Explanatory Statement
Broadcasting Services Act 1992
Broadcasting Services (Events) Notice (No. 1) 2010
(Amendment No. 7 of 2015)
Issued by the Authority of the Minister for Communications
Purpose
The Broadcasting Services (Events) Notice (No. 1) 2010 (Amendment No. 7 of 2015) (the Notice) is made by the Minister for Communications (the Minister) under subsections 115(1A) and (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 also amends the Principal Notice to remove a number of spent provisions and correct drafting errors in relation to United States Open tennis tournaments and Fédération Internationale de Football Association World Cup (FIFA World Cup) tournaments.
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. 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 these 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’ primary 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 primary purpose of this Notice is to amend the Principal Notice to remove from the current anti-siphoning list two rugby union “test” matches involving the senior Australian representative team, to be played on 18 July and 8 August 2015, and the 2015 Ashes “test” cricket series. The events to be removed are those specified as exceptions in clauses 6.1 and 7.2 of the Schedule to the Principal Notice, as amended by this Notice.
The secondary purpose of this Notice is to correct the inadvertent delisting of future Fédération Internationale de Football Association (FIFA) World Cup tournaments. The Broadcasting Services (Events) Notice (No. 1) 2010 (Amendment No. 6 of 2014) (the 2014 Notice) amended the Principal Notice to remove certain events held as part of the 2014 FIFA World Cup tournament. Due to a drafting error, the 2014 Notice inadvertently removed events played as part of the FIFA World Cup in future years (beyond 2014). This was not the intention of the 2014 Notice. Subsection 115(1A) of the BSA allows the Minister to amend a notice made under subsection 115(1) to add an event to the notice. Subsection 115(1A) is being used to correct this drafting error and include each match of future FIFA World Cup tournaments in the Principal Notice.
This amending Notice also removes spent provisions in the Principal Notice relating to past sporting events and corrects a minor wording error in relation to the United States Open tennis tournament.
Rugby union “test” matches involving Australia
The international rugby union “test” match between the senior Australian representative team and the senior South African team will be held in Brisbane on 18 July 2015. The international rugby union “test” match between the senior Australian representative team and the senior New Zealand team will be held in Sydney on 8 August 2015. Both matches form part of the 2015 Rugby Championship.
This amendment will allow (but not require) the free-to-air broadcaster that holds the free-to-air broadcast rights to these events (Network Ten and its affiliated stations) to premiere the events on a digital multichannel. Removing these events from the anti-siphoning list will provide greater flexibility in free-to-air television coverage and increase live coverage of international “test” matches forming part of the 2015 Rugby Championship. This will enhance the viewing experience for Australian audiences.
2015 Ashes “test” cricket series
The 2015 Ashes “test” cricket series is being held between 8 July 2015 and 24 August 2015 in various locations around the United Kingdom. It consists of five “test” cricket matches contested between England and Australia.
This Notice will remove from the Principal Notice all “test” cricket matches to be played as part of the 2015 Ashes series between 8 July 2015 and 24 August 2015.
This amendment will allow (but not require) the free-to-air broadcasters that hold the free-to-air broadcast rights to these events (the Nine Network and its affiliated stations) to premier the events on a digital multichannel. Removing these events from the anti-siphoning list will provide greater flexibility in the free-to-air television coverage and increase live coverage of the 2015 Ashes series. This will enhance the viewing experience for Australian audiences.
FIFA World Cup tournament
The 2014 Notice amended the Principal Notice to remove 16 events played as part of the third round of the 2014 FIFA World Cup tournament. However, due to a drafting error, the 2014 Notice also inadvertently removed from the Principal Notice events played as part of the FIFA World Cup tournament in the years beyond 2014. This amendment will correct this error by adding to the Principal Notice each match of the FIFA World Cup tournament.
Notes on Clauses
Section 1 provides that the name of the Notice is the Broadcasting Services (Events) Notice (No. 1) 2010 (Amendment No. 7 of 2015).
Section 2 provides that the Notice will commence on the day it is registered on the Federal Register of Legislative Instruments.
Section 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 1 - Amendments
Item 1 provides that the Principal Notice is amended by repealing the existing clause 1.2 of the Schedule to the Principal Notice and substituting a new clause 1.2.
