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Broadcasting Services Amendment (Anti-siphoning) Bill 2012

Speeches in Parliament
Richard Di Natale 24 Jul 2013


I rise today to speak to this bill as a very passionate advocate for Australian sport; normally a bill around communications would be dealt with by my very erudite colleague Senator Scott Ludlam. At its core, this bill is about Australian sport and the protection of Australian sport. It is about the stake that every Australian has in key sporting events, both here and right around the world. It is critically important that we safeguard this stake in law. One way to do that is with antisiphoning provisions that we are debating today.

These rules ensure that key sporting events are shown on free-to-air television and that they are available to the widest possible audience. Why is this important? It is important because we are a sporting nation. Sport is an integral part of the national character. In my own state of Victoria, for example, the AFL occupies a space somewhere between sport and religion. It is very rare for someone to visit the state of Victoria and not adopt an AFL football team. We talk about water cooler conversations or barbecue stoppers; there is no greater barbecue stopper than the discussion around Collingwood losing by a point, or my team, Richmond, winning the odd game.

We crowd around the TV on Melbourne Cup Day. We try and cheer home the people's champion, or you might cheer home the nag that you drew in the office sweep. We all were enthralled by the Olympics and the Paralympics. State of Origin, test cricket—they all occupy a very special place in the hearts of Australians. That is a really good thing, an unashamedly a good thing.

Being able to watch key sporting events, for example, motivates people to become more active, to play sport. Our tradition during the AFL Grand Final is kick-to-kick, where some of the old fellas are a bit sore and sorry for themselves afterwards. I have occasionally been inspired to play the odd round of golf after watching one of the great final rounds in one of the major championships. It is good for people's health; it is good for social cohesion.

Sport can be an important bridge between cultures. Sport can be a vehicle for social change. The AFL has played an important role in debates around sexism and racism, for example. I will never forget Nicky Winmar, a talented Aboriginal player, raising his jumper and pointing to his skin in a gesture directed at some abusive fans.

Recently in this chamber I spoke about Peter Norman, the Australian 200-metre champion, who played a critical role during the civil rights movement; the stand he took in solidarity with other black athletes who gave the black power salute during the 1968 Olympics. It was a defining moment for the civil rights movement. That is why it is critical that we ensure that key sporting events are televised on free-to-air where they have the widest possible audience.

I visited the UK recently—I have been there on several occasions; my wife happens to be a Pom—and I was shocked to discover that during the last Ashes series the English public could not watch a game on free-to-air television. As it turned out, this was a hell of a lot worse for them than it was for me—the Australians suffered a pretty humiliating defeat—and they were denied bragging rights. I never want to get to a situation where we in Australia cannot hang it over the Poms after an Ashes thrashing. I learnt in England that for their premier sporting code, the Premier League, they cannot watch a match in its entirety on free-to-air. Could you imagine a weekend in Australia where there was no free-to-air TV broadcasts of Aussie Rules or the NRL? I know some people would think that is a good thing, and there might even be the odd person in my party who might think that is a good thing. I certainly do not and I want to make sure, as my party does, that the right of all Australians to watch sport on free-to-air TV is protected.

We have a situation in Australia where iconic sporting events are protected through the antisiphoning list. When an event is on the list, pay TV broadcasters cannot get the rights to show that event unless certain conditions are met that safeguard access to free-to-air TV. Free-to-air broadcasters have to show the event on the main analog and digital channels. Of course, we have to remember here that the law does not actually compel the broadcasters to buy the rights or the sporting codes to sell them at any cost, but it does give the free-to-air networks the right of first refusal.

The bill before the Senate today is intended to update the antisiphoning laws. It does not change that core and important protection that free-to-air TV will be protected when it comes to obtaining the rights to our premier sporting events, but it does bring in a few important innovations that are worth supporting. The bill creates two classifications for sporting events: tier A and tier B events. Tier A events are those of national, iconic importance. The examples I listed, the Melbourne Cup or the AFL grand final, are clearly tier A events. Tier B events are those with more regional or local significance such as home-and-away matches in the AFL or NRL. Events in tier B can be made subject to a quota, such that a proportion of events in a group can be added to the list without specifying each individual event.

