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Broadcasting Services Amendment (Anti-siphoning) Bill 2012 [2013]

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2010-2011-2012

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

THE SENATE

 

 

 

 

 

 

BROADCASTING SERVICES AMENDMENT (ANTI-SIPHONING)

BILL 2012

 

 

 

 

 

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

( Circulated by authority of the Minister for Broadband, Communications

and the Digital Economy, Senator the Honourable Stephen Conroy)



BROADCASTING SERVICES AMENDMENT (ANTI-SIPHONING)

BILL 2012

 

 

OUTLINE

 

 

The Broadcasting Services Amendment (Anti-siphoning) Bill 2012 (the Bill) would amend the Broadcasting Services Act 1992 (the BSA) with respect to the anti-siphoning scheme and anti-hoarding rules.

 

On 25 November 2010 a nd on 22 December 2010, th e Government announced its proposed reforms to the anti-siphoning scheme.

 

The Bill would amend the BSA to give effect to the reforms announced by the Government.

 

The Bill would repeal the current anti-siphoning provisions and anti-hoarding provisions in the BSA and introduce a new Part 10A containing all measures relating to anti-siphoning.

 

The Bill would empower the Minister to declare specified events as anti-siphoning events, and to provide for two tiers of anti-siphoning events: Tier A and Tier B. Tier A anti-siphoning events would include events of international or national significance. Tier B anti-siphoning events would include events of international, national, or local significance.

 

In addition, the Minister may specify that certain Tier B anti-siphoning events are to be dealt with on a grouped basis.

 

A designated group of events is intended to cater for events that involve simultaneously and consecutively occurring events (such as events in the Olympic Games) so as to ensure an appropriate level of television coverage.

 

A quota group of events is intended to cater especially for the Australian Football League (AFL) Premiership competition and the National Rugby League (NRL) Premiership competition, in a way that ensures a fair and comprehensive televised outcome on free-to-air television, subscription television and content services. There are two categories of quota groups - a Category A quota group (which is simply a numerical quota), and a Category B quota group (which is a combination of a numerical quota and qualitative conditions).

 

The Bill would ensure that opportunities for free-to-air television coverage of anti-siphoning events are maximised by encouraging commercial television broadcasting licensees and national broadcasters to use, and not hoard, rights acquired by them to provide live television coverage of such events.

 

This outcome is achieved by imposing a licence condition on commercial television broadcasting licensees, and imposing a corresponding obligation on national broadcasters, to ensure that the rights to televise live anti-siphoning events result in a live broadcast of the anti-siphoning event.

 

The concept of ‘live’ would depend upon the type of anti-siphoning event. The Bill would define ‘live’ in a way that includes a concept of ‘near live’. This would allow free-to-air broadcasters to broadcast an anti-siphoning event with short delays. ‘Live’ would also be defined to include longer delays for events such as the Olympic Games.

If a free-to-air broadcaster decides to not broadcast an anti-siphoning event to which they hold broadcast rights, they can only discharge their coverage obligations if they comply with a ‘must offer’ process. The Bill would contain rules for the ‘must offer’ process. The ‘must offer’ rules would also apply to program suppliers of commercial television broadcasting licensees and national broadcasters.

The Bill would include measures to ensure, with limited exceptions, that Tier A anti-siphoning events cannot be shown on a free-to-air digital television multi-channel - standard definition (SD) or high definition (HD) - without first being shown, or being shown simultaneously, on the broadcaster’s core or primary service. Tier B anti-siphoning events may be premiered on a free-to-air SD or HD digital multi-channel.

 

The Bill would also contain specific rules about the acquisition of rights to televise anti-siphoning events by subscription television broadcasting licensees. The Bill would prevent the acquisition by subscription television broadcasting licensees of rights to televise the whole or a part of an anti-siphoning event until a free-to-air broadcaster has acquired a right to televise the event. In relation to the AFL Premiership and NRL Premiership, the Bill would prevent such acquisition only if the acquisition would prevent, or was part of a scheme that prevented, the formation of a set of anti-siphoning events for which certain conditions are satisfied. Similar restrictions would apply to the conferral of online coverage rights to content service providers.

 

The Bill would contain notification requirements concerning the acquisition and cessation of rights to televise, or entitlements to confer such rights.

 

The Bill would also include transitional measures.

 

 

FINANCIAL IMPACT STATEMENT

 

The amendments in the Bill are not expected to have any direct financial impact on the Government. 



STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

 

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

Broadcasting Services Amendment (Anti-siphoning) Bill 2012

 

This Bill 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 .

 

Overview of the Bill

 

The general purpose of the Bill is to ensure that opportunities for free-to-air television coverage of anti-siphoning events are maximised.

 

This would be achieved by restricting:

·          the acquisition of rights to televise anti-siphoning events by subscription television licensees, and

·          the conferral of online coverage rights on content service providers.

 

In addition, commercial television broadcasting licensees and national broadcasters will need to use, and not hoard, rights acquired by them to provide live television coverage of such events.

 

The Bill would also impose notification requirements concerning the acquisition and cessation of rights to televise anti-siphoning events, or entitlements to confer such rights, on commercial television broadcasting licensees, national broadcasters and their program suppliers.

 

Human rights implications

 

Australia is a signatory to the International Covenant on Civil and Political Rights (one of the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 ) (the ICCPR). Article 19 of the ICCPR deals with freedom of expression and Australia has made a reservation to paragraph 2 of Article 19.

 

This Bill is consistent with such reservation, which states that the regulation of television broadcasting in the public interest with the object of providing the best possible broadcasting services to the Australian people is compatible with Article 19 of the ICCPR.

 

The measures contained in the Bill will enhance the viewing experience for Australian audiences.

 

Conclusion

 

This Bill is compatible with human rights and freedoms because it does not engage any of the applicable rights or freedoms.



NOTES ON CLAUSES

 

 

Clause 1 - Short title

 

1.            Clause 1 is a formal provision specifying the short title for the Act. When enacted, the Bill is to be cited as the Broadcasting Services Amendment (Anti-siphoning) Act 2012 .

 

Clause 2 - Commencement

 

2.            Clause 2 sets out when the provisions of the Act commence. The provisions specified in column 1 of the table will commence, or will be taken to have commenced, on the day or at the time specified in column 2 of the table.

 

3.            The covering clauses (sections 1 to 3) and anything not elsewhere covered by this table commence on the day the Act receives the Royal Assent.

 

4.            The amendments contained in Schedule 1 to the Bill commence on different days. The amendments contained in Part 1 of the Schedule commence on the day after the Act receives the Royal Assent, while the amendments contained in Part 2 of the Schedule commence on the date fixed by a proclamation issued by the Governor-General, providing this is within six months of the Act receiving the Royal Assent. Commencement by proclamation allows time to make delegated legislation (enabled by the Act) that is essential to the effective operation of the new anti-siphoning scheme before the Act effectively commences.

 

5.            Section 4 of the Acts Interpretation Act 1901 provides for the exercise of certain powers between passage and commencement of an Act (or a provision of an Act). However, any legislative instrument made by the exercise of such a power will commence no earlier than the enabling provision of the Act (that is, no earlier than the date to be proclaimed).

 

Clause 3 - Schedule(s)

 

6.            Clause 3 is a machinery provision that provides that each Act specified in a Schedule is amended or repealed in accordance with the Items of the Schedule concerned.

 

7.            There is one Schedule to the Bill, comprising two Parts, that contains amendments to the Broadcasting Services Act 1992 .

 



Schedule 1 - Amendments

 

Part 1 - Amendments commencing on the day after Royal Assent

 

8.            Part 1, containing Items 1 to 8 inclusive, would amend the Broadcasting Services Act 1992 (the BSA) to provide for an interim notification scheme in relation to rights to televise anti-siphoning events .

 

9.            The interim notification scheme starts on the day after the Act receives the Royal Assent and continues until the commencement of the substantive amendments to the anti-siphoning scheme contained in Part 2 of Schedule 1 to the Bill.

 

10.        Anti-siphoning event is defined in section 6 of the BSA and refers to an event that is specified in a legislative instrument made by the Minister under section 115 of the BSA (disregarding subsections 115(1AA) and (1B)).

 

11.        Part 1 also contains some technical amendments to Schedule 4 to the BSA.

 

Item 1 - After section 115A

 

12.        Item 1 would insert new sections 115B to 115E into the BSA. These provisions require commercial television broadcasting licensees and national broadcasters to notify the Australian Communications and Media Authority (ACMA) of any rights to televise anti-siphoning events that they have at the time the provisions commence, of any rights that they subsequently acquire, or of any rights they cease to have.

 

13.        New section 115B sets out interim notification requirements for commercial television broadcasting licensees. New subsection 115B(1) provides for notification requirements regarding rights to televise anti-siphoning events that were acquired by a licensee before the commencement of new section 115B and that the licensee continues to have at the time the new section commences. If a licensee holds the right to televise the whole or a part of an anti-siphoning event in the licence area for the licence, they must notify the ACMA in writing that they hold the right and describe the attributes of the right. The written notification must be provided to the ACMA within ten business days of the commencement of the provision.

 

14.        The attributes of the right are intended to include the duration and extent of the right. This includes conditions or limitations of the right to televise, such as whether the right permits the broadcast of the entire anti-siphoning event or merely parts of it, or whether the right to televise permits ‘live’ or only delayed coverage of the anti-siphoning event.

 

15.        New subsection 115B(2) provides for notification requirements regarding rights to televise anti-siphoning events acquired by a licensee after the commencement of new section 115B. If a licensee acquires the right to televise the whole or a part of an anti-siphoning event in the licence area for the licence, they must notify the ACMA in writing that they hold the right and describe the attributes of the right. The written notification must be provided to the ACMA within ten business days of the acquisition.

 

16.        New subsection 115B(3) provides for notification requirements where a licensee ceases to have the right to televise the whole or a part of an anti-siphoning event in the licence area for the licence. If a licensee ceases to have such a right, they must notify the ACMA in writing of the cessation and describe the attributes of the right. The written notification must be provided to the ACMA within ten business days of the cessation.

 

17.        By reference to subsection 140A(1) of the BSA, new subsection 115B(4) provides that section 115B is a designated infringement notice provision for the purpose of the BSA’s designated infringement notice scheme. Part 14E of the BSA empowers authorised officers of the ACMA to issue infringement notices and formal warnings (as an alternative to litigation) for suspected contraventions of a designated infringement notice provision.

 

18.        The legislative notes embedded in new section 115B refer the reader to related provisions about the approved form for notification (new section 115D) and exemptions from the notification requirements (new section 115E), and note that the requirement to notify would be a licence condition for commercial television broadcasting licences (see Item 6 below). The new licence condition for commercial television broadcasting licensees is both a criminal and a civil penalty provision (subsections 139(1) and 140A(1) of the BSA refer).

 

19.        New section 115C sets up similar notification requirements for the national broadcasters (except for the designated infringement notice and penalty provisions).

 

20.        New section 115D provides that notifications to the ACMA by commercial television broadcasting licensees and national broadcasters must be in the form approved by the ACMA.

 

21.        New section 115E sets out exemptions from the interim notification requirements. A right to televise part of an anti-siphoning event only during a news program is not a right that needs to be notified to the ACMA (subsection 115E(1) refers). This exemption would cover rights to televise a small part of an event as part of a report in a news program . News program means a news bulleting or a sports news bulletin.

 

22.        In addition, the Minister may make a legislative instrument to grant other exemptions from the interim notification requirements. Such exemptions may be granted conditionally or unconditionally. This enables the Minister to exempt from the interim notification requirements rights to televise part of an anti-siphoning event more generally - for example, a right to provide edited highlights of an event as part of a television program (other than a news program ).

 

Item 2 - Subsection 205F(4)

Item 3 - After subsection 205F(4)

Item 4 - After subsection 205F(5)

 

23.        Items 2 to 4 would amend section 205F of the BSA.

 

24.        Under section 205F of the BSA, the Federal Court may order a person to pay a pecuniary penalty for a contravention of a civil penalty provision. In determining the penalty amount, the Federal Court is required to consider all relevant matters, including, but not limited to, the nature and extent of the contravention, any loss or damage suffered as a result, the circumstances of the contravention and any previous contraventions (subsections 205F(1) and (3)).

 

25.        Under subsection 205F(4), the maximum pecuniary penalty that may be imposed as a civil penalty is the maximum penalty that could have been imposed for a conviction under the corresponding criminal offence. Similarly, under subsection 205F(5), ancillary contraventions of a civil penalty provision (see section 205E) attract the same maximum pecuniary penalty amount.

 

26.        Item 3 would insert new subsections 205F(4A)-(4B) into the BSA. These new provisions would carve out from the operation of subsection 205F(4) contraventions by commercial television broadcasting licensees of the civil penalty provision that relates to the new licence condition about interim notifications in new section 115B (new subsection 205F(4A)). This is because the amendments would set a different maximum amount for the pecuniary penalty payable by a commercial television broadcasting licensee in respect of a contravention of new paragraph 7(1)(hb) of Schedule 2 to the BSA. The maximum penalty payable by a person who contravenes this provision would be 500 penalty units. A penalty unit is currently worth $110 (penalty unit is defined in section 6 of the BSA by reference to section 4AA of the Crimes Act 1914 ). The maximum penalty for a contravention is $55 000.

 

27.        The amendment in Item 2 is consequential to the amendments in Item 3. It would remove the current reference to subsection 205E(1) in subsection 205F(4), as such reference would be picked up by new subsection 205F(4A).

 

28.        Item 4 would insert new subsections 205F(5A)-(5B) into the BSA. These amendments are similar to the amendments in Item 3, but concern ancillary contraventions of the civil penalty provisions that apply to the new interim notifications requirements.

 

29.        New subsection 205F(5A) provides that subsection 205F(4) does not apply to ancillary contraventions by commercial television broadcasting licensees of the civil penalty provisions that relate to the new licence condition about the interim notifications in new section 115B. New subsections 205F(5B) provides that the maximum penalty payable by a person for an ancillary contravention of these civil penalty provisions would be 500 penalty units ($55 000).

 

Item 5 - Section 205ZD (heading)

 

30.        This amendment replaces the section heading for section 205ZD. The word ‘criminal’ is removed.

 

Item 6 - After paragraph 7(1)(ha) of Schedule 2

 

31.        Item 6 would insert a new paragraph 7(1)(hb) after paragraph 7(1)(ha) of Schedule 2 to the BSA. Clause 7 of Schedule 2 to the BSA sets out standard licence conditions for commercial television broadcasting licences. New paragraph 7(1)(hb) provides that each commercial television broadcasting licence is subject to the condition that the licensee will comply with the interim notification requirements set out in new section 115B.

