Explanatory Statement

Broadcasting Services Act 1992

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

(Amendment No. 17 of 2013)

Issued by the Authority of the Minister for Communications

Purpose

The Broadcasting Services (Events) Notice (No. 1) 2010 (Amendment No. 17 of 2013) (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 multi-channel.

This Notice is a legislative instrument for the purposes of paragraph 6(d) of the Legislative Instruments 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 public. Such a notice 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 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 from the anti-siphoning list. Such restrictions ensure that these 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 a commercial television broadcaster’s or a national broadcaster’s primary digital multi‑channel.

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 each “test” cricket match between the senior Australian representative team and the senior English representative team played in Australia between 5 December 2013 and 7 January 2014 (i.e. the ‘2013-2014 Ashes Test Cricket Series’). This amending Notice also eliminates the duplication between certain clauses of the Principal Notice concerning the listing of cricket events, and removes spent provisions in the Principal Notice concerning past cricket events.

2013-14 Ashes Test Cricket Series

The 2013-14 Ashes Test Cricket Series is being held between 21 November 2013 and 7 January 2014 in various locations around Australia. It consists of five “test” cricket matches contested between Australia and England.

This Notice will remove from the Principal Notice all “test” cricket matches to be played as part of the 2013-2014 Ashes Test Cricket Series between 5 December 2013 and 7 January 2014.

This amendment will allow (but not require) the free-to-air broadcasters that hold the free-to-air broadcast rights to these test matches (the Nine Network and its affiliates) to premiere the delisted events on a digital multi‑channel in each relevant television licence area.

Removing these events from the anti-siphoning list will provide for greater flexibility in the free-to-air television coverage and increase live coverage of the 2013‑2014 Ashes Test Cricket Series. 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. 17 of 2013).

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

Clause 3 provides that the Broadcasting Services (Events) Notice (No. 1) 2010 (the Principal Notice) is amended in accordance with the items contained in the attached Schedule.

Schedule - Amendments

Item 1 amends clause 7.1 of the Schedule to the Principal Notice.

Clause 7.1 of the Principal Notice includes each “test” cricket match involving the senior Australian representative team played in Australia on the anti‑siphoning list. The amendment to clause 7.1 has the effect of excluding from the anti-siphoning list all “test” cricket matches involving the senior Australian representative team selected by Cricket Australia played in Australia between 5 December 2013 and 7 January 2014. The only “test” cricket matches to be played between 5 December 2013 and 7 January 2014 by the senior Australian representative team in Australia are 2013-2014 Ashes Test Cricket Series matches. It is these matches that will be excluded from the anti-siphoning list. All other “test” cricket matches involving the senior Australian representative team, played in Australia, will continue to be specified in clause 7.1 of the Principal Notice.

Item 2 amends clause 7.2 of the Schedule to the Principal Notice.

Clause 7.2 of the Principal Notice includes each “test” cricket match between the senior Australian representative team and the senior English representative team, played in Australia or the United Kingdom, on the anti-siphoning list. The amendment to clause 7.2 has the effect of eliminating the duplication that exists between clause 7.2 concerning “test” cricket matches played between the senior Australian representative team and the senior English representative team in Australia. As these matches are already included in clause 7.1, the amendment narrows clause 7.2 to include only “test” cricket match played between the senior Australian representative team and the senior English representative team in the United Kingdom.

The repeal and substitution of clause 7.2 also has the effect of removing a spent provision that concerns past “test” cricket matches that were played between 10 July 2013 and 25 August 2013.

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 cricket.

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 specified events are televised free to the Australian public. The removal of certain “test” cricket matches from the anti‑siphoning list will give free-to-air broadcasters greater flexibility and increase live coverage of these events. This will enhance the viewing experience for Australian audiences.

Consultation

The Minister for Communications consulted with Cricket Australia, the Nine Network and Fox Sports in relation to this Notice. The Nine Network holds the free‑to‑air broadcast rights to the 2013-2014 Ashes Test Cricket Series.