, online, on player
uniforms and at sporting grounds) leads to gambling becoming culturally embedded and is
thought to 'prime' children to become consumers of gambling products.3 It is also believed to be
a significant contributor to youth, particularly young males becoming problem gamblers.4 One
study reports that whilst the legal age to gamble may be 18 years or older, an estimated 50-70
per cent of young people are engaging in gambling in the form of lotteries, raffles and tipping
competitions before reaching this age. And those that become problem gamblers in later life
reported that they had gambled at a young age.5
Research from another study found that 63 per cent to 82 per cent of teenagers (12 to 17 years
of age) gamble each year, 4 per cent to 7 per cent of adolescents exhibit serious patterns of
pathological gambling, and 10 per cent to 15 per cent are at risk for either developing or
returning to a serious gambling problem6.
Gambling does not simply have a financial impact on teenagers. Other studies7 have found
strong associations between problem gambling and other maladaptive behaviours, including
delinquency, substance use, gorging/vomiting, and unprotected sex, as well as mood and
personality disorders, criminality, disrupted social relationships, poorer educational outcomes,
and suicidal ideation and attempts.
Research into the harmful effects of gambling advertising is ongoing and suggests there is a
strong correlation between exposure to gambling promotions at a young age leading children to
become problem gamblers in later life. According to the University of Sydney's Gambling
Treatment Clinic, where once poker machines were a key issue, their clientele is now
predominantly young (18-25 year olds) men who have a problem with online betting. This type
of wagering service is often heavily promoted broadcast during sporting events, for example,
the State of Origin.
1
Australian Gambling Research Centre Discussion Paper No.4 - November 2014 Sports betting and advertising
Available at: https://aifs.gov.au/agrc/publications/sports-betting-and-advertising/impacts-gambling-advertising.
2
Victorian Responsible Gambling Foundation research report: Child and parent recall of gambling sponsorship in
Australian sport, May 2016 Available at: www.responsiblegambling.vic.gov.au/information-and-resources/research/giro-
research-updates/january-2017/child-and-parent-recall-of-gambling-sponsorship-in-australian-sport
3 Ibid.
4
Ibid
b
Ibid
5
Journal of Gambling Issues: Issue 22, December 2008: Impact of gambling advertisements and marketing on children
and adolescents: Policy recommendations to minimise harm by Sally Monaghan, Jeffrey Derevensky & Alyssa Sklar,
School of Psychology, The University of Sydney Available at:
http://youthgambling.mcgill.ca/en/PDF/Publications/2008/Monaghan%20Derevensky%20Sklar.pdf
6
Ibid.
6
The evidence discussed above does not establish causality however there is a sufficient
association between the two to be of concern. One doctor from the Gambling Treatment Clinic
makes the same observation, noting that the rise of gambling in male youth seems to have
occurred at the same time as increase in marketing of sports betting8.
Thus it is a combination of all the aforementioned factors that necessitates some form of
intervention to reduce the number of gambling advertisements during live sports events.
Community attitudes to gambling advertising
The ACMA has identified a perception that the frequency of gambling-related advertising
during live sports broadcasts and sport-related television programmes has grown significantly.
The ACMA research, which aimed to gauge community attitudes towards gambling advertising
during sports programming, found that around two-thirds of respondents were of the view that it
was unacceptable to promote odds and betting advertisements during live sport, and 62 per cent
thought it was unacceptable to have advertisements for betting agencies during live sport.9
In addition, a 2015 study into the impact of the marketing of sports betting and racing on
gambling behaviour among Australians found that while racing marketing is particularly
prevalent, people are most concerned about gambling promotions and advertisements during
sports broadcasts on television.10
Further, the Department has received and continues to receive a significant amount of
correspondence from the community, expressing concern about the impact of gambling
advertising on child audiences. In a recent campaign the Department received over 1150 emails
calling for gambling advertising in association with live sport to be banned.
Gambling advertising during live sports programs
Data indicates that, on average, there are double the number of gambling advertisements shown
during sports programs when compared to other types of programs. Analysis has identified that
there are generally between 7 and 12 gambling promotions per match in popular sports such as
the NRL and AFL, the majority of these in pre-match programming. The evidence indicates that
there has been a sharp increase in the prevalence of gambling advertising generally in the last 5
years, and particularly during sports programs.11
The media has reported that during the opening round of the 2016 AFL season, more than one
in six advertisements broadcast during televised matches were gambling advertisements, with
gambling the second biggest advertising category after automotive advertisements.12 Data
sourced form Nielsen indicates that there are significant spikes in gambling advertising during
times traditionally associated with weeknight and weekend sports viewing. For example on
weekdays, including Fridays, there is a significant spike in the amount of gambling
advertisements shown between 7:30 and 8:00 pm.
8
See www.abc.net.au/news/2015-05-28/online-gambling-addictions-among-young-men-dramatic-increase/6504282
9
See http://www.acma.gov.au/theACMA/community-attitudes-to-live-odds-and-sport-report.
10
ORC International, Marketing of Sports Betting and Racing, May 2015, p212.
11
Analysis by the Department of Communications and the Arts including viewing of relevant programming.
12
See www.theage.com.au/victoria/gambling-ads-dominate-footys-round-one-broadcasts-20160331-gnvpvr.html
7
Source: Nielson
On Saturdays and Sundays gambling advertisements are more evenly spread with a spike
between 2:30 and 3:00 pm, consistent with pre-match programmes for afternoon sports events.
Source: Nielson
8
Children's exposure to gambling advertising?
As the graph above indicates there are significant amounts of gambling advertising during
daytime television hours when children are more likely to be viewing. It is clear that the sports
programming targeted by gambling advertisers is popular with young audiences. The ACMA's
research found that in 2012 the AFL Grand Final and the third Rugby League State of Origin
Match were amongst the highest rating television programmes for children aged 5-9 years and
10-12 years old respectively.
More recently OzTAM data indicates that of the top five programs watched by children aged up
to 14 in the first half of 2015, three were live sports events or sports-related programming,
attracting child audiences of well over 200 000.13 Advertising during these events is viewed by
parents and children alike. In a recent survey14, 48 per cent of adolescents were classed as
having experienced a 'high' level of exposure to gambling advertising during traditional sports
and 36 per cent for race betting events. The same study made clear associations with problem
gambling in later life, stating that approximately four in ten problem (43 per cent) and moderate
risk gamblers (40 per cent) were classified as having experienced a 'high' level of exposure to
sports betting marketing.
Given the significance of issues associated with problem gambling, the exposure of young and
vulnerable audiences to large volumes of gambling advertising is of particular concern. Analysis
by the Australian Gambling Research Centre has identified that advertisements can increase
adolescents' desire to experiment with gambling, and increased exposure to gambling
advertisements has been associated with more positive youth gambling attitudes and intentions
towards gambling.15
Sports betting marketing made one third of adolescents more likely to want to bet on sports, the
research found. Other studies have found a strong association between gambling advertising and
children's ability to recall gambling services, and that saturated sports betting advertising can
normalise and legitimise gambling uptake at a young age.16 There is a perception that
familiarisation with these brands and the association with sports tends to normalise gambling
among children and influence their attitudes and consumption intentions17, a key concern for
parents.
In relation to the broader community, and the advertising of gambling services during the
broadcast of sports events particularly, research has found that the saturation marketing of
wagering brands during television broadcasts has embedded sports betting within the game by
aligning sports betting with fans' overall experience of the game, and encouraging individuals
to bet live.18
Expenditure on gambling advertising
Broadcasters derive significant revenue from gambling advertising. In 2015, collectively free-
to-air television broadcasters received more than $106 million in gambling advertising revenue.
13
Data provided by OzTAM, for internal use only.
14
See https://www.gamblingresearch.org.au/publications/marketing-of-sports-betting-and-racing-report-2015
15
See https://aifs.gov.au/agrc/publications/sports-betting-and-advertising/impacts-gambling-advertising.
16
For instance see University of Wollongong, Children's implicit recall of junk food, alcohol and gambling sponsorship in
Australian sport, 2015, and AGRC, Sports betting and advertising, 2014.
17
ibid
18
See www.dhhs.tas.gov.au/__data/assets/pdf_file/0006/170772/Sports_Betting_Literature_Review.pdf
9
Source: Nielsen
In addition to this, research indicates that generally television is the preferred medium for the
major betting companies.
Source: Nielsen
Analysis of the data found that expenditure on advertising by gambling companies on free-to-air
television has increased by a factor of 2.5 between 2011 and 2015. The analysis also found that
there is a significantly higher proportion of gambling advertising during sports programs
compared to other types of programs.
10
Source: Nielson
The need for Commonwealth action
As noted above gambling restrictions are set out in industry codes of practice which are
negotiated between industry and the ACMA, taking into account public feedback on draft code
provisions. Before a code is registered the ACMA is required to ensure that it reflects
appropriate community standards.19 While the Minister for Communications does not have a
formal role in the code registration process, it is open to the Commonwealth to request the
ACMA and industry to consider code amendments where the Commonwealth considers that
community standards are not adequately addressed, or to legislate additional restrictions where
code amendments are not subsequently made.
The code was recently reviewed in late 2014 and 2015, and a new code has been registered by
the ACMA, taking effect on 1 December 2015. The 2015 code adopted, in substance, the same
gambling restrictions that existed in the previous code. However, it is considered that the
increasing quantity of gambling advertisements, and their scheduling within time periods and
sports programs viewed by children, has resulted in the existing code no longer fully addressing
community concerns, nor including adequate community safeguards. As such Commonwealth
intervention is required to ensure that adequate community safeguards are included in the code
or that legislation is amended to the same effect.
Whilst the information presented has largely been skewed to a television-based audience, it is
important to note the growth of other viewing platforms.
In the last 5 years, the commercial broadcasting market has seen a sizeable shift in the way
people watch sports. With over 60 million hours of sporting content consumed by Australians at
home each week, the growth of on-demand services has exploded. It is estimated that there has
been a 57 per cent growth in the proportion of Australians watching sports online since 201520.
This move away from traditional broadcasting viewing is applicable across all age groups, with
Australians aged 16-21 spending some 5.8 hours a week watching sports online, and 3.4 million
(or 21 per cent) of these fans spending over 8 hours a week online watching sports.
19
Section 123(4)(b)(i), Broadcasting Services Act 1992.
20
See www.nbnco.com.au/content/dam/nbnco2/documents/2017-nbn-Report%20Design-FA-future-of-sport-HR.pdf
11
Telstra reports that online streamed AFL and NRL viewing increased by over 70 per cent and
100 per cent respectively in the 2014-15 financial year. Similarly, in 2015 when the Australian
Open was streamed online for the first time, it was watched by 3 million viewers on commercial
television compared to over 4 million online viewers and almost a quarter of a million
downloads21.
It should also be noted that a vast majority of Australians watch a mixture of commercial
television and on-demand services. For those viewers who watch sports in this multi-platform
format, exposure to promotional material is doubled.
Unlike advertising over free-to-air or subscription television broadcasts which is regulated
through industry codes and backed by legislation, advertising during sports programming
watched over the internet remains unregulated. There is no recognised industry group or co-
regulatory framework for online services.
For these reasons, the options below have been expanded to cover all viewing platforms:
commercial television, commercial radio, subscription television and radio, the Special
Broadcasting Service (SBS), online television and radio 'like' programs, including 'catch-up'
services, and live online streaming.
A range of potential options for dealing with the matters raised in this analysis is outlined
below.
Options and Analysis
Option One: Active monitoring of issues but no change to arrangements
Description
Leave existing gambling restrictions set out under the co-regulatory framework unchanged and
conduct further research into the potential harms caused by exposing child audiences to
gambling advertising.
Assessment
Under the current framework, broadcasters are already subject to regulation in relation to when
they can show gambling advertisements or promote live odds. This places limitations on when
this type of advertising is shown, for example they cannot be broadcast during P, C, or G-rated
programs during morning and afternoon time zones, nor any program principally directed at
children from 5:00 am to 8:30 pm. Sports betting firms offer a lawful service and further
restrictions would impact the normal commercial operations of what are legitimate businesses.
An option for addressing community concerns is to facilitate research that would enable a better
understanding of the extent to which community concerns are valid. This option is consistent
with the Commonwealth's response to the 2015 Review of the Impact of Illegal Offshore
Wagering.
Recommendation one was that "Commonwealth, State and Territory governments should
recommit to Gambling Research Australia to ensure that research funds are directed towards
maximising the information available to policy makers, academics, the community and industry
21
See www.sevenwestmedia.com.au/docs/default-source/business-unit-news/seven-s-australian-open-peaks-at-3-37m-
for-novak-s-high-five.pdf?sfvrsn=2
12
about the nature, prevalence and impact of gambling across Australia". The findings of this
research would inform the Commonwealth's response.
There are significant short-comings to a 'do-nothing' option. Community concerns about the
prevalence and potential impacts of gambling advertising on free-to-air television represent a
perception that existing rules do not reflect community standards. In addition, broadcasters
derive significant revenue from gambling advertising and are unlikely to reduce the number of
advertisements of their own volition. Without reform to the rules, vulnerable audiences will
continue to be exposed to gambling promotions during live sport, which research indicates
encourages children to experiment with gambling and encourages problem gamblers to gamble.
Option Two: Prohibit gambling advertising around the broadcast of live sports from start
of play until conclusion ('siren to siren'), across all platforms
Description
This option would prohibit gambling advertisements from being shown from the scheduled start
of play until the conclusion of play ('siren to siren') for a live sporting event, between 5.00 am
and 8.30 pm, and would apply to broadcast, internet and other means. This approach would
apply to 'live streaming' services such as Foxtel Go, Optus Sport, Telstra AFL Live Pass, NRL
Digital Pass and online services offered by broadcasters. Regulatory obligations that would be
introduced to enable this option would not extend to gambling advertisements at sporting
grounds or on sporting apparel, as regulatory arrangements covering these are matters for States
and Territories.
Assessment
Children: This option affords a strong level of protection for children who, as a result of the
changes would have limited exposure to gambling advertising. This option directly addresses
community concerns which centre on the normalisation of gambling and its association with
sporting events. However this option would not prevent children being exposed to gambling
advertising immediately prior to the commencement of play. Sports programs viewed by the
Department indicate that there are up to three gambling advertisements in the last five minutes
before the commencement of play - a time when many children would be settling down prior to
viewing the event.
Broadcasters/platforms: This option will have a negative impact on the revenue various sports
platforms earn from transmitting live sports events. Based on data provided to the Department,
it is estimated that free to air and subscription broadcasters will lose approximately $15 million
if this option were implemented. The impact on online platforms is difficult to assess given the
lack of data in relation to gambling advertising during sports events on these platforms.
However the Department notes that most online streaming of sports programs is undertaken by
traditional broadcasters, and policy changes affecting traditional broadcasts are likely to flow
through to related online transmissions.
Gambling firms: This option would have the most significant impact on a gambling firm's
ability to advertise their services on audio and audio-visual platforms. The financial impact is
difficult to estimate as there would be a trade-off between the capacity of firms to 'migrate'
advertising spends to other platforms, the impact of reduced advertising on each business, for
example in market share, and the expenditure potentially saved by reduced advertising.