 

Item 7 - paragraph 41B(1)(a) of Schedule 4

Item 8 - paragraph 41D(1)(a) of Schedule 4

 

32.        These Items make technical amendments that insert two additional cross-references. The new cross-references refer to recently added service authorisations (set out in section 41B of the BSA) that apply to particular commercial television broadcasting licences.

 

Part 2 - Amendments commencing on a day to be fixed by Proclamation

 

33.        Part 2, containing Items 9 to 31 inclusive, contains the substantive amendments to the anti-siphoning scheme. Part 2 would amend the BSA to repeal the existing provisions in the BSA relating to anti-siphoning and anti-hoarding and to insert a new Part 10A into the BSA to give effect to the new anti-siphoning scheme.

 

Item 9 - Subsection 6(1) (definition of anti-siphoning event)

 

34.        Item 9 would repeal the current definition of anti-siphoning event in subsection 6(1) of the BSA and substitute it with a new definition.  The new defined term foreshadows two tiers of anti-siphoning event s, being Tier A and Tier B. The concepts of Tier A anti-siphoning event s and Tier B anti-siphoning event s are explained in paragraphs 72 to 78. The Minister would determine whether an event is to be a Tier A anti-siphoning event or a Tier B anti-siphoning event .

 

Item 10 - Sections 115 to 115E

 

35.        Item 10 would repeal sections 115 to 115E of the BSA because these provisions are to be replaced by other provisions (see Item 11 below, specifically the notes about Division 6 of new Part 10A that start at paragraph 260).

 

36.        Section 115 is the key provision for implementing the current anti-siphoning scheme. This section empowers the Minister to specify, by legislative instrument, events that in the Minister’s opinion should be available free to the general public. This instrument is commonly known as the ‘anti-siphoning list’. Section 115 is being repealed because the Minister’s power to specify anti-siphoning events will instead be provided by new section 145E (noted at paragraph 73 to 100 below).

 

37.        Section 115A provides for a statutory review of the current anti-siphoning provisions. This would be replaced by new section 145ZV (see paragraphs 269 and 270 below).

 

38.        Sections 115B to 115E provide for interim notification requirements for commercial television broadcasting licensees and national broadcasters (see Item 1 above). These would be replaced by substantive notification requirements for commercial television broadcasting licensees and national broadcasters, and their program suppliers (noted from paragraph 260 below).

 

Item 11 - Part 10A - Anti-siphoning events

 

39.        Item 11 would repeal current Part 10A of the BSA and substitute it with a new Part 10A, which would contain all the substantive provisions dealing with anti-siphoning events , as follows.

 

Division 1 - Introduction

 

40.        Division 1 of new Part 10A contains a simplified outline of new Part 10A and provides definitions for a number of terms used in this Part.

 

Section 145 - Simplified outline

 

41.        Consistent with modern drafting practice, section 145 provides a simplified outline of the provisions in new Part 10A.

 

Section 145A - Definitions

 

42.        Section 145A provides definitions for a number of terms used in new Part 10A.

 

43.        While these terms are largely self-explanatory, the following defined terms are noted.

 

44.        AFL Premiership competition is defined to mean the multi-round competition currently known as the Australian Football League (AFL) Premiership. The definition is broad enough to cover any change in the name for the competition, any successor competition to the AFL Premiership, or any other inter-state Australian football multi-round competition prescribed by regulation (for example if, in future, an inter-state competition is created to replace the AFL Premiership). This definition will ensure continuity of the anti-siphoning scheme in its application to Australia’s premier Australian football competition.

 

45.        Content service and content service provider have the same meaning as in Schedule 7 to the BSA. The terms would be used in new section 145ZO, which would limit the circumstances in which a person may confer on content service providers the right to provide audio-visual content to Australian end-users where the content consists of live (as defined by subsection 145ZO(6)) coverage of the whole or a part of an anti-siphoning event that occurs in Australia.

 

46.        A content service provider is defined in clause 2 of Schedule 7 to the BSA as a person who provides a content service . In turn, content service means:

(a)     a service that delivers content to persons having equipment appropriate for receiving that content, where the delivery of the service is by means of a carriage service; or

(b)    a service that allows end-users to access content using a carriage service.

 

47.        However, in Schedule 7 to the BSA, a content service is subject to a number of exceptions, which are also incorporated into the term to be used in new Part 10A. For example, the exceptions to a content service include broadcasting services provided under a licence issued or determined under the BSA (for example, a commercial television broadcasting licence) and national broadcasting services.

 

48.        Coverage area has the same meaning as in Schedule 4 to the BSA. The definition of coverage area is relevant to national broadcasters. Clause 2 of Schedule 4 defines coverage area to mean a metropolitan coverage area or a regional coverage area. These areas correspond to a metropolitan licence area and a regional licence area for a commercial television broadcasting service. Many of the provisions in new Part 10A apply to national broadcasters by reference to coverage areas . ( Licence area is also a defined term in section 145A and it means a licence area for a commercial television broadcasting licence).

 

49.        Live is defined by section 145B. The definition includes a ‘near live’ concept and, for the televising of certain types of events would accommodate a delayed broadcast of up to 24 hours. The use of the term live in the anti-siphoning scheme goes to the characteristics of a right to televise, and is a key concept in the obligations imposed on free-to-air broadcasters who have acquired the right to televise live an anti-siphoning event .

 

50.        News program means a news bulletin or a sports news bulletin. A program that has the main purpose of providing analysis, commentary or discussion about current affairs or public affairs is not a news program for the purpose of the anti-siphoning scheme.

 

51.        NRL Premiership competition is defined to mean the multi-round competition currently known as the National Rugby League (NRL) Premiership. The definition is broad enough to cover any change in name for the competition, any successor competition to the NRL Premiership, or any other inter-state rugby league competition prescribed by regulation (for example if, in future, an inter-state competition is created to replace the NRL Premiership). This definition will ensure continuity of the anti-siphoning scheme in its application to Australia’s premier rugby league multi-round competition.

 

52.        Primary commercial television broadcasting service , primary national television broadcasting service , and primary satellite national television broadcasting service have the same meanings as in Schedule 4 to the BSA. These terms are used to distinguish one type of multi-channelled digital television broadcasting service from the other multi-channelled digital television broadcasting services that are provided by the same broadcaster. The distinction between primary and other multi-channelled digital television broadcasting services is important to the operation of the measures in the Bill that regulate the televising of Tier A anti-siphoning event s on free-to-air television.

 

53.        Program supplier has the meaning given by section 145ZP (see paragraph 259below) when the term is used in Division 5 of new Part 10A (which deals with limits on the acquisition and conferral of rights. Otherwise, program supplier has the meaning given by section 145C (noted at paragraphs 63 to 68 below).

 

54.        Quota group refers to either a Category A quota group or a Category B quota group as the case requires (see section 145G, noted at paragraphs 114 to 135 below). The categories of quota group are mutually exclusive.

 

55.        Simulcast-equivalent period and simulcast period have the same meaning as in Schedule 4 to the BSA.

 

56.        Supply , in relation to programs, is defined to include the conferral of rights to televise programs. This recognises the fact that a program supplier may not necessarily acquire actual programs to supply to broadcasters, but may simply acquire the rights to televise an event.

 

57.        Televise is used in relation to commercial television broadcasting licensees and national broadcasters. In relation to the former, it means to televise on a commercial television broadcasting service provided by the licensee. In relation to the latter, it means to televise on a national television broadcasting service provided by the ABC or the SBS.

 

Section 145B - Live

 

58.        New section 145B defines the term live for the general purposes of new Part 10A of the BSA (except for section 145ZO, which is about live coverage on content services (subsection 145ZO(6) refers)). Live is defined by reference to different types of anti-siphoning event s. This reflects the different requirements that are imposed on commercial television broadcasting licensees and national broadcasters with regard to the televising of different types of anti-siphoning events (as set out in Division 3 of new Part 10A, noted from paragraph 136 below).

 

59.        Subsection 145B(1) defines live in relation to the televising of a Tier A anti-siphoning event . For this kind of event, live means with no delay, or with as short a delay as is technically feasible. The intention is for Tier A anti-siphoning event s to be broadcast genuinely ‘live’.

 

60.        Subsection 145B(2) defines live in relation to the televising of a Tier B anti-siphoning event that is part of a designated group. For this kind of event, live means with no delay, or with a delayed starting time of not more than 24 hours from the start of the event concerned. The provision for a delayed starting time would permit the broadcaster to time shift the televising of the event concerned. This may be desirable if the event is scheduled to occur in a time zone that is significantly different from the Australian time zones. For example, the permitted delay would allow the Australian broadcaster to choose to televise events in the 2016 Summer Olympic Games in Brazil at a time of day that maximises the potential viewing audience in Australia. Provided the delayed telecast for an event within the designated group does not exceed 24 hours, the free-to-air broadcaster would satisfy their coverage obligations. This definition of live is consistent with the obligations imposed on free-to-air broadcasters about the televising of anti-siphoning events in a designated group , which give broadcasters a certain level of flexibility about this type of events.

 

61.        Subsection 145B(3) defines live in relation to the televising of a Tier B anti-siphoning event that is not part of a designated group . For this kind of event, live means with no delay or with a delayed starting time of not more than 4 hours. The default delayed starting time is 4 hours from the start of the event (paragraph145B(3)(d) of the definition refers). For example, this would allow a rugby union World Cup semi-final to be televised on a three hour delay. Such a broadcast would be considered a live one for the purpose of the coverage obligations in sections 145H and 145N.

 

62.        However, the Minister may, by disallowable legislative instrument, determine that there is a shorter maximum delayed starting time of less than 4 hours for the televising of a particular event (other than an event in the AFL Premiership competition ) in a specified commercial television licence area and the corresponding national broadcasting coverage area (paragraph 145B(3)(c) refers). This would allow the Minister to specify a shorter delay for the televising of a particular event if a shorter delay was considered appropriate. For example, if a Tier B anti-siphoning event occurred in Australia or overseas and the Minister wished to ensure that event is broadcast genuinely ‘live’ in one or more licence areas.

 

Section 145C - Program suppliers

 

63.        New section 145C provides a definition of program supplier for the purpose of new Part 10A of the BSA, except for Division 5, which has a special definition of program supplier (noted at paragraph 259 below). Program suppliers play an important role in the anti-siphoning scheme. For example, program suppliers who hold the rights on behalf of a commercial television broadcasting licensee (or a national broadcaster) will also be subject to the ‘must offer’ regime.  (The ‘must offer’ regime is discussed from paragraph 167 below).

 

64.        Program supplier is defined in this section as a person who has an arrangement (including a proposed arrangement) to supply, directly or indirectly, a commercial television broadcasting licensee or subscription television broadcasting licensee (subsection 145C(1)), or national broadcaster (subsection 145C(2)) with television programs.

 

65.        The concept of ‘direct supply’ deals with an arrangement whereby the program supplier personally supplies programs to the commercial television broadcasting licensee or national broadcaster. The concept of ‘indirect supply’ deals with an arrangement whereby the program supplier supplies programs to the commercial television broadcasting licensee or national broadcaster through one or more intermediaries (that is, a supply chain). The definition of program supplier recognises the variety of program supply arrangements that exist, including where a sporting organisation (such as the club that organises a sporting event) sells the rights to televise the event to a broker who in turn either on-sells those rights to a television broadcaster, or produces a program that provides coverage of the event and then supplies that program to a television broadcaster. There could also be other intermediaries in the supply chain.

 

66.        The definition of program supplier would cover an arrangement whereby a related body corporate of a broadcaster has the specific role of acquiring the rights to program material for supply to the broadcaster, or a metropolitan commercial television broadcasting licensee supplying programs to an affiliated regional commercial television broadcasting licensee.

 

67.        Subsection 145C(3) provides an exception from the definition of program supplier . The exception applies to sporting organisations that control or organise or administer a sporting event, and also supply television programs of the event. While the anti-siphoning scheme is not designed exclusively to facilitate television coverage of significant sporting events, the scheme has tended to be dominated by sporting events. The exception for sporting organisations reflects the fact that some sporting organisations may choose to produce and supply television programs of anti-siphoning events directly to broadcasters. For the purposes of the anti-siphoning scheme, these organisations would not be program suppliers .

 

68.        This exception is limited to the supply of programs by sporting organisations to commercial television broadcasting licensees and national broadcasters because the primary program supply obligations under new Part 10A relate to the supply of programs to these broadcasters, not subscription television broadcasting licensees (sections 145J and 145P, noted at paragraphs 183 to 188 below).

 

Section 145D - Exemptions from this Part

 

69.        New section 145D sets out exemptions from the new anti-siphoning scheme. Subsection 145D(1) provides that a right to televise part of an anti-siphoning event during a news program is exempt from new Part 10A. This kind of right is not a ‘right to televise’ for the purpose of the new scheme. This would cover rights to televise event highlights of an event as part of a report in a news program .

 

70.        Subsection 145D(2) empowers the Minister to make a legislative instrument to grant other exemptions from the anti-siphoning scheme in relation to a right to televise part of an anti-siphoning event . Such exemptions may be granted with or without conditions (subsection 145D(3)). This enables the Minister to exempt from the requirements in the new anti-siphoning scheme rights to televise part of an anti-siphoning event more generally - that is, in relation to television programs other than a news program . For example, a right to televise a program of edited highlights of an anti-siphoning event could be exempted. The Minister could also determine whether the exemption is limited to highlights programs of a particular duration (e.g. less than 60 minutes, or some other formulation).

 

71.        It is important to note that an exemption granted under subsection 145D(2) is from the operation of the entire Part. If a right to televise edited highlights (however defined by the Minister) of a particular anti-siphoning event were exempted from new Part 10A, then such rights would not be regulated in any way. Accordingly there would be nothing to restrict the acquisition by a subscription television broadcasting licensee of exempted rights to televise, and nothing to require a free-to-air broadcaster who holds exempted rights to use them in a particular way. Notification requirements would also not attach to exempted rights.

 

Division 2 - Anti-siphoning events

 

72.        The provisions in Division 2 of new Part 10A empower the Minister to make a number of legislative instruments as needed to give effect to the new anti-siphoning scheme.

