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Thursday, 2 July 1998
Page: 4665

Senator IAN CAMPBELL (10:26 AM) —I table the explanatory memorandum and move:

That this bill be now read a second time.

I seek leave to have the second reading speech incorporated in Hansard.

Leave granted.

The speech read as follows

The Broadcasting Services Amendment Bill 1998 proposes amendments to the Broadcasting Services Act 1992. This Act provides the legislative framework for the regulation of broadcasting services in Australia, including television and radio services transmitted by the free to air broadcasters, and the services provided by subscription broadcasters.

The purpose of the Broadcasting Services Amendment Bill is to improve opportunities for the live television coverage of designated events and series by introducing an `anti-hoarding' regime for free to air broadcasters, and to introduce a new retransmission regime which will require pay TV operators wishing to retransmit free to air radio or television broadcasting services to seek the consent of the originating broadcaster.

Under the current provisions of the Broadcasting Services Act, free to air broadcasters are given priority access to the purchase of broadcasting rights to a number of major sporting events. These events are set out in the anti-siphoning list and include, for example, games in the Australian Football League competition, international matches involving the senior Australian representative cricket team, and games in the National Rugby League competition.

While the anti-siphoning rules have been widely understood as conferring a power on the Minister to ensure that certain events are broadcast on free to air television, there is nothing in the legislation to actively encourage free to air broadcasters to exercise the rights they have acquired. For example, after obtaining the rights to broadcast an important sporting event live, a free to air broadcaster may choose to delay coverage of the event, or even to televise only a small proportion of the event.One course of action open to the Minister is to remove events from the anti-siphoning list. However, this is unlikely to be effective in situations where the free to air broadcasters who have acquired rights to a major series decide, often at short notice, not to televise all of the events. Such a situation occurred in 1997 when the Nine Network decided not to show the first session of play in the test matches of the Ashes cricket series being played in England. Australia went on to win that exciting series, but many cricket supporters were extremely disappointed that they could not view Australia's important victory in full on free to air television.

These developments underline the need for a strengthening of the current legislative provisions to combat hoarding, while providing alternative avenues for coverage of important events and series on free to air television.

Therefore, the government has decided to amend the Broadcasting Services Act by introducing an `anti-hoarding rule'. The proposed scheme consists of a `must offer' obligation to be imposed on free to air broadcasters and their regular program suppliers who have live rights to designated events or series but who do not intend to facilitate live television coverage of these events. Free to air commercial broadcasters in this situation will have to offer the unused rights to the ABC and SBS for a nominal charge. The ABC and SBS will have to offer such rights to each other in similar circumstances.

The operation of these anti-hoarding amendments will be confined to events and series designated by the Minister. It is envisaged that the Ministerial designation power will be used only in limited circumstances. For example, the Minister may designate an event or series where there is a widespread public expectation, based on past practice, that the event or series will be televised live and in full on free to air television. Such a designation will be a disallowable instrument in order to enable scrutiny by the Parliament.This bill also amends the Broadcasting Services Act to provide for a new retransmission regulatory regime, and to make consequential amendments to other legislation. In addition, the bill amends the Broad casting Services Act to prevent the programs of metropolitan commercial television services from being freely imported into regional areas as part of a pay television service, thereby preserving the integrity of commercial television licence areas.

The introduction of a new retransmission regime will overcome an anomaly in the current retransmission rules which allows pay TV operators to retransmit free to air television and radio services without the agreement of the originating broadcaster or the payment of any compensation for the use of intellectual property which belongs to others. The existing retransmission provisions were directed at facilitating `self-help' arrangements and were not intended to be used for commercial advantage.

Complementary arrangements will be made in legislative proposals which will amend the Copyright Act 1968 to provide for a new broadly-based technology-neutral right of communication to the public and will require pay TV operators to compensate owners of underlying copyright material in broadcasts for the retransmission of those broadcasts.

The government has consulted widely with all relevant interest groups over a considerable period of time on this issue and their views have been taken into account in developing these legislative proposals.

The new retransmission regime will only provide for retransmission of free to air broadcasting services without the agreement of the originating broadcaster in situations where this is considered to be in the public interest, for example, in remote areas and for `self help' purposes.

In all other cases the consent of the free to air broadcasters will be required before their services will be able to be retransmitted.

Through retransmission a large number of Australians receive improved reception of free to air signals and some Australians receive channels they would not otherwise receive due to poor or no reception. Retransmissions enable pay TV operators to offer their customers a greater range of channels and at the same time enables the free to air operators to have their programs more widely distributed.

There is a clear mutual interest in both free to air broadcasters and pay TV operators reaching agreement on such retransmissions.

In the interests of television viewers, the government expects the free to air and pay TV operators to reach reasonable arrangements and as part of this process that the free to air broadcasters will not extract exorbitant fees from the pay TV licensees which are then passed onto the pay TV subscribers.

The current `self help' arrangements which allow retransmission of national broadcasting services, and commercial and community broadcasting services within the licence areas of the broadcasters, for the purpose of obtaining or improving reception, without the consent of the originating broadcaster or the need for the compensation of copyright owners are to be continued. This is in line with the recommendations made by the Copyright Convergence Group in its 1994 Report Highways to Change.

The Broadcasting Services Amendment Bill will also introduce a regional preference rule to ensure that pay TV subscribers, in regions where licence areas of regional and metropolitan commercial television services overlap, continue to have access to their local free to air television services on their pay TV systems where retransmitted services are available.

The government wishes to maintain the integrity of the licence area concept on which licensed broadcasting services are based. Therefore, all retransmissions outside the licence area of commercial and community broadcasters will be prohibited except with the written permission of the Australian Broadcasting Authority. For the same reason, this requirement is to be extended to the re-broadcast of programming on regional pay TV services which is substantially similar to metropolitan commercial television services.

As it will be necessary to make changes to the Copyright Act to complement the amendments relating to the new retransmission regime, it is proposed that these amendments commence on Proclamation. Proclamation will be timed to enable the retransmission provisions of the bill and the amendments to the Copyright Act to come into effect at the same time. This timing will also allow the parties the opportunity to make preliminary arrangements and undertake the necessary commercial negotiations prior to the new retransmission scheme coming into operation.

The amendments in this bill are expected to have no significant impact on Commonwealth expenditure or revenue.

Ordered that further consideration of the second reading of this bill be adjourned until the first sitting day of the spring sittings 1998, in accordance with standing order 111.