Sporting organisations: Option two has the potential to devalue exclusive broadcast rights and
product fee agreements with major sporting organisations.
13
Option Three: Prohibit gambling advertising around the broadcast of live sports from five
minutes before the start of play until five minutes after, across platforms
Description
This option would build on option two by prohibiting gambling advertisements from being
shown five minutes prior to the commencement of a live sporting event, during the event itself
and for five minutes after the event has concluded, between 5.00 am and 8.30 pm and applies to
broadcast, internet and other means.
Assessment
Children: This option affords a strong level of protection for children who, as a result of the
changes would have limited exposure to gambling advertising. As with option two, this option
directly addresses community concerns which centre on the normalisation of gambling and its
association with sporting events, however this option extends this protection to the five minute
shoulder periods before and after play.
Broadcasters/platforms: Based on data provided to the Department, it is estimated that free to air
and subscription television broadcasters would lose approximately $30.5 million net22 as a result
of this option. This option would affect online platforms in a similar way to option two.
Gambling firms: The impact on gambling firms would be similar to option two.
Sporting organisations: As with option three, option four has the potential to devalue exclusive
broadcast rights and product fee agreements with major sporting organisations.
Option Four: Prohibit gambling advertising around the broadcast of live sports from five
minutes before the start of play until five minutes after play concludes before 8:30 pm,
across platforms
Description
Similar to option three, this option would prohibit gambling advertisements from being shown
five minutes prior to the commencement of a live sporting event and during the event itself
across all platforms. However unlike option three, this prohibition would continue to prohibit
gambling advertising in live sports events to five minutes after the conclusion of play where the
event commences before 8:30 pm but play extends past this time.
Assessment
Children: This option affords a strong level of protection for children who, as a result of the
changes would have limited exposure to gambling advertising. As with option two and three,
this option directly addresses community concerns which centre on the normalisation of
gambling and its association with sporting events. However extending the prohibition beyond
8.30 pm is at odds with other regulatory protections for children, including current gambling
and alcohol advertising restrictions. Research indicates that the peak time for child audiences is
prior to 8:30 pm.
Broadcasters/platforms: Based on data provided to the Department, it is estimated that free to
air and subscription television broadcasters would lose approximately $52 million net as a result
of this option. This option would affect online platforms in a similar way to option two.
Gambling firms: The impact on gambling firms would be similar to option two. As with option
two and three, this option effectively prevents betting companies from making marketing to
22
Reference to 'net' takes into account that gambling advertisements may be replaced with advertisements for
alternative products but these advertising spots will generate less revenue.
14
audiences during times and events where many potential gamblers would be in the viewing
audience.
Sporting organisations: As with option two and option three, option four has the potential to
devalue exclusive broadcast rights and product fee agreements with major sporting
organisations.
Option Five: Prohibit gambling advertising around the broadcast of live sports from 30
minutes before the start of play until 30 minutes after, across platforms
Description
This option would build on option three by prohibiting gambling advertisements from being
shown 30 minutes prior to the commencement of a live sporting event, during the event itself
and for 30 minutes after the event has concluded, between 5.00 am and 8.30 pm and applies to
broadcast, internet and other means.
Assessment
Children: This option affords a strong level of protection for children who, as a result of the
changes would not be exposed to gambling advertising for any part of an extended sports
presentation including pre-match and post-match programming. As with options two, three and
four, this option directly addresses community concerns which centre on the normalisation of
gambling and its association with sporting events.
Broadcasters/platforms: Based on data provided to the Department, it is estimated that free to air
and subscription television broadcasters would lose approximately $65 million net as a result of
this option. Analysis indicates that the majority of gambling promotions are in the 30 minutes
prior to some football matches. This option would affect online platforms in a similar way to
option two.
Gambling firms: The impact on gambling firms would be similar to option two. Gambling firms
may consider migrating their advertising to non-sports programs or less regulated platforms
such as websites that don't stream live sport matches.
Sporting organisations: As with option two, three and four, option five has the potential to
devalue exclusive broadcast rights and product fee agreements with major sporting
organisations.
Option Six: Comprehensive prohibition of gambling advertising to 8:30 pm
Description
Option six proposes to prohibit the broadcast of promotions of gambling between 5:00 am and
8:30 pm every day, and would apply to commercial free-to-air television, commercial radio,
subscription television, the Special Broadcasting Services (SBS), and online services including
both 'catch-up' services and live online streaming.
Assessment
Children: This option will potentially have the greatest positive impact on children as it prevents
any exposure to gambling advertising during the time in which children are most likely to be
watching any form of broadcasting or online transmission. Gambling advertising would only be
permitted after 8:30 pm when children are less likely to be watching live sport. Children may
still be exposed to gambling advertisements during live sport after 8:30pm, for example the
State of Origin which has child audiences in excess of 260 000, on subscription television
services such as on Fox Sports channels, and on non-broadcast platforms.
Broadcasters/platforms: Based on data provided to the Department, it is estimated that free to air
and subscription television broadcasters would lose approximately $130 million net as a result
15
of this option. Analysis indicates that the majority of gambling promotions are in the 30 minutes
prior to some football matches. This option would affect online platforms in a similar way to
option two.
Gambling firms: The impact on gambling firms would be similar to option two, but to a greater
extent. Gambling firms may consider migrating their advertising to less regulated platforms
such as websites that don't stream live sport matches.
Description of preferred option
Any ban on advertising during times in which children are watching will address community
concerns of the impact of gambling advertising and have positive effects. Increased gambling
advertising restrictions will achieve the policy goal of protecting children from exposure to
gambling promotions, while still giving the broadcasters room to reform and to better anticipate
and respond to changes in the future. However, it is necessary to balance this with the
significant revenue stream for broadcasters that this form of advertising represents.
The significant analysis of the financial and social impacts of each of the options on the key
groups of children, broadcasters, sports rights bodies and gambling firms the Government
considers that option three offers the best balance for these competing interests. Option three
provides an effective and clear 'safe zone' for children to watch their favourite sporting content
during the times they are most likely to be watching television, with a smaller financial impact
on the broadcasting, sports rights and gambling sectors, than more comprehensive prohibitions.
Option three allows broadcasters the opportunity to continue to commercialise sporting content
though gambling advertising and earn revenue whilst providing a small buffer period to prevent
inadvertent exposure to advertising as families settle in to watch the game.
The current 5.00 am to 8.30 pm time slot is accepted in the industry as the standard benchmark
for existing content restrictions aimed at protecting children. For example the advertising of
alcohol and intimate products, and the airing of mature classified content like MA15+
programming, are all permitted after 8:30pm. Extending the prohibition to all platforms that
transmit live sport will mitigate against gambling advertising migrating to other platforms
which may distort the market for sports rights, and risk exposing child audiences to gambling
advertising on services that are being rapidly embraced by audiences.
There is no reliable way to estimate the number of overall number of gambling advertisements
and other promotions that would be reduced by option three noting that there are a significant
number of commercial broadcast television and radio licence areas across metropolitan and
regional Australia, as well as subscription and online services. However option three will clearly
result in a significant reduction in these promotions during live sports events and prohibit
gambling promotions in the identified 'safe zone' between 5:00 am and 8:30 pm. The net
benefit to the community of pursuing this course of action is an overall reduction in the number
of gambling promotions broadcast in association with lives sports events during times when
children are watching thereby reducing their exposure to the concept of gambling and gambling
related products
Implementation pathways
As noted above in 'The need for Commonwealth action' section, the preferred implementation
pathway is to request broadcast industry to initiate a change to their respective codes of practice,
that is the Commercial Television Industry Code of Practice, the Subscription Television
Industry Codes of Practice and the Commercial Radio Codes of Practice. Where no relevant
enforceable codes of practice exist, for example for online services, or where the code change
pathway outlined above fails the Commonwealth would seek to legislate the reforms.
16
There are a number of options for legislating gambling restrictions on online services including
amending the Interactive Gambling Act to prohibit gambling promotions during broadcasts or
webcasts of live sporting events involving a team administered by a recognised sporting body in
Australia, where the broadcast or webcast is intended to be received by Australian residents. As
mentioned earlier, there is also no recognised industry group or co-regulatory framework for
online services and to implement any prohibition would likely require legislative intervention.
Consultation
An early draft of this RIS was used to inform the decision making process. The Commonwealth
has not undertaken a public consultation process on the options in this RIS, however it is clear
that there is significant community concern over the current level of gambling advertising (see
'Community attitudes towards gambling advertising' on page 3) There has been a significant
range of targeted consultations on gambling advertising between key broadcasters and their
representative bodies, the AFL, the NRL and the Coalition of Major Professional and
Participation Sports, sports betting firms, and the Department of Communications and the Arts,
and the Office of the Minister for Communications. The consultation process was targeted given
the clear impact of the proposed reforms on the broadcasters, wagering operators and sports
bodies. These consultations have included requests for data and impacts of potential reform
options, including option three. As this data was provided to the Department in confidence,
approximations of this data have been used in this RIS demonstrate the financial impact of the
restrictions on industry.
In these consultations broadcast sector stakeholders have acknowledged the level of community
concern in relation to gambling advertising but have also expressed concern about the likely
impact on a significant revenue stream for their business, and the impact on existing contracts
with sports rights bodies.
Sports rights bodies have expressed concerns about the potential devaluation of sports rights.
Gambling firms have provided mixed comments with some firms supporting additional
restrictions on advertising (see below).
In addition to the consultations that have already taken place some industry stakeholders have
previously publicly indicated that there should be a reduction in gambling advertising, including
those carried on broadcasting services. For example:
The Responsible Wagering Australia lobby group has previously vowed to support
Commonwealth regulation that will reduce the level of advertising during sports
broadcasts.
Cormac Barry, CEO of Sportsbet the leading online bookmaker in Australia and biggest
advertiser, has reportedly advocated for the introduction of Commonwealth regulation
to curb gambling advertising, being quoted as saying that Sportsbet want to work with
the Commonwealth to achieve the appropriate balance between community concerns
and the commercial interests of wagering companies to advertising their service.
Industry stakeholders, as part of the 2015 Review of Illegal Offshore Wagering, have
indicated that competitive market forced drove the overall level of gambling advertising
and suggested they would welcome a national approach to reduce that level, particularly
on channels visible to children.
At a meeting involving the Department of Communications and the Arts and the
Department of Social Services, Sportsbet informed that it was open to reducing
advertising, but that the Commonwealth intervention was vital in ensuring reduction
covered all industry operators. Sportsbet further advised that operators were going to
17
meet to agree on a reduced level of gambling advertising, but decided against it as they
may have been accused of collusion.
18
APPENDIX A
Table of Online Video Content service types
Provider Service type Business model Example
Free to users;
advertising-
ABC iview
Catch-up service supported for
TENplay
Free to air commercial networks
broadcasters and SBS
On-demand streaming video Subscription- Stan
services supported Netflix
Streaming live channels, Foxtel Go
Subscription-
Subscription video-on-demand and
supported and Foxtel Play
broadcaster catch-up on-demand
pay-per-view
content Stan
Subscription-
IPTV Fetch TV
supported
ISP
BigPond
Video-on-demand Pay-per-view
Movies
Device/Overseas-based iTunes
Consumer content libraries
Pay-per-view and PlayStation
electronics
subscription Store
companies IPTV
Google Play
Standalone OTT Mixed, including Fetch TV
service On-demand video services subscription and
providers pay-per-view EzyFlix
Source: http://www.acma.gov.au
19
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Communications Legislation Amendment (Online Content Services and Other Measures)
Bill 2017
The Communications Legislation Amendment (Online Content Services and Other Measures)
Bill 2017 (the Bill) is compatible with the human rights and freedoms recognised or declared in
the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny)
Act 2011.
Overview of Bill
The general purpose of the Bill is to:
establish a regulatory framework (online content service provider rules) which can be
used by the Australian Communications and Media Authority (ACMA) to prohibit or
regulate gambling promotional content provided by online content service providers in
conjunction with live coverage of sporting events; and
provide the ACMA with the power to (if directed) determine program standards about
gambling promotional content which apply to certain broadcasters and subscription
providers.
Human rights implications
The Bill engages the following human rights:
Best interests of the child: Article 3(1) of the Convention on the Rights of the Child
(CRC)
Freedom of expression: Article 19 of the International Covenant on Civil and Political
Rights (ICCPR)
Best interests of the child
Article 3(1) of the CRC provides that in all actions concerning children, the best interests of the
child shall be a primary consideration. The principle requires legislative, administrative and
judicial bodies to take active measures to protect children's rights, promote their wellbeing and
consider how children's rights and interests are or will be affected by their decisions and actions.
The Bill supports the best interests of the child by providing mechanisms to ensure, if required,
that broadcasters and online content service providers respect community standards and reduce
the exposure of vulnerable Australians, including children, from access to potentially harmful
gambling promotional content. The new restrictions will establish a clear and practical 'safe
zone' on any platform for children watching or listening to sport, which will be straightforward
for parents and carers to observe. This reflects concern that exposing children to gambling
advertising (such as sports betting) could position gambling as a normal part of the sports
viewing experience, which is contrary to their best interests.
Freedom of expression
Article 19 of the ICCPR provides for the right to freedom of expression. As the United Nations
Human Rights Council has stated:
"The exercise of the right to freedom of opinion and expression is one of the essential
foundations of a democratic society, is enabled by a democratic environment, which
20
offers, inter alia, guarantees for its protection, is essential to full and effective
participation in a free and democratic society, and is instrumental to the development
and strengthening of effective democratic systems."23
Article 19(2) of the ICCPR recognises the right to receive and impart information and ideas
through any medium, including written and oral communication, the media, broadcasting and
commercial advertising. The guarantee of freedom of expression extends to protecting
expression that may be regarded as offensive, but it is not an absolute or unfettered right and it
carries special responsibilities. The right may be restricted, as provided by law, where it is
necessary to do so to protect the rights or reputations of others, national security, public order,
or public health or morals. Limitations on the right must be necessary and proportionate to
achieve the desired policy purpose.
The Bill may engage the right to freedom of expression by enabling the ACMA to:
if directed by the Minister, determine program standards that prohibit or regulate the
broadcast of gambling promotional content in conjunction with live coverage of a
sporting event, or that require broadcasters to ensure that, where any such live coverage
is provided, certain explanatory matter relating to whether (and how) a gambling
promotion program standard applies to the content is provided in a manner specified in
the standard; and
make online content service provider rules which may prohibit or regulate gambling
promotional content provided on online content services in conjunction with live
coverage of a sporting event, or require online content services providers to ensure that,
where any such live coverage is provided, certain explanatory matter relating to whether
(and how) online content rules apply to the content is provided.
The measures relating to broadcasting program standards would apply to commercial television
broadcasting licensees; commercial radio broadcasting licensees; subscription television
broadcasting licensees; and providers of subscription radio or television narrowcasting services.
Commercial and subscription broadcasting licensees are required to be corporations, rather than
individuals (see, for example, sections 37 and 95 of the BSA respectively). Accordingly, to the
extent that any gambling promotion program standard may impact such licensees, this will not
have a direct impact on human rights.
Nevertheless, it is possible that a subscription radio or television narrowcasting service, or an
online content service, may be provided by an individual, rather than a corporation. In addition,
any prohibitions imposed by the ACMA under the new powers may also engage the right of
audiences by restricting their freedom to access to gambling promotional material while
viewing live sport.