 

Section 145E - Anti-siphoning events

 

73.        New section 145E would empower the Minister to make legislative instruments that declare specified events to be either a Tier A anti-siphoning event (subsection 145E(1)) or a Tier B anti-siphoning event (subsection 145E(2)). The events may be specified individually or as a class. It is immaterial whether the event occurs inside or outside Australia (subsection 145E(8)). Each legislative instrument made by the Minister is subject to Parliamentary scrutiny and disallowance.

 

74.        Similar to the Minister’s existing power to specify anti-siphoning events (section 115 of the BSA which would be repealed by Item 10), subsection 145E(3) provides that the Minister cannot declare an event to be an anti-siphoning event (whether Tier A or Tier B) unless he or she is of the opinion that the event should be available free to the general public.

 

Tier A anti-siphoning events

 

75.        The introduction of different tiers of anti-siphoning events is necessary to give effect to the Government policy that some anti-siphoning events ( Tier A anti-siphoning events ) are of such significance that they ought to be televised live , and on a primary television broadcasting service, by the free-to-air broadcaster who holds the rights to televise such an event and to the full extent of those rights.

 

76.        It is anticipated that Tier A anti-siphoning event s will include events that are of national or international significance, for which free, timely, and widespread television coverage are important objectives. Such events are likely to include iconic sporting events such as (among others) the AFL Grand Final, the NRL Grand Final, the Melbourne Cup, Australia’s international Test and limited over cricket matches played in Australia, and the ‘Ashes’ Test cricket series whether played in Australia or the United Kingdom.

 

Tier B anti-siphoning events

 

77.        By contrast, other anti-siphoning events ( Tier B anti-siphoning events ) are intended to include domestic and international events that the Minister considers are less significant than Tier A anti-siphoning events , but which are still significant enough to be made available free to the general public. Tier B anti-siphoning events may be broadcast live on any of the broadcaster’s television broadcasting services (including digital multi-channels).

 

78.        It is anticipated that Tier B anti-siphoning events will include events such as the Finals Series (other than the Grand Final) for the AFL Premiership competition and the NRL Premiership competition , the ‘home and away’ matches in the AFL Premiership competition and the NRL Premiership competition , the rugby league State of Origin series, the Olympic Games (Summer and Winter), and the Commonwealth Games, among others.

 

Delisting anti-siphoning events

 

79.        Subsections 145E(4)-(6) set out the circumstances in which an anti-siphoning event is or can be delisted (that is, ceases to be an anti-siphoning event ).

 

80.        Subsection 145E(4) provides that an event is deemed to be delisted for all anti-siphoning scheme purposes 24 hours after the end of the event unless the Minister has, before that time, made a declaration that the event continues to be an anti-siphoning event for longer than 24 hours after the event. The Ministerial declaration is a disallowable legislative instrument.

 

81.        Subsection 145E(4) is similar to subsection 115(1B) of the BSA (which provides for automatic delisting 168 hours (seven days) after the end of the event, unless the Minister declares otherwise). The original delay of seven days was intended to give free-to-air broadcasters a reasonable opportunity to provide delayed coverage of an event at a time convenient to viewers. Since other measures in this Bill would require free-to-air broadcasters to televise a listed event live (with 24 hours being the maximum delay permitted), the delisting provision in subsection 145E(4) is amended so that delisting occurs 24 hours after the end of the event. The Minister will continue to have a reserve power to make a disallowable legislative instrument that defers the automatic delisting time for longer than 24 hours after the end of the event. This is intended to allow the Minister to respond to exceptional circumstances.

 

82.        For example, the Minister may decide to retain an event on the anti-siphoning list where none of the broadcasting rights have been made available to a national broadcaster or a commercial television broadcasting licensee prior to the event occurring, but the Minister is of the opinion that retaining the event on the list is likely to maximise the chances for free-to-air coverage.

 

83.        Subsection 145E(4) does not apply to the extent that subsection 145E(6) regulates the delisting of an anti-siphoning event (subsection 145E(5) refers).

 

84.        Subsection 145E(6) contains a separate automatic delisting provision that applies for the purposes of the restrictions contained in Division 5 of new Part 10A. Division 5 restricts the ability of subscription television broadcasting licensees or content service providers to acquire rights to televise or provide coverage of an anti-siphoning event . The effect of subsection 145E(6) is to delist an anti-siphoning event a specified period before that event starts.

 

85.        The purpose of delisting through subsection 145E(6) is to provide subscription television broadcasting licensees and content service providers a reasonable opportunity to acquire rights to televise or provide coverage of an event before the event occurs. This delisting measure operates on the rebuttable presumption that no commercial or national broadcaster has taken advantage of the listing of an anti-siphoning event to actually acquire the rights to televise the event on their broadcasting service.

 

86.        Subsection 145E(6) is similar to subsection 115(1AA) of the BSA, although subsection 145E(6) provides that different delisting times apply depending on the type of anti-siphoning event concerned. In general, subsection 145E(6) provides a default delisting time for each type of anti-siphoning event , but also empowers the Minister, by legislative instrument, to substitute a different delisting time for the default time, subject to the limitations set out in paragraphs 145E(6)(f) and (g). This legislative instrument is subject to Parliamentary scrutiny and disallowance.

 

Subsection 145E(6): Delisting events in a designated group

87.        Section 145F (noted below at paragraphs 101 to 113) provides that the Minister may specify Tier B anti-siphoning event s that are to be a designated group . Paragraph 145E(6)(a) provides that if an anti-siphoning event is in a designated group , the default delisting time is 4368 hours (182 days) before the start of the first event in the group. Unlike other types of anti-siphoning event s, the Minister has no power to vary the delisting time other than by delisting the events altogether (refer to subsection 145E(7), which deals with variations to and revocations of declarations made under subsections 145E(1) and (2)).

 

88.        For example, Government policy is for the Minister to declare that the 2014 Commonwealth Games (to be held in Scotland) form a designated group of Tier B anti-siphoning events . Under paragraph 145E(6)(a), the designated group would be automatically delisted 182 days before the opening ceremony (the first event in the designated group ).

 

Subsection 145E(6): Delisting events in the AFL Premiership competition

89.        Paragraph 145E(6)(b) provides that if the anti-siphoning event is part of the AFL Premiership competition the default delisting time is 4368 hours (182 days) before the start of the first event in the competition, or such earlier time as specified by the Minister in a legislative instrument. The Minister’s power to specify a different time is limited. The Minister cannot specify a delisting time that is more than 8736 hours (364 days) before the first event in the competition. The legislative instrument made under subparagraph 145E(6)(b)(ii) is subject to Parliamentary scrutiny and disallowance. Once the delisting time passes, all events in that particular AFL Premiership competition will be delisted.

 

90.        In addition to specifying an earlier delisting time for the AFL Premiership competition , the Minister can also defer the delisting of the AFL Premiership competition so that the event continues to be an anti-siphoning event (paragraphs 145E(6)(f) and (g)).

 

Subsection 145E(6): Delisting events in the NRL Premiership competition

91.        Paragraph 145E(6)(c) provides delisting arrangements for anti-siphoning event s in the NRL Premiership competition . These arrangements operate in a corresponding way to the arrangements in paragraph 145E(6)(b) for events in the AFL Premiership competition

 

Subsection 145E(6): Delisting events in multi-round competitions (other than the AFL and NRL Premierships)

92.        A multi-round competition is intended to cover sporting tournaments where simultaneous events occur over consecutive rounds (or stages) in a process that determines the participants in the final event of the tournament. There are a wide variety of multi-round competitions. Some competitions exclusively use elimination rounds (most tennis tournaments), while others use qualifying rounds (e.g. the group stages of a World Cup soccer tournament).

 

93.        Paragraph 145E(6)(d) provides delisting arrangements for multi-round competitions that are not the AFL or NRL Premierships or designated groups . The Minister is empowered by this provision to make a legislative instrument to specify the delisting time for events in this type of competitions by reference to the start of the first event in these competitions (subparagraph 145E(6)(d)(iii)). The legislative instrument is disallowable. There is no requirement for the Minister to make such instrument and, in the absence of one, each event that is held as part of a multi-round competition would be individually delisted in accordance with paragraph 145E(6)(e) (noted below at paragraph 95).

 

94.        For example, Government policy is for the Minister to declare each FIFA World Cup match involving Australia, each quarter final, semi final, and the final to be a Tier A anti-siphoning event . Under paragraph 145E(6)(d), the Minister might specify that these events will be automatically delisted 12 months before the start of the first event in the FIFA World Cup tournament.

 

Subsection 145E(6): Delisting other anti-siphoning events

95.        Paragraph 145E(6)(e) provides delisting arrangements for all other anti-siphoning event s that are not covered by the previous paragraphs. This provision covers Tier A anti-siphoning event s like the Melbourne Cup, or Tier B anti-siphoning event s like final matches involving the Australian representative team in the netball world championships, or each rugby league State of Origin match. A default delisting time of 4368 hours (182 days) before the start of the event is specified.

 

Subsection 145E(6): Deferred delisting of anti-siphoning events

 

96.        For each of the delisting arrangements set out in paragraphs 145E(6)(a) to (e), the Minister has a supplementary but qualified power to defer the delisting of an event before the event starts (paragraphs 145E(6)(f) and (g)).

 

97.        Paragraphs 145E(6)(f) and (g) are substantially the same as subsection 115(1AB) of the BSA (to be repealed by Item 10 above). These provisions empower the Minister to defer automatic delisting before the start of an event - but only if the Minister is satisfied that at least one free-to-air broadcaster has not had a reasonable opportunity to acquire the rights to televise the event concerned, and the Minister’s legislative instrument comes into force before the time applicable under paragraph

145E(6)(a), (b), (c), (d) or (e). This legislative instrument made under paragraph 145E(6)(g) is subject to Parliamentary scrutiny and disallowance.

 

98.        The Minister’s powers under subsection 145E(6) allow him or her to determine an alternative delisting time for an event covered by paragraphs 145E(6)(b) to (d) inclusive. In relation to the events covered by paragraphs 145E(6)(a) and 145E(6)(e), the Minister may only specify that the event continues to be an anti-siphoning event . Such an event will remain an anti-siphoning event until either after the end of the event (‘after the event’ delisting is covered by subsection 145E(4)), or until the Minister amends the applicable Tier A or Tier B anti-siphoning declaration to delist the event (subsection 145E(7) makes clear that, as a matter of statutory construction, neither subsection 145E(4) nor subsection145E(6) limits the Minister’s power to amend or repeal a Tier A anti-siphoning event declaration or a Tier B anti-siphoning event declaration).

 

99.        For example, the ICC Cricket World Cup is scheduled to be held in the United Kingdom in 2019. The Minister might specify a default delisting time for events in this competition under paragraph 145E(6)(d) of 4368 hours (182 days) before the start of the first event in the competition. It is possible that eight months before Australia’s first scheduled group match, the commercial television broadcasting licensee who has traditionally held the rights to televise the World Cup and has exclusive negotiating rights with the ICC decides to not acquire them. Upon the rights becoming available for acquisition by other free-to-air broadcasters, the ABC becomes interested in acquiring the rights to televise the semi-finals and the final subject to further negotiations with the ICC. The Minister, after receiving representations and an understanding of the full situation, could conclude that the ABC has not had a reasonable opportunity to acquire the rights to televise the World Cup. As a result, the Minister might decide to make an instrument that declares that the semi-finals and the final continue to be anti-siphoning events in accordance with paragraphs 145E(6)(f) and 145E(6)(g).

 

100.    Another scenario in which the Minister might decide to make a legislative instrument under paragraphs 145E(6)(f) and 145E(6)(g) relates to a situation where a sports media company acquires the rights to televise an entire competition, which may include events that are declared to be anti-siphoning events , and then seeks to on-sell such rights as a package. For example, the Wimbledon tennis tournament is played in June and July each year in England. The Government’s policy is that only the men’s and women’s singles quarter-finals, semi-finals and finals would be anti-siphoning events . It is possible that a sports media company might acquire the rights to the entire Wimbledon tennis tournament for a given year and then refuse to negotiate with free-to-air broadcasters for the rights to the semi-finals and finals alone. This may be because the sports media company only wants to sell the rights to the entire tournament and is seeking to simply offer such rights to a subscription television broadcasting licensee. In this instance, the Minister may conclude that a free-to-air broadcaster has not a reasonable opportunity to acquire the rights to televise the anti-siphoning events and make an instrument in accordance with paragraphs 145E(6)(f) and 145E(6)(g).

 

Section 145F - Designated groups etc

 

101.    New section 145F empowers the Minister to determine the circumstances in which multiple simultaneously and consecutively occurring Tier B anti-siphoning events are to be broadcast on free-to-air television. This mechanism is intended to deal with events such as the Olympic Games (Summer and Winter), the Commonwealth Games, Australian Open tennis championships, and golf tournaments where each day can exceed 12 hours duration or involve multiple simultaneously occurring contests. For these events, it would be impractical for a broadcaster to televise every event in full in order to meet their television coverage obligations.

 

102.    The Minister’s determinations made under this section are legislative instruments and are subject to Parliamentary scrutiny and disallowance.

 

103.    Subsection 145F(1) provides that the Minister may make a determination that specifies:

·          Tier B anti-siphoning events that are to be a designated group - for example, each event of the Summer Olympic Games, comprising between 25 and 30 different sporting competitions, many of which occur simultaneously; and

·          the total minimum number of hours for the designated group , which a free-to-air broadcaster must televise in order to satisfy the coverage obligations.

 

104.    For example, the Minister might specify that the total minimum number of hours for the Summer Olympic Games is 259 hours. The resultant compliance obligations for the free-to-air broadcaster are discussed at paragraphs 151 to 156  below.

 

105.    Subsection 145F(2) provides that the Minister may make a determination that specifies:

·          Tier B anti-siphoning events that are to be a designated group ;

·          the daily minimum number of hours for the designated group ; and

·          one or more 24 hour periods ( applicable group day ) for the designated group .

 

106.    If the Minister makes a determination under this subsection, the number of hours to be televised by a free-to-air broadcaster on each applicable group day is required to meet the daily minimum amount specified. For example, the Minister might specify that all events of the 2016 Summer Olympic Games form a designated group of Tier B anti-siphoning events , and that the daily minimum number of hours for each of the 14 days of competition is 16 hours per day. The facility for specifying the applicable group day allows the Minister to determine the 24-hour period in which a free-to-air broadcaster must televise the required minimum amount of hours.

 

107.    Subsection 145F(3) provides that the specification of the applicable group day is subject to the condition that at least one event in the designated group must be scheduled to occur during that 24-hour period.