Another feature of the bill is that it accounts for digital television and multichannelling , which is going to make it easier for people to access a variety of sporting events because broadcasters can choose to purchase some events and show them through multichannelling . The existing system requires th at networks broadcast these events on their main channel. This bill will allow t ier B events to be shown on a digital multichannel. Some t ier A events can also be switched to a multichannel under certain circumstances . W e know that analog is going the way of the d odo , with most houses now having digital receivers —they are inexpensive pieces of equipment and are built into many new TVs—so that is a sensible arrangement.

For the first time , though, the bill puts an obligation on a broadcaster that has obtained the rights to an event to actually broadcast it. That is a good thing. Why on earth do we have a situation where some broadcasters purchase the rights to an event and deny the Australian public the opportunity to watch them? That is clearly against the national interest. So tier A events have to be shown live, if technically feasible, by a broadcaster that has obtained the rights. The same goes for tier B, but there is an allowance for a slight delay, of four hours, to account for time zones and so on, which seems to make sense. If a free-to-air network does not want to show an event on the antisiphoning list then it must offer the rights to every other broadcaster or apply for an exemption from ACMA. That is important because the rights for these important events should not lie fallow. S uppliers must offer the rights to all the free-to-air broadcasters for a nominal fee and then must offer them to pay TV networks. These anti hoarding measures also prevent networks selling on unwanted rights and leaving the public to miss out.

The Greens take no issue at all with the antisiphoning provisions, unlike some members of the coalition, We think there should be strong ministerial intervention to protect the rights of Australians to watch these key sporting events. No, this is not simply a case of government interfering in a situation where Australians would otherwise get access. If there is not ministerial invention, there will be corporate intervention—and we know the pay TV networks are desperate to get their hands on these key events as a way of channelling more people into pay television, and that means that many people will miss out. So I welcome the strong ministerial intervention provided for in this bill.

But there are some concerns. Some of the provisions of the bill are complex, particularly around the provisions that involve football, AFL and NRL. As I have already indicated, I am a football fan and I want to make sure that people right across the country get access to games and to important games. The way this bill is structured is that it tries to deal with as many games spread over a season as possible. It does it by allowing the minister to create 'quota groups' of t ier B events, which are AFL and NRL home - and - away games. These quota groups can either be numerical or have other conditions attached to specify which matches must be broadcast on free - to-air in a given round. For instance, for AFL matches the minister may determine that four matches in a given round must be shown and include games on Friday and Saturday nights and a Sunday game. The minister could also place conditions such that, for instance, Western Australians should have access to a game involving the ir home teams, the Dockers or the Eagles , and for South Australians a game involving Port Power or the Adelaide Crows. That is what we expect to happen.

This is a flexible system , designed with the footy fan in mind , but w e are concerned that no loopholes are left so that commercial imperatives can leave the fans high and dry. We are not assured that these loopholes have been exterminated. For instance, while the minister m ay require NRL games to be shown on a Friday night and a Sunday and may ensure that a game with a Queensland team is shown in that state, football fans in Queensland could still miss out

Most fans of the NRL in Queensland follow the Broncos, and we do not want a situation where Broncos fans find that most of their games are only to be had on pay TV while a team like the Cowboys are on free-to-air. So, while the provision might specify that a game involving a Queensland team is shown, we want to see most fans accommodated, and that means Broncos fans should not miss out.

I would hate to see us pass into law new antisiphoning legislation supposedly designed to protect Australian sports fans but which ends up forcing thousands of people to take out subscriptions to pay TV because their team—for example, the biggest team in Queensland—is missing out. That is why it is important to ensure that we get ministerial control, and that we have a situation where there is not the capacity for commercial imperatives to drive people into pay TV. We share these concerns with some of the key stakeholders, particularly in the free-to-air television environment, and it is for this reason that we will be moving that this bill be referred to committee to ensure that we can enshrine the protection that we want to see for Australian football fans.

It is not an unusual day in this chamber when we see a motion congratulating a sporting team on a new achievement, congratulating the performances of our Olympians and Paralympians or, sadly, on some occasions lamenting the passing of a former sporting great. These motions are very welcome and they are invariably bipartisan because sport is an important part of the national character and a healthy part of Australian life. It builds community and helps to break down social barriers. It is part of the Australian identity and it is worth preserving.

In order to preserve it we have to give all Australians access to as wide a range of free-to-air sporting events as possible. I am proud to have taken part in sport as both a participant and a viewer. I did not play in what we might call tier A matches—or tier B, for that matter—but footy has been a big part of my life just like it has been a big part of the lives of most Australians, and I want to ensure that they continue to get access to the best that Australian and international sport has to offer. I move the second reading amendment standing in my name:

Omit all words after "That", substitute:

the Senate declines to give this bill a second reading at this time, and the bill, and any amendments to it that may be subsequently circulated, be referred to the Environment and Communications Legislation committee for inquiry and report by 1 November 2012.

