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Monday, 14 March 2005
Page: 78

Mr STEPHEN SMITH (5:26 PM) —I am happy to make my remarks today as shadow minister for industry, representing the shadow minister for communications, Senator Conroy, from the other place. The Broadcasting Services Amendment (Anti-Siphoning) Bill 2004 makes a minor procedural change to the antisiphoning regime. Under the Broadcasting Services Act, all pay TV broadcasters are subject to a licence condition which means they cannot acquire an event that is listed on the antisiphoning list unless it has also been acquired by a free-to-air broadcaster. The fact that an event is on the antisiphoning list does not necessarily mean that it will be shown on free-to-air television. Free-to-air broadcasters often decide that they do not want to show a listed event—for example, overseas cricket tours. As I said in my remarks during the second reading debate, history has shown that, if free-to-air broadcasters do not show a particular listed event, in due course it goes off the list.

The Broadcasting Services Act contains an automatic delisting process where events are taken off the antisiphoning list six weeks before they commence, if free-to-air broadcasters have not picked up the rights. The major change made by the bill is to extend the time for automatically listing from six weeks to 12 weeks. Labor supports this change to allow pay TV licensees more time to promote and prepare for the broadcast of events that are not taken up by the free-to-air broadcasters. This has been an issue for pay TV broadcasters for some time, and I am pleased to see that it will be affected by the bill.

Labor in the Senate succeeded in making two substantive amendments—three technical but two substantive—to the bill to further strengthen the antisiphoning regimes. The first requires the minister to include the FIFA—or soccer, for the benefit of the minister—World Cup finals tournament on any antisiphoning list that is in force. The second seeks to plug a loophole in the antisiphoning regime by ensuring that parties that are related to pay TV licensees, such as channel providers, cannot acquire the rights to events that are on the antisiphoning list before free-to-air broadcasters have had a reasonable opportunity.

I will deal firstly with the World Cup amendment. The minister is very good at protesting too much, but protest too much he does. Labor in the Senate circulated this amendment to put the World Cup back on the antisiphoning list last Wednesday morning and, lo and behold, by Wednesday afternoon, the government had announced that it would restore the 2010 finals in South Africa to the list. We welcome this belated change of heart on the part of the government. It is a great victory for soccer fans, who have waged a long campaign to see the 2010 World Cup back on the list—including Senator Conroy, I must say, a well-known obsessive soccer fan.

The 2010 World Cup should now be broadcast on free-to-air television and available to all Australians, so Labor’s amendment has had its ultimate practical effect. The desired aim of the Labor amendment—to get the 2010 World Cup on the list—has been effected. The government has backed down from its untenable position. Should the parliament now adopt the amendment, it would ensure that the World Cup is on the antisiphoning list for the 2014 World Cup and beyond. The amendment would ensure that, so long as the antisiphoning list is in force, it must include a reference to the World Cup finals tournament. The minister has outlined a range of reasons why, in the government’s view, that ought not to be adopted, but the practical reality here is that the effect of the Senate passing that amendment at Senator Conroy’s suggestion is that the government belatedly, against its longstanding position, restored the 2010 finals in South Africa to the antisiphoning list for the benefit of Australian viewers.

The second substantive amendment is in respect of what has become known as the loophole to the antisiphoning regime. The antisiphoning regime only prevents pay TV licensees, such as Foxtel, from acquiring the rights to events on the antisiphoning list before the free-to-air networks. It does not prevent third parties related to licensees, such as channel providers, from acquiring the rights. Labor believes that the ability of parties related to pay TV licensees to acquire events before free-to-air broadcasters has the potential in practice to undermine the antisiphoning scheme. Arguably, it is also contrary to the intent of the parliament when it introduced the scheme in 1992.

When pay TV commenced in Australia it was not envisaged that channel providers would be purchasing the rights to sporting events. The explanatory memorandum to the original antisiphoning legislation indicated that parliament wanted free-to-air broadcasters to have first crack at rights to listed events. The explanatory memorandum to that original legislation described the intention in the following terms:

This process should ensure, on equity grounds that Australians will continue to have free access to important events. It will, however, allow subscription television broadcasters to negotiate subsequent rights to provide complementary or more detailed coverage of events.

On this reading, parliament intended at that time to put free-to-air broadcasters in a position to maximise the chance of listed events being broadcast on free-to-air television. (Extension of time granted)

Labor’s amendments seek to achieve three things: firstly, to stop pay TV licensees from acquiring the free-to-air rights to listed events; secondly, to prevent licensees from broadcasting events on the antisiphoning list in circumstances where they have not acquired them; and, thirdly, to ensure that the regime also applies to parties related to pay TV licensees. The government has raised drafting concerns about the amendments in the Senate but at the same time has failed to address the substantive issue of principle behind them. Does the government, for example, believe that current practices are consistent with the intent of the antisiphoning regime—in particular, the original intent as expressed in the original explanatory memorandum? While the government continues to assert that there is no such loophole, its own members are not so sure. Government members of the Senate committee urged the minister to examine the issue of the loophole and whether it may be circumventing the intent of the antisiphoning scheme.

Just as the passage of the bill was relevant to the insertion of the 2010 FIFA World Cup in soccer back onto the list, the passage of the legislation also had some relevance as far as the showing on free-to-air television of the forthcoming Ashes series in the United Kingdom was concerned. SBS and Channel 7 did respond to public concern that the Ashes tour would not be shown on free-to-air television, but this does not necessarily demonstrate that the scheme is working effectively. The effective operation of the scheme should not depend on a public outcry, an outcry by Senator Conroy or a campaign by the West Australian.

Labor remains committed to a strong and effective antisiphoning regime. Events of national importance should be available to all Australians, not just those who can afford pay TV. If the government rejects these amendments and events are subsequently lost to free-to-air viewers through the exploitation of the loophole, it will not be able to avoid responsibility, because the government has been well and truly warned of the danger and alerted to that danger by its own members on the Senate committee that looked at this.