 

108.    For example, the 2016 Summer Olympic Games will be held in Rio de Janeiro, Brazil. To accommodate the different time zones in Australia and Brazil, the first applicable group day might begin at 6 p.m. AEST on 7 August 2016, and each of the 13 following 24-hour periods (beginning at 6 p.m.) could also be specified as applicable group days .

 

109.    In this context, it is also important to note that television coverage of each of the events in the designated group may be delayed for up to 24 hours (the definition of live refers).

 

110.    Subsection 145F(5) provides that if the Minister makes a determination under subsection 145F(1) about the total minimum number of hours for events within a designated group , the Minister may also determine the daily minimum number of hours and applicable group days for the designated group . The Minister may only make this supplementary determination if none of the events in the designated group have occurred.

 

111.    For example, any free-to-air broadcaster(s) who hold the rights to televise the 2016 Summer Olympic Games would have to broadcast events within the designated group in accordance with the applicable determination. If the Minister determined a total minimum number of 259 hours over the entire period in which the Games take place (under subsection 145F(1)) and a daily minimum of 16 hours per applicable group day (under subsection 145F(5)), this arrangement would tolerate the broadcaster televising 17 hours on one day and 20 hours the next day, provided the daily minimum number of hours and total minimum number of hours coverage obligations are met.

 

112.    Since the events that are included in designated groups are Tier B anti-siphoning events , the free-to-air broadcaster that holds the rights may also choose to televise simultaneous events using its digital multi-channelling capacity. For example, the broadcaster could televise 30 hours of Olympic Games events in a single 24-hour period by spreading their coverage across two or more digital multi-channels. However, if multiple multi-channels are not used, then the daily minimum must be met on one of the broadcaster’s services (which may be the core/primary service or a secondary service, depending on the broadcaster’s programming decisions).

 

113.    Subsection 145F(4) provides that if an anti-siphoning event is included in a designated group , then that event cannot be included in a quota group (about which see section 145G, noted below). This restriction is only relevant to the AFL and NRL Premiership competitions .

 

Section 145G - Quota groups etc

 

114.    New section 145G empowers the Minister to determine that specified Tier B anti-siphoning event s comprise a quota group . There are two categories of quota groups - a Category A quota group (which is simply a numerical quota), and a Category B quota group (which is a combination of a numerical quota and qualitative conditions). The different categories of quota groups are noted in detail at paragraphs 121 to 135). The quota group mechanism is designed to deal with, and is limited to, the multi-round inter-state competitions of the AFL Premiership and the NRL Premiership, including successor competitions and inter-state competitions as may be prescribed by regulations (subsection 145G(6) refers).

 

115.    In specifying a quota, it is not essential that the Minister specify each individual event that he or she considers ought to be made available on free-to-air television. This enables a more flexible operation for the anti-siphoning scheme. However, the Category B quota group mechanism does allow the Minister to specify particular events or characteristics of events within the quota group so as to ensure that those events or events with particular characteristics continue to be made available free to the general public.

 

116.    The quota group mechanism would require the Minister to determine that only a limited amount of matches in the AFL Premiership competition or the NRL Premiership competition are events that he or she considers ought to be made available on free-to-air television (subsections 145G(8) to (10)).

 

117.    Subsection 145G(11) provides that the Minister’s power to set the quota number for each round of the AFL Premiership or NRL Premiership quota groups is capped. The maximum cap for each round of the AFL Premiership is 4, while the maximum cap for each round of the NRL Premiership is 3. The intention is for each round of the multi-round competition of the AFL and NRL Premierships to constitute a quota group , with a quota number that does not exceed the applicable cap. It would also be possible for a quota group to be constituted differently, comprising, for example, two or more rounds of these competitions or a combination of individual events held as part of these competitions. More generally, the quota number for a quota group must be less than the total number of anti-siphoning events in the quota group .

 

118.    Determinations made under this section are legislative instruments and are subject to Parliamentary scrutiny and disallowance.

 

119.    An anti-siphoning event cannot be included in a quota group if it is already included in a designated group determined under section 145F (subsection 145G(12)).

 

120.    For the purpose of measuring compliance with the restrictions on acquisition of rights set out in sections 145ZN, quota group determinations made by the Minister under this section only apply to those rights to televise that are acquired after the day on which the determination is registered under the Legislative Instruments Act 2003 (subsection 145G(6)). There is a corresponding provision in relation to the restrictions on the conferral of audio-visual content rights on content service providers in section 145ZO (subsection 145G(7) refers).

 

Category A quota groups

 

121.    Subsection 145G(1) provides for Category A quota groups . A Category A quota group caters simply for a numerical quota of events within the quota group . Subsection 145G(1) empowers the Minister to make a determination that specifies:

·          the Tier B anti-siphoning event s that are to form a Category A quota group (the legislative note makes clear that the Minister may specify a class or subclass of events); and

·          the quota number for the Category A quota group , which is the number of events within the quota group that is to be made available free to the general public. The quota number must be less than the total number of events in the quota group (subsection 145G(11)). The quota number is specified or otherwise determined in accordance with the determination.

 

122.    For example, the Government’s policy intention is to specify all ‘home and away’ matches for each round of the AFL Premiership (excluding the Finals Series) as a quota group . Subsection 145G(9) requires the Minister to make a quota group instrument for the AFL Premiership. (Subsection 145G(10) makes similar provision for the NRL Premiership quota group .)

 

123.    If the quota group is identified by reference to each round in the AFL Premiership season, the Government intends the quota number for each round of the AFL Premiership season to be four (based, for example, on an 18-team competitions with nine matches in a round). Different quota numbers could be determined for different quota groups (for example, to take into account rounds with less than nine matches), provided the quota number does not exceed four.

 

124.    If the AFL Premiership competition were to expand or contract, so that there were an uneven number of participating teams and therefore uneven scheduling (to accommodate byes, etc), the quota group determination is flexible enough to take account of this. It is possible that more than one quota group might be needed to accommodate all combinations of ‘home and away’ rounds (as the case requires).

 

125.    For illustrative purposes, the 2011 AFL Premiership competition had 17 clubs competing in the ‘home and away’ season. Some rounds had seven matches (with three teams having byes) and other rounds had eight matches (with one team having a bye). If the Minister wanted to facilitate the broadcast on free-to air television of matches in a seven-match round, he may specify a quota group that comprised each match in a seven-match round of the AFL Premiership competition , and then specify a quota number of four. This would be in addition to the determination that specified a quota group that comprised each match in an eight-match round and a quota number of four.

 

126.    If the Minister made a Category A quota group determination along the above lines, this would mean that a subscription television broadcaster could acquire the exclusive rights to three or four matches in each seven- or eight-match round of the AFL Premiership (being the difference between the number of events in the quota group and the quota number ).

 

Category B quota groups

 

127.    Subsection 145G(2) provides for the Category B quota group . The Category B quota group exists when the Minister makes a determination under this subsection that specifies:

·          the Tier B anti-siphoning event s that are to form a Category B quota group ; and

·          the quota number for the Category B quota group ; and

·          one or more associated set conditions for the Category B quota group .

 

128.    The Category B quota group determination may be expressed to apply in relation to one or more specified licence areas or each licence area. This would allow different treatments (including different associated set conditions ) in different licence areas, so as to better reflect the needs of the general public in those areas. It would also enable particular treatments to apply nationwide. For example, the Minister may determine a nationwide associated set condition that one Friday night match and one Saturday night match be included in the quota number for each round of the AFL Premiership competition . In addition, the Minister could set a condition that the event that occurs on Anzac Day in Melbourne be included in the quota number for the Category B quota group in relation to the television licence areas that cover Victoria.

 

129.    Associated set conditions are a ‘filter’ used for assigning an event to count towards the satisfaction of the quota number for a particular Category B quota group . Subsection 145G(3) makes clear that the associated set conditions may specify multiple attributes of a single event, or a number of events that are less than the quota number . This means that the anti-siphoning event s that make up the quota number for a Category B quota group may be a combination of ‘conditional’ and ‘unconditional’ events.

 

130.    For the purpose of meeting a quota number of four, the associated set conditions might specify that one event take place on a Friday night, and one event take place on a Saturday night. Two events of this kind must make up the quota number for a Category B quota group ; the other two events that make up the quota number of four can be any event from within the quota group .

 

131.    Subsections 145G(4) and (5) deal with contingent associated set conditions . The provision for contingent conditions allows for a ‘hierarchy’ of associated set conditions for Category B quota group s. These contingent conditions would deal with a situation where the associated set conditions capable of applying to a particular round of either the AFL or NRL Premierships can be satisfied by a number of events within the quota group that exceeds the applicable quota number . If one or more conditions is expressed as contingent, then the excess can be reduced.

 

132.    For example, the Government’s policy intention is to set a quota number of three for each round of the NRL Premiership season. Further, it is possible that the Government might specify associated set conditions that apply to particular television licence areas in Queensland, as follows:

(a)     one match involving two of the Queensland teams (Gold Coast Titans, North Queensland Cowboys and Brisbane Broncos) (ie. the ‘local derby’);

(b)    where there is no ‘local derby’ in a round, one event that involves one of the Queensland teams;

(c)     two events on a Friday night (since there are normally two such events scheduled);

(d)    one event on a Sunday afternoon.

 

133.    In the example, it is likely that a single event may satisfy two of the associated set conditions simultaneously (say, a Queensland club plays in an event on a Sunday afternoon). However, there might be a situation where each of the three events that satisfy conditions (c) and (d) do not involve a Queensland club. In this instance, the number of events needed to satisfy all the applicable associated set conditions exceeds the quota number . By providing for the inclusion of contingent associated set conditions , the policy intention is that the restrictions that would otherwise apply to subscription television broadcasting licensees (and content service providers) are lifted provided the quota number is met and associated set conditions satisfied in accordance with the terms of the determination itself. The determination may set a priority rule for the associated set conditions .

 

134.    The significance of the associated set conditions (with allowance for contingent conditions) is realised in the restrictions imposed on subscription television broadcasting licensees (this is discussed further at paragraphs 244 to 247  below) and persons conferring rights to content service providers (this is discussed further at paragraph 254 to 255  below).

 

135.    The specification of associated set conditions have no particular application to the obligations imposed on a free-to-air television broadcaster since a Tier B anti-siphoning event that is included in a Category B quota group is treated the same way as any other Tier B anti-siphoning event that is not in a designated group (see the notes on paragraphs 145H(1)(e) and 145N(1)(e)).

 

Division 3 - Televising of anti-siphoning events

136.    This Division sets out revised ‘anti-hoarding’ or coverage rules that will apply to the broadcast on free-to-air television of anti-siphoning events . The Division re-enacts many of the existing provisions in Part 10A of the BSA, but with amendments. The revised rules retain the policy objective of ensuring that free-to-air broadcasters actually use, rather than hoard, rights they have acquired to televise live a Tier A anti-siphoning event or a Tier B anti-siphoning event . This objective would be achieved through obligations on commercial television broadcasting licensees (compliance with which would be a licence condition for commercial television broadcasting licensees), and obligations on national broadcasters and program supplier s, to ensure that the ‘anti-hoarding rule’ is not contravened.

 

137.    It is also important to note that unlike the original anti-hoarding rules, the revised rules are not contingent upon the separate designation of anti-hoarding events (where anti-siphoning event s are specified under existing section 115 of the BSA, and anti-hoarding events are designated under existing section 146C of the BSA). As a result, an anti-siphoning event that is specified by the Minister under section 145E would be automatically subject to the new ‘anti-hoarding’ or coverage rules.

 

Subdivision A - Commercial television broadcasting licensees
Subdivision B - National broadcasters

Section 145H - Obligations of commercial television broadcasting licensees

Section 145N - Obligations of national broadcasters

 

138.    These sections set out the free-to-air broadcasters’ coverage obligations in situations where they have acquired the right to televise live the whole or a part of an anti-siphoning event at a time when the event was an anti-siphoning event (for commercial television broadcasting licensees, see subsection 145H(1); for national broadcasters, see subsection 145N(1)).

 

139.    The phrase ‘right to televise’ is not a defined term. There are different types of broadcast rights, including the right to televise all or part of an event, on a live, delayed, or highlights basis. The Bill encompasses the ‘right to televise’ in its broadest sense, but the extent to which the right is regulated will depend upon the application of other conditions, exceptions, or qualifications set out in the Bill.

 

140.    The word televise is defined to establish a link between the broadcaster who acquires the right and the television services they are authorised to deliver (see paragraph 57 above). Accordingly, a commercial television broadcasting licensee is authorised to televise a commercial television broadcasting service in their licence area. Similarly, the ABC and the SBS are authorised to televise national broadcasting services by their enabling legislation.

 

141.    The broadcaster only acquires a right to televise for the purposes of this Part if the right attaches to the services the broadcaster is authorised to deliver. If the broadcaster acquires rights that relate to other broadcasting services, then the broadcaster has essentially acquired intellectual property rights that can be on-sold or otherwise dealt with. A free-to-air broadcaster who acquires both free-to-air and subscription television rights may on-sell or sub-licence all or some of the subscription television rights to a subscription television service provider. In this scenario, the free-to-air broadcaster would be a program supplier to the subscription television service provider with regards to the subscription television rights.

 

142.    Similarly, if a program supplier acquires a bundle of rights to televise that include both free-to-air television rights and subscription television rights, the supplier can enter into supply arrangements for each species of broadcasting rights.

 

143.    Where a commercial television broadcasting licensee or a national broadcaster acquires rights to televise anti-siphoning events on their own broadcasting service (whether the acquisition occurs directly, or indirectly through a program supplier ), the broadcaster becomes subject to the obligations set out respectively in sections 145H and 145N.

 

Televising an event live

 

144.    If the event is a Tier A anti-siphoning event , the free-to-air broadcaster must televise live the relevant portion of the event. The coverage obligation for commercial television broadcasting licensees is at paragraph 145H(1)(c). The corresponding national broadcaster coverage obligation is at paragraph 145N(1)(c).

 

145.    The relevant portion refers to the amount of the event that corresponds to the right to televise acquired by the broadcaster. The policy intention is for the broadcaster to use its rights to televise the event in a manner consistent with the anti-siphoning scheme.

 

146.    Live is a defined term in section 145B. For Tier A anti-siphoning event s, live means in real time with no or minimal delay.

 

147.    If the event is a Tier B anti-siphoning event and it is not in a designated group , the free-to-air broadcaster must televise live the relevant portion of the event. The coverage obligation for commercial television broadcasting licensees is at paragraph 145H(1)(e). The corresponding national broadcaster coverage obligation is at paragraph 145N(1)(e).

