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2023-2024
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
BROADCASTING SERVICES AMENDMENT
(HEALTHY KIDS ADVERTISING) BILL 2024
EXPLANATORY MEMORANDUM
and
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Circulated by authority of
Dr Sophie Scamps MP
Broadcasting Services Amendment
(Healthy Kids Advertising) Bill 2024
OUTLINE
This bill amends the Broadcasting Services Act 1992 (the Act) to prohibit the broadcasting
of unhealthy food marketing on certain television and radio broadcasting services, and to
prohibit the provision of unhealthy food marketing on online services, including
narrowcasting and subscription services.
The bill aims to achieve a comprehensive ban on unhealthy food marketing, for the
purpose of protecting individuals, and in particular children, from exposures to unhealthy
food marketing.
Children in Australia are constantly exposed to high volumes of unhealthy food marketing,
creating and increasing preference for and consumption of these foods. Over their lifetime
this increases the risk of excess weight gain and increases the prevalence of a range of
chronic diseases.
In Australia, one in four children are classified as overweight or obese, increasing the risk
of non-communicable diseases, such as diabetes, heart disease and some cancers across
the life-course.
Consumption of an unhealthy diet is a major driver of excess weight gain. On average,
about a third of children's daily energy intake is from 'discretionary' or unhealthy foods high
in salt, sugar or saturated fats. Australian children are seeing these very foods and drinks
every day as they live, play and learn, via highly sophisticated marketing campaigns.
The National Obesity Strategy 2022-2032, the National Preventive Health Strategy 2021-
2030, the National Diabetes Strategy 2021-2030 and the State of Diabetes Mellitus in
Australia in 2024 Report of the Standing Committee on Health, Aged care and Sport's
Inquiry into Diabetes, all recommend government-led action to protect children from
unhealthy food marketing.
The bill is consistent with Australia's international commitments. The World Health
Organization's marketing recommendations state that it is governments' role to lead the
development of policy to reduce the influence of unhealthy food marketing on children.
Several countries around the world have taken action to protect children from unhealthy
food marketing. For example, the UK enacted the Health and Care Act, which prohibits all
unhealthy food marketing on broadcast (television, radio and cinema) between the hours
of 5am and 10pm, and a total ban on all online unhealthy food marketing that has been
paid for (through monetary or non-monetary means).
The bill includes amendments to existing TV and Radio broadcast legislation to prohibit
airing of unhealthy food marketing between the local hours of 6am and 9:30pm. The
amendments relating to online marketing will apply at all hours. The bill creates a general
prohibition on unhealthy food marketing online, applicable to both those who provide such
content and also to those who pay for it to be provided.
"Unhealthy food" would be defined as products within a food or drink category not
recommended for promotion by National interim guide to reduce children's exposure to
unhealthy food and drink promotion published by the COAG Health Council in 2018. The
Minister may also issue instruments defining additional foods as unhealthy for the
purposes of this definition.
The scope of the term "marketing" will include advertising, sponsorship or promotional
content that gives publicity to, or otherwise promotes or is intended to promote, unhealthy
food, a trade mark that relates to unhealthy food, a domain name or URL that relates to
unhealthy food, or other branding devices that are closely associated with unhealthy food.
The prohibitions in the bill are backed by the capacity for courts to impose effective
penalties of up to $550,000, or up to 5% of the unhealthy food products turnover of large
corporations.
The bill also includes provision for its operation to be reviewed after 4 years.
FINANCIAL IMPACT
The bill will have no financial impact.
NOTES ON CLAUSES
Clause 1: Short Title
This clause is a formal provision and specifies the short title of the Act as the Broadcasting
Services Amendment (Healthy Kids Advertising) Act 2024.
Clause 2: Commencement
This clause provides for the commencement of the Act on the day after funds are
appropriated to the Department administering the Act to support the work of giving effect to
the terms of the Act.
