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Broadcasting Services Amendment (Anti-siphoning) Bill 2012, National Water Commission Amendment Bill 2012
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Broadcasting Services Amendment (Anti-siphoning) Bill 2012, National Water Commission Amendment Bill 2012
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Thursday, 22 March 2012
Senator JACINTA COLLINS (Victoria—Manager of Government Business in the Senate and Parliamentary Secretary for School Education and Workplace Relations) (12:14): I present the explanatory memoranda, and a correction to the explanatory memorandum relating to the Broadcasting Amendment (Anti-siphoning) Bill 2012, and I move:
That these bills be now read a second time.
I seek leave to have the second reading speeches incorporated in Hansard.
The speeches read as follows—
BROADCASTING SERVICES AMENDMENT (ANTI-SIPHONING) BILL 2012
The Broadcasting Services Amendment (Anti-siphoning) Bill 2012 introduces amendments to the Broadcasting Services Act 1992 to reform the anti-siphoning scheme. These amendments will improve the scheme and increase the level and quality of sports coverage on free-to-air television.
On 25 November 2010, the government announced that it would reform the anti-siphoning scheme to enhance television coverage of key sporting events in Australia. The Bill implements these reforms, which have been informed by the statutory review of the anti-siphoning scheme conducted by the government in late 2009 and refined as a result of extensive consultation with stakeholders.
The existing anti-siphoning scheme prevents subscription television broadcasters from acquiring the rights to events on the anti-siphoning list before free-to-air television broadcasters have had the opportunity to acquire these rights. The Bill will maintain this core element of the anti-siphoning scheme, with an exception to allow subscription television broadcasters to acquire the rights to a limited number of listed Australian Football League (AFL) and National Rugby League (NRL) matches.
The Bill will also introduce coverage obligations for free-to-air broadcasters to ensure that all Australians will have access to the best possible television coverage of significant sporting events. These coverage obligations vary for different listed events, affording free-to-air broadcasters the flexibility to provide the appropriate level of coverage for individual events and those played as part of larger tournaments.
The Bill also brings the anti-siphoning scheme up-to-date with the modern television broadcasting environment. The Bill's reforms take into account the increased adoption of digital television by allowing broadcasters to fully utilise digital multichannels to premiere certain listed events. The Bill also introduces rules governing the acquisition of listed events by new media services such as internet protocol television providers.
Listing and delisting events
Under the existing anti-siphoning scheme, events on the anti-siphoning list are automatically removed from the list 12 weeks before they occur. The Bill extends this period to 26 weeks for all events, and also gives the Minister the ability to extend this period to 52 weeks for AFL and NRL competitions.
This will provide greater opportunity for sports bodies to negotiate openly with subscription television broadcasters for the rights to listed events that free-to-air broadcasters have chosen not to acquire.
The Bill also restructures the anti-siphoning list, allowing the Minister to declare an anti-siphoning event to be listed either under 'Tier A' or 'Tier B', and applying different coverage obligations to each Tier.
The Bill's coverage obligations will ensure that free-to-air broadcasters that acquire the rights to events on the anti-siphoning list will make appropriate use of these rights. This will greatly improve the operation of the existing anti-siphoning scheme, under which free-to-air broadcasters are not required to televise any events they acquire.
Tier A of the new anti-siphoning list will include nationally iconic events such as the Melbourne Cup and the finals matches of major international and domestic competitions. These events will be subject to strict coverage obligations - free-to-air broadcasters that acquire the rights to Tier A events must televise these events live and to the full extent allowable by the rights they acquire.
Tier B of the new anti-siphoning list will include regionally iconic and nationally significant events such as the round and preliminary matches of international and domestic competitions. These events will be subject to more flexible arrangements designed to maximise overall free-to-air coverage. The Bill will require free-to-air broadcasters to show Tier B events within four hours of play commencing, or with a shorter delay if specified by the Minister. This ability to delay coverage will allow broadcasters to schedule coverage to accommodate audience preferences and time zone differences across the country. Like Tier A events, Tier B events must be shown to the full extent of the rights held by free-to-air broadcasters.
The Bill will allow the Australian Communications and Media Authority to make legislative instruments exempting free-to-air broadcasters from coverage obligations for circumstances in which coverage is unexpectedly interrupted, for example by technical difficulties or power failures.
While the existing anti-siphoning scheme requires that all listed events are shown first or exclusively on a primary or main channel, the Bill will allow free-to-air broadcasters to premiere Tier B events on digital multichannels. With digital television take up at 82 percent of Australian households, this partial lifting of the existing scheme's multichannel restrictions is appropriate and will allow broadcasters to give the best possible coverage of Tier B events.
The Bill requires free-to-air broadcasters to premiere Tier A events on their primary channel, with limited exceptions for Tier A events that overlap with other Tier A events or with regularly-scheduled news coverage. The Minister may also make a legislative instrument exempting broadcasters from the obligation to show Tier A events on a primary channel.