Clause 1.2 of the Schedule to the Principal Notice specifies that each event held as part of the Winter Olympic Games, including the Opening Ceremony and the Closing Ceremony, is included in the anti-siphoning list, except for each of those events held as part of the 2014 Winter Olympic Games, which has now finished. This amendment removes the spent provision concerning those past events.
Item 2 provides that the Principal Notice is amended by repealing the existing clause 2.1 of the Schedule to the Principal Notice and substituting a new clause 2.1.
Clause 2.1 of the Schedule to the Principal Notice specifies that each event held as part of the Commonwealth Games, including the Opening Ceremony and the Closing Ceremony, is included in the anti-siphoning list, except for each of those events held as part of the 2014 Commonwealth Games, which has now finished. This amendment removes the spent provision concerning those past events.
Item 3 provides that the Principal Notice is amended by repealing the existing clause 5.3 of the Schedule to the Principal Notice and substituting a new clause 5.3.
Clause 5.3 of the Schedule to the Principal Notice specifies that each international rugby league “test” match involving the senior Australian representative team, played in Australia, New Zealand or the United Kingdom, is included in the anti-siphoning list, except for a certain match played on 1 May 2015. This amendment removes the spent provision concerning that past match.
Item 4 provides that the Principal Notice is amended by repealing the existing clause 6.1 of the Schedule to the Principal Notice and substituting a new clause 6.1.
Clause 6.1 of the Schedule to the Principal Notice specifies that each international “test” match involving the senior Australian representative team selected by the Australian Rugby Union, played in Australia, New Zealand, South Africa or Europe, is included in the anti‑siphoning list. This amendment has the effect of removing from the anti-siphoning list two international “test” matches involving the senior Australian representative team, selected by the Australian Rugby Union. The first affected match is to be played on 18 July 2015 against the senior South African team, and the second affected match is to be played on 8 August 2015 against the senior New Zealand team.
This amendment also has the effect of removing a spent provision that concerned a match played between the senior Australian representative team and the senior Welsh team on 8 November 2014.
Item 5 provides that the Principal Notice is amended by repealing the existing clause 7.2 of the Schedule to the Principal Notice and substituting a new clause 7.2.
Clause 7.2 of the Schedule to the Principal Notice specifies that each “test” match involving the senior Australian representative team selected by Cricket Australia and the senior English representative team, played in the United Kingdom, is included in the anti-siphoning list. This amendment has the effect of removing from the anti-siphoning list all matches to be played as part of the 2015 Ashes “test” cricket series, which are to be held at various locations in the United Kingdom between 8 July and 24 August 2015.
Item 6 provides that the Principal Notice is amended by repealing the existing clause 7.3 of the Schedule to the Principal Notice and substituting a new clause 7.3.
Clause 7.3 of the Schedule to the Principal Notice specifies that each one day cricket match involving the senior Australian representative team selected by Cricket Australia played in Australia, is included in the anti-siphoning list, except for certain one day cricket matches that were played in Australia between 14 and 23 November 2014 and 16 January and 1 February 2015. This amendment removes the spent provisions concerning those past matches.
Item 7 provides that the Principal Notice is amended by repealing the existing clause 7.5 of the Schedule to the Principal Notice and substituting a new clause 7.5.
Clause 7.5 of the Schedule to the Principal Notice specifies that each match in the semi-finals and the final of the International Cricket Council One Day International World Cup is included in the anti-siphoning list, except for each of those matches held as part of the 2015 International Cricket Council One Day International World Cup, which has now finished. This amendment removes the spent provision concerning those past matches.
Item 8 provides that the Principal Notice is amended by repealing the existing clause 7.6 of the Schedule to the Principal Notice and substituting a new clause 7.6.
Clause 7.6 of the Schedule to the Principal Notice specifies that each match of the International Cricket Council One Day International World Cup involving the senior Australian representative team selected by Cricket Australia is included in the anti-siphoning list, except for each of those matches held as part of the 2015 International Cricket Council One Day International World Cup, which has now finished. This amendment removes the spent provision concerning those past matches.
Item 9 provides that the Principal Notice is amended by repealing the existing clause 8.2 of the Schedule to the Principal Notice and substituting a new clause 8.2.
Clause 8.2 of the Schedule to the Principal Notice specifies that each match of the 2014 FIFA World Cup tournament is included on the anti-siphoning list, except for sixteen specific matches played as part of the 2014 tournament. This amendment removes the spent provisions concerning the sixteen specific matches played as part of the 2014 FIFA World Cup tournament. It also amends the Principal Notice to include all matches played as part of future FIFA World Cup tournaments, as the 2014 Notice contained a drafting error that inadvertently removed these events from the Principal Notice.