Clause 3: Schedules
This clause establishes that, as the intent of the Act is to be realised through amendments
to another Act, the schedule of this Act will amend that Act accordingly.
Schedule 1
Broadcasting Services Act 1992
Item 1: After paragraph 3(1)(j)
This item amends the existing Act to add an additional purpose of the primary legislation,
namely "to protect individuals (including, in particular, children) from exposure to unhealthy
food marketing content".
Item 2: Section 6
This item amends the definitions of the existing Act to include the definition of the
expression "unhealthy food marketing content", which is provided in detail by new
subsection 130AAA(1) (see Item 3 below).
Item 3: After Part 9
Part 9AA - Unhealthy food marketing content
This item adds new provisions to the existing Act to:
• set out the detail of new definitions of "content", "relevant COAG guidance",
"unhealthy food" and "unhealthy food marketing content".
• create a new offence of broadcasting unhealthy food marketing content in the
period beginning at 6:00 am and ending at 9:30 pm
• provide for the Australian Communications and Media Authority (ACMA) to review
the operation of this Act after 4 years.
130AAA Definitions
This item adds new provisions to subsection (1) of the existing Act to provide definitions of
"content", "relevant COAG Guidance", "unhealthy food", and "unhealthy food marketing
content".
The references to "unhealthy food" and "relevant COAG Guidance" pick up the National
interim guide to reduce children's exposure to unhealthy food and drink promotion,
published by the COAG Health Council in 2018, which provides a sound starting point for
the definition of "unhealthy food". This document was agreed by all Australian
governments and is already in use for a variety of policy purposes. Making reference to
these Guidelines provides a single authoritative, evidence-based point of reference to an
identifiable document listing categories of food for the purposes of this Act.
The definition of "unhealthy food marketing content" also includes reference to trade
marks, domain names and URLs, and other "words, abbreviations, initials or numbers that
are closely associated with unhealthy food", so as to capture common marketing practices
that, rather than promote the products directly, highlight brands, or use other marketing
tools to draw consumer attention to products.
Subsection (2) further provides that the Minister may, by legislative instrument, determine
food and drink products that are also defined as "unhealthy food".
130AAB References to time
This item adds a provision to make clear that references to times of day apply in terms of
the legal time where the targets of marketing activities are located.
130AAC Prohibition on broadcasting unhealthy food marketing content at certain
times
This item adds new provisions to the existing Act creating an offence of broadcasting
unhealthy food marketing content in the period beginning at 6:00am and ending at 9:30pm.
This offence applies to TV, Radio, narrowcasting and subscription, and datacast broadcast
media.
Subsection (1) establishes the range of broadcasters and other licensees to which the new
prohibition applies.
Subsection (2) sets out the specific terms of the new prohibition.
Subsection (3) provides an exception to the prohibition for acts of broadcasting that are
accidental or incidental, and for which the broadcaster receives no financial or other
benefit.
Subsections (4) and (5) operate to protect the new prohibition from possible invalidation
where a specific application of the prohibition in a particular case would have the
unintended effect of impinging on the freedom of political communication implied in the
Constitution.
Subsection (6) operates to protect the new prohibition from possible invalidation where a
specific application of the prohibition in a particular case would result in an unintended
acquisition of property (within the meaning of paragraph 51(xxxi) of the Constitution) from
a person otherwise than on just terms.
Subsection (7) is intended to make it clear how the prohibition on broadcasting unhealthy
food marketing content interacts with other Commonwealth laws.
130AAD Review of this Part etc.
This item adds new provisions to the existing Act providing for the ACMA to review of the
operation of this Act after 4 years. The review must make provision for public consultation.
The report of the review must be given to the Minister, who must present the report to the
Parliament within 15 sittings days after receiving the report.
Item 4: Paragraph 150(2)(a)
This item amends the Act by making a consequential amendment to ensure that the new
Part 9AA (see Item 3 above) is picked up in an existing clause relating to complaints
relating to national broadcasting services or datacasting services provided by the ABC or
SBS.