 

148.    For Tier B anti-siphoning events not in a designated group , televising live can accommodate delays in coverage of up to four hours, depending on the type of event.

 

149.    For a designated group of events, the permitted delay is up to 24 hours from the start of the event concerned. This can accommodate both:

·          a delayed start time for the broadcast of the event concerned - for example, by starting a broadcast of a rugby union World Cup semi-final one hour after the match actually starts; or

·          progressive delays to the broadcast of the event - for example, the television broadcast starts half an hour after the event starts, but the broadcast of the event ends one hour after the actual conclusion of the event. This might occur if a commercial television broadcasting licensee wishes to televise advertisements but still provide full coverage of the event.

 

150.    If the event is a Tier B anti-siphoning event in a designated group the coverage obligations set out in paragraphs 145H(1)(d) and 145N(1)(d) apply to free-to-air broadcasters who hold the rights to televise events in the designated group . The coverage obligation will reflect the determinations made by the Minister under section 145F (see above at paragraphs 101 to 113). Examples of this coverage obligation appear below.

 

Total minimum number of hours

 

151.    The Minister may specify that all events of the 2016 Summer Olympic Games are Tier B anti-siphoning event s that comprise a designated group . The Minister may specify that the total minimum number of hours for the Summer Olympic Games is 160 hours. This means that the broadcaster holding the rights to televise the specified Olympic events must overall televise no less than 160 hours of those events.

 

152.    To meet their coverage obligations, the free-to-air broadcaster may elect to televise Olympic events using one or more of their authorised television services. Accordingly, different Olympic events within a designated group may be broadcast simultaneously using digital multi-channelling capacity. For example, the Olympic triathlon finals might be broadcast on one multi-channel while the finals of rowing regatta may be broadcast on another multi-channel at the same time. Both broadcasts will count towards the achievement of the 160 hours broadcast time for the Summer Olympic Games.

 

153.    If the Minister only makes a determination about the total minimum number of hours for the designated group (for the purpose of subparagraph 145H(1)(d)(i) or 145N(1)(d)(i)), the number of hours to be televised on each day during the period within which designated group events occur could vary - provided at least 160 hours are televised overall. This means that the broadcaster may tailor their coverage of the Olympics so as to provide comprehensive or extensive coverage on days when many high profile Olympic events occur (which may also include broadcasts using multiple multi-channels), and then off-set that coverage against other days where fewer or lower profile events may be scheduled to occur, with less broadcast coverage on that day.

 

Daily minimum number of hours

 

154.    If the Minister only makes a determination about the daily minimum number of hours for the designated group (see subparagraph 145H(1)(d)(ii) or 145N(1)(d)(ii)), the number of hours to be televised on each day during the period within which events that comprise the designated group occur is required to meet that minimum.

 

155.    For example, the Minister might specify that all events of the Summer Olympic Games are Tier B anti-siphoning events that comprise a designated group , and that the daily minimum number of hours for each of the 14 days of competition is six hours per day. This means that the broadcaster holding the rights to televise the specified Olympic events must televise no less than six hours on each of the specified days.

 

Total minimum number of hours and daily minimum number of hours

 

156.    If the Minister makes determinations about both the total minimum number of hours and the daily minimum number of hours for the designated group (for the purpose of both limbs of paragraph 145H(1)(d) or 145N(1)(d)), the broadcaster is required to broadcast both the daily minimum number of hours and the total minimum number of hours during the specified period. For example, the Minister might specify that:

·          all event of the Summer Olympic Games are Tier B anti-siphoning event s that comprise a designated group ;

·          the total minimum number of hours for the Summer Olympics is 160 hours;

·          the daily minimum number of hours is six hours per day; and

·          there are 12 applicable group days (excluding the two days that primarily include ceremonial Olympic events).

 

157.    The free-to-air broadcaster who holds the rights to televise those events is obliged to televise live those minimum daily and minimum overall amounts.

 

Exceptions - news breaks, commercial breaks, etc

 

158.    When assessing whether the broadcaster has televised live the relevant portion of individual Tier A anti-siphoning events or Tier B anti-siphoning events not part of a designated group , interruptions for, where relevant, news breaks (as distinct from 30 minute or 60 minute news bulletins), commercial breaks, program promotions, or brief crosses to other ‘live’ events are disregarded, provided those interruptions result in an insubstantial proportion of the event not being televised (see subsections 145H(2) and 145N(2)).

 

159.    The concept of ‘insubstantial proportion’ is not defined, because the substance or proportionality of any interruptions will depend upon the circumstances of a particular anti-siphoning event , including the context in which the interruption occurs. For example, a relevant consideration would be whether the event lends itself to natural breaks (such as the change of ends in a cricket or tennis match, or the half-time break in a football match).

 

160.    By comparison, short events like the Melbourne Cup horse race would probably be substantially interrupted if program promotions or news breaks interrupted a broadcaster’s coverage of the event.

 

161.    Other events (like motorsports) may have a long duration and few obvious natural breaks, but could still reasonably include a number of commercial or other breaks provided a substantial proportion of the event is actually broadcast live (as defined for the particular type of event).

 

162.    For example, the Government’s policy is to declare that each match of the ‘Ashes’ test cricket series played in the United Kingdom is a Tier A anti-siphoning event under section 145E. If a free-to-air broadcaster acquires the right to televise live all events in the ‘Ashes’ test cricket series played in the United Kingdom, but fails to televise the first session of an Ashes test match, this omission would result in a substantial proportion of the event not being televised. The exception in subsections 145H(2) and 145N(2) would not apply in this instance.

 

163.    It is important to note that the obligations to televise live Tier B anti-siphoning event s that are in a designated group are not subject to any exception that relates to the failure to televise insubstantial proportions of an event (subsections 145H(2) and 145N(2)). This is because compliance with the coverage obligations for this type of events is assessed in a different way. It is inherent to the designated group concept that some (if not all) events within the designated group will only be televised live in part. In most instances this will be because several of the grouped events occur simultaneously. Thus whilst several separate events within the designated group may be broadcast on a primary (or main) channel and a multi-channel at the same time, it may still result in substantial proportions of other simultaneously occurring events going untelevised. Such interruptions to the broadcast of the event may go well beyond the short or ad hoc interruptions contemplated by the legislative note beneath subsections 145H(2) and 145N(2).

 

164.    Where a commercial television broadcasting licensee has a right to televise live in its licence area the whole or a part of an anti-siphoning event and that right was acquired after the event was specified in the anti-siphoning list, the licensee must exercise that right and televise the event live - unless the ACMA grants exemptions from some or all coverage obligations. Exemptions are discussed below at paragraphs 172 to 180 .

 

165.    In the absence of any exemptions, a contravention of the coverage obligations will amount to a breach of a commercial television licence condition.

 

Exceptions - ‘Must offer’ - Offers to transfer rights to televise

 

166.    Subsection 145H(3) provides that an exception from the commercial television broadcasting licensee’s obligation to televise live an anti-siphoning event is the ‘must offer’ regime.

 

167.    In the first instance, paragraph 145H(3)(a) provides that the coverage obligation in subsection 145H(1) does not apply if either the licensee or their program supplier has offered to transfer to each national broadcaster in the corresponding coverage area, and each other commercial television broadcasting licensee in the same licence area, the right to televise live the relevant portion of the event. The offer must be in accordance with sections 145K and 145L (discussed below).

 

168.    Subsections 145H(4) and (5) make clear that a conforming offer made under sections 145K and 145L by the licensee or the licensee’s program supplier to another program supplier who supplies a national broadcaster or commercial television broadcasting licensee would also discharge the licensee’s or the program supplier ’s obligation.

 

169.    If an offer made to another free-to-air broadcaster in accordance with paragraph 145H(3)(a) is not accepted, the licensee or their program supplier may still avoid contravening the coverage obligation if they offer to transfer the right to televise the relevant portion of the event to a subscription television broadcasting licensee who operates in the same area (paragraph 145H(3)(b) refers). The legal requirements for making the offer are noted below in relation to sections 145K and 145M. Similarly to subsections 145H(4) and (5), subsection 145H(6) makes clear that a conforming offer made under sections 145K and 145M by the licensee or the licensee’s program supplier to the program supplier of a subscription television broadcasting licensee would also discharge the licensee’s or the program supplier ’s obligation.

 

170.    The intention of the ‘must offer’ regime in relation to subscription television is to merely facilitate television coverage of the event, even if it is not on free-to-air television. However, it is important to note that this limb of the ‘must offer’ regime will have no practical application if neither the commercial television broadcasting licensee nor their program supplier is authorised to confer their right to televise on the provider of a subscription television service. For example, the broadcast right conferred by the owner may prohibit a free-to-air broadcaster (or its program supplier ) from dealing with that right in a particular way (e.g. a prohibition on assignment or sublicensing). Nothing in this Bill is intended to confer on free-to-air broadcasters additional rights that they do not otherwise possess.

 

171.    A corresponding ‘must-offer’ regime applies to national broadcasters (subsections 145N(3)-(6) refer).

 

Exemptions from obligations to televise anti-siphoning events

 

172.    The ACMA is empowered to make legislative instruments that grant exemptions from the coverage obligations. The exemption powers are in new subsections 145H(7)-(10) (for commercial television broadcasting licensees). Corresponding provisions apply to national broadcasters (see subsections 145N(7)-(10)).

 

173.    Subsections 145H(7) and 145N(7) empower the ACMA to determine one or more exemptions from the coverage obligations set out in subsections 145H(1) or 145N(1). This provides for a wholesale exemption from the coverage obligation that relates to the entirety of the relevant portion of the event. The exemption determination instrument is a disallowable legislative instrument.

 

174.    The exemption power in subsection 145H(7) will allow the ACMA to set down prospectively applicable rules about the situations or circumstances in which broadcasters are exempted from a coverage obligation that would otherwise apply. The exemption would permit the broadcaster to not cover the anti-siphoning event at all. An exemption might specify adverse weather, a state of emergency, or some other significant event as a circumstance when coverage of the event is not required. In granting the exemption, the ACMA needs to be satisfied that there is an overriding public interest in the televising of alternate events or programs instead of televising all or part the anti-siphoning event .

 

175.    The ACMA may grant exemptions with or without conditions (subsections 145H(8) and 145N(8) refer). Using adverse weather as an example, a conditional exemption might provide that, if the event is delayed or suspended, the coverage exemption applies only for the duration of the weather related delay or suspension. Such a condition would mean that the coverage obligation will apply once the event starts or resumes once the weather improves. Alternatively, an unconditional exemption might provide that there is no coverage obligation at all where the event is weather affected regardless of the extent or nature of the delay or interruption to the event. The mere existence of adverse weather could permit the broadcaster to not televise any of the event even though the event itself might take place when the weather improves.

 

176.    The other exemption power in subsection 145H(9) and subsection 145N(9) allows the ACMA to deem compliance with the coverage obligation even though there is, in fact, a substantial interruption to the televising of anti-siphoning events . This exemption is intended to cater for interruptions to the televising of an anti-siphoning event that go beyond the exception set out in subsection 145H(2) and 145N(2) (regarding failure to televise an insubstantial proportion of the anti-siphoning event ). For example, this exemption may include circumstances where technical faults interrupt the televising of an event (while the event is otherwise underway). The technical faults can include faults in the transmission network, as well as technical faults at event venues (e.g. power failures). This exemption could also cater for minor weather-related disruptions - in this circumstance, if a weather exemption were made, the broadcaster could televise alternate programs instead of continuing to televise what is practically speaking a ‘non-event’.

 

177.    The principles that the ACMA has regard to in subsections 145H(10) and 145N(10) reflect the situations or circumstances for which the ACMA could make exemptions under subsections 145H(9) and 145N(9) (and subsections 145H(7) and 145N(7)).

 

178.    Subsection 145H(9) (and 145N(9)) provide a separate power to deal with interruptions so that a broadcaster is taken to have televised the whole or part of an event live , even if there has been a legitimate interruption.

 

179.    These exemptions are intended to deal with a class of circumstances in a general way. The ACMA’s exemption power is not intended to deal with applications received in relation to individual events or individual broadcasters.

 

180.    The ACMA’s exemption power is to be contrasted with the Minister’s limited exemption powers under section 145D and section 145ZM. The Minister’s exemption power in section 145D only relates to the televising of a part of an anti-siphoning event (although it is a general exemption from the operation of new Part 10A), while the power in section 145ZM is limited to exempting particular events from the operation of Division 4 of new Part 10A (which deals with the requirement that broadcasters premiere Tier A anti-siphoning event s on their core/primary television broadcasting services). The Minister’s exemption powers would have no interaction with the ACMA’s powers in relation to coverage obligations.

 

181.    Consistent with modern drafting practice there is no section 145I.

 

Section 145J - Obligations of program suppliers of commercial television broadcasting licensees

Section 145P - Obligations of program suppliers of national broadcasters

 

182.    Sections 145J and 145P set out the anti-hoarding rule as it applies to program supplier s of commercial television broadcasting licensees and national broadcasters, respectively. ( Program supplier is defined at section 145C, noted above at paragraphs 63 to 68 ). The two sections are materially identical.

 

183.    It is a civil contravention for a program supplier to infringe the anti-hoarding rule. The maximum penalty payable by a program supplier would be 2000 penalty units ($220 000).

 

184.    The application provision for the anti-hoarding rule as it applies to a program supplier to a commercial television broadcasting licensee is set out in new subsection 145J(1). The rule applies where a commercial television broadcasting licensee’s program supplier is entitled to confer on the licensee the right to televise live in the licensee’s licence area the whole or a part of an anti-siphoning event , and that entitlement was acquired after the event was specified as an anti-siphoning event under section 145E.

 

185.    The program supplier of a commercial television broadcasting licensee contravenes the anti-hoarding rule if it:

(a)     does not confer that right on the licensee or on another commercial television broadcasting licensee in the same licence area (subsection 145J(1)); or

(b)    does not offer to transfer the right to each commercial, national, or subscription television broadcasting licensees before the deadline (offer time) and in accordance with the other particulars imposed by the ‘must offer’ regime (subsection 145J(3)). This includes offers made to another broadcaster’s program supplier (subsections 145J(4)-(6)).

 

186.    That is, if the program supplier has not conferred the right to televise on a commercial television broadcasting licensee, the supplier can only avoid a contravention of subsection 145J(1) by complying with the ‘must offer’ regime. This regime sets out the form and timing rules for a compliant offer.