The purpose of the new regulation is to provide a mechanism to ensure that broadcasters and
online content service providers respect community standards and protect vulnerable
Australians, including children, from access to potentially harmful gambling promotional
content. This is relevant to the protection of public morals within the meaning of article 19 of
the ICCPR. The additional powers for the ACMA to impose restrictions using the mechanisms
in the Bill are defined narrowly, and targeted clearly at this policy outcome.
For example the definition of 'online content service' in clause 3 of proposed Schedule 8
requires such a service to have a geographical link to Australia and excludes various services
such as services in relation to voice calls, video calls, instant messaging, SMS, MMS, facsimile
23
UN Human Rights Council, Resolution 12/16, preamble.
21
and others. In addition, clause 6 of Schedule 8 would clarify that a person does not provide an
online content service merely because they supply an internet carriage service that enables
content to be delivered or accessed, or provide a billing or fee collection service.
Any gambling promotion program standard or online content rules determined by the ACMA
would also take the form of a legislative instrument and would therefore be subject to
consultation requirements and parliamentary scrutiny in accordance with the Legislation Act
2003. It is expected that the ACMA would consider human rights issues at the point of
preparing any standards or rules.
Further, proposed clause 32 of Schedule 8 to the BSA (inserted by item 22 of the Bill) provides
that neither Schedule 8 to the BSA nor the online content service provider rules made under
clause 11 have effect to the extent (if any) that their operation would infringe any constitutional
doctrine of implied freedom of political communication. This ensures that the relevant
provisions are consistent with the right to freedom of expression as it relates to freedom of
political communication.
Conclusion
This Bill is compatible with the human rights and freedoms recognised or declared in the
international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act
2011. To the extent to which the Bill may engage Article 3(1) of the CRC, it promotes the best
interests of the child by proving a mechanism to regulate access to potentially harmful gambling
promotional content that is provided in conjunction with coverage of live sport. To the extent
that it may engage Article 19(2) of the ICCPR, any limitation on the right to freedom of
expression is reasonable, necessary and proportionate to the objective of protecting public
morals by reducing the exposure of vulnerable Australians, including children, to such content.
22
ABBREVIATIONS
Term Meaning
ACMA Australian Communications and Media Authority
Acts Interpretation Acts Interpretation Act 1901
Act
ACMA Act Australian Communications and Media Authority Act 2005
AAT Administrative Appeals Tribunal
Bill Communications Legislation Amendment (Online Content Services and
Other Measures) Bill 2017
BSA Broadcasting Services Act 1992
Legislation Act Legislation Act 2003
SBS Special Broadcasting Service
Tel Act Telecommunications Act 1997
23
NOTES ON CLAUSES
The Communications Legislation Amendment (Online Content Services and Other Measures)
Bill 2017 is a Bill for an Act to amend the law relating to communications, and for other
purposes.
Clause 1--Short title
Clause 1 provides that the Bill, when enacted, may be cited as the Communications Legislation
Amendment (Online Content Services and Other Measures) Act 2017.
Clause 2--Commencement
Clause 2 provides for the commencement of the Bill. It provides that the whole of the Act
commences on the day after the Act receives Royal Assent.
Clause 3--Schedules
Clause 3 provides that legislation that is specified in a Schedule to the Bill is amended or
repealed as set out in the applicable items in that Schedule, and any other item in a Schedule has
effect according to its terms. There is one Schedule to the Bill, which makes amendments to the
Australian Communications and Media Authority Act 2005, the Broadcasting Services Act 1992
and the Enhancing Online Safety Act 2015.
24
Schedule 1--Amendments
Australian Communications and Media Authority Act 2005
Item 1--After paragraph 10(1)(m)
Subsection 10(1) of the ACMA Act sets out the ACMA's functions in relation to broadcasting,
content and datacasting. This includes various functions relating to monitoring compliance with
codes of practice and program standards relating to broadcasting.
Item 1 of the Bill would insert a new paragraph 10(1)(ma) to provide that it is a function of the
ACMA to monitor compliance with the online content service provider rules, which the ACMA
would be able to make under new clause 11 of Schedule 8, proposed to be inserted by item 22.
This is necessary to ensure that ACMA can, for example, investigate potential breaches of the
online content service provider rules. Under Part 13 of the BSA, the ACMA may obtain
information, conduct investigations and hold hearings for the purposes of the performance or
exercise of any of its broadcasting, content and datacasting functions, as defined in the ACMA
Act, and related powers.
Item 2--Paragraph 53(2)(k)
Section 53 of the ACMA Act limits the ability of: the ACMA to delegate certain powers; and a
Division established by the ACMA to sub-delegate certain powers delegated to it by the
ACMA. The delegation limits relate to the ACMA's powers to make, vary or revoke legislative
instruments (subsection 53(1) of the ACMA Act), and numerous powers conferred by the BSA
(subsection 53(2) of the ACMA Act).
Paragraph 53(2)(k) of the ACMA Act provides that sections 51 and 52 of the BSA, which relate
to delegation by the ACMA and by a Division of the ACMA respectively, do not apply to a
power under the BSA to issue, or extend the time for compliance with, a notice (other than a
notice under Part 9C of that Act). Part 9C relates to access to commercial television
broadcasting services provided with the use of a satellite.
Item 2 would amend the delegation in paragraph 53(2)(k) to allow the ACMA, or a Division of
the ACMA, to delegate the power to issue, or extend the time for compliance with, a notice
under proposed Schedule 8 to the BSA or any other provision of the BSA that relates to
Schedule 8. The ACMA would have the power to issue various notices under Schedule 8, or
other provisions of the BSA (e.g. Parts 13 and 14E) in respect of investigations of alleged
breaches of the online content services provider rules, infringement notices and remedial
directions (which are treated as notices as a result of new subclause 26(7)). This amendment
would make clear that the ACMA's powers to issue (and extend compliance time for) notices in
connection with Schedule 8 may be delegated. The intent is to allow for greater administrative
convenience for the ACMA in relation to service of notices in relation to new Schedule 8.
Broadcasting Services Act 1992
Item 3--After paragraph 3(1)(ha)
Item 4--After paragraph 3(1)(i)
Item 5--Subsection 3(2)
Section 3 of the BSA sets out the objects of the BSA. These objects include encouraging
providers of broadcasting services to respect community standards in the provision of program
material, and ensuring that designated content/hosting service providers respect community
25
standards in relation to content (see paragraphs 3(1)(h) and (ha)). The objects also include
encouraging the provision of means for complaints about broadcasting services to be addressed
(see paragraph 3(1)(i)).
Items 3 and 4 of the Bill would insert new paragraphs 3(1)(hb) and (ia), setting out similar
objects in relation to ensuring that online content service providers respect community standards
in relation to gambling promotional content, and providing a means for addressing complaints
regarding gambling promotional content provided on online content services.
Item 3 would provide that it is an object of the BSA to ensure online content service providers
respect community standards in relation to gambling promotional content. Item 4 would provide
that it is an object of the BSA to provide a means for addressing complaints about gambling
promotional content provided on online content services.
Subsection 3(2) of the BSA sets out the meaning of certain terms for the purposes of section 3.
Item 5 would amend this subsection to provide that the terms gambling promotional content,
online content service and online content service provider have the same meaning as set out in
new Schedule 8 proposed to be inserted by item 22 of the Bill.
Item 6--Subsection 4(1)
Item 7--After subsection 4(3AA)
Item 8--Subsection 4(4)
Section 4 of the BSA sets out the Parliament's regulatory policy intentions behind the BSA.
Subsection 4(1) broadly provides that the Parliament intends that different levels of regulatory
control apply across the range of broadcasting, datacasting, and internet services, according to
the degree of influence that different types of those services are able to exert in shaping
community views in Australia. Subsections 4(2), (3) and (3AA) also set out the Parliament's
specific regulatory policy intention in relation to each of: broadcasting services and datacasting
services; internet carriage services; and, designated content/hosting services.
Item 6 would insert references to online content services in subsection 4(1) in addition to
broadcasting, datacasting, and internet services, to reflect the Parliament's regulatory intention
in relation to new Schedule 8, proposed to be inserted by item 22 of the Bill.
Item 7 would insert a new subsection 4(3AB) which sets out the Parliament's regulatory policy
intention in relation to gambling promotional content provided on online content services,
similarly to and consistent with current subsections 4(2), (3) and (3AA). Proposed subsection
4(3AB) would provide that the Parliament intends that gambling promotional content provided
on online content services be regulated in a manner that enables public interest considerations in
relation to such content to be addressed in a way that does not impose unnecessary financial
burden and administrative burden on the providers of online content services, readily
accommodates technological changes, and encourages the provision of those services and the
development of related technologies.
Subsection 4(4) of the BSA sets out the meaning of certain terms for the purposes of section 4.
Item 8 would amend this subsection to provide that, for the purposes of section 4, the terms
gambling promotional content, online content service and online content service provider have
the same meaning as set out in the new Schedule 8 proposed to be inserted by item 22 of the
Bill.
26
Item 9--Paragraph 5(1)(a)
Item 10--Subsection 5(4)
Section 5 of the BSA sets out the ACMA's role under the BSA, with reference to the objects
and regulatory policy intentions of the BSA set out in sections 3 and 4. Paragraph 5(1)(a)
provides that, in order to achieve the objects of the BSA in a way that is consistent with the
Parliament's regulatory policy intent, the Parliament charges the ACMA with responsibility for
monitoring the broadcasting, datacasting, internet and commercial content service industries.
Item 9 of the Bill would amend paragraph 5(1)(a) to provide that the Parliament also now
charges the ACMA with responsibility for monitoring the online content service industry.
Subsection 5(4) of the BSA sets out the definition of the term commercial content service for
the purposes of section 5. Item 10 of the Bill would amend subsection 5(4) to also provide that,
for the purposes of section 5, the term online content service has the same meaning as set out in
the new Schedule 8 (proposed to be inserted by item 22 of the Bill).
Item 11--Subsection 6(1)
Item 12--Subsection 6(1) (at the end of the definition of program standards)
Subsection 6(1) of the BSA sets out the definitions of a number of terms for the purposes of the
BSA.
The term program standards is currently defined to mean a standard determined by the ACMA
relating to the content or delivery of programs. For example, the ACMA is currently required to
determine program standards for children's programs and Australian content (section 122) and
must, in certain circumstances, determine program standards where codes of practice have failed
or where no code of practice has been developed (section 125). Program is defined in
subsection 6(1) of the BSA to include advertising or sponsorship matter, whether or not of a
commercial kind.
New section 125A proposed to be inserted by item 13 of the Bill would also allow the ACMA
to determine a gambling promotion program standard where the Minister directs it to do so.
Accordingly, item 11 would insert a new definition in subsection 6(1) that would provide that a
gambling promotion program standard means a standard determined by the ACMA under
section 125A. Item 12 would amend the definition of program standards in subsection 6(1) to
clarify the term program standards includes a gambling promotion program standard.
Although the term program would include any advertising or sponsorship material, item 12 is
intended to avoid any doubt that a gambling promotion program standard made under new
section 125A is a program standard for the purposes of the BSA, without otherwise affecting
the existing definition.
This is significant for the purposes of ensuring the same consequences flow for broadcasting
service providers for non-compliance with a gambling promotion program standard as flow
from non-compliance with other program standards. For example, compliance with program
standards is a licence condition imposed on broadcasting service providers under Schedule 2 of
the BSA. A breach of a gambling promotion program standard would thereby constitute a
breach of those licence conditions.
Item 13--After section 125
Item 13 would insert new section 125A into the BSA which would allow the ACMA to
determine, by legislative instrument, a gambling promotion program standard that applies to
27
certain commercial and subscription broadcasting service providers in relation to the
broadcasting of gambling promotional content in conjunction with live coverage of sporting
events. This power would only be able to be exercised by the ACMA following, and in
accordance with, a direction of the Minister for Communications (subsection 125A(3)).
Proposed section 125A is intended to ensure that provision of relevant broadcasting and
narrowcasting service providers can be prevented from broadcasting gambling promotional
content in the event, for example, that coregulatory broadcasting codes registered by the ACMA
in accordance with subsection 123(4) of the BSA fail to provide adequate protection in a
manner consistent with community standards, but the ACMA does not determine a standard
under section 125, or would not determine a standard on terms considered acceptable to the
Government.
Separately, proposed section 125A is also intended to allow the ACMA to make a gambling
promotion program standard which sets out restrictions in relation to the provision of gambling
promotional content in conjunction with live coverage of sporting events equivalent to those
which already apply to relevant broadcasting service providers under industry codes of practice.
Such code restrictions include that:
certain types of gambling promotional content are not to be provided during particular
periods before, during and after live coverage of certain types of sporting events, where
the coverage of that event falls within certain hours where children are most likely to
be exposed to that content;
any gambling promotional content that is provided complies with certain standards
and/or is not presented in a particular fashion;
any gambling promotional content that involves visual images or speech of a
representative of a gambling service provider must not give the impression that the
representative is at, or around, the sporting venue.
Ministerial direction to determine a gambling promotional standard
Proposed subsection 125A(1) allows the Minister to direct the ACMA, by legislative
instrument, to determine a gambling promotion program standard that complies with
requirements specified in the direction, and to do so within a period specified in the direction.
Subsection 125A(2) requires the ACMA to comply with such a direction under subsection (1).
Proposed subsection 125A(3) would provide that the ACMA must not determine a gambling
program standard unless it does so in accordance with a Ministerial direction under subsection
125A(1).
Proposed subsections 125A(1) - (3) are intended to ensure that the ACMA's new power to
make gambling promotion program standards is used only if necessary and only for the purpose
of achieving the Government's policy objectives in relation to further restricting the broadcast
of gambling promotional content in conjunction with live coverage of sporting events. It is not
intended that these provisions be used to direct the ACMA to more broadly regulate the content
or delivery of programming, noting the ACMA already has other obligations and powers in this
regard under Part 9 of the BSA.
A direction given by the Minister under proposed subsection 125A(1) would be a legislative
instrument but would not be subject to disallowance (see item 2 of the table in section 9 of the
Legislation (Exemptions and Other Matters) Regulation 2015, which provides that an
instrument that is a direction by a Minister to any person or body is exempt from disallowance).
28
Program standards in relation to gambling promotional content
Proposed subsection 125A(4) would give the ACMA the power to make a standard (a gambling
promotion program standard) which would apply to certain types of broadcasting service
providers, in relation to the broadcasting of gambling promotional content on their services in
conjunction with the live coverage of a sporting event.
Proposed subsection 125A(5) would provide that a gambling promotion program standard may
make provision for or in relation to prohibiting or regulating the broadcast of gambling
promotional content, by specified broadcasting licensees and providers, in conjunction with live
coverage of a sporting event.
Subsection 125A(6) would provide that a gambling promotion program standard may make
provision for or in relation to requiring specified broadcasting licensees and providers to ensure,
if live coverage of a sporting event is (or is to be) broadcast on their service, that certain
explanatory matter is also provided by the licensee or provider in a manner specified in the
standard. The explanatory matter relates to whether a gambling promotion program standard
applies in relation to that live coverage and, if so, how the gambling promotion program
standard so applies in relation to that live coverage. The standard could require, for example,
that explanatory matter consist of information in a program guide or on the licensee's website.