The Bill's introduction of coverage requirements will also prevent broadcasters 'hoarding' the rights to listed events. If a free-to-air broadcaster acquires the rights to an event but is not able to comply with the relevant coverage requirements, it must, as a minimum, offer these rights on to other free-to-air broadcasters for a nominal consideration of $1. If no other free-to-air broadcaster takes up those rights, they must be offered on to subscription television broadcasting licensees.
These obligations would not prevent a broadcaster from striking an agreement for the on-selling of unwanted rights on commercial terms. Rather, this must-offer obligation provides a 'backstop' to prevent unwanted rights lying fallow and provides every opportunity for full coverage with a preference for free-to-air.
Program supplier obligations
In order to ensure the effective operation of its coverage obligations, the Bill introduces a number of requirements for program suppliers, the commercial entities that supply broadcasters with the rights to televise listed events. The Bill requires a program supplier that acquires the content rights to televise listed events in line with the new scheme's coverage requirements to transfer these rights on to a free-to-air broadcaster, or to another program supplier.
The Bill allows the Minister to declare that certain Tier B events form a 'designated group' for the purpose of the new scheme's coverage obligations. This measure will provide broadcasters with the flexibility to appropriately cover long-form, multi-round tournaments such as the Olympic Games, the Commonwealth Games and the Australian Open tennis tournament.
A broadcaster televising a designated group must provide coverage of the group's events for a period of time that meets or exceeds the 'total minimum number of hours' for that group. This total minimum number of hours will be specified by the Minister in each legislative instrument declaring a designated group.
For example, the Minister may declare the 'total minimum number of hours' for the Commonwealth Games to be 88. A free-to-air broadcaster holding the rights to the group would need to ensure that it provides 88 hours of coverage over the course of the Games. However, there would be nothing to prevent this broadcaster providing more coverage.
The Bill also allows the Minister to determine a 'daily minimum number of hours' in addition to the total minimum number of hours for the entire event. This would only be necessary if there was a risk that a broadcaster might provide an unreasonably low level of coverage on any particular day.
The Bill's designated group mechanism is not intended to cover weekly matches of the AFL and NRL. These events will be listed on Tier B and will be provided for by the Bill's 'quota group' mechanism.
The Bill will introduce specific arrangements for dealing with the AFL and NRL, given the importance of these two competitions on the Australian sporting calendar.
The Bill will require the Minister to make a legislative instrument declaring that weekly matches of the AFL and NRL are 'quota groups' for the purpose of the anti-siphoning scheme. When making a quota group instrument, the Minister must specify a 'quota number', which indicates the number of events in a group that must be shown on free-to-air television. This quota number cannot be higher than four matches for rounds of the AFL and three matches for rounds of the NRL, consistent with the government's position as announced on 25 November 2010.
Subscription television broadcasters and new media providers will be able to acquire the rights to a number of weekly AFL and NRL matches, provided that this acquisition will not prevent free-to-air broadcasters from acquiring a number of matches that is at least equal to the group's quota number. In this regard, subscription television broadcasters may negotiate directly with the AFL or NRL in acquiring quota group matches in excess of the quota number.
For example, the Minister may declare that an eight-match round of the NRL premiership season is a quota group, with a quota number of three. This would mean that subscription television broadcasters could acquire the exclusive rights to up to five matches of this round. A subscription television broadcaster could also acquire the rights to the other three matches of this round, so long as the acquisition would not prevent a free-to-air broadcaster from being able to acquire the rights to those three matches.
When making a quota group instrument, the Minister may also specify one or more 'associated set conditions' for a quota group in relation to one or more specified licence areas. Through these associated set conditions, the Minister can determine the types of matches to be protected as part of the quota number. This mechanism allows the Minister to ensure that the highest quality events in a quota group will be the matches shown on free-to-air television.
In the case of the AFL, for example, the Minister could specify associated set conditions for the television licence areas in Western Australia regarding the matches involving the West Coast Eagles or Fremantle Dockers. Matches involving these clubs would need to be included in the quota number in these licence areas and therefore could not be exclusively acquired by a subscription television broadcaster.
Taking another AFL example, the Minister could specify associated set conditions that one Friday night match and one Saturday night match are to make up the quota number in all licence areas. Similarly, showpiece matches such as the Anzac Day clash between Collingwood and Essendon could be included in the quota number in one or more Victorian licence areas.
The Bill provides that quota groups without associated set conditions will be known as 'Category A quota groups', while those with associated set conditions will be known as 'Category B quota groups'.
For certainty, it is the government's intent that a 'quota group' legislative instrument be made for the NRL Premiership with a quota number of 3. This is consistent with the government's announced reforms and will mean that subscription television broadcasters can directly negotiate for the rights to 5 matches per round of the NRL Premiership exclusively as well as the other 3 matches non-exclusively.
