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Broadcasting Services Amendment Bill 1998



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Bills Digest No. 6  1998-99

 

Broadcasting Services Amendment Bill 1998

Warning:

This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

Contents

Passage History

Broadcasting Services Amendment Bill 1998

 

Date Introduced:  2 July 1998

House:  Senate

Portfolio:  Communications, the Information Economy and the Arts

Commencement:  On Royal Assent, except Schedules 2 and 3, which are to commence on a day to be fixed by Proclamation

Purpose

To make amendments to the Broadcasting Services Act 1992 (the BSA) and consequential amendments to the National Transmission Network Sale Bill 1997 and the Telecommunications Act 1997 by:

 

• introducing an 'anti-hoarding' regime for free-to-air broadcasters(1)

• introducing program ming restrictions in regional areas by prohibiting Pay-TV licensees from broadcasting program material the majority of which is broadcast by a metropolitan commercial broadcaster,(2) and

• introducing a new re-transmission regime, which will require Pay-TV licensees wishing to re-transmit free-to-air radio or television broadcasting services to seek the consent of the original broadcaster. In addition, the Bill proposes that the practice of re-transmission should be subject to the ordinary principles of copyright protection.

Background

Overview

The general provisions of this Bill are explained under three headings:

Anti-hoarding

• Regional programming restrictions, and

• Re-transmission.

• The anti-hoarding provisions seek to compel free-to-air broadcasters and their program suppliers to use live broadcasting rights to certain events acquired either through the anti-siphoning regime(3) or otherwise. The provisions will operate independently from the ant-siphoning regime - though the practical effect will consolidate its purpose.

The regional programming provisions will restrict Pay-TV licensees from providing a service in regional areas if the majority of programs intended to be broadcast would be the same as those broadcast by either the Seven, Nine or Ten Networks. The Australian Broadcasting Authority (ABA) will be empowered to lift these restrictions.

The re-transmission provisions will address a Full Federal Court decision in 1996 which held that simultaneous and unaltered cable re-transmissions of free-to-air television services is allowed within licence/coverage areas without restriction under the current provisions of the BSA and the Copyright Act 1968 .(4)

Anti-hoarding

The anti-hoarding provisions target commercial free-to-air broadcasters and their program suppliers. The ABC and the SBS will also be subject to the rule but the practical benefits will ultimately flowing on to both.(5)

The provisions will enable the Minister to make a disallowable instrument designating certain events, or series of events, which will form the anti-hoarding list. The anti-hoarding list will stand alone and will be independent of the anti-siphoning list. H owever, public policy issues are common to both and each list will probably contain the same events or series of events.

The provisions become operational after live broadcasting rights have been secured. Thus, free-to-air broadcasters will not be affected until this initial threshold requirement is met. Compliance with the anti-hoarding rule will then be a condition of the broadcaster's licence.(6)

After live broadcasting rights have been acquired, commercial free-to-air broadcasters must either broadcast the event live or, within a specified time, offer the event to the national broadcasters for the amount of $1.

Similarly, national broadcasters must offer listed events to each other if they do not intend to use live rights.

The Bill also targets program suppliers. Program suppliers are not subject to licence conditions but will be subject to a civil penalty if found to have intentionally or recklessly contravened the anti-hoarding rule. The penalty is 2,000 penalty units (currently $220 000).(7)

Though the anti-hoarding provisions stand alone, the intention is to compliment and reinforce the public policy issues behind the ant-siphoning regime. It is therefore beneficial to first grasp the nature of the anti-siphoning regime.

Anti-siphoning in practice

The former Labor Government established the anti-siphoning regime to coincide with the introduction of Pay-TV in Australia.(8) The purpose was to ensure that events broadcast on free-to-air television remained 'free' for the benefit of the public.

Under the regime, free-to-air broadcasters have priority acquisition rights over Pay-TV licensees for events, or series of events, on the anti-siphoning list.(9) The list specifies the events, which are subject to the scheme of protection, on an event by event basis.

