Explanatory Statement
BROADCASTING SERVICES (ANTI-SIPHONING MONITORING) DIRECTION (NO. 1) 2005 (AMENDMENT NO. 1 OF 2008)
Issued by the authority of the Minister for Broadband, Communications and the Digital Economy
Purpose
The Broadcasting Services (Anti-Siphoning Monitoring) Direction (No. 1) 2005 (Amendment No. 1 of 2008) (‘the Direction’) is made by the Minister for Broadband, Communications and the Digital Economy under subsection 171(1) of the Broadcasting Services Act 1992 (‘the Act’).
The Direction amends the Broadcasting Services (Anti-Siphoning Monitoring) Direction (No. 1) 2005 (‘the 2005 Direction’), which requires the Australian Communications and Media Authority (ACMA) to investigate the operation of the anti-siphoning provisions of the Act, and to periodically report its findings to the Minister.
The Government has decided that it does not wish ACMA to be subject to the investigation or reporting requirements imposed by the 2005 Direction. The Direction amends the 2005 Direction accordingly.
Anti-siphoning rules
The Act contains provisions, known as the anti‑siphoning rules, which prevent subscription television broadcasting (pay TV) licensees from acquiring exclusive broadcast rights to events which the Minister considers should be televised free to the general public.
Subsection 115(1) of the Act empowers the Minister, by Notice published in the Gazette, to specify an event, or events of a kind, the televising of which should in the opinion of the Minister be available free to the general public.
In the Commonwealth of Australia Gazette No. GN 20, 19 May 2004, the Minister published the Broadcasting Services (Events) Notice No. 1 of 2004, which specified a list of events in accordance with subsection 115(1) of the Act. This is known as the anti-siphoning list.
The combined effect of section 99 of the Act and paragraph 10(1)(e) in Part 6 of Schedule 2 to the Act is that pay TV licensees are subject to a licence condition preventing them from acquiring a broadcast right to an event on the anti-siphoning list unless a national broadcaster or commercial television broadcasting licensee has acquired the right to broadcast that event, or the event has been delisted.
Amendment of the 2005 Direction
Clause 2 of the 2005 Direction requires ACMA to investigate and monitor the broadcasting of events on the anti-siphoning list, including the nature, extent and use of television rights obtained by commercial television broadcasting licensees and national broadcasters to such events. The 2005 Direction also requires ACMA to provide interim reports and a final report of its investigations to the Minister.
The Government has decided that the obligations imposed by the 2005 Direction are no longer required to ensure that ACMA is able to effectively monitor and investigate the acquisition and use of broadcast rights to events on the anti-siphoning list by free‑to-air broadcasters.
ACMA has sufficient powers to conduct investigations concerning broadcasters’ compliance with the anti-siphoning provisions under section 170 of the Act. Furthermore, section 177 of the Act provides that ACMA may require a person to make available to the authority documents that may contain information relevant to the subject matter of an investigation. Accordingly, the Direction amends the 2005 Direction by revoking clause 2.
The Direction is issued in reliance on the same subsection of the Act, subsection 171(1), relied upon for the 2005 Direction. The subsection empowers the Minister to direct ACMA to investigate any matter within Commonwealth constitutional power over communications (and, in light of subsection 33(3) of the Acts Interpretation Act 1901, to repeal, rescind, revoke, amend, or vary such a direction).
The Direction does not affect the operation of Clause 1 of the 2005 Direction. Clause 1 provides that ACMA is no longer to act under Direction to the ABA No. 4 of 1996 (‘the 1996 Direction’). The 1996 Direction, issued to the then-ABA, required ACMA to report to the Minister about the free availability of programming to the public.
Consultation
ACMA has been consulted on the making of this Direction. Further consultation was considered unnecessary in light of the procedural nature of the Direction and the fact that ACMA is the major affected party.
Commencement
The Direction will take effect the day after it is registered on the Federal Register of Legislative Instruments.