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Wednesday, 9 March 2005
Page: 120

Senator BARTLETT (5:50 PM) —I speak for the Australian Democrats on behalf of Senator Cherry, who is otherwise engaged. The issues around the rights and access to broadcasting sporting events for free TV and subscription television have been fraught with emotion and the subject of continuous debate amongst many people. The Broadcasting Services Amendment (Anti-Siphoning) Bill 2004 proposes to extend the automatic delisting period for the antisiphoning list from six weeks to 12 weeks. The pay TV providers support the extension, arguing that it provides a better opportunity for subscription television operators to acquire rights to events and market and promote these events. The Premier Media Group submitted that the reason they and other entities have used the formal delisting process on so many occasions is to do with the necessity to have the events removed so that their group can confirm both publicly and with distributors that it will include these events on the Fox Sports channels and provide them to Austar, Foxtel and Optus. The Premier Media Group also noted that the reform would have a positive efficiency effect because, once the automatic 12-week window is in place, it is likely that there will be few requests made of government to delist events.

The free-to-air broadcasters oppose the bill and are concerned that the proposed extension of the period for automatic delisting from six to 12 weeks will provide greater opportunities for subscription broadcasters and rights owners to circumvent the antisiphoning rules by stringing out negotiations for rights until the automatic deadline approaches. The ABC submitted that extending the automatic delisting of a designated event to 12 weeks would ‘put pressure on rights negotiations’. The free-to-airs argue that if the list is to be extended then the parliament should address a perceived loophole in the rules that is allegedly being exploited by the subscription television broadcasters.

The legislation places a condition on subscription television broadcasting licensees that they will not acquire the right to televise, on a subscription television broadcasting service, an event that is specified in a notice unless it has been acquired by a free-to-air or it has been delisted. The provision in the legislation only applies to licensees—that is, Foxtel—and does not apply to shareholding entities such as News Ltd or to channel providers such as Fox Sports.

The free-to-airs argue that Fox Sports have been able to utilise the loophole to negotiate broadcasting rights for sporting events before free-to-airs have had such an opportunity. According to the free-to-air people, the best case in point of where the loophole has been exploited is the rights to the 2005 Ashes tour, which of course has been the subject of significant discussion and debate in the community, right around the country. Free TV argues that Fox Sports purchased the rights to the 2005 Ashes tour before any rights were offered to free-to-air broadcasters and then, when they were offered to the free-to-air people, they were only on a non-exclusive basis. Fox Sports argued that free-to-airs were approached before Fox Sports purchased the rights. Frankly, it seems that the jury is still out on this matter and there appears to be confusion resulting from informal and formal discussions; perhaps the perception of the processes is somewhat in the eye of the beholder.

Once again, it has been up to the Senate committee process in particular to examine these issues and determine as objective a view as possible and a view that is likely to serve the best interests of the Australian public, rather than specifically look at the commercial interests of competing operators. It is a process that Senate committees have done exceptionally well—not perfectly by any means, but nonetheless, exceptionally well—for quite some time, and it is worth taking the opportunity to note the necessity of ensuring that Senate committees are still able to operate in that way after 1 July. After 1 July, of course, the government will have control of the Senate and both houses of parliament and has the opportunity to curtail the Senate committee process—the number of inquiries, the length of inquiries or the nature of inquiries that the Senate undertakes.

The government also has the opportunity, even if it allows the process to continue to operate, to ignore much or all of what the committees discover. It will be absolutely critical to try and ensure that that process continues to operate as effectively as possible. It is certainly something that I will continue to focus on, because it is in the public interest to make sure that as many views as possible are taken into account. The parliament is not just an opportunity for vaudeville and soap opera to entertain people, even though it might seem that way. It is actually a mechanism for determining the laws of the land that affect people’s lives in all sorts of ways, and we do need to make sure that it operates as objectively and effectively as possible.

Using the example of the Senate committee inquiring into this bill, in their report on page 14 they say:

… it is not the intention of the anti-siphoning rules to provide free-to-air broadcasters with exclusive … rights to a listed event, it is important to note that the rights were sold to Fox Sports on a non-exclusive basis, meaning that they were still available to free-to-air broadcasters. Ultimately, the decision as to whether or not to acquire these rights is a commercial one for the broadcasters concerned.

