Explanatory Statement

Broadcasting Services Act 1992

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

(Amendment No. 13 of 2016)

Issued by the Authority of the Minister for Communications

Purpose

The Broadcasting Services (Events) Notice (No. 1) 2010 (Amendment No. 13 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 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 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 this Notice is to amend the Principal Notice to remove a number of “test” and one day cricket matches involving the senior Australian men’s representative teams selected by Cricket Australia to be played in Australia between 3 November 2016 and 26 January 2017. 

The events to be removed are specified as exceptions to clauses 7.1 and 7.3 of the Schedule to the Principal Notice, as amended by the Notice.

Upcoming matches in Australia involving the Australian cricket team

Between 3 November 2016 and 26 January 2017, six “test” cricket matches and eight one day cricket matches involving the men’s senior Australian cricket team will be played at various locations in Australia. These are:

• three “test” matches to be played between Australia and South Africa between 3 and 28 November 2016;
• three “test” matches to be played between Australia and Pakistan between 15 December 2016 and 7 January 2017;
• three one day cricket matches to be between Australia and New Zealand between 4 and 9 December 2016; and
• five one day matches to be played between Australia and Pakistan between 13 and 26 January 2017.

The Notice will remove these matches from the Principal Notice. These amendments will allow (but not require) the free-to-air broadcaster that holds the free-to-air broadcast rights to these matches (the Nine Network and its affiliated broadcasters) to premiere coverage on a digital multichannel. Removing the events from the anti-siphoning list will provide flexibility in the free‑to-air television coverage of the matches in question and thus enhance the viewing experience for Australian audiences.

Consultation

The office of the Minister for Communications consulted with the Nine Network, Foxtel and Cricket Australia in relation to the Notice. The Nine Network holds the free-to-air broadcast rights to the affected matches.

Notes on Clauses

Section 1 provides that the name of the Notice is the Broadcasting Services (Events) Notice (No. 1) 2010 (Amendment No. 13 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 two items contained in Schedule 1 to the Notice.

Schedule 1 - Amendments

Item 1 of the Schedule to the Notice repeals clause 7.1 of the Schedule to the Principal Notice and substitutes it with a new clause 7.1.

The effect of the amendment is to exclude from the anti-siphoning list the cricket “test” matches, involving the senior Australian representative team selected by Cricket Australia, played in Australia between 3 November 2016 and 26 January 2017. The replacement clause 7.1 no longer contains the previously specified exclusion dealing with “test” matches played between 5 November 2015 and 7 January 2016. As those matches have been played, the exclusion is spent and no longer required. Any other “test” matches, played in Australian and involving the senior Australian representative team selected by Cricket Australia, will continue to be specified in clause 7.1 of the Schedule to the Principal Notice.

Item 2 of the Schedule to the Notice repeals clause 7.3 of the Schedule to the Principal Notice and substitutes it with a new clause 7.3.

The effect of the amendment is to exclude from the anti-siphoning list the one day cricket matches, involving the senior Australian representative team selected by Cricket Australia, played in Australia between 4 December 2016 and 26 January 2017. The replacement clause 7.3 no longer contains the previously specified exclusion dealing with one day matches played between 12 and 23 January 2016. As those matches have been played, the exclusion is spent and no longer required. Any other one day matches, played in Australian and involving the senior Australian representative team selected by Cricket Australia, will continue to be specified in clause 7.3 of the Schedule to the Principal Notice.

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. 13 of 2016) (the Notice) amends the Broadcasting Services (Events) Notice (No. 1) 2010 (the Principal Notice) to exclude from the Principal Notice “test” and one day cricket matches to be played in Australia between 3 November 2016 and 26 January 2017 involving the senior Australian representative team selected by Cricket Australia.

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 these cricket matches 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 matches. 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.

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 cricket matches.