 

187.    Section 145P is structured in the same way and operates in the same way for program suppliers of national broadcasters.

 

Section 145K - What constitutes an offer to transfer rights to televise live events - commercial television broadcasting licensees

Section 145Q - What constitutes an offer to transfer rights to televise live events - national broadcasters

 

188.    Sections 145K and 145Q apply respectively to a commercial television broadcasting licensee and a national broadcaster (or their program supplier ) who is intending to make an offer in compliance with the ‘must offer’ regime. The sections are materially identical.

 

189.    Subsection 145K(1) provides that a commercial television broadcasting licensee (or their program supplier ) is taken to have made an offer to transfer the rights to televise live the relevant portion of an anti-siphoning event to another person (the offeree) only if particular characteristics are apparent. In this subsection, the offeree refers to each of the broadcasters and program suppliers listed in paragraphs 145K(1)(c) to (h) inclusive.

 

190.    A licensee or program supplier makes a compliant offer to transfer if, and only if, the offer is to make an arrangement which in substance gives the offeree:

·          in the case of an offeree that is a broadcaster, the right to televise described in subsection 145K(1)(l);

·          in the case of an offeree that is a program supplier , the entitlement to confer a right to televise as described in whichever of paragraphs 145K(1)(i) to (k) applies to the offeree.

 

191.    Subsection 146K(2) calls for consideration of the practical effect of the arrangement when determining whether the transfer would confer a substantive right to televise live the anti-siphoning event and would therefore be covered by subsection 145K(1).

 

192.    Section 145Q is structured and operates in the same way for a national broadcaster and their program supplier .

 

Section 145L - Offers to transfer rights to televise live events - commercial television broadcasting licensees and national broadcasters etc.

Section 145R - Offers to transfer rights to televise live events - national broadcasters and national broadcasters etc.

 

193.    Sections 145L and 145R deal with the form and timing of offers made, respectively, by commercial television broadcasting licensees (and their program suppliers ), and national broadcasters (and their program suppliers ) (the offeror) to other free-to-air broadcasters (and their program suppliers ) (the offeree).

 

194.    In this section, the offeree refers to each of the broadcasters and program supplier s listed in paragraphs 145L(1)(c) to (f) or 145R(1)(c) to (f) (whichever applies).

 

195.    An offer must be in writing (subsections 145L(2) and 145R(2)) and must be given to the offeree at or about the same time that a corresponding offer is given to another offeree (subsections 145L(3) and 145R(3)). This is because the offeror must make an offer to all free-to-air broadcasters (or their program suppliers ) for the purpose of attracting the application of subsection 145H(3)-(6) or subsection 145N(3)-(6) as the case requires.

 

196.    The offer must be made no later than 2880 hours (120 days) before the start of the particular anti-siphoning event (subsections 145L(4) and 145R(4)).

 

197.    The offer must be open from the time it is made until 2544 hours (106 days) before the beginning of the event (subsections 145L(5) and 145R(5)). That is, the offer must be open for 14 days.

 

198.    The offer must require the offeree to promise to pay a nominal sum ($1) to the broadcaster or program supplier making the offer, if and when demanded (subsections 145L(6) and 145R(6)). This promise constitutes the only ‘consideration’, and the arrangement thereby becomes a contract with the attendant legal remedies. It is important to note, however, that there is nothing to prevent the broadcaster or program supplier from transferring the rights to televise on more commercial terms. Such a transfer would need to be completed more than 120 days before the start of the anti-siphoning event , and would be an offer that is outside the scope of the ‘must offer’ regime. Having transferred the rights to televise the event, the broadcaster or program supplier would no longer be subject to the coverage obligations or anti-hoarding rules.

 

199.    Subsection 145L(7) (and in the same way subsection 145R(7)) provides that the first offeree to accept the offer will be the person who will gain the rights. This ensures the legal effectiveness of the ‘must offer’ regime. However, the offeree who is first to accept the offer will be able to give written consent to one of the other offerees also accepting the offer. This would allow more than one free-to-air broadcaster to acquire the rights to televise and would facilitate complementary broadcasting of the anti-siphoning event if those broadcasters agree.

 

200.    If two or more acceptances occur simultaneously, the broadcaster or program supplier (the offeror) may choose to treat one acceptance as having priority over the other. If this occurs, the ‘winning’ offeree may give written consent to another  hitherto simultaneous acceptance also having effect, so that arrangements for complementary broadcasting may be entered into (subsections 145L(8) and 145R(8)).

 

Section 145M  - Offers to transfer rights to televise live events - subscription television broadcasting licensees etc

Section 145S  - Offers to transfer rights to televise live events - subscription television broadcasting licensees etc

 

201.    Sections 145M and 145S set out the offer rules for an offer made, respectively, by a commercial television broadcasting licensee (or their program supplier ), and a national broadcaster (or their program supplier ) (the offeror) to transfer a right to televise an anti-siphoning event to a subscription television broadcasting licensee (or their program supplier ) (the offeree). In each of these sections, the offeree refers to each subscription television broadcasting licensee and their program suppliers (paragraphs 145M(1)(c) and (d), and 145S(1)(c) and (d)).

 

202.    These sections operate in a similar fashion to the offer rules contained in sections 145L and 145R. Offers are only made under these sections if no offer is accepted by a free-to-air broadcaster or their program supplier under section 145L and 145R.

 

203.    Reflecting this mandatory procedure, an offer made to a subscription television broadcasting licensee must be made no less than 2160 hours (90 days) before the start of the event (subsections 145M(4) and 145S(4)). The offer must be open from the time it is made until immediately before the start of the event (subsections 145M(5) and 145S(5)).

 

204.    In other aspects, section 145M is materially identical to section 145L, and section 145S is materially identical to section 145R.

 

Division 4 - Restrictions on televising anti-siphoning events on multi-channels

205.    This Division would re-enact, with amendments, most of the provisions in Part 4A of Schedule 4 to the BSA (which are to be repealed by Items 23-27, noted below). The main amendments would allow free-to-air broadcasters to premiere or exclusively televise Tier B anti-siphoning event s on their digital multi-channelled services. Other amendments would modify the provisions relating to the multi-channelling restrictions that otherwise apply to the televising of Tier A anti-siphoning event s, and introduce exceptions to these restrictions.

 

Subdivision A - Commercial television broadcasting services
Subdivision B - National television broadcasting services

 

206.    The revised multi-channelling restrictions would reduce the scope of the restriction that applies to the televising of anti-siphoning event s, in whole or in part, by commercial television broadcasting services and national television broadcasting services. With the narrower scope, free-to-air broadcasters would be able to premiere or exclusively broadcast Tier B anti-siphoning event s on their SDTV or HDTV digital multi-channelled services. With limited exceptions, broadcasters must televise a Tier A anti-siphoning event on their core/primary service.

·          Core/primary commercial television broadcasting service is defined in section 6 of the BSA;

·          Core/primary national television broadcasting service is defined in new section 145ZL.

 

207.    Where a simulcast period is in force, the Government considers it is important to ensure that television coverage of Tier A anti-siphoning event s (being the most significant anti-siphoning event s) is delivered using the most widely available television broadcasting service - this is the core commercial television broadcasting service within the meaning of section 6 of the BSA and the national television broadcasting service within the meaning of proposed subsection 145ZL(a).

 

208.    For consistency, this arrangement will be carried over after the end of the simulcast period through the requirement that Tier A anti-siphoning event s be televised on the primary television broadcasting service identified in accordance with the applicable clauses of Schedule 4 to the BSA (clause 41G for primary commercial television broadcasting services, and clauses 41M and 41N for primary national television broadcasting services).

 

209.    The provisions in Subdivision A distinguish between commercial television broadcasting services depending on:

a.        whether the multi-channelled commercial digital television broadcasting service is transmitted in SDTV or HDTV digital mode;

b.       the type of commercial television broadcasting licence the broadcaster operates under (sections 145Z and 145ZA deal exclusively with commercial television broadcasting licences allocated under section 38C of the BSA, which are multi-channelled commercial digital television services delivered exclusively by satellite. Otherwise, the provisions in this Subdivision deal with television services delivered using the broadcasting services bands of radiofrequency spectrum); and

c.        whether there is a simulcast period in force (sections 145T to 145W deal with commercial television broadcasting services delivered during a simulcast period, while sections 145X and 145Y deal with commercial television broadcasting services delivered after the end of a simulcast period).

 

210.    However, conceptually, the substantive rules for the use of digital multi-channels are substantially the same as in existing Part 4A of Schedule 4 to the BSA. The only difference between the current rules in Part 4A of Schedule 4 to the BSA and the rules in new Part 10A relates to the restriction on televising a part of a Tier A anti-siphoning event , so that the general restriction on the use of digital multi-channels would not apply if a commercial television broadcasting licensee televised the part of the event in a news program broadcast on a digital multi-channel (while currently these provisions also operate by reference to current affairs programs).

 

211.    New Subdivision B, comprising sections 145ZD to 145ZL, puts in place corresponding multi-channelling restrictions that apply to the broadcast of Tier A anti-siphoning event s by national broadcasters during and after the end of the simulcast period.

 

Section 145ZB - Multi-channelled commercial television broadcasting service - televising Tier A anti-siphoning events during news programs

Section 145ZJ - Multi-channelled national television broadcasting service - televising Tier A anti-siphoning events during news programs

 

212.    The requirement for commercial and national broadcasters to televise Tier A anti-siphoning event s only on a core/primary broadcasting service (and not a SDTV or HDTV digital multi-channelled service) is subject to limited exceptions.

 

213.    The first exception arises when a Tier A anti-siphoning event occurs wholly or partly during a news program (as defined in section 145A). Depending on the extent of the overlap between the Tier A anti-siphoning event and the news program , and when the Tier A anti-siphoning event begins by reference to the news program , the broadcaster would be permitted to televise the whole or the overlapping part of the Tier A anti-siphoning event on a digital multi-channel.

 

214.    There is no legal requirement for the free-to-air broadcaster to broadcast a news program on their core/primary service. However, where the broadcaster decides to do so, this exception to the multi-channelling restrictions would facilitate the broadcaster’s compliance with their obligation to broadcast the whole of the Tier A anti-siphoning event : for the commercial television obligation, see paragraph 145H(1)(c); for the national broadcaster obligation, see paragraph 145N(1)(c).

 

215.    If a news program is to be broadcast on the core/primary service, the broadcaster may use a SDTV or HDTV digital multi-channelled service to broadcast the whole of the Tier A anti-siphoning event :

·          if the event occurs entirely during the news program , provided  the broadcasters replays the whole of the event on the core/primary service as soon as practicable after the end of the news program (subsections 145ZB(1) and 145ZJ(1));

·          if the event occurs partly during the news program and the event begins not more than 30 minutes before the start of the news program . If more than half of the event occurs during the news program , the broadcaster must replay the whole of the event as soon as practicable after the end of the news program (subsections 145ZB(2) and 145ZJ(2)).

 

216.    The free-to-air broadcaster can also broadcast part of the Tier A anti-siphoning event on a digital multi-channel if that part of the event occurs during a news program . However, if more than half of the event occurs when the news program is being broadcast on the core/primary service, then the broadcaster must replay the whole of the event on the core/primary service as soon as practicable after the end of the news program (subsections 145ZB(3) and 145ZJ(3)).

 

217.    For example, if Australia qualifies for the World Group final of the Davis Cup tennis tournament, each rubber in the final tie is a Tier A anti-siphoning event . The fourth rubber - being broadcast on a particular free-to-air core/primary television broadcasting service - may begin 40 minutes before the start of the news program , scheduled to run for 60 minutes. Immediately before the start of the news program , the broadcaster can switch coverage of the rubber to a digital multi-channel (relying on subsection 145ZB(3) or 145ZJ(3), depending on the broadcaster). The fourth rubber ends after 110 minutes which, in real time, is just after the scheduled end of the news program being broadcast on the core/primary service.

 

218.    In the same example, if the fourth rubber began 15 minutes before the start of the news program , the broadcaster could televise the entire fourth rubber on one of its digital multi-channels (relying on subsections 145ZB(2) or 145ZJ(2)).

 

219.    Subsections 145ZB(2) and (3) would require the commercial television broadcasting licensee to replay on the core/primary service the whole of the fourth rubber as soon as practicable after the end of the scheduled news program . Subsections 145ZJ(2) and (3) would apply similarly to a national broadcaster televising the Davis Cup final.

 

220.    Depending on the broadcaster’s technical capacity, the replay may occur immediately after the end of the news program or, if this not practicable, after a following program.

 

Section 145ZC - Multi-channelled commercial television broadcasting service - televising simultaneous Tier A anti-siphoning events

Section 145ZK - Multi-channelled national television broadcasting service - televising simultaneous Tier A anti-siphoning events

 

221.    The second exception to the multi-channelling restriction arises when the broadcaster holds rights to televise simultaneously occurring (overlapping) Tier A anti-siphoning event s. The latter scenario is likely to be rare. This exception operates similarly to the exception for news programs . A broadcaster may televise a Tier A anti-siphoning event on a digital multi-channelled service if there is a clash with the broadcast of another Tier A anti-siphoning event on the broadcaster’s core/primary service.

 

222.    If a simultaneous Tier A anti-siphoning event is broadcast on a digital multi-channelled service, and more than half of the event’s duration overlaps with the broadcast of another Tier A anti-siphoning event on the core/primary service, then the broadcaster must replay the first event (originally broadcast on a multi-channelled service) on the core/primary service as soon as practicable after the end of the other Tier A anti-siphoning event (subsections 145ZC(2) and 145ZK(2)). If less than half of a Tier A anti-siphoning event that is first broadcast on a digital multi-channelled service overlaps with another Tier A anti-siphoning event , then the broadcaster need not replay all of the event on the core/primary service (subsections 145ZC(1) and 145ZK(1)).

 

223.    For example, the Bathurst 1000 V8 Supercars race may be scheduled to occur at the same time as all or part of the Rugby Union World Cup final. The same commercial television broadcasting licensee may hold the rights to televise both events. The broadcaster may decide to broadcast the World Cup final live using one of its digital multi-channels, while at the same time broadcasting the Bathurst 1000 live on the core/primary service. If the entire World Cup final takes place during the running of the Bathurst 1000, the broadcaster must replay the World Cup final on the core/primary service later in the day after the end of the Bathurst 1000 event.