Item 10 provides that the Principal Notice is amended by omitting “2015,” from paragraph 9.1(a) of the Schedule to the Principal Notice.
Clause 9.1 of the Schedule to the Principal Notice specifies that each match in the Australian Open tennis tournament is included on the anti-siphoning list, except for those matches held as part of the 2015, 2016, 2017, 2018 and 2019 Australian Open tennis tournaments that is not a men’s or women’s singles final. The 2015 Australian Open tennis tournament has now finished. This amendment removes the part of the provision that is spent concerning the matches in that past tournament.
Item 11 provides that the Principal Notice is amended by omitting “in the in men’s” from clause 9.3 of the Schedule to the Principal Notice, and substituting “in the men’s”.
Item 12 provides that the Principal Notice is amended by omitting “, 2014,” from paragraph 9.3(a) of the Schedule to the Principal Notice.
Clause 9.3 of the Schedule to the Principal Notice specifies that each match in the men’s and women’s singles quarter-finals, semi-finals and finals of the United States Open tennis tournament is included on the anti-siphoning list, except for those matches held as part of the 2014, 2015 and 2016 United States Open tennis tournaments. The amendment in item 11 corrects a minor error in the wording of clause 9.3. Additionally, the 2014 United States Open tennis tournament has now finished. The amendment in item 12 removes the part of the provision that is spent concerning the matches in that past tournament.
Item 13 provides that the Principal Notice is amended by omitting “2014 and” from paragraph 11.1 a) of the Schedule to the Principal Notice.
Clause 11.1 of the Schedule to the Principal Notice specifies that each round of the Australian Masters tournament, played as part of the Professional Golfers Association Tour of Australasia, is included on the anti-siphoning list, except for those rounds held as part of the 2014 and 2015 Australian Masters tournaments. The 2014 Australian Masters golf tournament has now finished. This amendment removes the part of the provision that is spent concerning the rounds in that past tournament.
Item 14 provides that the Principal Notice is amended by omitting “2014,” from paragraph 11.2 a) of the Schedule to the Principal Notice.
Clause 11.2 of the Schedule to the Principal Notice specifies that each round of the Australian Open tournament, played as part of the Professional Golfers Association Tour of Australasia, is included on the anti-siphoning list, except for those rounds held as part of the 2014, 2015 and 2016 Australian Open tournaments. The 2014 Australian Open golf tournament has now finished. This amendment removes the part of the provision that is spent concerning the rounds in that past tournament.
Item 15 provides that the Principal Notice is amended by repealing the existing clause 11.3 of the Schedule to the Principal Notice and substituting a new clause 11.3.
Clause 11.3 of the Schedule to the Principal Notice specifies that each round of the United States Masters tournament, played as part of the Professional Golfers Association Tour, is included in the anti-siphoning list, except for those rounds held as part of the 2015 United States Masters Tournament, which has now finished. This amendment removes the spent provision concerning the rounds in that past tournament.
Item 16 provides that the Principal Notice is amended by repealing the existing clause 12.3 of the Schedule to the Principal Notice and substituting a new clause 12.3.
Clause 12.3 of the Schedule to the Principal Notice specifies that each race in the V8 Supercars Championship series, including the Bathurst 1000, is included in the anti-siphoning list, except for certain races held as part of the 2014 V8 Supercars Championship Series, which has now finished. This amendment removes the spent provision concerning those past races.
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 involving the senior Australian representative team and international cricket “test” matches involving the senior Australian representative team played in 2015.
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 international rugby union “test” matches involving the senior Australian team and all matches as part of the 2015 Ashes “test” cricket series from the anti‑siphoning list will give relevant free-to-air broadcasters greater flexibility and increase live coverage of these events. This will enhance the viewing experience for Australian audiences.
Consultation
The office of the Minister for Communications has consulted with Network Ten, the Nine Network and Fox Sports in relation to this Notice. Network Ten holds the free‑to-air broadcast rights to the rugby union “test” matches affected by this Notice. Fox Sports holds subscription television rights to the two rugby union “test”
matches. The Nine Network holds exclusive broadcast television rights to the 2015 Ashes “test” cricket series.