Explanatory Statement

Broadcasting Services Act 1992

Broadcasting Services (Events) Notice (No. 1) 2010

(Amendment No. 11 of 2016)

Issued by the Authority of the Minister for Communications

Purpose

The Broadcasting Services (Events) Notice (No. 1) 2010 (Amendment No. 11 of 2016) (the Notice) is made by the Minister for Communications (the Minister) under subsection 115(2) of the Broadcasting Services Act 1992 (the BSA).

The purpose of the Notice is to amend the Broadcasting Services (Events) Notice

(No. 1) 2010 (the Principal Notice) to remove an event from the Principal Notice to permit that event to be premiered on a ‘free-to-air’ television digital multichannel.

The Notice is a legislative instrument for the purposes of subsection 8(2) of the Legislation Act 2003.

Background

Legislative background

Subsection 115(1) of the BSA provides that the Minister may make a notice that specifies events that, in the Minister’s opinion, should be televised free to the general public. An event, or an event of a kind, specified in a notice under subsection 115(1) is an ‘anti-siphoning event’ for the purposes of the definition of that term in section 6 of the BSA. The notice made under subsection 115(1) is commonly known as the ‘anti‑siphoning list’.

The inclusion of an event in the anti-siphoning list triggers a licence condition for subscription television broadcasters that prohibits subscription television broadcasters from acquiring rights to televise the event ahead of free-to-air commercial television broadcasters and national broadcasters (see section 99 of the BSA and paragraph 10(1)(e) of Schedule 2 to the BSA).

The BSA also imposes restrictions on both free-to-air commercial television broadcasters and national broadcasters with regard to televising events from the anti‑siphoning list. Such restrictions ensure that anti-siphoning events (or parts of these events) are not shown on the broadcasters’ standard definition or high definition digital television multichannels without first being shown, or being shown simultaneously, on the broadcasters’ main channels (see Part 4A of Schedule 4 to the BSA). These restrictions continue to apply now that the ‘simulcast period’ has concluded.

Subsection 115(2) of the BSA allows the Minister to amend a notice made under subsection 115(1) of the BSA to remove an event from the notice.

The purpose of the Notice is to remove from the current anti-siphoning list the international rugby league “test” match to be played in Australia on 15 October 2016 between the senior representative teams of Australia and New Zealand. The event to be removed is specified as an exception to clause 5.3 of the Schedule to the Principal Notice, as amended by the Notice.

International rugby league “test” match

The international rugby league “test” match will take place between the Australian and New Zealand representative teams in Perth on 15 October 2016. The Notice will remove this match from the Principal Notice.

This amendment will allow (but not require) the free-to-air broadcaster that holds the rights to the affected match (the Nine Network and its affiliated broadcasters) to premiere coverage on a digital multichannel. Removing this event from the anti-siphoning list will provide flexibility in the free‑to-air television coverage of the match in question and thus enhance the viewing experience for Australian audiences.

Removal of spent exclusion relating to several State of Origin matches

The Notice also removes a spent exclusion at clause 5.2 of the Schedule to the Principal Notice relating to the National Rugby League State of Origin matches which were played between 1 June 2016 and 13 July 2016.

Consultation

The office of the Minister for Communications consulted with the Nine Network, Foxtel and the National Rugby League in relation to the Notice. The Nine Network holds the free-to-air broadcast rights to the affected match, while Foxtel also holds subscription broadcasting rights.

Notes on Clauses

Section 1 provides that the name of the Notice is the Broadcasting Services (Events) Notice (No. 1) 2010 (Amendment No. 11 of 2016).

Section 2 provides that the Notice will commence on the day it is registered on the Federal Register of Legislation.

Section 3 provides that Notice is made under subsection 115(2) of the BSA.

Section 4 provides that the Principal Notice is amended in accordance with the item contained in Schedule 1 to the Notice.

Schedule 1 – Amendments

Item 1 of Schedule 1 to the Notice repeals clause 5.2 of the Schedule to the Principal Notice and substitutes it with a new clause 5.2. The replacement clause 5.2 no longer contains the previously specified exclusion dealing with matches played between 1 June 2016 and 13 July 2016 as part of the National Rugby League State of Origin Series. As those matches have been played, the exclusion is spent and no longer required. Future matches of the National Rugby League State of Origin Series will continue to be specified in clause 5.2 of the Schedule to the Principal Notice.

Item 2 of Schedule 1 to the Notice repeals clause 5.3 of the Schedule to the Principal Notice and substitutes it with a new clause 5.3. The effect of the amendment is to exclude from the anti-siphoning list the international rugby league “test” match to be played between the senior representative teams of Australia and New Zealand Australia on 15 October 2016.  

Future international rugby league “test” matches involving the senior Australian representative team, played in Australia, New Zealand or the United Kingdom, will continue to be specified in clause 5.3 of the Schedule to the Principal Notice.

The replacement clause 5.3 no longer contains the previously specified exclusion dealing with an international rugby league “test” match played on 6 May 2016. As that match has been played, the exclusion is spent and no longer required.  

Statement of Compatibility with Human Rights

(prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011)

The Broadcasting Services (Events) Notice (No. 1) 2010 (Amendment No. 11 of 2016) (the Notice) amends the Broadcasting Services (Events) Notice (No. 1) 2010 (the Principal Notice) to exclude from the Principal Notice the international rugby league “test” match to be played in Australia on 15 October 2016 between the senior representative teams of Australia and New Zealand. It also removes a spent exclusion relating to National Rugby League State of Origin matches played between 1 June 2016 and 13 July 2016.

The purpose of the Principal Notice, also known as the ‘anti-siphoning list’, is to ensure that specified events are televised free to the Australian public. The removal of this international “test” match from the anti‑siphoning list, as set out in the Notice, will give relevant free-to-air broadcasters greater flexibility and increase live coverage of the match. This will enhance the viewing experience for Australian audiences.

Australia is a signatory to the International Covenant on Civil and Political Rights (the ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) (two of the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011). Article 19(2) of the ICCPR protects freedom of expression, including the right to seek, receive and impart information and ideas of all kinds, and the means of their dissemination. Article 15(1) of the ICESCR protects the right of everyone to take part in cultural life. Cultural life includes sports.

The Notice 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. This is because the Notice promotes freedom of expression and cultural rights by facilitating greater access by all Australians to live coverage of rugby league.