Senator McKENZIE

I also rise to speak on the Broadcasting Services Amendment (Anti-siphoning) Bill 2012, and to reiterate Senator Di Natale's heartfelt words as a southerner and someone who is very passionate about the old VFL—now the national game, the AFL—about our entire nation's strong cultural attachment to sport and the role it plays in keeping our community together and inspiring us to be the very best we can be. However, I suggest to Senator Di Natale that there was an inquiry into this piece of legislation. The Greens were a part of it and did not make any additional comments or dissenting reports to the recommendations handed down in that inquiry. Senator Di Natale may want to check that out if he is going to refer to it again.

As a member of the Standing Committee on Environment and Communications I participated in the inquiry into this bill earlier this year. The Minister for Broadband, Communications and the Digital Economy announced the substance of this bill in 2010, and it has taken until 2012 to finally reach the Senate here today. From what I understand, it is going to leave here looking a little different, but we do not have the details.

Stakeholders have for some time been anxious about achieving an outcome so that they can have certainty in their planning of their proposed schedules and bidding for broadcast rights. The process has been overly long and complicated but this has been necessitated by a government whose actions on this issue have been overly long and complicated. This bill makes the section of the legislation dealing with the issue roughly 80 times longer. It is needlessly complex and symptomatic of Senator Conroy's ministerial micromanagement. The bill changes the current antisiphoning and antihoarding rules, making adjustments to the way the list of significant events maintained by the Australian Communications and Media Authority is administered.

Antisiphoning rules are in place to ensure that the Australian public can, without having to pay, watch significant events such as every AFL game on every Saturday over winter, but also the Olympics, during which I, like many other Australians became bleary-eyed staying up late to watch the hockey and showjumping—but maybe that was just me.

It is particularly important for those of us who live in regional areas, where average incomes are lower and pay TV can be less affordable than it is in the cities, to have access to our sporting events that are so important for all of us in our nation. Ordinary Australians in regional areas need just as much access to key national and local events on television as those in urban areas. This is particularly true for the NRL and the AFL because we cannot jump on the tram and get down to the local game by 2 pm once we knock off from work at midday on a Saturday. We cannot watch our games live, so broadcasting rights become more and more important for those of us outside capital cities.

Those events included on the antisiphoning are restricted firstly to free-to-air television, with pay TV licence holders unable to acquire exclusive rights. Pay TV licence holders, however, are able to acquire non-exclusive rights or show events that other broadcasters have chosen not to show on their main channels. The rules also ensure that stations are not 'hoarding' programs—that is, purchasing the broadcast rights for significant live events and then not showing them, or showing them at a later time. This is helpful, for example, during the soccer World Cup or when there may be several important events on at the same time. The current antisiphoning list covers domestic and international sporting events in 12 categories, and around 1,300 events, including: the opening and closing ceremonies of the summer and winter Olympic Games; the Melbourne Cup; the NRL State of Origin series; the finals of the Rugby World Cup; cricket test matches played in Australia; and each match of the AFL premiership competition, including the finals—and we are really enjoying those at the moment. Of course, most importantly, it covers the final of the netball world championships if that involves an Australian team—I think that is fantastic for the sport which most Australians participate in, that being netball.

We saw outstanding figures for the Olympic Games last month, with 13.57 million viewers across the two weeks on free-to-air channels. That was a great example of access to watching sport for our community. During the inquiry the IOC made comments that they assumed the minister intends to declare the summer and winter Olympics as a designated group going forward. A designated group has special conditions where the amount of content or the events available exceed the time frame. They were hoping that they could be made a designated group. But that is obviously the IOC assuming that this particular minister will declare and deliver. I think those of us on this side of the chamber may not have quite the confidence that the IOC has in that actually coming about.

Pay TV also picked up a number of viewers, with figures averaging nearly 550,000 per night in the prime time slot. Increasingly we are seeing this type of arrangement with our major events, where free-to-air and pay TV broadcasters partner to ensure the maximum content is played across the maximum number of channels hence ensuring more people get to see it. There are figures thrown around—this is also a big deal financially for those stakeholders involved. There was talk of the NRL deal: $1 billion, with Channel 9 and Foxtel to retain the broadcasting rights.