Subsection 125A(7) would provide that, in the event that live coverage of a sporting event is, or
is to be, broadcast on a broadcasting service provided by specified broadcasting licensees or
providers, a gambling promotion program standard may make provision for or in relation to
requiring those licensees and providers to:
make records that are of a kind or kinds specified in the standard (subparagraph
125A(7)(f)(i)), and that are sufficient to enable compliance by the licensee or provider
with a gambling promotion program standard made for the purposes of subsections
125A(5) or (6) to be readily ascertained (subparagraph 125A(7)(f)(ii));
retain those records for a period ascertained in accordance with the first-mentioned
standard (paragraph 125A(7)(g)); and,
make those retained records available to the ACMA on request (paragraph
125A(7)(h)).
Subsection 125A(8) clarifies that, for the purposes of subparagraph 125A(7)(f)(i), examples of
kinds of standards that may be specified include written records, audio records, and audio-visual
records.
The specified broadcasting licensees and providers whose services may be the subject of a
gambling promotion program standard prohibiting or regulating gambling promotional content
(under subsection 125A(5)), requiring certain explanatory matter (under subsection 125A(6)), or
requiring the making, retention and provision of records (under subsection 125A(7)), are:
commercial television broadcasting licensees; commercial radio broadcasting licensee;
subscription television broadcasting licensees; providers of subscription radio narrowcasting
services; and, providers of subscription television narrowcasting services.
Proposed subsections 125A(4)-(7) (along with other interpretive provisions in this section)
could be used to make a standard that, for example:
prohibits broadcasters from providing gambling promotional content during a period
that is in conjunction with particular live coverage of particular sporting events, where
that coverage occurs during a particular period of a day;
requires any gambling promotional content provided (including during particular
periods) to comply with specified standards;
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restricts gambling promotional content from making particular types of representations;
prevents representatives of gambling firms from appearing to be at, or around, the
sports venue in any gambling promotional content provided;
requires broadcasting service providers to provide information to audiences about the
standards that apply to the broadcasting of gambling promotional content, and how
those standards apply;
requires publication of scheduled start times of live coverage of sporting events, or the
notification of the commencement or conclusion of a period within which gambling
promotional content will not be shown, in accordance with a standard; and
requires the broadcaster to keep audio-visual records of program content provided in
conjunction with live coverage of a sporting event, and to provide that content to the
ACMA in the event a complaint is made in order to allow ACMA to investigate that
complaint.
The matters in relation to which the ACMA can make a gambling promotion program standard
and relevant interpretive provisions set out below, reflect the matters in relation to which the
ACMA can make separate online content service provider rules under proposed new Schedule
8, and the interpretive provisions for the purposes of that Schedule (see item 22 below).
Accidental or incidental broadcast of gambling promotional content
Proposed subsection 125A(9) would clarify that a gambling promotion program standard does
not apply in relation to the broadcasting of gambling promotional content on a broadcasting
service where such content is broadcast as an accidental or incidental accompaniment to the
broadcast of other matter. However, the standard will not apply on that basis only in
circumstances where the licensee or provider of the broadcasting service does not receive any
direct or indirect benefit (whether financial or not) for broadcasting the gambling promotional
content.
This is intended to ensure that a standard does not apply to gambling promotional content over
which the broadcaster has no control and for which the broadcaster receives no benefit. For
example, if a standard provided that the gambling promotional content must not be provided
during a particular period, any gambling promotional content that is an accidental or incidental
accompaniment to other matter provided during that period, and for which the broadcaster
received no benefit, (e.g. logos on banners at a sporting ground or players' clothing) would not
be provided in breach of that standard.
Live coverage of a sporting event
Subsection 125A(10) would provide that, if live coverage of a sporting event is broadcast on a
broadcasting service and there is an unscheduled break in the sporting event, any matter
broadcast on the service during that break is taken to be live coverage of a sporting event.
The intention of this subsection is that live coverage of a sporting event would consist of all
coverage of the actual event, as well as any program matter transmitted during unscheduled
breaks in the event. For example, if a broadcaster were providing live coverage of a cricket
match, and that match was temporarily suspended due to rain, subsection 125A(10) would have
the effect that any replacement program matter transmitted by the broadcaster during that rain
break would be deemed to be live coverage of that cricket match.
This puts beyond doubt that a gambling promotion program standard made for the purposes of
subsection 125A(5) may make provision prohibiting or regulating gambling promotional
content in conjunction with that replacement programming (although noting subsections
125A(11) - (14) deal separately with when gambling promotional content is provided in
conjunction with live coverage of a sporting event).
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Gambling promotional content broadcast 'in conjunction' with live coverage of a sporting event
Proposed subsections 125A(11) - (14) are intended to clarify the circumstances in which
gambling promotional content is broadcast in conjunction with live coverage of a sporting
event, which goes to the scope of the ACMA's power to make a gambling promotion program
standard for the purposes of proposed subsections 125A(5) and (6) in particular.
Proposed subsection 125A(11) would provide that, for the purposes of section 125A, gambling
promotional content (other than commentator betting odds promotion or a representative venue-
based promotion) will be regarded as being broadcast on a broadcasting service in conjunction
with live coverage of a sporting event if, and only if, the content is broadcast on the service
during the period beginning five minutes before the scheduled start of the sporting event, and
ending five minutes after the conclusion of the sporting event.
Subsection 125A(13) would provide that, for the purposes of section 125A, gambling
promotional content that consists of commentator betting odds promotion or representative
venue-based promotion will be regarded as being broadcast on a broadcasting service in
conjunction with live coverage of a sporting event if, and only if, the content is broadcast on the
service during the period beginning 30 minutes before the scheduled start of the sporting event,
and ending 30 minutes after the conclusion of the sporting event.
Commentator betting odds promotion would mean gambling promotional content to the extent
to which it consists of the provision of betting odds (however described) by a commentator (see
below in relation to subsection 125A(25). See subsection 125A(25) below in relation to the
meaning of scheduled start and conclusion of sporting events.
Representative venue-based promotion would mean gambling promotional content to the extent
to which it consists of visual images (animated or otherwise), or speech, of a representative of a
gambling service provider, where those visual images or that speech gives the impression that
the representative is at, or around, the venue of a sporting event (see below in relation to
subsection 125A(25)). See subsection 125A(25) below in relation to the meaning of gambling
service provider.
The intent of these provisions is, among other things, to remove any argument that a standard
made for the purposes of subsections 125A was invalid, or did not operate, in relation to
gambling promotional content broadcast by a broadcasting service provider on a broadcasting
service it provided, on the basis that the content was not broadcast in conjunction with live
coverage of a sporting event.
The time period specified in subsection 125A(13) in relation to commentator betting odds
promotion reflects the existing code restrictions in relation to the provision of betting odds by
commentators (see for e.g. clause IV of Appendix 3 to the Commercial Television Industry
Code of Practice 2015). In relation to representative venue-based promotions, this reflects the
existing restriction in broadcast industry codes of practice which prohibit broadcast licensees
from depicting a representative of a gambling service provider who appears in gambling
promotional content to be at or around the sports venue, or to appear as such (see for e.g. clause
XIII of Appendix 3 to the Commercial Television Industry Code of Practice 2015). Current
code based provisions are not subject to time thresholds, however a 30 minute period is
considered an appropriate limitation for the purposes of the online content service provider rules
noting that the significant majority of sports events have no more than 30 minutes pre-play
programming.
The time period specified in subsection 125A(11) in relation to all other types of gambling
promotional content reflects the Government's policy intention to prohibit provision of any
gambling promotional content during that particular period.
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Subsections 125A(12) and (14) would provide that, if coverage of the sporting event is delayed,
section 125A has effect as if there were a corresponding delay to the period mentioned in
subsections (11) and (13) respectively.
'Live' will be defined to include delayed coverage that is presented as being live (see below in
relation to subsection 125A(25), and paragraph (b) of the definition of 'live' in new Schedule 8,
proposed to be inserted by item 22). Accordingly, subsections 125A(12) and (14) are intended
to ensure that, where the coverage is delayed but presented as live, the period within which
gambling promotional content will be in conjunction with live coverage of a sporting event will
also be delayed accordingly.
Administrative decisions
Proposed subsection 125A(15) would clarify that a gambling promotion program standard may
make provision for or in relation to a particular matter by empowering the ACMA to make
decisions of an administrative character. This is to avoid any doubt that the Parliament intends
the ACMA to, for example, be able to make a standard that would operate on the basis of
ACMA's administrative discretion in appropriate cases.
Does not limit section 125
Subsection 125A(16) would provide, for the avoidance of doubt, that proposed new section
125A does not limit the operation of section 125, which provides for the ACMA to determine
program standards where codes of practice fail or where no code of practice has been
developed.
Constitutional limits
Subsection 125A(17) would provide that the provisions of section 125A, and a gambling
promotion program standard, would have no effect to the extent (if any) that their operation
would infringe any implied freedom of political communication. Subsection 125A(18) would
provide that subsection (17) does not limit the application of section 15A (which deals with
construction of Acts in accordance with the Constitution) of the Acts Interpretation Act to the
BSA.
Subsection 125A(19) would provide that the provisions of section 125A, and a gambling
promotion program standard, would have no effect to the extent (if any) to which their operation
would result in an acquisition of property (within the meaning of paragraph 51(xxxi) of the
Constitution) from a person otherwise than on just terms (within the meaning that paragraph).
These constitutional limit provisions are intended to ensure that if proposed subsection 125A or
a gambling promotion program standard would otherwise result in an acquisition of property
other than on just terms, or infringe any constitutional doctrine of implied freedom of
communication, the section/standard may be read down so as to operate in a way that would
preserve their validity.
Sporting Event
Subsection 125A(20) would provide that subclause 19(1) of Schedule 8 applies in relation to
section 125A in a corresponding way to the way in which it applies in relation to that Schedule.
Subclause 19(1) would provide that the Summer and Winter Olympic Games, the
Commonwealth games, and any other similar games, are taken to be sporting events for the
purposes of Schedule 8.
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Subsections 125A(21) and (22) would provide that online content service provider rules made
for the purposes of subclauses 19(2) and (3) of Schedule 8 respectively apply in relation to
section 125A in a corresponding way to the way in which they apply in relation to that
Schedule. Subclauses 19(2) and (3) would allow the rules to provide that specified things are
taken to be, or not to be, sporting events for the purposes of Schedule 8.
The effect of these provisions is set out below in relation to the definition of sporting event in
subsection 125A(25).
Scheduled start and conclusion of a sporting event
Subsections 125A(23) and (24) would provide that online content service provider rules made
for the purposes of clauses 22 and 23 of Schedule 8 respectively apply in relation to section
125A in a corresponding way to the way in which they apply in relation to that Schedule.
Clauses 22 and 23 allow the online content service provider rules to provide that scheduled start
and conclusion have a meaning given by the rules for the purposes of the application of the
Schedule 8 to a specified sporting event.
The effect of these provisions is set out below in relation to the definitions of scheduled start
and conclusion in subsection 125A(25).
Definitions
Subsection 125A(25) would set out a number of definitions for the purposes of the section.
commentator betting odds promotion would mean gambling promotional content to the extent to
which it consists of the provision of betting odds (however described) by a commentator. The
term is used in subsections 125A(11) and (13) in relation to when types of gambling
promotional content will be taken to be provided in conjunction with live coverage of a sporting
event.
conclusion, in relation to a sporting event, would have a meaning affected by subsection
125A(24) (see above). The effect of this definition and subsection taken together is that, for the
purposes of section 125A, the term conclusion will have its ordinary meaning, in relation to a
sporting event, unless provided otherwise in the online content service provider rules. The term
is used in subsections 125A(11) and (13) in relation to when types of gambling promotional
content will be taken to be provided in conjunction with live coverage of a sporting event.
coverage would have the same meaning as in Schedule 8. Clause 2 of new Schedule 8 would
provide that coverage means coverage that involves either or both animated visual images
and/or audio.
gambling promotional content would mean advertising, sponsorship or promotional matter that
relates to a gambling service.
gambling service would have the same meaning as in Schedule 8 (see proposed clause 18 of
Schedule 8).
gambling service provider would mean a person who provides a gambling service (see proposed
clause 18 of Schedule 8 in relation to the definition of gambling service).
in conjunction with, when used in relation to live coverage of a sporting event, would have the
meaning given by subsections 125A(11) - (14) (see above).
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live, in relation to the coverage of a sporting event, would have the same meaning as in
Schedule 8, proposed to be inserted by item 22. Clause 2 of new Schedule 8 would provide that
live, in relation to coverage of a sporting event, means: live (within the ordinary meaning of that
expression); and, delayed, so long as the coverage is provided as if it were live (within the
ordinary meaning) and begins no later than the conclusion of the sporting event.
representative venue-based promotion would mean gambling promotional content to the extent
to which it consists of visual images (animated or otherwise), or speech, of a representative of a
gambling service provider, where those visual images or that speech gives the impression that
the representative is at, or around, the venue of a sporting event. The term is used in subsections
125A(11) and (13) in relation to when types of gambling promotional content will be taken to
be provided in conjunction with live coverage of a sporting event.
scheduled start, in relation to a sporting event, would have a meaning affected by subsection
125A(23) (see above). The effect of this definition and subsection taken together is that, for the
purposes of section 125A, the term scheduled start will have its ordinary meaning, in relation to
a sporting event, unless provided otherwise in the online content service provider rules. The
term is used in subsections 125A(9) and (11) in relation to when types of gambling promotional
content will be taken to be provided in conjunction with live coverage of a sporting event.
sporting event would have a meaning affected by subsections 125A(20) - (22) (see above). The
effect of this definition and these subsections taken together is that, for the purposes of section
125A, the term sporting event bears its ordinary meaning except as affected by subclauses 19(1)
- (3) of Schedule 8. This means that: those things set out in subclause 19(1) (the Summer and
Winter Olympic Games and the Commonwealth Games), and anything specified in the online
content service provider rules for the purposes of subclause 19(2) will be taken to be a sporting
event for the purposes of section 125A; and, anything specified in the online content service
provider rules for the purposes of subclause 19(3) will be taken not to be a sporting event for the
purposes of section 125A.
Consequences of breach of a gambling promotion program standard
As outlined above in item 12, a gambling promotion program standard would be a program
standard for the purposes of the BSA. Schedule 2 of the BSA specifies compliance with any
program standards determined under Part 9 of the BSA to be a licence condition of a
commercial television and radio broadcasting licence, subscription television broadcasting
licence, community television and radio broadcasting licence, and of class licenses under which
subscription narrowcasters operate.
A breach of a program standard determined under section 125A would therefore constitute a
breach of relevant broadcasting service providers' licences. Division 3 of Part 10 of the BSA
sets out offences and civil penalty provisions which apply in relation to breaches of relevant
licences or class licences by broadcasting service providers.
Item 14--Subsection 204(1) (at the end of the table)
Item 15--At the end of section 204
Section 204 of the BSA sets out in table form decisions under the BSA in relation to which an
application for review may be made to the AAT, and who has standing to make such an
application.