The listed events are of a 'national' nature, i.e. events, which the Minister has adjudged likely to attract widespread public interest. They may not necessarily be sporting events - the provisions of the BSA could be used to cover an historical event such as a commemoration or visit.(10) However, all events listed in the Gazette notice of 6 July 1994 were sporting events and this may be the future pattern.(11) Regardless, events are selected because the Minister is of the opinion that many people will wish to see them as they occur - live to air - not by later seeing a replay of them.

A Pay-TV licensee will be in breach of its licence condition if it acquires a right to broadcast live a listed event before a free-to-air broadcaster first has the opportunity of acquiring the same right.(12) Therefore, the anti-siphoning regime necessarily guarantees a commercial advantage for free-to-air broadcasters over their Pay-TV rivals. There is no guarantee of a public benefit flowing from this commercial advantage because there is no obligation on the broadcaster to televise the event at all - live or otherwise.

The anti-siphoning list is dynamic in nature and may change under the following circumstances:

the Minister may remove an event from the list(13)or,

• as a form of rolling update, events automatically 'drop-off' the list seven days (168 hours) after they conclude.(14) For example, the Minister's initial notification lists all cricket Tests, One-Day and World Cup matches involving the senior Australian representative team until 31 December 2004.(15) If any one of these matches were to conclude today, they automatically 'drop off' the list next week (168 hours from the close of play).

• Once an event is off the list, anti-siphoning protection ceases. A Pay-TV licensee may then acquire rights, the acquisition of which might otherwise breach the licence condition.

Anti-hoarding in practice

In 1997 the Nine Network held live broadcasting rights to both the Wimbledon tennis championships and the Ashes cricket series.(16) The Network made a commercial decision not to broadcast live sessions of the Lords test, which coincided with the live play at Wimbledon. Subsequently, Nine agreed to assign the live rights for those sessions to the ABC.(17) Both events were thus broadcast live on free-to-air television. The Government now proposes to compel assignment in similar circumstances, rather than rely on industry goodwill.

Using the cricket as an example, each of the following scenario show how the anti-hoarding provisions will operate in practice:

Commercial broadcasters

1. One-Day Matches - where a commercial broadcaster acquires live broadcasting rights, the broadcaster must either:

broadcast the whole match live, or

• offer to transfer the live rights to the whole match, within the offer time, to each of the national broadcasters for the amount of $1.(18)

• If the broadcaster decides to broadcast live only part of the match, the remainder must be offered up.

2. Test Matches(19) - where a commercial broadcaster acquires live broadcasting rights, the broadcaster must either:

broadcast the whole test match live or

• offer to transfer the live rights to the whole match, within the offer time, to each of the national broadcasters for the amount of $1.

• If the broadcaster decides to broadcast live only a part of the test match, the remainder must be offered up.

3.   Test Match Series(20) - where a commercial broadcaster acquires live broadcasting rights, the broadcaster must either:

• broadcast all test matches live, or

• offer to transfer the live rights to the series, within the offer time, to each of the national broadcasters for the amount of $1.

If the broadcaster decides to broadcast live only part of the series, the remainder must be offered up.

Program suppliers

Unlike broadcasters, program suppliers are not subject to licence conditions. However, the Bill attempts to control their activities by imposing a civil penalty on those found to be intentionally or recklessly hoarding live rights to listed events.(21)

Briefly, program suppliers usually acquire live broadcasting rights directly from the event owner (eg. the English Test and County Cricket Board). The agreement between the parties may confer upon a program supplier exclusive live broadcasting rights particular to a geographical area (eg. Australia). Program suppliers then sell these rights to the broadcaster.

Under the anti-hoarding provisions, program suppliers holding live broadcasting rights to listed events must either:

• confer on any of the commercial broadcasters the right to broadcast the event live or

• offer to transfer the live rights to each of the national broadcasters for the amount of $1.

The Bill sets ou t three situations in which a party is deemed to be a program supplier. They are:

• where an a agreement to supply programs to broadcasters is evident

• where the party and the broadcaster are related entities, and

• where the ABA declares that a party is a program supplier.

The anti-hoarding provisions must therefore distinguish between commercial broadcasters on the one hand and their program suppliers on the other. If contravened, commercial broadcasters will be in breach of their licence condition whereas program suppliers will be subject to a fine.

