Senator Alan Eggleston



Broadcasting Services Amendment (Anti-siphoning) Bill 2012

I rise to speak on the Broadcasting Services Amendment (Anti-siphoning) Bill 2012. This Bill amends the Broadcasting Services Act of 1992 and seeks to amend the anti-siphoning scheme which ensures that major sporting events are broadcast on free-to-air television.

Firstly, let me just put on the record what a mess this Bill has been. Pulled the last couple weeks and even today amendments still being finalised and approved by his own side. The opposition had no idea what was in the amendments – no idea how they would alter the Bill before us – just the rumours from stakeholders to go on. Sloppy work from Senator Conroy but, to be fair – Senator Conroy is nothing if not consistent.

The Anti-siphoning scheme was of course introduced to ensure that with the advent of pay-TV in Australia that all Australians still had access to major sporting events without having to purchase pay TV services. The scheme operates by preventing Pay TV broadcasters from acquiring the rights to designated events, that is events listed on the anti-siphoning list, before free-to-air broadcasters have had the opportunity to bid for and acquire them.

This scheme does allow for a wide range of sports not on the anti-siphoning list to be broadcast exclusively on pay TV, however events like the Melbourne Cup and AFL and NRL finals are protected.

For many years this scheme has faced criticism on a variety of fronts, including that too many sporting events were protected and in many cases events weren’t shown by free-to-air broadcasters but nonetheless couldn’t be shown on pay TV. Sports themselves have also raised concerns that by specifying that events must be shown on free-to-air TV they receive lower licence fees than they may have been able to secure had pay TV also been able to bid for the rights to televise their sport.

I am pleased that some of the concerns stakeholders have had about the anti-siphoning regime are being addressed. This bill will allow free-to-air broadcasters to make greater use of their digital multi-channels when showing listed sports which, considering the digital switchover is well underway – is a sensible move which will increase the programming flexibility of broadcasters without impacting on the ability of Australians to access free-to-air sports. I am sure that when anti-siphoning is next reviewed after the switchover is complete further relaxation of restrictions on multi-channels will be considered.

This Bill also increases the period before an event where if free-to-air broadcasters have not purchased the rights to an event and the event is therefore not being broadcast on free-to-air TV the event is automatically delisted from 12 weeks to 26 weeks which will enable pay TV providers to better assess, prepare for and manage their purchase of rights to such events and sports bodies to better negotiate and engage with broadcasters for the sale of their broadcast rights. I hope this change will see more sports being televised providing greater revenue for sporting bodies and more choice in sports content for viewers.

In a similar light the Bill introduces ‘must offer’ provisions which require free-to-air broadcasters that hold the broadcast rights to an event but cannot or do not cover the event to offer those rights to other free-to-air broadcasters within 120 days of the event for $1 to prevent hoarding of rights by free-to-air broadcasters. If another free-to-air broadcaster fails to acquire those rights they must be offered to Pay TV 90 days from the event. This provision will also ensure that more sports are shown on TV and reduce the number of occasions where rights to an event are held but not used.

Under this Bill we will also see the introduction of a tier system for anti-siphoning, while new Category A and Category B quota groups will enable different conditions to be applied to different events. Tier A events include iconic sporting events such as the Melbourne Cup, Australian Open final, and AFL or NRL finals series and must be broadcast live or with as short a delay as possible. Tier B events must be broadcast within 4 hours of play commencing and may be broadcast on digital multi channels.

Quota Groups are rounds of AFL and NRL matches where a minimum number of matches – a quota - must be shown on free-to-air television. This therefore provides flexibility for certain listed events to bypass certain anti-siphoning provisions. This quota is 4 for AFL and 3 for NRL matches – meaning Pay TV may acquire the rights for remaining matches. This system will also enable the Minister to determine which is the ‘best’ Friday night match and therefore must be shown on free-to-air and for matches involving local teams to be shown in their state market.

The listing of particular events is a matter of ministerial discretion and adds to the sense of some stakeholders that the system is overly complex and provides too much ministerial discretion.

The changes we are considering in this Bill have been a long time coming. The Government first announced changes to the scheme in November 2010 – almost 2 years ago. Since then these changes have been subject to much consideration, commentary and examination – including by the Senate Environment and Communications Committee which reported in May.

The Committee found that the Bill should be amended to expand the ‘quota group’ mechanism to include sports other than the AFL and NRL competitions, such as Tennis. By including Tennis under the quota group mechanism it would be likely that more tennis would be shown live on TV with games within a tournament, such as the Australian Open, able to be shown on free-to-air and pay-TV subject to commercial arrangements.