Item 14 of the Bill would add nine additional rows to this table that would allow:
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the provider of an online content service to which an ACMA exemption determination
under subclause 15(1) or (2) of Schedule 8 relates, to seek review of a decision to
refuse to make, to vary or to revoke an exemption determination;
a person to whom an ACMA determination under subclause 15(3) or (4) of Schedule 8
relates, to seek review of a decision to refuse to make, to vary or to revoke an
exemption determination;
a person to whom a remedial direction is given under new subclause 26(2) of Schedule
8 to seek review of a decision to give, vary, or refuse to revoke that direction.
These decisions are considered appropriate for merits review as they are likely to be directed
towards the particular circumstances of an online content service provider, or the recipient of a
remedial direction, and may affect the interests of the provider or recipient.
Item 15 of the Bill would insert new subsection 204(3) and (4) into the BSA, providing that an
application may be made to the AAT for a review of a decision made by the ACMA under a
gambling promotion program standard, or under the online content provider rules, where the
standard or rules provide that the decision is reviewable for the purposes of section 204.
This item is included in connection with proposed subsection 125A(15), inserted by item 13 of
the Bill, and clause 12 of new Schedule 8, inserted by item 22 of the Bill, which would allow
the ACMA to make provision for or in relation to a matter in a gambling promotion program
standard or the online content service provider rules by empowering itself to make a decision of
an administrative character. As some, but not all, decisions the ACMA may empower itself to
make under those provisions may be appropriate for merits review, new subsections 204(3) and
(4) would enable the ACMA, in developing any standard or rules, to provide for merits review
where it is appropriate. For example, it is likely the ACMA would provide for merits review
where its decision would affect the interests of a person, but that it may not be necessary to do
so where decisions would be of a procedural or preliminary nature, would have no appropriate
remedy or would have such limited impact that the costs of review cannot be justified.
Item 16--Subsection 205F(4)
Item 17--Subsection 205F(5)
Item 18--After subsection 205F(5B)
The majority of civil penalty amounts for the contravention of civil penalty provisions in the
BSA are currently set by reference to the corresponding criminal penalty for that conduct by
operation of subsection 205F(4).
Subsection 205F(4) provides that the pecuniary penalty payable by a person for the
contravention of a civil penalty provision (other than subsections 205AG(1) and 205E(1)) must
not exceed the maximum pecuniary penalty that could have been imposed if the person was
convicted of an offence against the provision of the BSA that corresponds to that civil penalty
provision.
Subsection 205E(1) of the BSA also sets out a civil penalty provision for the ancillary
contravention by a person of another civil penalty provision in the BSA. Subsection 205F(5)
currently provides that the pecuniary penalty payable by a person in respect of the contravention
of subsection 205E(1) must not exceed the maximum pecuniary penalty that could have been
imposed on the person if the person had been convicted of an offence against the provision of
the BSA that corresponds to the other civil penalty provision.
New Part 3 of Schedule 8, proposed to be inserted by item 22, would create civil penalty
provisions in relation to contravention of the online content service provider rules and remedial
directions. Proposed subclause 25(1) of Schedule 8 would provide that a person must not
contravene an online content service provider rule that applies to that person. Proposed
35
subclause 26(4) would provide that a person must not contravene a remedial direction given to
the person by the ACMA under proposed subclause 26(2).
However, the Bill would not create corresponding criminal offences for the breach of the online
content service provider rules or remedial directions issued under proposed Schedule 8. Items
16 and 17 would accordingly amend subsections 205F(4) and 205F(5) to exclude proposed
subclauses 25(1) and 26(4) of proposed Schedule 8 from the operation of those subsections.
Item 18 would instead insert new subsections 205F(5C) and 205F(5D) to set out specific civil
penalty amounts in relation to the contravention of civil penalty provisions in proposed
Schedule 8. Proposed subsection 205F(5C) would provide that the pecuniary penalty payable by
a person in respect of a contravention of proposed subclause 25(1) of Schedule 8 or section
205E of the BSA (which deals with ancillary contraventions) must not exceed: 300 penalty units
if the person is a body corporate; and, 60 penalty units if the person is not a body corporate.
Proposed subsection 205F(5D) would provide that the pecuniary penalty payable by a person in
respect of a contravention of proposed subclause 26(4) of Schedule 8 or section 205E of the
BSA must not exceed: 2000 penalty units if the person is a body corporate; and, 400 penalty
units if the person is not a body corporate.
As the majority of online content service providers to whom the online content service
providers rules are intended to apply will be bodies corporate, the maximum penalty amounts to
be imposed are set at a level considered sufficient to deter those bodies from conduct that
proposed Schedule 8 is designed to regulate. The penalty amounts set will ensure that the civil
penalty provides a sufficient deterrent recognising the commercial incentives that may exist to
provide prohibited services and the costs to the community of the harm caused by the conduct.
A higher amount is set for breaches of remedial directions recognising that such a direction will
have been imposed by the ACMA in response to previous infringing conduct.
The penalty amount imposed in relation to an individual who contravenes these provisions is
one-fifth of the penalty amount imposed in relation to a contravention by a body corporate,
consistent with broader Commonwealth policy.
Item 19--Before paragraph 205ZA(a)
Item 20--Paragraph 205ZA(a)
Part 14E of the BSA sets out a system of infringement notices for contravention of designated
infringement notice provisions as an alternative to the institution of court proceedings.
Section 205ZA provides that the penalties that may be specified in an infringement notice given
to a person under Part 14E must be a pecuniary penalty equal to: 60 penalty units if the person is
a commercial or subscription television broadcasting licensee (paragraph 205ZA(a)); or, in any
other case, 10 penalty units (paragraph 205ZA(b)).
Part 14E of the BSA would also apply to the new civil penalty provision in proposed subclause
25(1) of Schedule 8, to be inserted by item 22, by virtue of proposed subclause 25(4) which
would provide that subclause 25(1) is a designated infringement notice provision.
Items 19 and 20 would amend paragraph 205ZA(a), and insert a new paragraph 205ZA(aa), to
reflect the additional infringement notice provision in subclause 25(1) of Schedule 8. The effect
of these amendments would be that, in circumstances where an infringement notice related to
that subclause and the person was a body corporate, then the penalty specified in the notice must
be a pecuniary penalty equal to 60 penalty units. In circumstances where the person is not a
body corporate, existing paragraph 205ZA(b) (which specifies 10 penalty units) would apply.
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Item 21--After section 216D
Item 21 would insert new section 216E, which would insert a heading and provide that new
Schedule 8, proposed to be inserted by item 22, has effect.
Item 22--At the end of the Act
Proposed Schedule 8--Online content services
Item 22 would insert a new Schedule 8 into the BSA in relation to online content services.
The proposed Schedule 8 would provide the ACMA with powers to make online content service
provider rules that would apply to online content service providers, to enforce those rules
through remedial directions and civil penalties, and to exempt services and/or service providers
from the rules where appropriate. The online content service provider rules may deal with
matters required or permitted by the BSA to be dealt with by those rules. Proposed Schedule 8
would specify the following as matters with which the rules may deal: the prohibition or
regulation of gambling promotional content provided on an online content service in
conjunction with live coverage of a sporting event; and, the provision of certain explanatory
content by online content service providers in certain circumstances. Proposed Schedule 8
would allow the Minister to direct the ACMA about the exercise of its powers under the
Schedule (other than enforcement powers); and provide for other related matters required to
give the Schedule effect.
Part 1 of Schedule 8--Introduction
Part 1 of proposed Schedule 8 would set out the simplified outline, definitions, and other
definitional and application matters for the purposes of the Schedule.
Proposed clause 1 of Schedule 8--Simplified outline of this Schedule
Proposed clause 1 of new Schedule 8 would set out a simplified outline of the Schedule to assist
readers.
Proposed clause 2 of Schedule 8--Definitions
Proposed clause 2 of new Schedule 8 would set out definitions for terms that would be used
throughout the new Schedule.
access is defined to include access that is subject to a precondition (e.g. use of a password),
access by way of push technology (e.g. where a customer requests an online content service
provider to provide them with material on a regular basis, such as through a subscription to an
internet channel), and access by way of a standing request to an internet content host to send
material stored on the internet.
This is the same definition as is given to the term when used in Schedule 7 to the BSA, which
was included to avoid doubt and to avoid the term being given an unduly narrow meaning.
account includes a free account, a pre-paid account, and anything that may reasonably be
regarded as the equivalent of an account. The term is used in proposed subclause 15(7), which
would provide that, for the purposes of determining whether a service is a small online content
service, the ACMA must have regard to matters including the number of accounts for that
service (if the service has accounts) that are held by end-users ordinarily relevant in Australia.
Whether a service is a small online content service in turn goes to a decision by the ACMA to
grant an exemption to a specified online content service, or online content service provider,
37
from one or more of the online content service provider rules. This definition is intended to
ensure that the term account is given a wide reading in this context.
Australia when used in a geographical sense, is defined to include all the external Territories.
bet is defined to include a wager. The term bet is used in the definition of gambling service (see
proposed clause 18 below).
commentator betting odds promotion is defined to mean gambling promotional content to the
extent to which it consists of the provision of betting odds (however described) by a
commentator. The term is used in subclauses 21(1) and (3), in relation to when certain types of
gambling promotional content are taken to be in conjunction with live coverage of a sporting
event.
conclusion, in relation to a sporting event, is defined to have a meaning affected by clause 23.
Clause 23 would allow the online content service provider rules to specify what constitutes the
conclusion of a specified sporting event for the purposes of the application of Schedule 8 to that
event. This means that the term will bear its ordinary meaning in relation to a sporting event,
except as otherwise provided for in the rules. The term is used in subclauses 21(1) and (3), in
relation to when gambling promotional content is taken to be in conjunction with live coverage
of a sporting event. Any alternative meanings given to the term under clause 23 would also flow
through to the uses of the term in proposed subsections 125A(11) and (13) of the BSA (see
above in relation to subsections 125A(24) and (25)).
content is defined to include any content whether in the form of text; data; speech, music or
other sounds; visual images, animated or otherwise; any other form; or, any combination of
forms. This would ensure the form of content will not in itself affect the applicability of
proposed Schedule 8 to that content.
coverage is defined to mean coverage that involves either or both animated visual images and/or
audio. The term is used throughout Part 3 of Schedule 8, including in the context of the
ACMA's power under clause 11 of Schedule 8 to make rules providing for matters specified in
clause 13.
This definition is intended to ensure that the ACMA's rule-making power in proposed clause 13
extends only to live coverage of sporting events which is 'television-like' or 'radio-like' (i.e. is
comprised of a stream of moving images, or a stream of audio, or a stream of both moving
images and audio). It would not, for example, extend to text-based coverage of these events,
such as a 'live' text or photo-based blogging.
exempt online simulcast service is defined to have the meaning given by clause 4. An exempt
online simulcast service is listed in paragraph 3(1)(e) of Schedule 8 as a type of service that
would not be an online content service.
gambling promotional content is defined, for the purposes of the Schedule, to mean advertising
content, sponsorship content or promotional content that relates to a gambling service. The term
is used in the context of the ACMA's power under clause 11 of Schedule 8 to make online
content service provider rules providing for matters specified in clause 13 of Schedule 8.
gambling service is defined to have the meaning set out in clause 18 (see below). The term
gambling service is used in the definition of gambling promotional content (see above).
gambling service provider is defined to mean a person who provides a gambling service. The
term is used in clause 2 of Schedule 8, in the definition of representative venue-based
38
promotion, which is in turn used in clause 21(3) of Schedule 8 in relation to when such a
promotion is broadcast, or provided, in conjunction with live coverage of a sporting event.
game is defined to include an electronic game. The term 'game' is used in the definition of
gambling service (see proposed clause 18 below).
geographical link to Australia is defined to have the meaning set out in clause 5 (see below).
The phrase is used in the context of determining when a service is an online content service (see
proposed paragraph 3(1)(d) below).
immediate circle has the same meaning as in the Tel Act. The term is used in the context of
determining when a service is provided to the public (see proposed clause 8 below), which is
relevant to determining whether a service is an online content service (see proposed paragraph
3(1)(c) below).
in conjunction with, when used in relation to live coverage of a sporting event, is defined the
have the meaning given by clause 21 (see below). The term is used throughout Part 3 of
Schedule 8, including in the context of the ACMA's power under clause 11 of Schedule 8 to
make rules providing for matters specified in clause 13.
internet carriage service has the meaning set out in Schedule 5 to the BSA. Clause 3 of
Schedule 5 to the BSA provides that an internet carriage service means a listed carriage service
that enables the end-user of the service to access the internet. Clause 3 of Schedule 5 to the BSA
in turn defines a listed carriage service as having the same meaning as in the Tel Act (see
section 16 of that Act).
live, in relation to live coverage of a sporting event, is defined to mean: live (within the ordinary
meaning of that expression); and, delayed, so long as the coverage is provided as if it were live
(within the ordinary meaning) and begins no later than the conclusion of the sporting event.
This definition is intended to reflect that coverage of sporting events may not always be truly
'live', although it may be presented as such. For example, coverage may be delayed by some
period due to requirements of a relevant sporting organisation or technical issues, but would be
presented, and would appear, to an ordinary viewer/listener, to be 'live'. These types of
situations are also accounted for in broadcasting industry codes of practice (see e.g. the
definition of 'Live Sporting Event' in Appendix 3 of the Commercial Television Industry Code
of Practice 2015).
The definition is intended to allow for coverage to be considered 'live', even if delayed, as long
as the sporting event being covered is still actually in progress when the coverage begins.
The term is used throughout Part 3 of Schedule 8, including in the context of the ACMA's
power under clause 11 of Schedule 8 to make rules providing for matters specified clause 13.
The meaning of the term set out in Schedule 8 (and the rules) would also flow through to the
uses of the term in proposed section 125A of the BSA (see above).
lottery is defined to include an electronic lottery. The term lottery is used in the definition of
gambling service (see proposed clause 18 below).
online content service is defined to have the meaning set out in clause 3 (see below).
online content service provider is defined to mean a person who provides an online content
service. The note to this definition refers the reader to clause 6, which clarifies that a person is
not an online content service provider merely because they undertake certain activities (see
below).