National broadcasters

Both the ABC and the SBS must transfer live broadcasting rights to each other under similar circumstances to those set out above.(22)

Regional programming restrictions

These provisions s eek to preserve the integrity of commercial television licence areas.

Pay-TV licensees(23)will be prohibited from providing a television service in regional areas if the majority of programs broadcast would be the same as those broadcast by a metropolitan commercial broadcaster.(24) The restriction has a built-in time period of 168 hours, which will prevent Pay-TV licensees from recording and then playing back the program within 168 hours of transmission by the metropolitan broadcaster.

These provisions couple both prime viewing periods with designated programs as the cornerstone of the restriction. In other words, Pay-TV licensees will not be allowed to broadcast free-to-air programs during prime viewing periods.

Prime viewing periods will be:

• Weekdays - 6pm to 10.30pm daily or unless as otherwise prescribed(25)

• Saturday - 10am to 6pm, or as otherwise prescribed, and

• Sunday - 10am to 6pm, or as otherwise prescribed.

The Minister will determine 'designated programs'. This provision broadens the 'catchment area' adding to those programs already being broadcast during the 'viewing periods'.

The ABA may lift these restrictions; for example, to coincide with the upcoming Sydney 2000 Olympics.(26)

Re-transmission

Currently, the BSA has in place a re-transmission regime.(27) The legislative purpose of this regime was to enable community 'self-hel p' groups to re-transmit free-to-air broadcasts to remote areas and areas of poor reception.

When Pay-TV licensees began operations in 1995, they used these re-transmission provisions to add free-to-air programs to their service. Consequently, subscribers were offered a 'one-stop-shop' for both free-to-air and Pay-TV programs.

In 1996 the Full Federal Court held that simultaneous and unaltered cable re-transmissions of free-to-air television services was permitted under the current provisions of the BSA and the Copyright Act 1968 . In this case, Networks Seven, Nine and Ten unsuccessfully sought to restrain Foxtel from re-transmitting their programs as part of Foxtel's 20-channel cable television service. The commercial networks argued that section 212 of the BSA must be given a strict interpretation and therefore did not apply to Foxtel's re-transmission of their signals. The Federal Court rejected this argument. It followed from the Court's interpretation of the section that the Networks also failed in their copyright and trademark claims. In relation to copyright, the Court held that section 199(4) of the Copyright Act 1968 , which allowed a cable subscription service to transmit a broadcast signal, applied to Foxtel. It also held that there was no infringement of trademark because the broadcast signal as re-transmitted by Foxtel would continue to denote a connection with the commercial networks and their programs.

The effect of the judgement is that almost any person can re-transmit the programs of a free-to-air broadcaster. As a result, Pay-TV licensees continue to re-transmit free-to-air television without compensating copyright owners or seeking the permission of free-to-air broadcasters. Foxtel and Optus Vision have recently asked viewers to register their concerns with the Senate Committee public inquiry into this Bill.(28)

The Copyright Convergence Group (CCG) in its 1994 report(29) recommended that Pay-TV licensees should pay for the privilege of using intellectual property that belongs to others.

As a consequence, the re-transmission provisions of this Bill will:

• enable 'seft-help' arrangements to continue without the need to gain permission from free-to-air broadcasters to retransmit their signals

• require Pay-TV licensees to compensate underlying copyright holders for the use of their intellectual property, and

• require Pay-TV licensees to seek permission from free-to-air broadcasters to retransmit their signals. Injunctive relief is specifically made available.

Main Provisions

Schedule 1 - Anti-hoarding amendments

Proposed new section 146C enables the Minister to declare a certain event or series of events to be 'designated events'. Designated events will form the ant-hoarding list.

Proposed new section 146D sets out the criteria for determining whether a person is a program supplier. If a person does not fall within the 'agreement' or 'related entity' criteria the ABA may take all relevant matters into account and if satisfied, declare that a person is a program supplier.

Proposed new section 146E sets out the anti-hoarding rule as it applies to commercial television broadcasters. The provision sets out instances where a commercial broadcaster will be in contravention of the rule. Contravention will constitute a breach of the broadcaster's licence condition.