 

Subdivision C - Exemptions

 

224.    Subdivision C is a new measure regarding the multi-channelling restrictions that apply to the broadcast of Tier A anti-siphoning event s. The provisions in this Subdivision empower the Minister to determine exemptions from the operation of the multi-channelling restrictions, either entirely or in respect of a specified licence area. The exemption determinations are legislative instruments that are subject to Parliamentary scrutiny and disallowance.

 

225.    For example, under subsection 145ZM(1) the Minister may determine that no multi-channelling restriction is to apply to the broadcast of the ‘Ashes’ Test cricket series when played in the United Kingdom. If such a determination were made, these Tier A anti-siphoning event s could be broadcast on a digital television multi-channelled service instead of the broadcaster’s core/primary service.

 

226.    The exemption may be limited to the televising of a specified Tier A anti-siphoning event in a particular commercial television licence area and the corresponding coverage area (subsection 145ZM(2)). For example, due to time zone differences, the Minister might grant an exemption for licence areas (and coverage areas) located in Western Australia in relation to the televising of a particular Tier A anti-siphoning event .

 

227.    The Minister may grant exemptions with or without conditions (subsection 145ZM(3)). For example, the Minister may grant an exemption for only part of a Tier A anti - siphoning event , such as that part of the event that takes place between 1800 and 2130 AEST. Alternatively, the Minister may grant an exemption but only if the Tier A anti-siphoning event has been delayed or prolonged due to weather disruptions, extra time, or similar exigencies.

 

Division 5 - Limits on acquisition and conferral of rights

228.    This Division sets out the limits on acquisition of rights to televise anti-siphoning event s, and limits on conferral of rights to provide online coverage of anti-siphoning event s. These provisions are intended to ensure that television programs or other digital audio-visual content that provide coverage of anti-siphoning event s are not siphoned away from free-to-air television. However, the Division does not have the effect of securing or guaranteeing exclusive coverage of an anti-siphoning event for any particular broadcasting service or content service.

 

Section 145ZN - Limits on acquisition of rights by subscription television broadcasting licensees

 

229.    New section 145ZN would impose limits on the acquisition by subscription television broadcasting licensees of rights to televise various anti-siphoning event s. Different conditions apply depending on whether the anti-siphoning event is in a quota group .

 

230.    New section 145ZN replaces the licence condition, and associated provisions, previously located at paragraph 10(1)(e) and subclauses 10(1A) and (1B) of Schedule 2 to the BSA. Items 21 and 22 of the Bill would repeal these provisions. Compliance with the new section 145ZN would remain a condition of a subscription television broadcasting licence (see Item 21). A breach of this licence condition would render the licensee liable to a range of remedial measures, including criminal and civil penalties, or suspension or cancellation of the licence (see Part 10 of the BSA).  

 

Licence condition - anti-siphoning events that are not in a quota group

 

231.    Subsection 145ZN(1) provides the subscription television broadcasting licence condition that applies to anti-siphoning events that are not in a quota group . A subscription television broadcasting licensee may not acquire the right to televise the whole or part of such an event unless the right to televise the whole or part of the event has also been acquired by a national broadcaster, or commercial television broadcasting licensees who collectively have an audience reach that exceeds 50 per cent of the Australian population.

 

232.    In the case of rights to televise part of an anti-siphoning event , it is not necessary for the free-to-air broadcaster to hold the rights to the same portion of an event that a subscription television broadcasting licensee may wish to acquire television rights to. That is, the licence condition for subscription television broadcasting licensees would be lifted as soon as free-to-air broadcasters had acquired any rights to televise the event, regardless of the nature of those rights.

 

233.    The 50 per cent audience reach rule that applies to rights acquisitions by commercial television broadcasting services is intended to ensure that the anti-siphoning scheme in new Part 10A of the BSA is not circumvented where rights to televise an anti-siphoning event are acquired only by a regional commercial television broadcaster whose audience reach is small, meaning that the event would not be freely available to the majority of the Australian viewing public. The assessment of whether at least 50 per cent of the Australian population is covered by commercial television broadcasting services is made using the most recent licence area population determinations made by the ACMA under paragraph 30(5)(a) of the BSA (subsection 145ZN(4)).

 

234.    Commercial television broadcasting licensees licensed under sections 38C and 40 of the BSA are not included in the calculation of audience reach (paragraphs 145ZN(1)(b), 145ZN(2)(c)(ii)) as these services do not use the broadcasting services bands to deliver their services. As such, these services are not as widely accessible as terrestrial television services (reception of section 38C satellite television services is subject to a conditional access scheme).

 

235.    For the purpose of applying the audience reach rule, subsection 145ZN(5) provides that the acquisition by a program supplier (as defined in new section 145ZP, noted at paragraph 258 below) of a commercial television broadcasting licensee is deemed to be an acquisition by the licensee of the right to televise the relevant portion of the event. This deeming applies to the program supplier’s acquisition of either the right to televise the whole or part of an event, or an entitlement to confer such a right on the broadcaster.

 

Licence condition - acquisition of right to televise event in a Category A quota group

 

236.    Subsection 145ZN(2) provides the licence condition that applies to the acquisition by subscription television broadcasting licensees of rights to televise an event in a Category A quota group . A Category A quota group may only include matches in the AFL or NRL Premiership competitions (as defined).

 

237.    A subscription television broadcasting licensee would be prohibited from acquiring the right to televise, on a subscription television broadcasting service, the whole or a part of an anti-siphoning event in a Category A quota group if the acquisition would prevent, or is part of a scheme that would prevent, the acquisition by free-to-air television broadcasters of rights to televise a particular set of anti-siphoning event s.

 

238.    Scheme is a term defined in section 145A. A scheme refers to an express or implied agreement, arrangement, understanding, promise or undertaking (regardless of whether the arrangement is intended to be, or is capable of being, legally enforceable), or a proposal, plan, or course of conduct (whether developed or pursued unilaterally or multilaterally).

 

239.    The concept of a ‘set’ of anti-siphoning event s is the mechanism that gives effect to the Minister’s determination of a Category A quota group . A ‘set’ of events refers to the circumstance where one or more free-to-air broadcasters have acquired the rights to televise a number of anti-siphoning event s drawn from the Category A quota group that meets the quota number . The concept of a ‘set’ is flexible enough to allow one single free-to-air broadcaster acquiring the rights to televise a number of anti-siphoning events that is equal to the quota number , or more than one free-to-air broadcaster acquiring the rights to televise a number of anti-siphoning events that collectively meet the quota number .

 

240.    When measuring compliance with subsections 145ZN(2), it is intended that the ‘preventative’ effect of a transaction will be assessed having regard to its practical outcome. This will involve an assessment of both the intention and structure of the transaction. Financial impact may also be a relevant consideration. A scheme through which a subscription television broadcasting licensee acquires the right to televise one or more anti-siphoning event s might have the effect of preventing acquisition of a corresponding right by a free-to-air broadcaster (or their program supplier ) if the arrangement between the rights holder and the subscription television broadcasting licensee includes conditions that purport to influence or regulate the acquisition of corresponding rights by any free-to-air broadcaster. For example, an arrangement whereby free-to-air rights would only be offered for a price that vastly exceeds an objective market value for those rights might contravene section 145ZN(2). 

 

241.    If the scheme lacks a preventative or exclusionary effect, there is nothing to stop subscription television from acquiring rights to televise any event in a Category A quota group . It would be open to subscription television to acquire rights to televise all events in a Category A quota group provided free-to-air broadcasters can acquire rights to televise in respect of a quota number of those events. In practice, a subscription television broadcasting licensee could, at the very least, acquire the exclusive rights to televise a number of anti-siphoning events that is equal to the difference between the total number of events in the quota group and the quota number .

 

242.    For example, if the Minister determines that the NRL Premiership competition will have a quota number of three for each round of the competition (with each round of eight matches comprising a quota group ), the subscription television broadcasting licence condition will be breached if a subscription television broadcasting licensee acquires rights to televise in a way that would prevent free-to-air broadcasters from acquiring free-to-air television rights for three NRL matches in any round of the Premiership competition. In these circumstances, the subscription television broadcasting licensee could acquire the exclusive rights to televise five NRL matches in any round of the Premiership competition, but could not acquire rights to televise a number of matches in excess of five if that acquisition prevented one or more free-to-air broadcasters acquiring the rights to televise three NRL matches in any round.

 

Licence condition - acquisition of right to televise event in a Category B quota group

 

243.    Subsection 145ZN(3) provides the licence condition that applies to the acquisition of rights to televise the whole or a part of an anti-siphoning event s in a Category B quota group . The condition operates in a broadly similar fashion to the condition for the Category A quota group , but with two key points of difference.  

 

244.    Firstly, the subscription television broadcasting licence condition that applies to events in a Category B quota group does not include an audience reach requirement. This is because Category B quota group determinations operate by reference to one or more specified commercial television licence areas. It is possible that the Category B quota group determination would specify licence areas that have a combined audience reach of less than 50 per cent. Given this prospect, the reach rule is generally not appropriate for events included in a Category B quota group .

 

245.    Secondly, the acquisitions made by a subscription television broadcasting licensee must not prevent the formation of a ‘set’ of anti-siphoning events that satisfies the associated set conditions specified in the Minister’s Category B quota group determination (see paragraph 145ZN(3)(c)). Associated set conditions are determined under section 145G (see paragraphs 114 111 to 135 132 for the explanatory notes about that section).

 

246.    The licence condition is designed to limit the acquisition of exclusive rights by subscription television in relation to a portion (the quota number ) of events that make up a ‘set’ of anti-siphoning event s in the Category B quota group , with the events in the ‘set’ having certain characteristics (the associated set conditions ). There may be different sets of events for different commercial television licence areas and the corresponding national broadcasting coverage areas. This will depend upon the scope and application of each Category B quota group determination, including its associated set conditions .

 

Section 145ZO - Limits on conferral of rights on content service providers

 

247.    New section 145ZO would impose limits on the acquisition of rights to provide live coverage of anti-siphoning event s by content service providers. Specifically, this provision would prohibit a person from conferring on a content service provider a right to provide live coverage (through the supply of audio-visual content via a content service to end-users in Australia) of the whole or a part of an anti-siphoning event that occurs in Australia. This is intended to cover the acquisition of rights by services that deliver audio-visual content to end-users in Australia by means of a carriage service. This includes IPTV services among others.

·          Live is defined in subsection 145ZO(6). The definition is substantially the same as that used in new section 145B (for television broadcasting). There are differences in the drafting to reflect the fact that a content service would ‘cover’ an event, not ‘televise’ it. Under the BSA, a content service does not deliver a television broadcasting service.

·          Australia is defined in the Acts Interpretation Act 1901 .

 

248.    Subsection 145ZO(5) provides that the section does not apply to the situation where a person (being a body corporate) confers rights on a content service provider that is a wholly owned subsidiary . Wholly owned subsidiary has the same meaning as used in the Corporations Act 2001. This is intended to ensure that bodies corporate, including sporting organisations like the AFL Commission, Tennis Australia, Cricket Australia, will not be prevented from providing online coverage of their own events where such coverage is provided through a wholly owned subsidiary company . The concession does not extend to joint ventures that a sporting organisation may be a partner in.

 

249.    The restriction on content services is only concerned with the acquisition of exclusive coverage rights by a content service provider. Accordingly, the restriction would not apply if the right to televise the same anti-siphoning event had already been acquired by a national broadcaster, or by commercial television broadcasting licensees, in accordance with section 145ZO.

·          Similarly to section 145ZN, an audience reach rule for commercial television broadcasting services would apply to the limitations concerning events not in a quota group and events in a Category A quota group . The reach of services licensed under either section 38C or section 40 of the BSA would be disregarded.

·          Subsection 145ZO(7) provides that the percentage of the Australian population served by commercial television broadcasting services is the percentage most recently determined by the ACMA under paragraph 30(5)(a) of the BSA.

·          Subsection 145ZO(8) provides that if a program supplier of a commercial television broadcasting licensee (except for broadcasters licensed under section 38C or section 40 of the BSA) has the right to televise an event, or an entitlement to confer the right, then the broadcaster is deemed to have the right to televise the event.

 

250.    Subsection 145ZO(1) sets out the limitation that applies to anti-siphoning event s that are not in a quota group (determined in accordance with section 145G). This limitation applies to all Tier A anti-siphoning event s (which cannot be included in a quota group ), and those Tier B anti-siphoning event s that are not covered by the Minister’s quota group determinations.

 

251.    Subsection 145ZO(2) sets the limitation that applies to anti-siphoning event s that are in a Category A quota group . A person must not confer on a content service provider the right to provide audio-visual content to end-users in Australia if:

(a)     the content consists of live coverage of the whole or a part of an anti-siphoning event in a Category A quota group , where such event occurs in Australia; and

(b)    the conferral of the right on a content service provider would prevent, or is part of a scheme (as defined in section 145A) that would prevent the formation of a ‘set’ of anti-siphoning events for the Category A quota group that meets certain conditions, so that free-to-air rights to televise a number of events equal to the quota number has been acquired by one or more free-to-air broadcasters.

 

252.    In effect, a content service provider would be subject to the same quota limits as a subscription television broadcasting licensee is in relation to the acquisition of television rights that attach to anti-siphoning event s that form a Category A quota group .

 

253.    Subsection 145ZO(3) sets the limitation that applies to anti-siphoning events that are in a Category B quota group . A person must not confer on a content service provider the right to provide audio-visual content to end-users in Australia if:

(a)     the content consists of live coverage of the whole or a part of an anti-siphoning event in a Category B quota group , where such event occurs in Australia; and

(b)    the conferral of the right on a content service provider would prevent, or is part of a scheme that would prevent, the formation of a’ set’ of anti-siphoning events for the Category B quota group that meets certain conditions, so that free-to-air rights to televise a number of events equal to the quota number and in satisfaction of the associated set conditions has been acquired by one or more free-to-air broadcasters.

 

254.    In effect, a content service provider is subject to the same quota limits as a subscription television broadcasting licensee is in relation to the acquisition of television rights that attach to anti-siphoning events in a Category B quota group .

 

255.    Subsections 145ZO(1), (2), (3) are civil penalty provisions (subsection 145ZO(4)).

 

256.    Civil penalties would apply to direct or ancillary contraventions of the restriction on conferral of particular content rights. Where the civil penalty provision is breached, the ACMA can apply to the Federal Court for a civil penalty order and, if the Court is satisfied that a civil penalty provision has been contravened, the Court may order that a pecuniary penalty be paid to the Commonwealth.