The Government however has not agreed to this amendment – leaving a confusing situation where different multi-round sporting events are treated differently – with AFL and NRL given preferential treatment, leaving other sports at a financial disadvantage.

The Committee also recommended amendments to relax the reporting requirements placed on broadcasters in relation to the acquisition and cessation of rights. It was found that the current arrangements where free-to-air broadcasters must notify the ACMA both when it acquires rights and ceases to hold rights is an undue administrative burden and it was recommended that this be amended to require broadcasters notify the ACMA of the expiration date of broadcast rights at the same time as rights are acquired. I am pleased that this issue is being addressed via amendments and that this bureaucratic red tape will be cut.

It is worth noting that the anti-siphoning system is a controversial one with free-to-air broadcasters, Pay TV and sports themselves holding varied views on its existence and operation. The Productivity commission found that the regime was ‘a blunt, burdensome instrument that is unnecessary to meet the objective of ensuring wide community access to sporting broadcasts’ and is ‘inherently anti-competitive.’ I hope that the changes we are examining today will improve this system even if it remains a point of concern for some.

This of course is just one area where we are examining the regulation of media in this country. It seems that this Government has a very unhealthy obsession with media regulation and one wonders if before too long newspapers will have to be vetted before they can be printed each day to ensure their content is acceptable to the Government.

What the Government has failed to realise – or is incapable of comprehending – is that media coverage critical of the Government is the result of its own poor performance – not imagined vendettas of the media. If the Government wants to limit critical coverage it doesn’t need an overarching News Media Council but simply to end its appalling policy failures. Programs like Pink Batts, School Halls and Green Loans fuel poor coverage. Promising no carbon tax then implementing a carbon tax fuels poor media coverage. The Australia Network tender debacle fuels poor coverage.

Poor performance breeds critical media coverage – we can all see that. It’s remarkable that those opposite choose to blame the messenger rather than reflect on their own shambolic Government. Take for instance the Member for Bendigo, Steve Gibbons. A few weeks ago he came out with the bizarre statement that:

“In my view, fines such as these for publishing blatant untruths or misleading news reports, or temporary suspensions of the right to publish or broadcast, would lead to a major improvement in the accuracy and fairness of our media.”

Truly remarkable – Labor MPs suggesting newspapers be fined or even shut down if the Government believes their reporting was misleading. I was concerned by the reporting of Mr Gibbons comments though because Ben Packam’s article posted on The Australian website failed to include anything on Mr Gibbons saying that politicians who state blatant untruths or mislead the public be fined or suspended from Parliament. Perhaps Mr Gibbons didn’t make such comments – perhaps he realised if what was good for the goose was good for the gander in this respect Julia Gillard would be thrown out of Parliament for the blatant untruths she has told the Australian people.

Can you imagine the witch hunts Mr Gibbon’s new rules would create – however, an upside could be that newspapers would no longer be able to print stories on the rollout of the NBN because we all know that the figures NBN Co produces are misleading if not blatantly untrue – they’ve never met a single deadline they’ve set for themselves so I assume printing NBN Co’s pie in the sky promises of millions of homes being passed by fibre would fail Mr Gibbon’s truth test. But suppose a newspaper was brave enough to print NBN Co’s claimed roll out figures – when the deadline passes and they’re found to be untrue – who would pay the fine – the newspaper or NBN Co for misleading them?

Attacking the freedom of the press surely is a sign of the desperation permeating in Labor’s ranks. It’s the desperate, embarrassing bleating of a Government incapable of dealing with its own failures.

Finally, in regards to the Anti-siphoning Bill at hand, it should be noted that in a converged world we are seeing increased coverage of sports from online sources and on mobile devices and with Australians having more television channels than ever before thanks to digital TV, consumers are coming to demand greater flexibility in the way they access and view sports coverage. There is also increasing pressure from sporting bodies themselves to ensure they are able to maximise the return they receive from selling the rights to cover their sports. Time will tell whether this iteration of anti-siphoning rules has struck the right balance or not – but in any event I expect this is a debate we will be having again in the not-too-distant future as convergence accelerates and the preferences of consumers for more flexible access to sports coverage matures.

Now due to the shambolic manner in which amendments to this Bill have been handled and the significant concerns from stakeholder groups about these amendments let me just flag the Coalition will be supporting a motion to refer this Bill back to the Environment and Communications Committee for further review of the amendments proposed and their impact on the operation of the Anti-siphoning scheme.

This scheme is an important piece of public policy and sports-loving Australians do have a right to expect that any changes to this scheme be carefully and thoroughly considered. The Coalition will ensure such consideration is given.

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