Proposed new section 146F sets out the ant-hoarding rule as it applies to program suppliers. This provision is similar to that which applies to commercial broadcasters however, program suppliers will be subject to a fine of 2 000 penalty units for intentionally or recklessly contravening the rule.(30) Possible Constitutional invalidity is addressed by providing that the section cannot authorise an invalid acquisition of property.(31) This Digest addresses this point in the Concluding Comments .

Proposed sections 146G , 146H and 146J set out the 'must offer' procedure as it applies to commercial broadcasters and program suppliers.

Proposed sections 146L , 146M , 146N , 146P and 146Q deal onl y with the ABC and the SBS. Both are captured by the general provisions of the anti-hoarding rule but are only compelled to offer live rights to each other.

Item 2 enables a person to seek review by the Administrative Appeals Tribunal (AAT) of a decision by the ABA under new section 146D(4) . This section gives the ABA the power to declare that a person is a broadcast licensee's program supplier.

Item 3 provides that contravention of the anti-hoarding rule will constitute a breach of a licence condition. Sanctions for breach include prosecution, or suspension or cancellation of the commercial broadcaster's licence.

Schedule 2 - Pay-TV programming in regional areas

Division 1 provides a simplified outline of the new provisions together with definitions of key terms and 'designated programs'. Any declaration by the Minister under these provisions will be a disallowable instrument.

Division 2 sets out the circumstances in which Pay-TV programming is restricted in regional areas. The provisions enable the ABA to lift the restrictions in appropriate circumstances.

Item 2 adds two items to the table in section 204 of the BSA. Section 204 lists particular situations where a listed person may apply to the AAT for review of an ABA decision. The two new items relate to permission either refused or granted under Division 2 (above). Persons who may apply for review are:

• Pay-TV broadcasting licensees or a related body corporate, and

• Commercial broadcasting licen sees (if any part of their licence area overlaps with the regional area).

Item 3 provides that contravention, by Pay-TV licensees, of the programming restrictions in regional areas will constitute a breach of a licence condition.

Item 4 brings persons providing an open narrowcasting television services(32) or a Pay-TV narrowcasting service within the above provisions.(33)

Schedule 3 - Re-transmission of programs

Item 2 inserts a new Part 14B into the BSA, which specifies re-transmission of radio and television programs that are exempt from the re-transmission regime of this Bill. As outlined earlier in this Digest, these provisions maintain the immunity to 'self-help' and 'remote-area' providers from injunctive relief and breach of copyright remedies which would not otherwise be available to broadcasters and copyright owners as a result of the Foxtel decision.(34)

Item 3 repeals existing section 212 of the BSA in order to implement the new regime as outlined in Item 2 (above) and earlier in this Digest.

Item 4 allows commercial television licensees to seek written approval from the ABA to broadcast outside their respective licence areas in exceptional circumstances. Exceptional circumstances might be where one commercial broadcaster suffers damage to its transmitter infrastructure by an earthquake or other natural disaster. Where this occurs, a second commercial broadcaster could apply to the ABA to broadcast outside its licence area until such time as the first commercial broadcaster has completed necessary repairs.

Item 5 applies to commercial radio broadcasters and mirrors the provisions of Item 4 above.

Item 6 applies to community radio and television broadcasters and mirrors the provisions of Items 4 and 5 above.

Item 9 deals with the National Transmission Network Sale Bill 1997 which is intended to facilitate the sale of the national transmission network. That Bill makes provision for national broadcasting and other transmission services after the sale. This item provides that the provisions of this Bill relating to national broadcasting and other transmission services will also amend the National Transmission Network Sale Bill 1997 where necessary.

Items 10 and 11 amend the Telecommunications Act 1991 in consequence of the new Part 14B of this Bill.

Concluding Comments

Commercial broadcasters

Under the anti-siphoning regime, commercial free-to-air broadcasters enjoy a significant commercial advantage over their Pay-TV rivals. Public policy is founded upon the hope that free-to-air broadcasters will return the benefit of this commercial advantage to viewers who would otherwise have to pay to watch live events. The anti-hoarding regime now seeks to replace this goodwill notion with a must offer regime. Broadcasters will be compelled to either use or lose acquired live rights.

