Explanatory Statement

Broadcasting Services Act 1992

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

(Amendment No. 12 of 2012)

Issued by the Authority of the Minister for Broadband, Communications

and the Digital Economy

Purpose

The Broadcasting Services (Events) Notice (No. 1) 2010 (Amendment No. 12 of 2012) (the Notice) is made by the Minister for Broadband, Communications and the Digital Economy (the Minister) under subsection 115(2) of the Broadcasting Services Act 1992 (the BSA).

The purpose of this Notice is to amend the Broadcasting Services (Events) Notice (No. 1) 2010 (the Principal Notice) to remove certain events from the Principal Notice to permit the events to be premiered on a free-to-air television digital multi-channel.

This Notice is a legislative instrument for the purposes of subsection 6(d) of the Legislative Instruments Act 2003.

Background

Legislative background

Subsection 115(1) of the BSA provides that the Minister may, by notice in the Gazette, specify events that in the Minister’s opinion should be televised free to the public. Such a notice is commonly known as the anti-siphoning list.

The inclusion of an event in a subsection 115(1) notice triggers a licence condition for subscription television broadcasters that prohibits the subscription television broadcasters from acquiring rights to televise the event ahead of 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 commercial television broadcasters and national broadcasters with regard to televising events listed on a subsection 115(1) notice. Such restrictions ensure that anti-siphoning events (or parts of those events) are not shown on the broadcasters’ standard definition or high definition television digital multi-channels without first being shown, or being shown simultaneously, on the broadcasters’ main channels during the simulcast period (see Part 4A of Schedule 4 to the BSA). Similar restrictions apply after the end of the simulcast period to ensure that events on the anti-siphoning list are shown first, or shown simultaneously, on commercial television and national broadcasters’ primary digital multi-channels.

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 this Notice is to amend the Principal Notice to remove from the current anti-siphoning list four rugby union “test” matches to be played as part of the 2012 ‘Four Nations’ Rugby Championship and the 2012 Bledisloe Cup.

The events to be removed are those specified in Item 6.1 of the Schedule to the Principal Notice, as amended by this Notice.

The 2012 ‘Four Nations’ Rugby Championship and the 2012 Bledisloe Cup

The 2012 ‘Four Nations’ Rugby Championship series, which commenced on 18 August 2012, is being held in various locations across Australia, New Zealand, South Africa and Argentina until 6 October 2012. Some of these matches include matches played as part of  2012 Bledisloe Cup.

This Notice will remove from the Principal Notice certain international rugby union “test” matches involving the senior Australian representative team to be played in Australia and New Zealand, specifically:

• the match to be played in New Zealand between Australia and New Zealand on 25 August 2012;
• the match to be played in Australia between Australia and South Africa on 8 September 2012;
• the match to be played in Australia between Australia and Argentina on 15 September 2012;
• the match to be played in Australia between Australia and New Zealand on 20 October 2012.

This amendment will allow (but not require) the free-to-air broadcasters that hold the free-to-air broadcast rights to these matches (the Nine Network and its regional affiliates) to premiere them live on a digital multi-channel in each applicable television licence area while regularly-scheduled programming is broadcast on the relevant main channels.

Removing these events from the anti-siphoning list will provide for greater flexibility in free-to-air television coverage and increase live coverage of these events. This will enhance the viewing experience for Australian audiences.

Notes on Clauses

Clause 1 provides that the name of the Notice is the Broadcasting Services (Events) Notice (No. 1) 2010 (Amendment No. 12 of 2012).

Clause 2 provides that the Notice will commence on the day it is registered on the Federal Register of Legislative Instruments.

Clause 3 is a definitions clause.

Clause 4 is the main operative clause. It provides that the Principal Notice is amended by substituting existing Item 6.1 of the Schedule to the Principal Notice with a new Item 6.1.

The effect of new Item 6.1 is that each international rugby union “test” match involving the senior Australian representative team played in Australia, New Zealand, South Africa or Europe will remain listed on the Principal Notice, except for:

• the match to be played in New Zealand between Australia and New Zealand on 25 August 2012;
• the match to be played in Australia between Australia and South Africa on 8 September 2012;
• the match to be played in Australia between Australia and Argentina on 15 September 2012;
• the match to be played in Australia between Australia and New Zealand on 20 October 2012.

The substituted Item 6.1 also has the effect of removing spent exceptions from the Principal Notice. The spent exceptions specified events that have already occurred.

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

This 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 international rugby union “test” matches contested by the senior Australian representative team.

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 purpose of the Principal Notice is to ensure that specific events are televised free to the Australian public. The removal of the international rugby union “test” matches to be played by the Australian team on 25 August 2012, 8 September 2012, 15 September 2012 and 20 October 2012 from the anti‑siphoning list will give free-to-air broadcasters greater flexibility in broadcasting these events and increase the live coverage of these events. This will enhance the viewing experience for Australian audiences.

Consultation

The office of the Minister consulted with the Nine Network in relation to this Notice. The Nine Network holds the free-to air broadcast rights to the rugby union matches affected by the Notice.