Item 5: Subsections 205F(4) and (5)
This item amends the Act by making a consequential addition of references to the
provisions of the new Part 3A (see Item 14 below).
Item 6: After subsection 205F(5B)
This item amends the existing Act to set out the penalties for breach of the prohibition
created by the new section 130AAC. It establishes maximum penalties in two categories:
• If the offender is a body corporate - the maximum penalty is the larger of either
2,000 penalty units (currently $626,000), or 5% of the annual turnover of the
corporation for the preceding 12-month period which "involves or is associated with
the manufacture or sale of unhealthy food".
• If the offender is not a body corporate, the maximum penalty is 400 penalty units
(currently $125,200).
Item 7 After paragraph 7(1)(b) of Schedule 2
This item amends the existing Act to extend into a commercial television broadcast
licensees' licence conditions the obligation not to offend against the new prohibition in
section 130AAC.
Item 8: After paragraph 8(1)(b) of Schedule 2
This item amends the existing Act to extend into a commercial radio broadcast licensees'
licence conditions the obligation not to offend against the new prohibition in section
130AAC.
Item 9: After paragraph 9(1)(c) of Schedule 2
This item amends the existing Act to extend into a community broadcasting licensees'
licence conditions the obligation not to offend against the new prohibition in section
130AAC.
Item 10: After paragraph 10(1)(b) of Schedule 2
This item amends the existing Act to extend into a subscription television broadcasting
licensees' licence conditions the obligation not to offend against the new prohibition in
section 130AAC.
Item 11: After paragraph 11(1)(b) of Schedule 2
This item amends the existing Act to extend into the licence conditions of broadcasting
services provided under class licences the obligation not to offend against the new
prohibition in section 130AAC.
Item 12: Clause 1 of Schedule 8
This item amends the 'simplified outline' at the beginning of Schedule 8 of the existing Act,
which deals with online content services, to substitute the description of 'online content
service provider rules', about which the ACMA may give remedial directions to licensees,
with descriptions of the new provisions relating to unhealthy food marketing content that
are established by this Act.
Item 13: Clause 2 of Schedule 8
This item amends the existing Act to pick up the new definition of the expression
"unhealthy food marketing content" established by the new subsection 130AAA(1) (see
Item 3 above).
Item 14: After Part 3 of Schedule 8
This item amends the existing Act to create new offences prohibiting online service
providers from providing unhealthy food marketing content that can be accessed by
end-users in Australia through an through an online service, as well as a matching offence
of paying for, or offering to pay for, an act of providing such content. Hence, these
offences apply to both online providers and also to the purchasers of the marketing in
question.
New Part 3A--Unhealthy food marketing content
23A Prohibition--providing unhealthy food marketing content
This item amends the Act by creating the new offence of an online content service provider
providing unhealthy food marketing content.
Subsection (1) outlines the attributes and actions which would constitute the offence.
Subsection (2) provides an exception to the prohibition for acts of broadcasting that are
accidental or incidental, and for which the broadcaster receives no financial or other
benefit.
Subsection (3) formally creates the offence, and provides that the maximum penalty for the
offence is 2,000 penalty units (currently $626,000).
Subsection (4) states that subsection (1) is also a 'civil penalty provision', which links to
provisions in Part 14B of the existing Act.
Subsection (5) provides that a separate offence occurs for each different day during which
the contravention continues.
23B Prohibition--paying for unhealthy food marketing content
This item amends the Act by creating the new offence of paying for unhealthy food
marketing content. Making a commitment to pay is also stated to constitute the offence.
Subsection (1) outlines the attributes and actions which would constitute the offence.
Subsection (2) provides that for the purposes of this offence, providing non-financial
considerations also constitutes "paying".
Subsection (3) provides an exception to the prohibition for acts of broadcasting with are
accidental or incidental, and for which the broadcaster received no financial or other
benefit.