New media providers
The existing anti-siphoning scheme does not regulate the online rights to listed events in any way. The Bill will address this by preventing the potential for the rights to anti-siphoning events being siphoned off to new media and no longer being freely available to Australian sports fans.
The Bill provides that a rights holder of a listed event must not confer exclusive rights to that event to a content service provider, such as a new media provider. For the purpose of this restriction, these 'exclusive broadcast rights' include the exclusive rights to broadcast Tier A events live; the exclusive rights to broadcast Tier B events live or with a delay of less than four hours; and the exclusive rights to broadcast Tier B 'designated group' events live or with a delay of less than twenty-four hours. Additionally, this restriction on the conferral of rights to anti-siphoning events applies only to events that are held in Australia.
In the case of the Bill's quota groups, new media providers are treated the same as subscription broadcasters, and are therefore able to acquire the rights to quota group matches as long as this acquisition does not prevent free-to-air broadcasters from acquiring the rights to a number of matches that is at least equal to the quota number.
Application of scheme to existing rights
Subject to a fixed commencement date after Royal Assent, the Bill's coverage obligations will apply to all listed events acquired since 25 November 2010, the date on which the Minister announced the reforms to the anti-siphoning scheme implemented by the Bill. Events acquired by broadcasters earlier than this date will not be subject to the coverage obligations introduced by the Bill, although events on Tier A of the anti-siphoning list will not be able to be shown first, or exclusively, on a free-to-air broadcaster's multichannel.
In order to allow the Australian Communications and Media Authority to effectively monitor compliance with the new coverage requirements, the Bill introduces a number of 'notification requirements' for free-to-air broadcasters and their program suppliers. The Bill will require these parties to notify the Australian Communications and Media Authority when they acquire, or cease to hold, rights to listed events and to detail the attributes of such rights. This notification must be made within 10 business days of the acquisition or disposal of the right.
The reforms to the anti-siphoning scheme will be administered and enforced by the Australian Communications and Media Authority. As is the case under the existing anti-siphoning scheme, broadcasters will be subject to the full range of enforcement provisions available under the Broadcasting Services Act 1992. Theseinclude criminal and civil penalties, the issuing of remedial directions, acceptance of enforceable undertakings, the imposition of additional licence conditions and the possible suspension or cancellation of a broadcasting licence. Parties that are not traditionally affected by broadcasting legislation, such as program suppliers and persons conferring rights onto new media providers, may be subject to civil penalties for contravening elements of the new anti-siphoning scheme.
The Bill provides for the Minister to cause a statutory review of the anti-siphoning scheme to be conducted before 31 December 2014. It is important that the anti-siphoning scheme and list remain relevant as Australia's media landscape continues to undergo substantial upheaval and change. 2014 provides an appropriate juncture to re-assess the scheme and list as by this time the switchover to digital television will be complete and the rollout of the National Broadband Network will have progressed substantially.
In conclusion, the amendments to the Broadcasting Services Act 1992 introduced by this Bill will greatly strengthen the operation of the anti-siphoning scheme.
The Bill's reforms will ensure that free-to-air broadcasters provide an appropriate level of coverage to events on the anti-siphoning list, taking into account the rights they hold to these events and their unique characteristics.
The Bill will also allow the anti-siphoning scheme to remain relevant in the modern broadcasting environment, by allowing free-to-air broadcasters to use digital multichannels, and by taking into account the emergence of new media providers.
The Bill will therefore secure the availability of the best possible sports coverage on free-to-air television in the future.
NATIONAL WATER COMMISSION AMENDMENT BILL 2012
This Bill provides for the continuation of the National Water Commission on an ongoing basis, beyond the current expiry date of the National Water Commission Act 2004 on 30 June 2012. It provides for the robust and transparent oversight of all Australian governments' national water reform commitments, and in particular the National Water Initiative (NWI).
This Bill makes changes to the functions and operation of the Commission. These changes refocus the NWC on its primary purpose of providing independent assurance of governments' progress on water reform. The changes continue the Commission as an independent statutory body with core functions of monitoring, audit and assessment. These core functions have been drafted generally so as to grant the Commission discretion to focus on the issues most pertinent to the successful implementation of the NWI.
Oversight of national water reform
The NWI continues to be regarded by governments as a sound policy platform for addressing water reform. However, implementation of the NWI is occurring within a highly complex and evolving policy environment. For example, since the NWI was agreed in 2004, there have been significant new reforms in the Murray-Darling Basin.
Governments, as well as critical non-government partners in implementation, and the broader Australian public will need reliable nation-wide reporting across all participants and all elements of water reform.
This requires an independent and specialist institution to credibly engage with and report on the progress of water reform. The institution's independence from any one government facilitates its credibility.