Though these provisions will place broadcasters on notice, the anti-hoarding rule can be avoided where an event appears on both lists - which is possible. To illustrate this point, Pay-TV licence conditions only apply to Pay-TV broadcasters . Currently, there are no provisions in the BSA, which prevent a program supplier from acquiring the exclusive live broadcasting rights to a listed event. Once acquired, the program supplier could control the terms on which free-to-air rights are offered - including the timing and extent of the coverage. If a free-to-air broadcaster declined an offer because, say, acceptance would be commercially unsound, a Pay-TV licensee could then apply to the ABA to have the event removed from the anti-siphoning list.(35) Once removed, a program supplier could then sell the rights to a Pay-TV licensee. The result is that the event is available live only on Pay-TV. The anti-hoarding provisions would have no effect as the initial threshold test is not satisfied. The free-to-air broadcaster never acquires the live rights and therefore cannot be compelled to use or offer up proprietary rights they do not own. As for program suppliers, see comments below.

The anti-siphoning regime has proved to be problematic in other areas. A curious situation recently arose involving the ABA and the Nine Network.

Although the anti-siphoning regime has been in place since 1994 the Federal Court was only recently called upon to clarify the provisions after the Nine Network disagreed with an ABA determination.(36)

On 20 December 1996, the Nine Network wrote to the ABA asking for a ruling on whether their competitors - News Limited, the Seven Network and Foxtel - had 'locked-up' rights to the 1997 Australia v South Africa cricket series.

The case related to the rights to three Tests and seven One-Day matches. News Limited acquired both free-to-air and Pay-TV rights for all matches. News then sold free-to-air rights to the Seven Network. The agreement between News and Seven conferred on Seven exclusive free-to-air television rights of the full coverage of each Test and each One-Day match, on a delayed telecast basis of three months (later reduced to one week) after the conclusion of each relevant match. Seven also acquired exclusive free-to-air rights to telecast a one-hour 'highlights' package for each day of each Test match and each One-Day match. There was some evidence that the Seven Network never intended to exercise its rights to televise the whole of each of the matches on a delayed basis. News Limited then sold the live Pay-TV rights to Foxtel Cable Television. The ABA found Foxtel was not in breach of their licence condition. The ABA came to the conclusion that:

The Minister's list is concerned with the televising of the event, whether live, delayed or perhaps substantially televised by a broadcaster of a highlights package. Clause 10(1)(e) applies on its face to any right to broadcast the event, whether live or delayed. Further, if a free-to-air broadcaster acquired 'delayed' rights to broadcast the event, para 10(1)(e) would not prevent a Pay-TV broadcaster acquiring live rights, or delayed rights equivalent to those acquired by a free-to-air broadcaster, to broadcast the same event.(37)

Justice Lockhart rejected the ABA's interpretation. His honour said:

In my view it would be contrary to the anti-siphoning provisions of the Act if a notified event such as a popular international cricket match cannot be seen by viewers on free-to-air channels earlier than seven days after the game has finished, yet is available on Pay-TV channels in the meantime.(38)

On appeal, the Full Court of the Federal Court held that a free-to-air broadcaster does not have the right to televise the event unless that broadcaster can televise it as soon as it happens or as soon thereafter as is technically feasible. A right to also televise highlights was not the right to televise the event, because it was the right to televise a mere summary of the event.

Past events

Though the most recent Wimbledon/Ashes series has prompted the introduct ion of these provisions(39) the controversy surrounding 'hoarding' has a history dating back to at least 1985. During that year the Nine Network held the live broadcasting rights to both the Wimbledon tennis championships and the Ashes cricket series. The facts of 1985 were similar to those, which arose during the Wimbledon/Ashes clash in 1997. However, both events in 1997 were eventually available on live free-to-air television due to Nine's 'rights gift' to the ABC. Contrast this with Nine's decision in 1985 not to broadcast the cricket sessions, which clashed with Wimbledon.