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online content service provider rules means rules made under proposed clause 11 of new
Schedule 8 (see below).
provided on an online content service is defined to have the meaning given by proposed clause
7 of new Schedule 8. The phrase is used in the context of the ACMA's power under clause 11
of Schedule 8 to make online content service provider rules providing for matters specified
clause 13 of Schedule 8.
provided to the public has the meaning given by proposed clause 8 of new Schedule 8, when
used in relation to a service. The phrase is used in the context of determining whether a service
is an online content service (see proposed paragraph 3(1)(c) below).
representative venue-based promotion would mean gambling promotional content to the extent
to which it consists of visual images (animated or otherwise), or speech, of a representative of a
gambling service provider, where those visual images or that speech gives the impression that
the representative is at, or around, the venue of a sporting event. The term is used in subclauses
21(1) and (3) in relation to when types of gambling promotional content will be taken to be
provided in conjunction with live coverage of a sporting event.
scheduled start, in relation to a sporting event, is defined to have a meaning affected by clause
22. Clause 22 would allow the online content service provider rules to specify what constitutes
the scheduled start of a specified sporting event for the purposes of the application of Schedule
8 to that event. This means that the term will bear its ordinary meaning in relation to a sporting
event, except as otherwise provided for in the rules. The term is used in subclauses 21(1) and
(3), in relation to when gambling promotional content is taken to be in conjunction with live
coverage of a sporting event. Any alternative meanings given to the term under clause 22 would
also flow through to the uses of the term in proposed subsections 125A(11) and (13) of the BSA
(see above in relation to subsections 125A(23) and (25)).
service is defined to include a website. The note to this definition refers the reader to clause 17,
which deals with when a part of an online content service is taken to be a service in its own
right.
sporting event is defined to have a meaning affected by clause 19. This means that the term
sporting event, when used throughout Schedule 8, will have its ordinary meaning, subject to
clause 19 (which specifies certain things to be sporting events and includes the ability for the
online content service provider rules to specify things which are, and are not, taken to be
sporting events). The term is used throughout Part 3 of Schedule 8, including in the context of
the ACMA's power under clause 11 of Schedule 8 to make online content service provider rules
providing for matters specified in clause 13. The meaning of the term set out in Schedule 8 (and
the rules) would also flow through to the uses of the term in proposed section 125A of the BSA
(see above).
ticket is defined to include an electronic ticket. The term is used in definition of gambling
service (see proposed clause 18), which includes a service for the supply of lottery tickets. This
is intended to ensure that all such services are captured, even where tickets are supplied in
electronic form.
using is defined to have a meaning affected by clause 9 of Schedule 8 (which provides an
extended meaning). The term is used in clauses 3, 4, 5 and 7 of Schedule 8.
voice call is defined to include a call that is equivalent to a voice call (if a voice call is not
practical for a particular end-user with a disability), and a call that involves a recorded synthetic
voice. The term is used in proposed paragraph 3(1)(i) of new Schedule 8, which would provide
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that services which enable end-users to communicate with each-other by way of a voice call
would not be considered online content services for the purposes of Schedule 8 (see below).
This is intended to ensure that all services that allow communications equivalent to a voice call
within the ordinary meaning of the term, but which may involve technology to assist with the
making of the communication, receive the benefit of this exemption as long as they are made
between end-users of the service.
Proposed clause 3 of Schedule 8--Online content service
Proposed clause 3 of new Schedule 8 would define what constitutes an online content service
for the purposes of the Schedule.
Paragraphs 3(1)(a)-(d) would provide that an online content service means a service that
delivers content by means of an internet carriage service to persons having equipment capable
of receiving that content (paragraph 3(1)(a)), or that allows end-users to access content using an
internet carriage service (paragraph 3(1)(b)), where the service is provided to the public
(paragraph 3(1)(c)), and has a geographical link to Australia (paragraph 3(1)(d)).
Paragraphs 3(1)(e)-(r) would exclude certain types of services that would otherwise be captured
by proposed paragraphs 3(1)(a)-(d) from the operation of new Schedule 8.
These excluded services are:
an exempt online simulcast service; or
an exempt Parliamentary content service (within the meaning of Schedule 7); or
an exempt court/tribunal content service (within the meaning of Schedule 7); or
an exempt official-inquiry content service (within the meaning of Schedule 7); or
a service that enables end-users to communicate, by means of voice calls, with other
end-users; or
a service that enables end-users to communicate, by means of video calls, with other
end-users; or
a service that enables end-users to communicate, by means of email, with other end-
users; or
an instant messaging service that enables end-users to communicate with other end-
users; or
an SMS service that enables end-users to communicate with other end-users; or
an MMS service that enables end-users to communicate with other end-users; or
a service that delivers content by fax; or
an exempt data storage service (within the meaning of Schedule 7); or
an exempt back-up service (within the meaning of Schedule 7); or
a service determined under subclause (2).
An exempt online simulcast service would be defined in proposed clause 4 (see below). These
services would be excluded from the definition of online content service on the basis that the
content of those services would already be required to be provided in compliance with relevant
broadcasting industry codes of practice, and any online content service provide rules made
under Schedule 8 are intended to be broadly consistent with those codes. The codes of practice
contain mechanisms for the making of complaints to, and handling of complaints by, relevant
broadcasters about content that contravenes those codes. If a code complaint is unresolved, there
are further mechanisms for that complaint to be dealt with by the ACMA under the BSA, which
may result in action such as the imposition of additional licence conditions or acceptance of an
enforceable undertaking, breaches of which may give rise to liability for civil or criminal
41
penalties. This exclusion would ensure that two sets of regulation are not applied in relation to
the same content provided by two different methods.
In relation to exempt Parliamentary, court/tribunal and official-inquiry services, these services
would be excluded from the definition to avoid any doubt that such services may be breaching
online content service provider rules if required to provide gambling promotional content during
the conduct business or proceedings by Parliamentary, courts or official inquiries (such as Royal
Commissions).
Other exemptions would be provided for services which allow end-users to communicate with
other end-users, or store and access data, on the basis that it is not the intent of this Bill to
regulate communications of a private nature between individuals, or an individual's privately
held content.
Subclause 3(2) would allow the ACMA to determine additional excluded services for the
purposes of paragraph 3(1)(r) by legislative instrument. This is intended to provide a safeguard
against unintended consequences and, as a legislative instrument, any additional excluded
services would be subject to parliamentary scrutiny.
Proposed clause 4 of Schedule 8--Exempt online simulcast service
Proposed clause 4 would insert a definition of exempt online simulcast service for the purposes
of proposed new Schedule 8 (which is one of the exclusions from the definition of online
content service), being a service that does no more than provide a stream of content that:
is identical to the stream of programs transmitted on certain specified commercial,
subscription and national broadcasting services (paragraph 4(1)(a)); and
provides that stream of content simultaneously, or almost simultaneously, with the
transmission of that stream of programs (paragraph 4(1)(b)).
The specified broadcasting services for the purposes of paragraph 4(1)(a) are: a commercial
television broadcasting service provided under a commercial television broadcasting licence; a
commercial radio broadcasting service provided under a commercial radio broadcasting licence;
a subscription television broadcasting service provided under a subscription television
broadcasting licence; a subscription radio narrowcasting service; a subscription television
narrowcasting service; and a broadcasting service provided by the SBS.
Paragraph 4(1)(b) allows a stream of content which is provided both simultaneously, and
'almost simultaneously' to be considered an exempt online simulcast service (assuming the
other conditions are met). This recognises that there is typically at least a minor delay between a
broadcast transmission and an online simulcast service, for technical or other reasons. The
reference to an 'almost simultaneous' stream of content would be intended to capture, for
example brief delays due to the normal operation of internet carriage service infrastructure such
as transmission, routing and buffering delays. However, it would not be intended to capture a
situation where the online transmission was delayed for extended periods such that it could not
reasonably be considered to be a 'simulcast'.
Subclauses 4(2) and 4(3) clarify that, in determining whether a stream of content is identical to a
stream of programs for the purposes of subclause 4(1), certain things are to be disregarded.
These are any differences in the content that are attributable to the technical characteristics of
the provision or transmission (for example, video resolution or sound quality), and the presence
or absence of a watermark type logo or insignia (that is not gambling promotional content).
These provisions recognise that otherwise identical transmissions may be provided by the same
provider but under separate brands, for example a broadcast channel logo, and a separate digital
service logo for the online service.
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Proposed clause 5 of Schedule 8--Geographical link to Australia
Proposed clause 5 of new Schedule 8 would set out when a service has a geographical link to
Australia for the purposes of the Schedule (see proposed paragraph 3(1)(d)).
Subclause 5(1) would provide that a service has a geographical link to Australia if an ordinary
reasonable person would conclude that the service is targeted at individuals who are physically
present in Australia (paragraph 5(1)(a)); or, any of the content provided on the service is likely
to appeal to the public or a section of the public in Australia (paragraph 5(1)(b)). If either
paragraph 5(1)(a) or (1)(b) apply to a service, that service will have a geographical link to
Australia.
Subclause 5(2) would provide that, for the purposes of clause 5, content is provided on a service
if the content is delivered by the service, or accessible to end-users using the service.
The framing of when a service has a geographical link to Australia for the purposes of Schedule
8, which is in turn necessary for the service to be an online content service under clause 3, is
intended to ensure that only services which are relevant to Australian audiences are subject to
Schedule 8 rules. Due to the global nature of the internet, it is not intended that Schedule 8 rules
should apply to content which an Australian resident may be able to access but which,
objectively, is not targeted at an Australian audience or likely to appeal to a section of the
Australian public.
Examples of services that would be likely to have a geographical link to Australia, and therefore
potentially constitute online content service for the purposes of Schedule 8 (subject to other
conditions being met) include online services provided by domestic broadcasters, services that
cover live sports events involving Australian teams, services available for access by
subscription to Australian domestic residents, services that carry gambling promotional content
for Australian gambling services or other promotional content relevant to resident Australians.
Conversely, examples of services that are not intended to be regulated include services that do
not include any of the above content, or services provided by foreign media firms that may be
accessible to some resident Australians but are targeted at a non-resident audience taking into
account the broader circumstances, including the nature of the event concerned and other factors
such as service provider, language, and promotional content.
In practice the Government considers that the vast majority of online coverage of live sporting
events that carry gambling promotional content and are accessible to Australians are likely to be
targeted at, or appeal to, a resident Australian audience.
Proposed clause 6 of Schedule 8--Online content service provider
Proposed clause 6 would clarify that, for the purposes of proposed Schedule 8, a person does
not provide an online content service merely because the person supplies an internet carriage
service that enables content to be delivered or accessed (subclause 6(1)), or because the person
provides a billing or fee collection service in relation to an online content service (subclause
6(2)).
Proposed clause 7 of Schedule 8--When content is provided on an online content service
Proposed clause 7 of new Schedule 8 would set out when content is provided on an online
content service. This is relevant to proposed subclause 13(1), which allows the ACMA to make
rules that apply to online content service providers in relation to gambling promotional content
provided on online content services.
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Subclause 7(1) would provide that, for the purposes of proposed Schedule 8, content is provided
on an online content service if the content is delivered by, or accessible to end-users using, the
online content service.
Subclause 7(2) would provide that, for the purposes of proposed Schedule 8, content is provided
on an online content service to a particular end-user if the content is delivered to the end-user
by, or accessible to the end-user using, the online content service.
References to content being 'delivered by' the service and 'accessible to' the end-user are
intended to cover both a situation where the service may actively deliver content to the end-user
(for example, through push-technology), and where the service may not deliver content to any
particular end-user, but merely make it available on a service in a form which allows end-users
to access it should they wish.
Proposed clause 8 of Schedule 8--When a service is provided to the public etc.
Proposed clause 8 of new Schedule 8 would set out when a service is provided to the public for
the purposes of proposed paragraph 3(1)(c).
Subclause 8(1) would provide that a service is provided to the public if, and only if, the service
is provided to at least one person outside the immediate circle of the person who provides the
service. The term immediate circle is defined by section 23 of the Tel Act (see definition in
proposed clause 2).
Proposed clause 9 of Schedule 8--Extended meaning of using
Proposed clause 9 is based on section 24 of the Tel Act, and would provide that a reference in
Schedule 8 to using a thing is a reference to using the thing either in isolation, or in conjunction
with one or more other things.
This is intended to overcome potential difficulties in attributing instrumentality to a single
element of a system, where the whole system is required to perform an act.
Proposed clause 10 of Schedule 8--Extra-territorial application
Proposed clause 10 would extend the operation of proposed Schedule 8 to acts, omissions,
matters and things outside Australia.
As the proposed Schedule 8 is intended to have application to online content service providers
that may be located outside Australia, the purpose of this clause is to ensure that regulatory
provisions will not be interpreted so narrowly as to be applied only to acts, omissions, matters
and things done or situated within Australia, where any necessary Australian connections are
present (such as that the geographical link to Australia in proposed paragraph 3(1)(d) or the
provision of content to an end-user physically present in Australia in proposed subclause 13(5)).
Part 2 of Schedule 8--Online content service provider rules
Proposed Part 2 of Schedule 8 would set out the ACMA's power to make online content service
provider rules, matters to which those rules may relate, ACMA's power to grant exemptions
from the rules, and interpretive provisions.
Proposed clause 11 of Schedule 8--Online content service provider rules
Proposed clause 11 would allow the ACMA to, by legislative instrument, make rules (the online
content service provider rules) prescribing matters required or permitted by the BSA to be
44
prescribed in those rules. The intention of clause 11 is to limit the matters in relation to which
the ACMA can make online content service provider rules to those which are required or
permitted to be prescribed by the primary legislation. Any expansion of the matters in relation
to which ACMA could make rules could only be implemented by passage of further legislation
by the Parliament.
Proposed clause 12 of Schedule 8--Administrative decisions
Proposed clause 12 would allow the online content service provider rules to make provision for
or in relation to particular matters by empowering the ACMA to make decisions of an
administrative character. This is to avoid any doubt that the Parliament intends the ACMA to,
for example, be able to make rules that would operate on the basis of ACMA's discretion if
appropriate, and any suggestion that the making of a rule by the ACMA that would confer a
power on itself would be an inappropriate sub-delegation of power.
Part 3 of Schedule 8--Gambling promotional content
Proposed Division 1 of Part 3 of Schedule 8 sets out: for the purposes of clause 11, matters
regarding the provision of gambling promotional content on online content services that may be
prescribed by the online content service provider rules; certain exclusions from those rules; and
the ACMA's ability to exempt online content services, or online content service providers, from
one or more of the rules. Proposed Division 2 of Part 3 of Schedule 8 sets out interpretive
provisions for the purposes of ACMA's ability to make rules for or in relation to matters
regarding gambling promotional content.
The matters in relation to which ACMA can make rules and relevant interpretive provisions,
reflect the matters in relation to which ACMA can separately make a gambling promotion
program standard, in relation to certain broadcasters, under proposed section 125A of the BSA,
and the interpretive provisions for the purposes of those sections (see item 13 above).
Proposed clause 13 of Schedule 8--Gambling promotional content
Prohibiting or regulating gambling promotional content
Proposed subclause 13(1) would provide that the online content service provider rules may
make provision for or in relation to prohibiting or regulating gambling promotional content
provided on online content services in conjunction with live coverage of a sporting event.
Subclause 13(2) would provide that the online content service provider rules may make
provision for or in relation to requiring online content service providers to ensure that, if live
coverage of a sporting event is (or is to be) provided on their service, that certain explanatory
content is also provided by the provider in a manner specified in the rules. The explanatory
content relates to whether online content service provider rules made for the purposes of
subclause 13(1) apply in relation to that live coverage and, if so, how the rules apply in relation
to that live coverage.
Subclause 13(3) would provide that, if an online content service provider provides an online
content service, and content consisting of live coverage of a sporting event is, or is to be,
provided on the service, the online content service provider rules may make provision for or in
relation to requiring online content service providers to:
make records that are of a kind or kinds specified in the standard (subparagraph
13(3)(c)(i)), and that are sufficient to enable compliance by the licensee or provider
with a gambling promotion program standard made for the purposes of subclauses
13(1) and (2) to be readily ascertained (subparagraph 13(3)(c)(ii));
45
retain those records for a period ascertained in accordance with the first-mentioned
standard (paragraph 13(3)(d)); and,
make those retained records available to the ACMA on request (paragraph 13(3)(e)).
