Document ID: chunk:federal_register_of_legislation:F2021L01123:reg:4:p2
Version: federal_register_of_legislation:F2021L01123
Segment Type: reg
Provision Reference: reg 4 (pt 2/12)
Character Range: 3254–6327

that, in the opinion of the ACMA, will:

                 produce regulatory arrangements that are stable and predictable; and

                 deal effectively with breaches of the rules established by the BSA.

    6.3 Subsection 215(4) of the BSA provides that the ACMA may formulate guidelines relating to its enforcement powers. These guidelines are in force for the purposes of subsections 215(5) and (6) of the BSA.

    6.4 The guidelines highlight the discretionary factors which the ACMA generally considers in the exercise of its enforcement powers conferred under Division 4 of Part 8B—remedies for breaches of international broadcasting licence provisions, Part 10—remedies for breaches of broadcasting licensing provisions, Part 14B—civil penalties, Part 14D—enforceable undertakings, Part 14E—infringement notices and Part 8 of Schedule 6 to the BSA—remedies for breaches of datacasting licence provisions, and in deciding whether to refer a matter to the CDPP. The guidelines also highlight the ACMA's approach to public comment and publication of enforcement action.

    6.5 The guidelines take into account the objects of, and regulatory policy underpinning, the BSA (sections 3 and 4).

    6.6 Under the BSA, the ACMA is responsible for regulating certain aspects of media diversity. The ACCC has a role in regulating competition and assessing whether a merger will lead to a substantial lessening of competition. Where a matter requires enforcement action by both agencies, these processes will generally run in tandem, although this may vary depending on the circumstances of each individual case.

    6.7 While the guidelines seek to provide guidance to the regulated community, the ACMA retains the discretion to impose or seek remedies and sanctions which it considers appropriate in the light of the particular circumstances of each case.

7 Types of enforcement action available to the ACMA

    7.1 The types of enforcement action available to the ACMA reflect the diverse and dynamic regulatory environment in which the ACMA operates as well as the range of the ACMA's responsibilities.

    7.2  The enforcement powers conferred on the ACMA under the BSA include:

                 giving an infringement notice, accepting an enforceable undertaking, giving a remedial direction, and suspending or cancelling licences (administrative action)

                 instituting civil proceedings to obtain injunctive relief, an order to cease, civil penalty orders, and orders to enforce compliance with an enforceable undertaking (civil litigation)

                 referral to the CDPP for prosecution of an offence (criminal prosecution).

    7.3 Not all of these enforcement powers are available for every contravention of the BSA. Certain enforcement decisions may only be made by the Authority (see subsection 53(2) of the ACMA Act).

    7.4 The ACMA may, in the exercise of its discretion, accept informal voluntary undertakings given by a regulated entity. An undertaking of this kind may resolve and address the issues of concern