As a result of this bill the minister will be able to determine which events will be included and excluded from the antisiphoning list. There will be two tiers of antisiphoning events: tier A and tier B. Tier A antisiphoning events would include events of international or national significance. Tier B antisiphoning events would include events of local significance.

At present networks have until 12 weeks prior to an event to purchase the broadcast licence before it is automatically removed from the antisiphoning list. This will be pushed out to 26 weeks under this bill. If a television network finds their schedule too tight to show an event that is listed on the antisiphoning list and for which they have purchased the broadcasting rights, they must offer the broadcast opportunity to other networks for a nominal fee.

Some stakeholders have expressed their concerns about the minister having the power to make the final decision on what is on or off the list. In some circumstances, changes to the list—such as when no free-to-air networks have acquired broadcasting rights in a reasonable period—are a positive move. However, the level of discretion this bill affords the minister is unprecedented. I spoke earlier about stakeholders being keen for certainty so that they can plan ahead. This ministerial discretion undermines that certainty to be gained from the passage of this bill and makes planning difficult.

I think that the issue for this government is around providing certainty for those out in the community. It is not just for what they are going to be bidding for in broadcasting rights but how they are actually going to plan for their businesses; planning the educational outcomes for students, sending them away to school et cetera. This really needs some reflection; it is quite concerning.

Telstra explained their position to the committee, saying:

The revised regime delivers a great deal of discretion to the Minister to set important parameters by determination once the legislation is passed. The effect will be to introduce unnecessary commercial uncertainty into rights negotiations and further distort the basis on which rights are acquired.

FOXTEL backed Telstra's point of view, saying:

I think what rights holders and broadcasters are looking for here is certainty.

It is similar to the irrigators up in the Murray-Darling Basin and it is similar to so many groups around our nation—the power workers down in the Latrobe Valley. I do not think that there is a community group that is not looking for certainty under the current Labor government, to tell them where they stand.

For example: there are specific clauses around quotas that apply to the NRL and AFL, where there are a large number of games on a weekend. The quota means a certain number of games per round are guaranteed to be shown on free-to-air television. Hear, hear! The free-to-air games are also supposedly those of the highest quality, at the minister's judgement. I know that the minister is a huge fan of Collingwood. You may want to pass comment on that and how that will play into his decision making on which shows will get broadcast. I am not sure; I know that my father would be incredibly happy if the minister had his way with making sure that Collingwood was free-to-air to regional Victorians every Saturday, but I do not think it is quite going to play out like that.

I am not sure how the minister proposes to judge the quality of a football match. Nor do I think it is fair—and I have had constituents contact my office to raise this—by using this measure it seems that very few games from some clubs will make it to free-to-air. I know that Senator Di Natale mentioned his beloved Richmond; with the way that they have been playing over the past few seasons it is unlikely that they would be seen as a high-quality game. But I guess that is all subjective, as every discussion around football always is.

But we do know that it is generally the interstate teams that seem to miss out, and as it is such a national competition we have to guard against this. The AFL said, quite rightly:

What is the best game depends on where you live. If you live in Western Australia, you will have a different view as opposed to those living in South Australia or Melbourne. You would also have a different view if you are a coach of a club as opposed to CEO of a club—football versus commercial interests. You would also have a different view if you are a player about what you would want out of your fixture.

I think that what determines the ministerial discretion around highest quality is an issue, because it is such a subjective issue. The minister ought not to be in the position of kingmaker, as it were, for our sporting codes and some of this nation's most important events.

In relation to the idea of the quota itself, some sports—not just NRL and AFL—supported the idea, such as Tennis Australia, who suggested that the Australian Open also be subject to a quota so that

… certain content from this tournament is available to subscription television broadcasters, whilst ensuring that key matches remain on the Tier A anti-siphoning event list and available on free-to-air television.

I love the Australian Open when it comes to town. I would love to see some of those doubles matches held on the outside courts. We never get to see them in our lounge rooms. It is an issue, and Tennis Australia was right to raise it through our inquiry. The committee subsequently recommended in their final report that this approach be adopted for other sports, such as tennis, where appropriate.