The core functions of monitoring, audit and assessment therefore remain both relevant and valuable. There is significant value in high quality, robust assessment and evaluation of progress in implementing the NWI.
The most appropriate institution to conduct oversight of national water reform continues to be the National Water Commission. This was the view of the independent Review which was commissioned by the Australian Government on behalf of the Council of Australian Governments (COAG) and is the approach proposed by the Government.
The Review observed that the role of the NWC will become more important into the future as increasingly difficult water reform measures are addressed. The NWC also has a crucial community transparency role as the auditor of outcomes in the Murray-Darling Basin.
In reaching his view the Reviewer, Dr David Rosalky, conducted consultation with the Australian Government; state and territory governments; monitoring and assessing agencies; water users and industry representatives; environmental bodies; Indigenous representatives; members of the research community; and experts and researchers in water and governance.
To allow time for adequate Parliamentary scrutiny of this Bill prior to the sunset of the current Act, this Bill is being introduced prior to final COAG consideration of the proposed continuation of the Commission. Should the COAG agree any different approach to that embodied in this Bill, the government may introduce amendments to this end.
The National Water Commission functions
In continuing the NWC, the Australian Government proposes to position the Commission to continue robust and transparent oversight of national water reform commitments.
Under this Bill, the Commission will continue to conduct monitoring of trends and actions by all stakeholders in implementing the NWI. This function is critical to maintaining ongoing scrutiny of activities and performance. Through monitoring in areas such as trends in water market activity, the Commission's monitoring role will continue to ensure a flow of information and comprehensive knowledge of the state of reform implementation to both governments and stakeholders.
The ongoing monitoring function enables the Commission to conduct additional discretionary monitoring activities. It is expected that the Commission will engage with all governments and relevant wider stakeholder groups in determining these additional activities.
Under this Bill, the Commission will continue to audit progress of all governments against agreed national water reform commitments. Auditing is critical to the successful implementation of national water reforms, and continuing the Commission's role in auditing will assist to maintain the focus on performance in the reform agenda.
The Commission will continue to audit the effectiveness of the implementation of the Murray-Darling Basin Plan, as required under the Commonwealth Water Act 2007. This function is critical to ensure transparent oversight of the implementation of the Murray-Darling Basin Plan.
The Bill also provides for the Commission to undertake additional audit activities on a discretionary basis. I would expect the Commission will engage with all governments and relevant wider stakeholder groups in determining these additional activities and topics to be covered.
Under this Bill, the Commission will continue to assess the progress of implementation of the NWI, as proposed under the NWI. This is expected to include rolling assessments of sectoral approaches and analysis of achievements, obstacles, impacts and opportunities for improved approaches across all NWI related activities. This function is critical to ensuring strong evidence-based transparent reporting and guidance on progress and challenges in implementing national water reform. The Bill specifically provides for the Commission to continue to undertake major periodic assessments of NWI parties' progress in implementing their NWI commitments. The first of these assessments must be undertaken in 2014, and from then on once every three years. I note the assessments have previously been conducted on a biennial basis. Their frequency has been decreased in line with the recommendations of the independent Review, which found the biennial assessments to be too frequent.
This Bill also provides for the Commission to undertake additional assessment activities on a discretionary basis. For these additional assessments, it is expected the Commission will engage with all governments in determining the topics to be assessed.
The National Water Commission operations
The responsiveness of the Commission will be given greater emphasis through engagement with all jurisdictions.
It is envisaged that the Commission will formally engage State and Territory governments through the Standing Council on Environment and Water on at least an annual basis. Moreover, the Commission is expected to provide regular advice on its activities to, and engage closely with, COAG water subcommittees and all jurisdictions. A closer understanding of the activities of the jurisdictions and the circumstances in which their priorities are decided will assist in increasing its effectiveness in supporting the implementation of NWI reforms.
Importantly all Commission reports and significant information will remain publicly available.
Given the refocused functions for the Commission, the Government considers five Commissioners, with the same types of skills, will be required. As a result this Bill reduces the number of Commissioners to five, including the Chair.
With the scheduled closure of all programs funded from the Australian Water Fund, the Bill closes the Australian Water Fund Account and the NWC's specific ability to administer any Australian Water Fund monies, but will enable the NWC to administer Australian Government funding programs that may be allocated to it in the future.
These amendments to the functions and operation of the National Water Commission will ensure high quality advice to COAG as water reforms continues to be even more complex. The Commission's transparent oversight of national water reforms is crucial to Australia's work towards effective and efficient water management and use. The importance of water in securing Australia's economic and environmental future demands no less. Ordered that further consideration of the second reading of this bills be adjourned to the first sitting day of the next period of sittings, in accordance with standing order 111.
Ordered that the bills be listed on the Notice Paper as separate orders of the day.