The Senate committee report also noted on page 17:

When queried about whether the ‘privileged position’ was maintained where a channel provider has purchased rights (non-exclusive) prior to free-to-air broadcasters securing rights, Ms Debra Richards from ASTRA stated:

Certainly, because the operator cannot actually broadcast the event until the free-to-air broadcasters have obtained those rights or decided they did not want them or do not want to show them and the event is delisted. So they still retain that.

The subscription TV providers, of course, oppose the loophole amendment and argue that the amendment will significantly change the nature of the industry—that, for example, it would make it difficult for them to negotiate multiyear deals. The National Rugby League submitted that closing the loophole would hamper its ability to negotiate television arrangements and make other strategic plans to assist in the development and growth of the sport in Australia.

If we turn to the intention of the provision, the free-to-airs argue:

It would seem that at the time those responsible for the legislation believed that pay TV would operate in a manner similar to free-to-air television in that all content providers would be licensees. The technical distinction between channel providers and licensees was not anticipated.

This belief was supported by the Senate committee report, which stated:

… when the legislation was drafted, subscription television was in its infancy, and specific channel providers like Fox Sports did not exist in Australia.

This is further supported by evidence provided in Free TV’s supplementary submission to the committee, where they note:

… the same assumption was made in the first drama expenditure rules for subscription television in the Broadcasting Service Act. Originally the rules only applied to licensees, but it was subsequently realised that this did not cover most of the entities actually responsible for the content of the service. That part of the Act was subsequently amended to specifically capture channel providers …

But the most compelling argument in support of closing the loophole—as has partly been alluded to already by Senator Conroy—is actually in the government’s explanatory memorandum to this bill. The explanatory memorandum states:

The BSA—

Broadcasting Services Act—

contains provisions which prevent subscription television broadcasting ... licensees from acquiring exclusive broadcast rights to events, the televising of which the Minister for Communications, Information Technology and the Arts considers should be available free to the general public.

It continues by stating that subscription TV licensees:

... must not acquire broadcast rights to a listed event unless free to air broadcasters have previously acquired broadcast rights to that event ...

It is clear from this statement what the intentions of the provisions are. That a subscription TV content provider can acquire broadcasting rights before free-to-airs clearly goes against the stated intent of the legislation. For these reasons, the Democrats support an amendment. But while we support an amendment to rectify what we believe was an unintentional anomaly, the Democrats are sympathetic to some of the problems which the current regime creates for subscription TV operators and some sporting leagues.

The free-to-airs have admitted in the past to giving priority to regular programming over broadcasting an entire match or game. The Premier Media Group cited a recent example where the Seven Network elected to leave coverage of the Australian Open women’s semifinal in New South Wales, Victoria and Tasmania midway through the second set so that they could televise Home and Away, Today Tonight and the news. Of course, if they had had the Senate proceedings on instead, everyone would have rushed across to watch that, but for some reason that has not been put on by the free-to-airs in prime time recently.

I encourage the government to undertake further consultation with pay television and the free-to-airs to consider further changes to meet the needs of the Australian sport-viewing public and the commercial imperatives of TV operators, sporting leagues and sponsors, starting with regular monitoring of the amount of broadcast coverage of listed events.

Finally, I have a concluding comment regarding the FIFA World Cup for soccer—or what we are trying to more regularly call football in Australia. Senator Conroy mentioned this and recent decisions in relation to it. I note the ongoing campaign by Senator Conroy and others to try to ensure that the World Cup football tournament is able to be viewed by Australians on free-to-air television. I could engage in personal observations about the desirability of that particular activity as opposed to other sporting endeavours, but this probably is not the time or the place. I simply indicate that it is certainly appropriate for that event to be available for Australians to watch without having to subscribe to a pay TV operator.

I hope Senator Conroy has not put the mocker on the Australian football team in suggesting that it is a done deal that they are at the World Cup. As past experience shows, there is still a lot of interest for Australians in watching that event, regardless of the sad absence of an Australian team since 1974—but I am sure that they will be there again. It is some indication of the rich tapestry of nations that Australians have come from over the years. It also suggests the strong interest in significant sporting events of a large section of the Australian community. So with those comments—I will speak relatively briefly in the committee stage if we get to that—I think it sufficient to conclude that we will be supporting this legislation. As I have indicated, we have sympathy with the amendments that have been foreshadowed.