Subclause 13(4) clarifies that, for the purposes of subparagraph 13(3)(c)(i), examples of kinds
of standards that may be specified include written records, audio records, and audio-visual
records.
Subclause 13(1) (along with the interpretive provisions set out in proposed Division 2 of Part 3
to Schedule 8) is intended to allow the ACMA to make online content service provider rules
which set out restrictions in relation to the provision of gambling promotional content to end-
users in conjunction with live coverage of sporting events equivalent to those which apply to
licensed and subscription broadcasters, narrowcasters and the SBS. These restrictions apply (in
relation to the SBS) under the SBS Editorial Guidelines 2016 and (in relation to others) under
industry codes of practice registered under Part 9 of the BSA. An example is the restrictions
included in Appendix 3 to the Commercial Television Industry Codes of Practice 2015. Such
restrictions include that:
certain gambling promotional content is not to be provided during particular periods
before, during and after live coverage of certain sporting events, where the coverage of
that event falls within certain hours where children are most likely to be exposed to that
content;
any gambling promotional content that is provided complies with certain standards
and/or is not presented in a particular fashion;
any gambling promotional content that involves visual images or speech of a
representative of a gambling service provider must not give the impression that the
representative is at, or around, the sporting venue.
It is anticipated that any online content service provider rules would also reflect any additional
restrictions imposed on or applicable to broadcasting service providers (either through updates
to broadcasting industry codes of practice, guidelines, or ACMA standards) as a result of the
Government's policy announced in May 2017.
Proposed clause 11 and subclauses 13(1) - (3) (along with other interpretive provisions in this
section) could be used to make rules that, for example:
prohibit online content service providers from providing gambling promotional content
during a period that is in conjunction with live coverage of particular sporting events,
where that coverage occurs during a particular period of a day;
requires any gambling promotional content provided (including during particular
periods) to comply with specified standards;
restricts gambling promotional content from making particular types of representations;
requires online content service providers to provide information to end-users about the
rules that apply to the provision of gambling promotional content, and how those rules
apply;
requires publication of scheduled start times of live coverage of sporting events, or the
notification of the commencement or conclusion of a period within which gambling
promotional content will not be shown, in accordance with the rules; and
requires the provider to keep records and to provide that content to the ACMA in the
event a complaint is made in order to allow ACMA to investigate that complaint.
End-user physically present in Australia
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Subclause 13(5) would provide that any online content service provider rules made for the
purposes of subclause (1) or (2) do not apply in relation to content provided on an online
content service to an end-user unless the end-user is physically present in Australia.
Similarly to the Australian geographical link requirement in the meaning of online content
service in proposed clause 3(1)(d), this provision is intended to clarify that the online content
service provider rules are not intended to apply to content that does not have an Australian
connection (in this case, that an end-user who the content is provided to is physically present in
Australia).
Proposed clause 14 of Schedule 8--Accidental or incidental provision of gambling promotional
content
Proposed clause 14 of Schedule 8 would clarify that online content service provider rules do not
apply in relation to the provision of gambling promotional content on an online content service
if that content is provided as an accidental or incidental accompaniment to the provision of other
content, in circumstances where the provider of the online content service does not receive any
direct or indirect benefit (whether financial or not) for providing the gambling promotional
content.
This is intended to ensure that rules does not apply to gambling promotional content over which
the online content service provider has no control and for which the provider receives no
benefit. For example, if the rules provided that the gambling promotional content must not be
provided during a particular period, any gambling promotional content that is an accidental or
incidental accompaniment to other content provided during that period, and for which the
provider received no benefit, (e.g. logos on banners at a sporting ground or players' clothing)
would not be provided in breach of that rule.
Proposed clause 15 of Schedule 8--Individual exemptions from online content service provider
rules
Proposed clause 15 would allow the ACMA to determine, by writing, certain exemptions from
the online content provider rules made for the purposes of subclause 13(1) or (2) (being rules
prohibiting or regulating gambling promotional content; or, requiring certain explanatory
content to be provided). The exemptions may be targeted at a specified online content service,
or a specified online content service provider. Specifically, clause 15 would enable the ACMA
to determine that:
a specified online content service is exempt from online content service provider rules
made for the purposes of subclause 13(1) or (2) (clause 15(1));
a specified online content service is exempt from one or more specified provisions of
such rules (clause 15(2));
a specified online content service provider is exempt from online content service
provider rules made for the purposes of subclause 13(1) or (2) (clause 15(3));
a specified online content service provider is exempt from one or more specified
provisions of such rules (clause 15(4)).
Decision-making criteria
Subclause 15(5) would set out certain factors to which the ACMA must have regard in deciding
whether to make a determination (in relation to a specified online content service) under
subclause 15(1) or (2). The decision-making criteria are whether the online content service is a
small online content service (in relation to which see subclauses 15(7) - (10) below); whether a
failure to make the determination would be likely to have a substantial adverse effect on the
financial circumstances of the provider of the online content service; the likely impact of a
47
failure to make the determination on the quantity and quality of content provided on the online
content service; and such other matters (if any) as the ACMA considers relevant.
Subclause 15(6) would similarly set out certain factors to which the ACMA must have regard in
deciding whether to make a determination under subclause 15(3) (in relation to a specified
online content service provider). The decision-making criteria are whether the online content
services provided by the provider are small online content services; whether a failure to make
the determination would be likely to have a substantial adverse effect on the financial
circumstances of the provider; the likely impact of a failure to make the determination on the
quantity and quality of the content provided on the online content services provided by the
provider; and such other matters (if any) as the ACMA considers relevant.
The decision-making criteria in subclauses 15(5) and (6) are intended to provide stakeholders,
including online content service providers, with greater clarity about the exercise of the
ACMA's decision-making powers and the factors which may favour granting an exemption in a
particular case.
Small online content service
Subclause 15(7) would set out certain factors to which the ACMA must have regard in
determining whether an online content service is a small online content service. the ACMA
must have regard to: if the service has accounts for end users--the number of accounts that are
held by end users who are ordinarily resident in Australia; if the service does not have such
accounts--the number of end users who are ordinarily resident in Australia; and any other
matters the ACMA considers relevant. The number of end users resident in Australia is a
relevant consideration in assessing the potential harms that may arise from exempting these
services - a smaller audience means that it is less likely that significant numbers of Australian
children will be exposed to gambling promotional content.
Subclause 15(8) makes clear that, for the purposes of considering the number of accounts or end
users who are ordinarily resident in Australia, the ACMA may make such assumptions and
estimates as it considers reasonable. Subclause 15(9) provides for the ACMA to publish on its
website a statement explaining the ACMA's approach to determining whether an online content
service is a small online content service. Subclause 15(10) provides that a statement on the
ACMA's website under subclause (9) is not a legislative instrument. This provision is included
to assist readers, as the instrument is not a legislative instrument within the meaning of
subsection 8(1) of the Legislation Act.
The additional criteria in subclauses 15(7) and (8) are also intended to provide stakeholders,
including online content service providers, with greater clarity about the exercise of the
ACMA's decision-making powers and the factors which may favour granting an exemption in a
particular case.
Other matters
Subclause 15(11) would provide that an ACMA determination under this clause may be
unconditional, or subject to such conditions (if any) as are specified in the determination. For
example, ACMA may specify conditions that exemptions for particular services or providers are
subject to conditions relating to changes in the ownership or control of those services.
Subclause 15(12) provides that if the ACMA makes a determination under subclause (1), (2),
(3) or (4), the ACMA must publish a copy of the determination on the ACMA's website.
Subclause 15(13) provides that subsection 13(3) of the Legislation Act (which deals with
specification by class) does not apply to subclause (1), (2), (3) or (4), which reflects that clause
15 is intended to provide for individual exemptions from the online content service provider
48
rules, rather than class-based exemptions which are governed by clause 16 below. Subclause
15(14), which provides that a determination made under subclause (1), (2), (3) or (4) is not a
legislative instrument, is included to assist readers, as the determination is not a legislative
instrument within the meaning of subsection 8(1) of the Legislation Act.
Proposed clause 16 of Schedule 8--Class exemptions from online content service provider rules
Proposed clause 16 would allow the ACMA to determine, by legislative instrument, certain
class exemptions from the online content provider rules made for the purposes of subclause
13(1) or (2). Such exemptions may be targeted at a specified class of online content services, or
a specified class of online content service providers. Specifically, clause 16 would enable the
ACMA to determine that:
online content services included in a specified class of online content services are
exempt from online content service provider rules made for the purposes of subclause
13(1) or (2) (clause 16(1));
online content services included in a specified class of online content services are
exempt from one or more specified provisions of such rules (clause 16(2));
online content service providers included in a specified class of online content service
providers are exempt from online content service provider rules made for the purposes
of subclause 13(1) or (2) (clause 16(3));
online content service providers included in a specified class of online content service
providers are exempt from one or more specified provisions of such rules (clause
16(4)).
Subclause 16(5) would provide that an ACMA determination under this clause may be
unconditional, or subject to such conditions (if any) as are specified in the determination. For
example, ACMA may specify conditions that exemptions for particular classes of services or
providers are subject to conditions relating to changes in the ownership or control of those
services.
Proposed clause 17--When a part of an online content service is taken to be an online content
service in its own right
Proposed clause 17 is an interpretive provision which clarifies when a part of an online content
service is taken to be an online content service in its own right, for the purposes of the
application of Schedule 8 to a sporting event. It makes clear that if content that consists of live
coverage of the sporting event is (or is to be) provided on a distinct part of an online content
service, then that part is taken to be an online content service in its own right; and, that part is
taken not to be included in the overall online content service. It is immaterial whether gambling
promotional content or any other content is (or is to be) provided on that part.
Clause 17 is intended to ensure that online content service provider rules made for the purposes
of subclauses 13(1) and (2) only apply to the distinct parts of an overall online content service
on which content consisting of live coverage of a sporting event is provided. For example, if an
online content service consists of a website, where distinct parts of the website are dedicated to
particular types of content (e.g. live sports coverage, documentaries, comedy material), each
part that includes live coverage of a sporting event would be an online content service in its own
right. These 'part' services that include live coverage of a sporting event are treated separately
from the remainder of that overall service that does not include any such coverage. As a result,
rules made to regulate or prohibit the provision of gambling promotional content in conjunction
with live coverage of a sporting event would only apply to the parts of the overall content
service on which live coverage of the sporting event was being provided. Those rules would not
apply to, in the above example, the provision of gambling promotional content on the other part
or parts of the service providing only documentaries and comedy material.
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Proposed clause 18 of Schedule 8--Gambling service
Proposed clause 18 of new Schedule 8 would set out the definition of the term gambling service.
This is relevant to provisions including proposed clause 13 inserted by item 22, which provides
that the online content service provider rules may make provision for or in relation to
prohibiting or regulating gambling promotional content. Gambling promotional content would
be defined in Schedule 8 as advertising, sponsorship or promotional content that relates to a
gambling service. The definition is also use in the context of the definition of gambling service
provider, which is defined to mean the provider of a gambling service (see clause 2 above). The
term gambling service provider is in turn used in the definition of representative venue-based
promotion, which is relevant to determining when content is provided in conjunction with live
coverage of a sporting event for the purposes of the ACMA's rule making powers in clause 13
(see clauses 2 and 13 above, and clause 21 below).
Clause 18 would provide that a gambling service means:
a service for the placing, making receiving or acceptance of bets;
a service the sole or dominant purpose of which is to introduce individuals who wish to
make or place bets to individuals who are willing to receive or accept them;
a service for the conduct of a lottery;
a service for the supply of lottery tickets;
a service for the conduct of certain games of chance (or of mixed chance and skill)
played for money or anything else of value and where the customer gives or agrees to
give consideration to play or enter the game; or
a gambling service (within the ordinary meaning of that expression) that is not covered
by any of the above paragraphs.
The question of what is the sole or dominant purpose of a service is for paragraph (b) a question
of fact. A service that merely provides lottery results is not intended to be a service for the
conduct of a lottery for the purposes of paragraph (c). For the purposes of paragraph (e) a game
played for money or anything else of value is intended to include a game played for some kind
of prize which is of monetary value. An example of a game of chance is Roulette and an
example of a game of mixed chance and skill is Blackjack. The reference to a game of mixed
chance and skill is not intended to include games that would generally be regarded to be games
of skill, even though it could be argued that the outcome of the game might be affected by
chance.
The definition of gambling service is based on the equivalent definition in the Interactive
Gambling Act 2001. While the definition of gambling service is intended to be comprehensive
this only relates to the scope of the rule-making power provided to the ACMA. The ACMA, for
example, has discretion to make rules prohibiting or regulating gambling promotional content
the relates only to some types of gambling services, with the effect of excluding gambling
promotional content in relation to other particular gambling services (e.g. lotteries) from the
operation of the rules.
Proposed clause 19 of Schedule 8--Sporting event
Proposed clause 19 is an interpretive provision designed to clarify what is a sporting event for
the purposes of new Schedule 8.
Clause 2 of new Schedule 8, above, would provide that sporting event has a meaning affected
by clause 19.
Subclause 19(1) would provide that the Summer and Winter Olympic Games (paragraphs (1)(a)
and (b)), the Commonwealth Games (paragraph (1)(c)), and any other similar games (paragraph
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(1)(d)), are each taken to be a single sporting event. Other similar games for the purposes of
paragraph 19(1)(d) would include, for example, the Summer and Winter Paralympic Games,
Youth Olympic Games, Special Olympics World Games, Invictus Games and Nitro World
Games.
The ACMA's power to make online content service provider rules for the purposes of subclause
13(1) relates to the provision of gambling promotional content on online content services in
conjunction with live coverage of a sporting event. The phrase in conjunction with has a
particular meaning for the purposes of Schedule 8; i.e. gambling promotional content will be
taken to be in conjunction with live coverage of a sporting event if, and only if, such content is
provided during the relevant period specified in either subclause 21(1) or (3). Events such as the
Winter and Summer Olympics consist of a number of individual sporting events of different
types, and live coverage of these games often involves cutting directly between parts of those
individual sporting events and also includes other ceremonial events (such as opening and
closing ceremonies). Accordingly, treating games of this kind as a single sporting event greatly
simplifies the task of making rules during the periods specified in clause 21, and gives the
ACMA greater flexibility to make rules that are appropriately adapted to this format of games
event and the manner of corresponding coverage.
Subclauses 19(2) and (3) would allow the online content service provider rules to provide that
specified things are taken to be, or not to be, sporting events. Subclause 19(4) provides
examples of things that may be so specified, being a match; a series of matches; a race; a series
of races; a stage; a time trial; a qualification session; a tournament; and a round.
The ability for the online content service provider rules to set out what is taken to be, or not to
be, a sporting event, recognises that the boundaries of a sporting event are not always clear,
particularly in relation to new or developing activities where it is not always clear that the
activity is, or which components of the activity are, a sporting event within the ordinary
meaning of the term.
Proposed clause 20 of Schedule 8--Live coverage of a sporting event
Proposed clause 20 would provide that, if live coverage of a sporting event is provided on an
online content service and there is an unscheduled break in the sporting event, any content
provided on the service during that break is taken to be live coverage of a sporting event.
