Explanatory Statement
BROADCASTING SERVICES (EVENTS) NOTICE (No. 1) 2004
(AMENDMENT No. 1 OF 2005)
Issued by the authority of the Minister for Communications, Information Technology and the Arts
Purpose
This Notice amends the pay TV anti-siphoning list (contained in the Broadcasting Services (Events) Notice (No. 1) 2004), to add to the list each match in the Fédération Internationale de Football Association (FIFA) World Cup tournament held in 2010.
Anti-siphoning rules
The Broadcasting Services Act 1992 (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, the televising of which the Minister for Communications, Information Technology and the Arts considers should be 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 list is now registered on the Federal Register of Legislative Instruments (FRLI) under the Legislative Instruments Act 2003.
Subsection 115(1A) of the Act empowers the Minister, by Notice published in the Gazette, to amend a Notice under subsection 115(1) to specify an additional event to be included on the anti-siphoning list, if the Minister is of the opinion that the televising of that event should be available free to the public.
The 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 which prevents 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.
The Notice is a disallowable legislative instrument for the purposes of the Legislative Instruments Act. The Notice will be registered on FRLI, and will take effect the day after it is registered.
Each match in the FIFA World Cup tournament to be held in 2006 is listed on the anti-siphoning list (at item 8.2 of Schedule 2). The Minister has decided to amend the Broadcasting Services (Events) Notice (No. 1) 2004 to include each match in the subsequent FIFA World Cup tournament, to be held in 2010. The Minister has formed the opinion that the televising of these events should be available free to the public.
The addition of each match in the 2010 FIFA World Cup tournament to the anti‑siphoning list follows extensive consideration and discussion of the issue by the Senate Environment, Communications, Information Technology and the Arts Committee, both during its 2004-05 Additional Estimates hearings in February 2005, and in hearings associated with its inquiry into the Broadcasting Services Act (Anti‑Siphoning) Bill 2004. These hearings featured input and submissions from all major stakeholders associated with the operation of the anti-siphoning scheme. For this reason, no additional consultation has been undertaken by the Government.
Notes on Clauses
Clause 1 of the Notice provides for the Broadcasting Services (Events) Notice (No. 1) 2004 to be amended.
Clause 2 inserts new Item 8.2 into Schedule 2 of the Broadcasting Services (Events) Notice (No. 1) of 1994. New Item 8.2 adds to the anti-siphoning list each match in the FIFA World Cup tournament held in 2010.
Overview
The Broadcasting Services (Events) Notice (No. 1) 2004 (Amendment No. 1 of 2005) was enacted to address the problem of subscription television broadcasting (pay TV) licensees acquiring exclusive broadcast rights to events that the Minister for Communications, Information Technology and the Arts considers should be available free to the general public. This problem is addressed through the anti-siphoning rules contained in the Broadcasting Services Act 1992, which prevent pay TV licensees from obtaining exclusive broadcast rights to certain events unless a national broadcaster or commercial television broadcasting licensee has already acquired the right to broadcast the event, or the event has been delisted. The amendment was introduced by the Minister for Communications, Information Technology and the Arts and was passed by the Parliament of Australia. The policy objective of the amendment is to ensure that major sporting events, such as each match in the Fédération Internationale de Football Association (FIFA) World Cup tournament held in 2010, are available for free-to-air broadcast to the general public, rather than being exclusively broadcast by pay TV services.
Scope and Application
The Broadcasting Services (Events) Notice (No. 1) 2004 (Amendment No. 1 of 2005) pertains to the anti-siphoning list under the Broadcasting Services Act 1992, with a focus on ensuring that certain events are broadcast freely to the public rather than exclusively on subscription television (pay TV). The Minister for Communications, Information Technology and the Arts has amended the notice to include all matches in the Fédération Internationale de Football Association (FIFA) World Cup tournament held in 2010 on the anti-siphoning list. This amendment is grounded in the view that these events should be accessible free to the public. The anti-siphoning rules are designed to prevent pay TV licensees from securing exclusive broadcast rights to events deemed by the Minister to be of public interest, thus ensuring they are available on free-to-air television. The legislative amendment extends the application of the anti-siphoning provisions to the 2010 FIFA World Cup matches, building upon the existing framework established by the Broadcasting Services (Events) Notice (No. 1) 2004. This amendment takes effect the day after its registration on the Federal Register of Legislative Instruments and is subject to disallowance under the Legislative Instruments Act.
Key Provisions
The key operative sections of this Notice are Clauses 1 and 2 (Clause 1). Clause 1 amends the Broadcasting Services (Events) Notice (No. 1) 2004, and Clause 2 inserts a new item into Schedule 2 of the Notice, thereby adding each match in the 2010 FIFA World Cup tournament to the anti-siphoning list. These amendments aim to ensure that the televising of these events remains free to the general public, in line with the anti-siphoning rules.
The Notice imposes obligations on pay TV licensees by maintaining the anti-siphoning list, which restricts their ability to acquire exclusive broadcast rights to events deemed important for public access (Section 99 and paragraph 10(1)(e) of the Broadcasting Services Act 1992). Specifically, these licensees cannot obtain broadcast rights to events listed unless a national broadcaster or commercial television broadcaster has already secured those rights, or the event has been removed from the list. This ensures that significant events remain available to the general public without exclusive pay TV coverage.
Breaches of the anti-siphoning rules, as outlined in the Broadcasting Services Act 1992, can lead to both civil and criminal consequences. Under Section 115(1A), the Minister may impose penalties on pay TV licensees who violate the anti-siphoning conditions. The Act does not specify maximum penalties for these offences, leaving the determination of penalties to the discretion of the Minister or the courts, based on the severity and nature of the breach. These penalties could include fines or other legal actions to enforce compliance with the anti-siphoning rules.
This Notice also establishes that it is a disallowable legislative instrument under the Legislative Instruments Act 2003. This means that Parliament can review and potentially disallow the Notice, providing an additional layer of oversight and accountability. The Notice will be registered on the Federal Register of Legislative Instruments (FRLI) and will take effect the day after its registration, ensuring transparency and accessibility of the legislative changes.