Subsection (4) formally creates the offence, and provides that the maximum penalty for the
offence is 2,000 penalty units (currently $626,000).
Subsection (5) states that subsection (1) is also a 'civil penalty provision', which links to
provisions in Part 14B of the existing Act.
Subsection (6) provides that a separate offence occurs for each different day during which
the contravention continues.
Item 15: Clause 24 of Schedule 8 (heading)
This item amends the Act by making a consequential deletion of a reference to the "online
content service provider rules", which term is for the purposes of this Act replaced by other
provisions of the new Part 3A of Schedule 8 (see Item 14 above).
Item 16: After subclause 24(1) of Schedule 8
This item amends the Act by adding an additional ground to the existing ground for making
a complaint to the ACMA about online content, picking up the new offence provisions
inserted in Part 3A of Schedule 8 (see Item 14 above).
Item 17: Clause 26 of Schedule 8
This item amends the Act by making a consequential deletion of a reference to the "online
content service provider rules", which term is for the purposes of this Act replaced by other
provisions of the new Part 3A of Schedule 8 (see Item 14 above).
Item 18: At the end of subclause 26(1) of Schedule 8
This item amends the Act by making a consequential addition of a reference to the
provisions of the new Part 3A of Schedule 8 (see Item 14 above).
Item 19: Subclauses 26(2) and (3) of Schedule 8
This item amends the Act by making consequential deletions of references to the "online
content service provider rules", and replacing those references with references to the
provisions of the new Part 3A of Schedule 8 (see Item 14 above).
Item 20: Application provision
This Item provides that the amendments made by items 7 to 11 of this Schedule of
amendments, relating to various broadcast licences, shall apply to existing licences,
regardless of when those licences were allocated.
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act
2011
BROADCASTING SERVICES AMENDMENT
(HEALTHY KIDS ADVERTISING) BILL 2024
Overview
This bill seeks to amend the Broadcasting Services Act 1992 (the Act) to prohibit the
broadcasting of unhealthy food marketing on certain television and radio broadcasting
services, and to prohibit the provision of unhealthy food marketing on online services,
including narrowcasting and subscription services.
The bill aims to achieve a comprehensive ban on unhealthy food marketing, for the
purpose of protecting individuals, and in particular children, from exposures to unhealthy
food marketing.
Children in Australia are constantly exposed to high volumes of unhealthy food marketing,
creating and increasing preference for and consumption of these foods. Over their lifetime
this increases the risk of excess weight gain and increases the prevalence of a range of
chronic diseases.
The bill is consistent with Australia's international commitments. The World Health
Organization's marketing recommendations state that it is governments' role to lead the
development of policy to reduce the influence of unhealthy food marketing on children.
Human rights implications
By imposing a prohibition on the broadcasting of unhealthy food marketing, this bill does
impinge on freedom of expression. This freedom, exercised by commercial television and
other online broadcasters operating in conformity with government licences, is curtailed
with the aim of limiting the promotion of unhealthy food marketing, and consequently
reducing the financial, social and mental health harm that excessive unhealthy food
marketing inflicts on individuals and the community.
This prohibition on unhealthy food marketing is especially important in relation to the
legitimate purpose of protecting young people from exposure to unhealthy food marketing
at ages before they can make mature, informed and independent choices about
engagement with such activity.
The social, financial and mental health benefits to the community of similar long-
established bans on broadcasting advertisements for alcohol and tobacco products are
widely recognised.
The Bill explicitly states that the prohibition on broadcasting unhealthy food marketing has
no effect to the extent (if any) that its operation would infringe any constitutionally implied
freedom of political communication, or the constitutional prohibition on acquisition of
property other than on just terms.
Conclusion
This bill is compatible with human rights because to the extent that it may limit human
rights, those limitations are reasonable, necessary and proportionate, and in the interest of
the public good. 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.
Dr Sophie Scamps MP