The intention of this subsection is that live coverage of a sporting event would consist of all
coverage of the actual event, as well as any content provided during unscheduled breaks in the
event. For example, if an online content service provider were providing live coverage of a
cricket match on an online content service, and that match was temporarily suspended due to
rain, clause 20 would have the effect that any replacement content provided by the service
during that rain break would be deemed to be live coverage of that cricket match.
This puts beyond doubt that rules made for the purposes of subclause 13(1) may make provision
prohibiting or regulating gambling promotional content in conjunction with that replacement
programming (although noting clause 21 deals separately with when gambling promotional
content is provided in conjunction with live coverage of a sporting event).
Proposed clause 21--Gambling promotional content provided in conjunction with live coverage
of a sporting event
Proposed clause 21 is intended to clarify the circumstances in which gambling promotional
content is provided on an online content service in conjunction with live coverage of a sporting
event, which goes to the scope of the ACMA's power to make a gambling promotion program
standard for the purposes of proposed subclauses 13(1) and (2).
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Proposed subsection subclause 21(1) would provide that, for the purposes of Schedule 8,
gambling promotional content (other than a commentator betting odds promotion or a
representative venue-based promotion) will be regarded as being provided on an online content
service in conjunction with live coverage of a sporting event if, and only if, the content is
provided on the service during the period beginning five minutes before the scheduled start of
the sporting event, and ending five minutes after the conclusion of the sporting event.
Subclause 21(3) would provide that, for the purposes of Schedule 8, gambling promotional
content that consists of commentator betting odds promotion or representative venue-based
promotion will be regarded as being provided on an online content service in conjunction with
live coverage of a sporting event if, and only if, the content is broadcast on the service during
the period beginning 30 minutes before the scheduled start of the sporting event, and ending 30
minutes after the conclusion of the sporting event.
Commentator betting odds promotion would mean gambling promotional content to the extent
to which it consists of the provision of betting odds (however described) by a commentator who
is not a representative of a gambling service provider (see clause 2 of new Schedule 8 above).
See clause 2 above, and clauses 22 and 23 below, in relation to the meaning of scheduled start
and conclusion of sporting events.
Representative venue-based promotion would mean gambling promotional content to the extent
to which it consists of visual images (animated or otherwise), or speech, of a representative of a
gambling service provider, where those visual images or that speech gives the impression that
the representative is at, or around, the venue of a sporting event. See clause 2 above in relation
to the meaning of gambling service provider.
The intent of these provisions is, among other things, to remove any argument that online
content service provider rules made for the purposes of subclauses 13(1) and (2) were invalid, or
did not operate, in relation to gambling promotional content provided by an online content
service provider on their service, on the basis that the content was not provided in conjunction
with live coverage of a sporting event.
The time periods in subclauses 21(1) and (3) reflect those restrictions which apply to
broadcasting of gambling promotional content in relation to the provision of betting odds by
commentators (see for e.g. clause IV of Appendix 3 to the Commercial Television Industry
Code of Practice 2015), as well as those additional restrictions which are intended to be applied
in relation to all other types of gambling promotional content (either by amendments to codes of
practice or a program standard made by the ACMA e.g. under new section 125A to be inserted
by item 13 of the Bill).
Subclauses 21(2) and (4) would provide that, if coverage of the sporting event is delayed, clause
21 has effect as if there were a corresponding delay to the period mentioned in subclauses (1)
and (3) respectively.
As outlined above (see clause 2) 'live' will be defined to include delayed coverage that is
presented as being live. Accordingly, subclauses 21(2) and (4) are intended to ensure that,
where the coverage is delayed but presented as live, the period within which gambling
promotional content will be in conjunction with live coverage of a sporting event will also be
delayed accordingly.
Proposed clause 22--Scheduled start of a sporting event
Proposed clause 22 would provide that the online content service provider rules may make
provision that, for the purposes of the application of Schedule 8 to a specified sporting event,
scheduled start has the meaning given by the online content service provider rules. This will
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allow the ACMA to clarify what constitutes the 'scheduled start' of a particular sporting event
where the ordinary meaning of that term may be unclear or produce an undesirable result. For
example, the ACMA could clarify that, in relation to a football match, the scheduled start of that
match means the first kick-off, or the point in time at which the players take the field in order to
kick off, rather than when the players enter the field for a warm-up.
Proposed clause 23--Conclusion of a sporting event
Similarly to clause 22, proposed clause 23 would provide that the online content service
provider rules may make provision that, for the purposes of the application of Schedule 8 to a
specified sporting event, conclusion has the meaning given by the online content service
provider rules. This will allow the ACMA to clarify what constitutes the 'conclusion' of a
particular sporting event where the ordinary meaning of that term may be unclear or produce an
undesirable result. For example, the ACMA could clarify that, in relation to a football match,
the conclusion of that match means the point at which the referee/umpire blows their whistle to
signal that the match has concluded. In some cases, this may include clarifying when an event
would be considered 'concluded' where there may be delay in the event (such as a rain break in
a cricket match) following which the event does not in fact resume.
Part 4 of Schedule 8--Complaints
Part 4 of Schedule 8 to the Bill provides for complaints to be made to the ACMA regarding
potential contraventions of the online content service provider rules.
Proposed clause 24--Complaints to ACMA--online content service provider rules
Proposed clause 24 provides that a person who has reason to believe that an online content
service provider has contravened the online content service provider rules may complain to the
ACMA about the matter. The ACMA may conduct an investigation into the complaint if it
thinks that it is desirable to do so, but is not required to conduct an investigation.
The note to clause 24, which is included to assist readers, highlights that one of the ACMA's
functions is to monitor compliance with the online content service provider rules (see proposed
new paragraph 10(1)(ma) to be inserted into the BSA by item 1 of the Bill).
Part 5 of Schedule 8--Enforcement
Part 5 of Schedule 8 to the Bill would provide a regime for enforcement of the online content
service provider rules which the ACMA would be empowered to make under clause 11 above.
The provisions are intended to enable the ACMA to take a graduated and risk-based approach to
enforcement, commensurate with the seriousness of any breach.
Proposed clause 25 of Schedule 8--Compliance with the online content service provider rules
Subclause 25(1) would provide that a person must not contravene the online content service
provider rules. Subclause 25(1) would be both a civil penalty provision (under subclause 25(1))
and a designated infringement notice provision (under subclause 25(4)).
As noted at item 18 above, the pecuniary penalty payable by a person in respect of a
contravention of proposed subclause 25(1) of Schedule 8 (or an ancillary contravention under
section 205E of the BSA) must not exceed: 300 penalty units if the person is a body corporate;
and, 60 penalty units if the person is not a body corporate.
Subclause 25(3) provides that an online content service provider who contravenes the online
content service provider rules commits a separate contravention in respect of each day during
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which the contravention continues (including a day of the making of a relevant civil penalty
order or any subsequent day).
Proposed clause 26 of Schedule 8--Remedial directions--breach of the online service provider
rules
If an online content service provider has contravened or is contravening the online service
provider rules (subclause 26(1)), then subclause 26(2) allows the ACMA to give the provider a
written direction requiring the provider to take specified action directed towards ensuring that
the provider does not contravene the rule, or is unlikely to contravene the rule, in the future. The
note to subclause 26(2) directs the reader to subsection 33(3) of the Acts Interpretation Act,
which deals with the power to revoke and vary instruments.
Subclause 26(3) sets out examples of the kinds of remedial directions the ACMA may give to a
provider, which include a direction that the provider implement: effective administrative
systems for monitoring compliance with the rules; or, a system designed to give the provider's
employees, agents and contractors a reasonable knowledge and understanding of the
requirements of relevant parts of the online content service provider rules.
Breach of a remedial direction under subclause 26(2) is a civil penalty provision under
subclause 26(5).
As noted at item 18 above, the pecuniary penalty payable by a person in respect of a
contravention of proposed subclause 26(4) of Schedule 8 must not exceed: 2000 penalty units if
the person is a body corporate; and, 400 penalty units if the person is not a body corporate.
Subclause 26(6) would provide for the continuing and separate contravention of the new civil
penalty provision in subclause 26(5), consistent with the provisions for contravention of the
online content service provider rules in subclause 25(4) as outlined above.
Subclause 26(7) would provide that for the purposes of the BSA and the ACMA Act, a remedial
direction given under subclause (2) is taken to be a notice under Schedule 8 to the BSA. This
would make clear that the ACMA may delegate the power to issue, or extend the time for
compliance with a remedial direction (see item 2 above), and that the exemptions from consent
requirements for electronic service of notices would apply to remedial directions (see clause 28
below).
Part 6 of Schedule 8--Miscellaneous
Proposed Part 6 of Schedule 8 sets out other miscellaneous provisions in relation to Schedule 8,
dealing with Ministerial directions, service, interaction of the Schedule with other BSA
Schedules, constitutional limits, and interaction with State and Territory laws.
Proposed clause 27 of Schedule 8--Minister may direct the ACMA about the exercise of its
powers
Proposed clause 27 would allow for the Minister to direct the ACMA, by legislative instrument,
about the exercise of its powers under new Schedule 8 to the BSA (other than Parts 4 or 5
regarding complaints and enforcement) (subclause 27(1)). This would include the power to
make online content service provider rules required or permitted by the Schedule and to exempt
an online content service from such rules. It is intended that such a direction could be either
general or specific in nature. For example, the Minister may direct the ACMA to make (or not
to make) rules, to only make rules (or not to make rules) in certain circumstances, and to ensure
any rules made are in a particular form, address particular matters, or include particular content.
The ACMA would be required to comply with such a direction (subclause 27(2)).
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A direction given by the Minister under proposed clause 27 would be a legislative instrument
but would not be subject to disallowance (see item 2 of the table in section 9 of the Legislation
(Exemptions and Other Matters) Regulation 2015, which providers that an instrument that is a
direction by a Minister to a person or body is exempt from disallowance).
Proposed clause 28 of Schedule 8--Service of notices by electronic means
Proposed clause 28 would override paragraphs 9(1)(d) and (2)(d) of the Electronic Transactions
Act 1999 in relation to any notice under new Schedule 8, or a notice under any other provision
of the BSA so far as that provision relates to Schedule 8. Such notices may include: remedial
directions issued under proposed subclause 26(2) (by operation of subclause 26(7));
infringement notices issued under Part 14E of the BSA for a contravention of the online content
service provider rules (see proposed subclauses 25(1) and (4)); or, notices that may be issued in
relation to the conduct of investigations by the ACMA under Part 13 of the BSA in connection
with the online content service provider rules (see, for example, section 173 which allows the
ACMA to give notice to a person summoning the person to attend or provide
documents/information in relation to an investigation).
Section 9 of the Electronic Transactions Act 1999 deals with circumstances where a
Commonwealth law requires or permits certain information to be provided to a person in
writing. Paragraphs 9(1)(d) and (2)(d) of that Act provide that a person who is not a
Commonwealth entity (nor acting on behalf of a Commonwealth entity) must consent to the
production of such information by electronic means. This default position is not considered
appropriate in circumstances where the ACMA is likely to frequently have access to electronic
contact details only.
The note to proposed clause 28 would inform the reader of the subject matter of paragraphs
9(1)(d) and (2)(d) of the Electronic Transactions Act 1999.
Proposed clause 29 of Schedule 8--Service of summons, process or notice on corporations
incorporated outside Australia
Proposed clause 29 would apply to summons or process in any proceedings under or connected
with Schedule 8, or a notice under Schedule 8 or any other provision of the BSA so far as that
provision relates to Schedule 8. This clause would provide that where such a summons, process
or notice is required to be served on, or given to, a body corporate that is incorporated outside
Australia, does not have a registered or principal office in Australia, and has an agent in
Australia (subclause 29(1)), then the summons, process or notice can be served on or given to
the agent (subclause 29(2)). As the ACMA may often be dealing with online content service
providers who are located overseas and may not have offices in Australia, this will assist
ACMA with its enforcement activities in connection with Schedule 8.
Subclause 29(3) clarifies that subclause (2) has effect in addition to section 28A of the Acts
Interpretation Act which deals with the service of documents.
Proposed clause 30 of Schedule 8--This Schedule does not limit Schedule 5 or 7
Proposed clause 30 clarifies that Schedule 8 to the Bill does not limit the operation of Schedule
5 (Online Services) or Schedule 7 (Content Services) to the BSA.
Proposed clause 31 of Schedule 8--Schedule 5 or 7 does not limit the operation of this
Schedule
Proposed clause 31 similarly clarifies that Schedules 5 or 7 does not limit the operation of
Schedule 8 to the BSA.
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Proposed clause 32 of Schedule 8--Implied freedom of political communication
Proposed clause 32 is a constitutional savings provision, which would provide that neither
Schedule 8 to the BSA nor the online content service provider rules (made under clause 11)
have effect to the extent (if any) that their operation would infringe any constitutional doctrine
of implied freedom of political communication.
This is intended to ensure that if any provision of Schedule 8, or the online content service
provider rules, would infringe any constitutional doctrine of implied freedom of political
communication, the section may be read down so as to operate in a way that would preserve the
validity of the section or rules.
Subclause (2) clarifies that subclause (1) does not limit the application of section 15A of the
Acts Interpretation Act, which provides that every Act shall be read and construed subject to the
Constitution.
Proposed clause 33 of Schedule 8--Acquisition of property
Proposed clause 33 is a constitutional savings provision, which would provide that neither
Schedule 8 to the BSA nor the online content service provider rules (made under clause 11)
have effect to the extent (if any) to which their operation would result in an acquisition of
property (within the meaning of paragraph 51(xxxi) of the Constitution) from a person
otherwise than on just terms.
This is intended to ensure that if any provision of Schedule 8, or the online content service
provider rules, would otherwise result in an acquisition of property other than on just terms, the
section may be read down so as to operate in a way that would preserve the validity of the
section or rules.
Proposed clause 34 of Schedule 8--Concurrent operation of State and Territory laws
Proposed clause 34 makes clear that it is the intention of the Parliament that Schedule 8 to the
BSA is not to apply to the exclusion of a law of a State or Territory to the extent to which that
law is capable of operating concurrently with Schedule 8.
Proposed clause 35 of Schedule 8-- Schedule not to affect performance of State or Territory
functions
Proposed clause 35 is also a constitutional safeguard, which provides that a power conferred by
Schedule 8 must not be exercised in such a way as to prevent the exercise of the powers, or the
performance of the functions, of government of a State, the Northern Territory or the Australian
Capital Territory.
This will prevent any unintended interference with the activities of the States or Territories (for
example, their activities in relation to certain gambling regulation).
Enhancing Online Safety Act 2015
Item 23--Section 98 (heading)
Item 24--Section 98
Items 23 and 24 to the Bill would make minor consequential amendments to section 98 of the
Enhancing Online Safety Act 2015 to reflect the addition of Schedule 8 to the BSA. Section 98
currently provides that the Enhancing Online Safety Act 2015 does not limit Schedule 5 or 7 of
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the BSA. Items 23 and 24 would repeal and replace the heading to section 98, and amend
section 98, to include a reference to Schedule 8 to the BSA, in addition to Schedules 5 and 7.
57