Explanatory Statement
Broadcasting Services Act 1992
Broadcasting Services (Events) Notice (No. 1) 2010
(Amendment No. 9 of 2014)
Issued by the Authority of the Minister for Communications
Purpose
The Broadcasting Services (Events) Notice (No. 1) 2010 (Amendment No. 9 of 2014) (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.
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 television digital 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 from the current anti-siphoning list three rugby union “test” matches to be played as part of the 2014 Rugby Championship series and the 2014 Beldisloe Cup. The events to be removed are those specified as exceptions in Item 6.1 of the Schedule to the Principal Notice, as amended by this Notice. This amending Notice also removes spent provisions in the Principal Notice concerning past rugby union events.
The 2014 Rugby Championship series and the 2014 Bledisloe Cup
The 2014 Rugby Championship series will be held in various locations across Australia, New Zealand, South Africa and Argentina between 16 August and 4 October 2014.
The 2014 Bledisloe Cup will be held in various locations across Australia and New Zealand between 16 August and 18 October 2014.
The Notice will remove from the anti-siphoning list two matches of the Rugby Championship series – the match to be played on 13 September 2014 between Australia and Argentina, and the match to be played on 27 September 2014 between Australia and South Africa.
The Notice will also remove from the anti‑siphoning list a single match of the Bledisloe Cup to be played on 18 October 2014 between Australia and New Zealand.
These amendments will allow (but not require) the free-to-air broadcasters that hold the free-to-air broadcast rights to these matches (Network Ten and its regional affiliates) to premiere coverage of the ‘delisted’ events on a digital multichannel in each relevant television licence area.
Removing the events from the anti-siphoning list will provide for greater flexibility in the free-to-air television coverage of the delisted matches. This will enhance the viewing experience for Australian audiences.
Notes on Clauses
Section 1 provides that the name of the Notice is the Broadcasting Services (Events) Notice (No. 1) 2010 (Amendment No. 9 of 2014).
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 - Amendments
Item 1 provides that the Principal Notice is amended by repealing the existing Item 6.1 of the Schedule to the Principal Notice and substituting a new Item 6.1.
Clause 6.1 of the Principal Notice effectively specifies the rugby union “test” matches that are included in the anti‑siphoning list. The amendment to clause 6.1 effectively removes from the list the rugby union “test” match to be played in Australia on 13 September 2014 between the senior Australian representative team selected by the Australian Rugby Union and the senior Argentinian representative team; the rugby union “test” match to be played in South Africa on 27 September 2014 between the senior Australian representative team selected by the Australian Rugby Union and the senior South African team; and the rugby union “test” match to be played in Australia on 18 October 2014 between the senior Australian representative team selected by the Australian Rugby Union and the senior New Zealand representative team. This amendment also has the effect of removing spent provisions that concern past rugby union “test” matches that were played on 2 and 9 November 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 rugby union test matches.
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 from the anti-siphoning list will give free-to-air broadcasters greater flexibility and increase live coverage of the events. This will enhance the viewing experience for Australian audiences.
Consultation
The office of the Minister for Communications consulted with Network Ten and the Australian Rugby Union in relation to this Notice. Network Ten holds the free‑to‑air broadcast rights to the rugby union “test” matches affected by this Notice. Foxtel has also made representations to the Minister in relation to this delisting. Foxtel will be televising these matches on its subscription television broadcasting service.