 

257.    The maximum penalty payable for a contravention is 2000 penalty units (or $220 000).

 

Section 145ZP - Program suppliers

 

258.    Section 145ZP defines program supplier for the purposes of the operation of Division 5 of new Part 10A. This definition is substantially the same as the current definition in subclause 10(1B) of Schedule 2 to the BSA. Section 145ZP is intended to capture affiliation arrangements between metropolitan and regional commercial television broadcasters.

 

Division 6 - Notification requirements in relation to anti-siphoning events

259.    Division 6 of new Part 10A would contain the substantive notification requirements that would apply to particular broadcasters and program supplier s under the new anti-siphoning scheme in relation to their dealings with rights or entitlements in respect of Tier A and Tier B anti-siphoning event s. This Division replaces the interim notification requirements in Part 1 of Schedule 1 to the Bill.

 

260.    Specifically:

·          new section 145ZQ would impose notification requirements on commercial television broadcasting licensees, replacing section 115B;

·          new section 145ZS would impose notification requirements on national broadcasters, replacing section 115C; and

·          new sections 145ZR and 145ZT would impose notification requirements on program suppliers to the above mentioned broadcasters.

 

261.    The notification requirements imposed on the broadcasters by sections 145ZQ and 145ZS require the broadcaster to notify the ACMA in writing within 10 business days about any rights to televise anti-siphoning events that they have acquired, or of any rights they cease to have. Unlike the interim notification requirements, there are no exemptions from the obligations imposed by sections 145ZQ and 145ZS (but note the operation of section 145D, which relates to exemptions from the entirety of new Part 10A with respect to rights to televise part of an anti-siphoning event ). The supply of accurate and timely information to the ACMA needs to be comprehensive as it is integral to ensuring effective enforcement of the anti-siphoning scheme.

 

262.    The notification requirements for program suppliers are new. Program suppliers of commercial television broadcasting licensees and national broadcasters will also be required to notify the ACMA of any rights to televise anti-siphoning events they hold at the time Part 2 of Schedule 1 to the Bill commences, or which they acquire or cease to have after the commencement of Division 6 of new Part 10A.

 

263.    The program supplier must notify the ACMA of their acquisition of a right or an entitlement to confer on a commercial television broadcasting licensee or a national broadcaster the right to televise the whole or a part of an anti-siphoning event . The initial notification about rights or entitlements held as at the commencement of the section must occur within 10 business days after commencement (subsections 145ZR(1) and 145ZT(1)). Thereafter, written notification of new acquisitions must be provided to the ACMA within 10 business days of the acquisition (subsections 145ZR(2) and 145ZT(2)). The notification requirements for program suppliers would ensure that the ACMA is provided with accurate information regarding the rights held by program suppliers .

 

264.    Subsections 145ZR(3) and 145ZT(3) provide that a program supplier must notify the ACMA when they cease to relevantly hold a right to televise or an entitlement to confer. The supplier must notify the ACMA of the cessation and describe the attributes of the entitlement or right they no longer hold (so that the ACMA can ascertain whether the program supplier continues to hold any rights or entitlements). The notification must be provided to the ACMA within 10 business days of the cessation of the right or entitlement concerned.

 

Form and content of notifications

 

265.    Any notification to the ACMA must be in the approved form (section 145ZU), and the notification must describe what has been acquired (by identifying the anti-siphoning event(s) ), as well as describing the attributes of the right or entitlement that has been acquired. The attributes include the duration and extent of the right or entitlement. Attributes also include conditions or limitations of the right or entitlement such as whether the right or entitlement permits the broadcast of the entire anti-siphoning event or merely parts of it, or whether the right to televise permits ‘live’ or delayed coverage of an anti-siphoning event , or whether the right or entitlement is subject to the payment of additional consideration at a future time.

 

Penalties for non-compliance with notification requirements

 

266.    For commercial television broadcasting licensees, compliance with the notification requirements would be a licence condition (see paragraph 7(1)(hb) of Schedule 2 to the BSA, as amended by Item 19 below). For program suppliers the notification requirements would be civil penalty provisions.

 

267.    Civil penalties would apply to substantive or ancillary contraventions of the notification requirements by commercial television broadcasting licensees, or program supplier s of commercial or national broadcasters. The ACMA can apply to the Federal Court for a civil penalty order and, if a contravention is proven, the Court may order that a pecuniary penalty be paid to the Commonwealth. The maximum penalty is 500 penalty units (or $55 000) per day of contravening conduct.

 

268.    The notification provisions for commercial television broadcasting licensees and program supplier s are also designated infringement notice provisions for the purposes of Part 14E of the BSA.

 

Division 7 - Review of the anti-siphoning provisions

269.    This Division provides for a statutory review to be conducted into the operation of the new anti-siphoning scheme. The terms of reference are set out in subsection 145ZV(1).

 

270.    The Minister must cause the review to be conducted before 31 December 2014, and cause a report of the review to be prepared. After the completion of the report, the Minister must cause a copy of the report to be tabled in each House of the Parliament within 15 sitting days.

 

Item 12 - Section 204 (table item dealing with subsection 146D(4))

271.    This Item repeals the table item that refers to subsection 146D(4) because the subsection is being repealed (see paragraph 39 above).

 

Item 13 - After paragraph 205F(4A)(a)
Item 14 - After subsection 205F(4B)

272.    Items 13 and 14 make amendments to section 205F that relate to the maximum civil penalties that may be ordered by the Federal Court in respect of direct contraventions of various civil penalty provisions. These amendments are consequential to the amendments in this Bill that create new obligations in relation to the notification, conferral, or supply of particular rights concerning anti-siphoning event s.

 

273.    Contraventions of these new requirements will be subject to the following maximum civil penalties:

 

Provision

Contravening conduct

Affected person

Maximum penalty

145J(1)

Failure to confer right to televise on a commercial television broadcasting licensee

Program supplier of commercial television broadcasting licensee

2000 penalty units

145P(1)

Failure to confer right to televise on a national broadcaster

Program supplier of national broadcaster

2000 penalty units

145ZO(1)

Conferral of live coverage rights for an anti-siphoning event (not in a quota group ) on a content service provider

The person conferring the rights

2000 penalty units

145ZO(2)

Conferral of live coverage rights for Category A quota group events on a content service provider

The person conferring the rights

2000 penalty units

145ZO(3)

Conferral of live coverage rights for Category B quota group events on a content service provider

The person conferring the rights

2000 penalty units

145ZR(1)

Notification requirements - as at commencement

Program supplier of commercial television broadcasting licensee

500 penalty units

145ZR(2)

Notification requirements - after acquisition

Program supplier of commercial television broadcasting licensee

500 penalty units

145ZR(3)

Notification requirements - after cessation

Program supplier of commercial television broadcasting licensee

500 penalty units

145ZT(1)

Notification requirements - as at commencement

Program supplier of national broadcaster

500 penalty units

145ZT(2)

Notification requirements - after acquisition

Program supplier of national broadcaster

500 penalty units

145ZT(3)

Notification requirements - after cessation

Program supplier of national broadcaster

500 penalty units

 

Item 15 - At the end of subsection 205F(5A)
Item 16 - After subsection 205F(5B)

 

274.    Items 15 and 16 make amendments to section 205F about the maximum civil penalties that may be ordered by the Federal Court in respect of ancillary contraventions of various civil penalty provisions. The amendments are consequential to other amendments that introduce notification requirements for the new anti-siphoning scheme, and impose obligations on program suppliers .

 

275.    Ancillary contraventions will be subject to the same maximum civil penalties that apply to the substantive contraventions of the new anti-siphoning scheme, as follows:



 

Provision

Contravening conduct

Affected person

Maximum penalty

145J(1)

Failure to confer right to televise on a commercial television broadcasting licensee

Program supplier of commercial television broadcasting licensee

2000 penalty units

145P(1)

Failure to confer right to televise on a national broadcaster

Program supplier of national broadcaster

2000 penalty units

145ZO(1)

Conferral of live coverage rights for an anti-siphoning event (not in a quota group ) on a content service provider

The person conferring the rights

2000 penalty units

145ZO(2)

Conferral of live coverage rights for Category A quota group events on a content service provider

The person conferring the rights

2000 penalty units

145ZO(3)

Conferral of live coverage rights for Category B quota group events on a content service provider

The person conferring the rights

2000 penalty units

145ZR(1)

Notification requirements - as at commencement

Program supplier of commercial television broadcasting licensee

500 penalty units

145ZR(2)

Notification requirements - after acquisition

Program supplier of commercial television broadcasting licensee

500 penalty units

145ZR(3)

Notification requirements - after cessation

Program supplier of commercial television broadcasting licensee

500 penalty units

145ZT(1)

Notification requirements - as at commencement

Program supplier of national broadcaster

500 penalty units

145ZT(2)

Notification requirements - after acquisition

Program supplier of national broadcaster

500 penalty units

145ZT(3)

Notification requirements - after cessation

Program supplier of national broadcaster

500 penalty units

 

Item 17 - Paragraph 205F(6)(a)

 

276.    Item 17 updates the cross references in this paragraph as a consequence of amendments that insert the substantive notification requirements for the new anti-siphoning scheme. As a result, if a person contravenes a civil penalty provision two or more times, the Federal Court may make a single civil penalty order that imposes one penalty for all of those contraventions. However, that single penalty cannot exceed the sum of the maximum penalties that could be imposed if a separate penalty were ordered for each of the contraventions.

 

Item 18 - Paragraph 7(1)(ha) of Schedule 2

277.    This Item amends the standard licence conditions for a commercial television broadcasting licence to make compliance with the coverage obligations set out in new section 145H a licence condition.

 

Item 19 - Paragraph 7(1)(hb) of Schedule 2

278.    This Item updates a cross-reference in one of the standard licence conditions for a commercial television broadcasting licence, to take account of the new notification requirements regarding the acquisition and cessation of rights to televise anti-siphoning event s (see section 145ZQ).

 

Item 20 - Paragraph 7(1)(ob) of Schedule 2

 

279.    This Item repeals and replaces one of the standard licence conditions for a commercial television broadcasting licence as a consequence of changes made to the restrictions on televising particular anti-siphoning event s on a digital television multi-channel. Under the new anti-siphoning scheme, restrictions would only apply to the televising of Tier A anti-siphoning event s.

 

Item 21 - Paragraph 10(1)(e) of Schedule 2

280.    This Item amends the standard licence conditions for a subscription television broadcasting licence to make compliance with new section 145ZN a licence condition.

 

Item 22 - Subclauses 10(1A) and (1B) of Schedule 2

281.    This Item repeals two subclauses from the standard licence conditions for a subscription television broadcasting licence, since these provisions have been incorporated into new section 145ZN. Compliance with section 145ZN is a licence condition through Item 21 above.

 

Item 23 - Part 4A of Schedule 4 (heading)
Item 24 - Division 1 of Part 4A of Schedule 4 (heading)
Item 25 - Clauses 41A to 41FB of Schedule 4
Item 26 - Division 2 of Part 4A of Schedule 4 (heading)
Item 27 - Clauses 41H to 41LB of Schedule 4

282.    These Items make a number of amendments to reflect the narrower scope and application of Part 4A of Schedule 4 to the BSA. The Part currently restricts the broadcast of anti-siphoning event s on a service other than the core/primary television broadcasting service. Under the new anti-siphoning scheme, these restrictions would be located in new Part 10A.

 

Item 28 - Transitional - coverage obligations for rights acquired after 25 November 2010

283.    Item 28 provides transitional provisions for the new anti-siphoning scheme.

 

284.    Sub-item 28(1) deals with the application of section 145H to commercial television broadcasting licensees from the commencement date of the new scheme (a date to be proclaimed). Section 145H contains the coverage obligations for an anti-siphoning event .

 

285.    Licensees who acquired rights to televise anti-siphoning event s between 25 November 2010 and the commencement date will not be subject to the new coverage obligations for an event that takes place after the first 150 days following the commencement date. This means that, for example, the Nine Network’s broadcast of the 2012 Olympic Summer Games in London will not be subjected to the coverage obligations in section 145H.

 

286.    Similarly, the rights to televise the 2012-2016 AFL Premiership competitions that were acquired by the Seven Network in 2011 will not be subjected to the coverage obligations in section 145H. Sub-item 28(5) provides the only exception to the transitional rule for the AFL Grand Finals in the 2012-2016 AFL Premiership competitions ( transitional AFL Grand Finals ). The Government’s intention is to include these events in the anti-siphoning list as Tier A anti-siphoning events , which will ensure that the most important match of Australia’s premier Australian football competition is televised first on a free-to-air broadcaster’s core/primary service.

The Government does also not intend to include the ‘home and away’ matches and all other matches in the Finals Series of the 2012-2016 AFL Premiership competitions in the anti-siphoning list (the intention is for this type of event to otherwise be included in the anti-siphoning list as Tier B anti-siphoning events ). The Government considers that the commercial arrangements between the AFL and the Seven Network will achieve broadcasting outcomes that are consistent with Government policy without the need for further regulatory intervention.

 

287.    Sub-item 28(2) provides a similar transitional measure for national broadcasters. The application of section 145N (the coverage obligations for national broadcasters) is subject to the same transitional conditions over the same transitional period.

 

288.    Sub-items 28(3) and 28(4) provide transitional measures in respect of the obligations of program supplier s of commercial television broadcasting licensees (section 145J) and national broadcasters (section 145P). The obligation that requires particular program supplier s to confer rights to televise anti-siphoning events on a free-to-air broadcaster does not apply in like conditions over the same period.

 

Item 29 - Transitional - commercial television broadcasting licences
Item 30 - Transitional - subscription television broadcasting licences

 

289.    Item 29 provides that, despite its repeal, the pre-commencement commercial television licence condition requiring compliance with the multi-channelling restrictions contained in Part 4A of Schedule 4 to the BSA continues to apply in relation to a pre-commencement breach of that condition. This refers to a breach that occurs before the commencement date for this Item (a date to be proclaimed).

 

290.    Item 30 provides that, despite its repeal, the pre-commencement subscription television licence condition prohibiting the acquisition of rights to televise an anti-siphoning event in particular circumstances continues to apply in relation to a pre-commencement breach of that condition. This refers to a breach that occurs before the commencement date for this Item (a date to be proclaimed).

 

 

Item 31 - Transitional - notification requirements

 

291.    Sections 115B to 115E (the interim notification requirements contained in Part 1 of Schedule 1 to the Bill) continue to apply to the applicable pre-commencement transactions (within the meaning of sub-Item 31(3)) even after those sections are repealed on the commencement date (see Item 10). This measure enables enforcement action to be taken against commercial television broadcasting licensees, if required.