During our inquiry, the committee also looked into the notification requirements imposed on television broadcasters. A broadcaster will be forced to notify the Australian Communications and Media Authority in writing within 10 business days about any rights to televise an antisiphoning event that the broadcaster has acquired, or of any rights the broadcaster ceases to hold.    So they have had had the negotiation and they have the broadcaster rights. Why not let ACMA know that the contract goes for X period of time rather than requiring broadcasters to come back? It should all just be done in the one notification. Free TV Australia described it as 'cumbersome and unnecessary'. They said:

… you have to notify within 10 days of the cessation of the rights, so if someone makes a five-year deal and they know the end date when they make the deal they cannot tell ACMA then. They have to wait until the end of the deal and then they have this short 10-day window in which to notify ACMA. If they do not do it within that 10-day window, they can be fined $55,000 a day. That is just silly, really.

I could not agree more. It just shows how little this government understands about the commercial reality when it is designing its policy.

So, Madam Acting Deputy President, you will see that this bill is not without some notable problems and has been the source of some angst for stakeholders. The committee made a further recommendation in relation to this issue, suggesting:

… that the bill is amended to enable broadcasters to notify … (ACMA) of the expiration date of broadcast rights at the time those rights are acquired and/or upon any change to the expiration date.

This is common sense really, but it is sadly lacking. The government's response to the convergence review also has the potential to change things for stakeholders in the broadcasting game, and we await the final content of that response with interest.

Technology is changing fast. Traditional broadcasting faces competition from new formats—not just the sourcing and downloading of TV programs from the internet but the creation of whole new mediums. In country Victoria, I refer specifically to the BFNL, the Bendigo Football Netball League, of which I am the patron for the netball league. We are heading to our finals at the moment, and we cannot always get to our games either, for whatever reason. In terms of broadcasting those games and sharing our wins and our losses with the community far and wide, in Bendigo we have an IPTV provider, which really highlights the new technologies that are out there and are going to change the face of how we access our sporting content. If you log onto IPTV, you will be able to download the seniors final games right across the BFNL this weekend. Any time you like to watch them, you will be able to download them on a computer near you. So technologies are changing fast, and it is going to have implications for how we juggle broadcasting rights et cetera, but that is coming down the track.

There is the competition faced by broadcasters from within their own networks. More digital channels split the viewers and the advertising dollar, though they offer huge potential and, as digital television is finally rolled out across the country, may one day make some of the provisions around the antihoarding sections in this bill redundant. There will be enough channels available for each broadcaster to play all of the content they own to their heart's desire and their viewers' desire. We will never miss coverage of another three-day event in our lives. That lawn bowls final will not be lost to the communities that have a passion for that area. So I think there are some exciting things technologically in this space around accessing sporting events for regional Australians—although it is important to note that not everything new is seen by everyone as better than the old.

The High Court recently gave some clarity around one of the other issues we investigated throughout the inquiry, which was the definition of what 'live content' was, in the decision they handed down on Optus Now. Overall, though, stakeholders are very keen to get some certainty around this issue, and it is important to update the antisiphoning lists and allow our sports to negotiate their broadcasting rights in good faith with some idea of what is in store for them down the track—unlike this chamber today around this piece of legislation. We are still waiting for amendments to a piece of legislation that was announced two years ago. It does not bode well for the ideas around the degree of ministerial discretion afforded in this bill, but I think it does ensure that Australians have access to the great sporting events in which we participate and that are such a key part of the fabric of our nation and our identity. The bill goes some way to ensuring that all can share in that. I will leave my comments there and look forward to the minister's amendments.

Senator BILYK

I rise today to speak on the Broadcasting Services Amendment (Anti-siphoning) Bill 2012. Australians love their sport. We are a nation of supporters and fans. Whether it is football, cricket, the Melbourne Cup or the Olympics, Australians will cheer until they are hoarse. They will laugh and cry in a common bond with each other. We celebrate the highest triumphs and commiserate over the most heart-wrenching defeats, and this government understands that. We understand that not all Australians can afford to or want to opt into subscription television services, and this is why a Labor government created the antisiphoning list in the first place: to ensure all Australians can have access to the sports that form a core part of our national identity. Twenty years later the government realises that the media environment is changing. Where there was merely a handful of television channels previously there are now many more, and digital TV is transforming the choice Australians have to watch sports, news and entertainment. Digital TV has completely altered the way the media landscape looks compared to when the Broadcasting Services Act was introduced.

This bill seeks to preserve the existing arrangement whereby subscription television broadcasters are prevented from acquiring the rights to events—

Debate interrupted.

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