The Hon. Michael Duffy, former Minister for Communications, criticised Nine's approach and clashed publicly with the chairman of the Network, Mr Kerry Packer.(40) Mr Packer said:

What I am saying…is that no more will we cover Test cricket in England if all we are going to get for our trouble and effort is criticism from the minister. We will bow to his wishes; the Test cricket is available for anyone else to cover as from the completion of this year.(41)

Mr Duffy replied that if Mr Packer took that attitude because someone was 'so dreadful' as to criticise an inadequate coverage, then he was very disappointed.(42)

Mr Packer responded:

We have not taken our bat and gone home and played and sulked. You are suggesting there will be legislation. I am saying to you that I do not want legislation. Let the ABC cover it.(43)

Mr Duffy, in his statement released in Canberra, had said Network Nine's coverage of Wimbledon and the Lord's Test had been 'abysmal' and he had been 'absolutely assailed' with public protests. T he Minister said that following a major speech on the issue, which he made in November 1983, there was an improvement in the attitude of the industry. However, this had not lasted. He had now decided to write to Networks 7, 9 and 10 and the Federation of Australian Commercial Television Stations (FACTS) requesting that the industry draw up a voluntary code to improve coverage for viewers.(44)

The Minister's request sought introduction of the code within six months. No voluntary code has ever eventuated.

Based on the facts of these past events the practice of hoarding appears to be regarded as repugnant by both major political parties.

Program suppliers

The Bill proposes to compel program suppliers to offer up, rather than hoard, live free-to-air broadcasti ng rights to listed events for a nominal ($1) amount.(45) A substantial fine is imposed if a program supplier is found to have intentionally or recklessly contravened the rule.(46) The Bill specifically provides that the rule has no effect if it purports to authorise the acquisition of property otherwise than on just terms.(47) Program suppliers might argue that the Commonwealth is purporting to authorise the acquisition of property otherwise than on just terms and therefore the provision is unconstitutional.(48)

Just terms

The term requires a balance to be drawn between the interest of the individual whose property is acquired and the interest of the community: 'just terms' are concerned with fairness.(49)

Commentators have expressed the view that the centr al purpose of the 'just terms' provision in the Constitution is to ensure that, when property is acquired for a community purpose, the acquisition will be at the expense of the community and not the individual property owner.(50)

In Georgiadis v Australian and Overseas Telecommunications Corporation Justice Brennan said:

In determining the issue of just terms, the Court does not attempt a balancing of the interests of the dispossessed owner against the interests of the community at large. The purpose of the guarantee of just terms is to ensure that the owners of property compulsorily acquired by government presumably in the interests of the community at large are not required to sacrifice their property for less than its worth. Unless it be shown that what is gained is full compensation for what is lost, the terms cannot be found to be just.(51)

On one view, the Commonwealth's use of its regulatory powers in the BSA might be restrained by section 51(xxxi) of the Constitution. Program suppliers could argue tha t:

• the provision limits their marketplace by confining potential program buyers to free-to-air broadcasters only , and

• if there are no buyers, property rights must be given up to the Commonwealth for a nominal amount under the threat of a substantial fine - otherwise than on just terms.

Ultimately, of course, these are matters on which only the Court may reach a definite view.

Endnotes

 

1.For the purposes of this Digest, free-to-air broadcasters include the three current commercial (7, 9 and 10) networks and the national (ABC and SBS) broadcasters, unless otherwise stated.

2.Metropolitan commercial broadcasters include Networks 7, 9 and 10.

3.Broadcasting Services Act 1992, Schedule 2, Part 6.

4.Amalgamated Television Services Pty Ltd and others v Foxtel Digital Cable Television Pty Ltd and another (unreported, Fed Ct, 26 April 1996, G873 of 1995).

5.Commercial free-to-air broadcasters include Networks, 7, 9 and 10. Program suppliers are defined in the Bill and clarified in this Digest. Free-to-air national broadcasters include the ABC and the SBS.

6.A new Part 10A, to be inserted into the Broadcasting Services Act 1992 by Schedule 1 of the Bill, establishes the new rule.

7.See Concluding Comments section of this Digest.

8. The Broadcasting Services (Events) Notice No.1 of 1994 (the anti-siphoning list) was gazetted on 6 July 1994. The ant-siphoning list was specified by the then Minister for Communications and the Arts, Hon. Michael Lee, under section 115 of the Broadcasting Services Act 1992. The ant-siphoning list has been amended twice, on 11 May 1995 and 29 January 1996.

9.The anti-siphoning rules in licence condition 10(1)(e) of Schedule 2 to the Broadcasting Services Act 1992 provide that the licensee will not acquire the right to televise, on a Pay-TV service, an event that is specified by the Minister under subsection 115(1) unless:

(a).a national broadcaster has the right to televise the event on its broadcasting service; or

(b) the television broadcasting services of commercial television broadcast licensees who have the right to televise the event cover a total of m ore than 50% of the Australian population.

10.Ibid., Schedule 2, section 10(1)(e).

11.Commonwealth of Australia Gazette No. GN 26, 6 July 1994.

12.Commercial free-to-air broadcasts must be capable of reaching more than 50 per cent of the Australian population in order to take advantage of the ant-siphoning regime.

13 .Broadcasting Services Act 1992 section 115(2).

14.Ibid., section 115(1B). The Minister also may publish a declaration that the event remain on the event contrary to the automatic 'drop off' provisions.

15.The original list was gazetted on 6 July 1994.

16.Both are 'listed events' for the purposes of the anti-siphoning regime.

17.Broadcasting Services Amendment Bill 1998, Explanatory Memorandum , p. 6.

18.The Minister will declare the 'offer time' at the same time as the event is listed. The purpose of the 'offer time' is to give the national broadcasters enough time to adjust programming schedules if either wish to accept the offer. The declaration will be a disallowable instrument.

19.Played over a period of 5 days.

20.A test match series usually involves either 3 or 5 Test matches. Ashes tours usually involve 5 Tests.

21.Broadcasting Services Amendment Bill 1998, proposed section 146F - Anti-hoarding rule - program suppliers.

22.See each scenario listed in this Digest under the heading Commercial Broadcasters .

23.Includes related companies.

24.A regional area means an area that is not part of a metropolitan licence area.

25.Broadcasting Services Amendment Bill 1998, proposed section 121B - Definitions.

26.Ibid., Explanatory Memorandum , p.32.

27 .Broadcasting Services Act 1992 , section 212.

28 .Pay-TV seeks viewer lobby , The Australian Financial Review, reported by Finola Burke, p.7, August 12 1998.

29 .Highways to Change: Copyright in the New Communications Environment , p. 24.

30.Currently $220 000.

31.Constitution, section 51(xxxi).

32.An open narrowcasting television services is defined in section 18 of the BSA.

33.A Pay-TV narrocasting service is defined in section 17 of the BSA.

34 .Amalgamated Television Services Pty Ltd v Foxtel Digital Cable Television Pty Ltd (unreported, Federal Court, 20 October 1995).

35.In 1995 the BSA was amended to give the Minister a wide discretion to remove events from the anti-siphoning list - section 115(2).

36 .Nine Network Australia Pty Ltd v Australian Broadcasting Authority (1997) 143 ALR 8.

37.Ibid., p.13, Justice Lockhart quoting from the statement of Debra Richards, Director Program Services Branch, Australian Broadcasting Authority.

38.Ibid., p.16.

39.Broadcasting Services Amendment Bill 1998, Explanatory Memorandum , p.6, paragraphs 5 and 6.

40 .Willessee program, TCN 9, broadcast on 23 July 1985.

41 .Packer declares innings and says the bat's in Duffy's court , The Age, reported by Jill Baker and Anthony Nagy, 24 July 1985.

42.Ibid.

43.Ibid.

44.Press release by the Minister for Communications Hon. M.J. Duffy, MP, Minister issues warning on television sporting coverage , No. 58/85, 23 July 1985.

45.Broadcasting Services Amendment Bill 1998, proposed section 146F - Program suppliers.

46.Currently $220 000.

47.Broadcasting Services Amendment Bill 1998, proposed section 146F(5).

48 .Constitution , section 51(xxxi).

49.Justice Dixon in Nelungaloo v Commonwealth (1948) 75 CLR 495, at p.569.

50.Peter Hanks, Constitutional Law in Australia , Second Edition, p.512.

51. Georgiadis v Australian and Overseas Telecommunications Corporation (1994) 179 CLR 297 at p..310-11.

 

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Contact Officer

Ross Kilmurray

6 August 1998

Bills Digest Service

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