Key points

• The Bill seeks to implement the public policy of ensuring Australians can access coverage of culturally significant news and events on television for free.
• The Bill introduces a ‘prominence framework’ – a set of minimum requirements that manufacturers of internet-connected televisions and television-like devices must meet regarding the accessibility of free-to-air television content on regulated television devices.
• The Bill amends the existing anti-siphoning scheme to address the risk of significant sporting events migrating behind paywalls on online streaming platforms. The Bill makes two key changes to the anti-siphoning scheme:
  • expanding coverage of the scheme to forbid ‘media content services’ from acquiring rights to broadcast listed events, until they have been acquired by certain free-to-air broadcasters, or the events have been de-listed. Currently, the scheme only restricts rights acquisition by subscription television broadcasters.
  • lengthening the automatic de-listing period for events from 26 weeks before the event starts to 52 weeks before the event starts.
• The amendments to the anti-siphoning scheme benefit free-to-air broadcasters and increase the likelihood of events being broadcast for free. However, it is unclear whether the amendments will significantly reduce the risk of content being made available exclusively online. Further, it provides increased advantage to free-to-air broadcasters at the expense of other media content providers and (in particular) sporting organisations.
• Both Schedules position broadcast video on demand (BVOD) services related to broadcast television licensees as protected sources of public information, even when there may be limited difference between them and other free to access online content.

Introductory Info

Date introduced: 29 November 2023
House: House of Representative
Portfolio: Infrastructure, Transport, Regional Development, Communications and the Arts
Commencement: Schedule 1 on the day after the Act receives the Royal Assent; Schedule 2 on a single day to be fixed by Proclamation but no more than 6 months after the Act receives the Royal Assent.

Purpose of the Bill

The purpose of the Communications Legislation Amendment (Prominence and Anti-siphoning) Bill 2023 (the Bill) is to:

• amend the Broadcasting Services Act 1992 (BSA) and the Australian Communications and Media Authority Act 2005 (ACMA Act) to legislate a prominence framework for connected television devices
• amend the BSA to reform the anti-siphoning scheme to include new media platforms as well as broadcast subscription television.

Structure of the Bill

The Bill is divided into 2 Schedules. Schedule 1 establishes a prominence framework for connected television devices. Part 1 of this Schedule outlines the main amendments to the BSA to establish the framework, and Part 2 outlines consequential amendments to the BSA and ACMA Act. Schedule 2 amends the BSA to reform the anti-siphoning scheme. The Bills Digest provides separate background and analysis to the 2 schedules.

Committee Consideration

The Bill was referred to the Senate Environment and Communications Legislation Committee. The report is due on 26 March 2024.

Financial implications

The Explanatory Memorandum states that the Bill will have no financial impact.[1]

Statement of Compatibility with Human Rights

As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible.[2]

The Parliamentary Joint Committee on Human Rights considered the Bill in Report 14 of 2023, published on 19 December 2023 and had no comment (p. 3).

Schedule 1 – Prominence Framework

What is the prominence framework?

The proposed prominence framework – not currently provided for in the BSA – would introduce a ‘must carry’ obligation on manufacturers of Smart TVs and TV smart accessories to ‘ensure that local free-to-air television services can easily be found on connected television devices in Australia’.[3]

Background to proposed reforms

Prior to the 2022 federal election, Labor committed to ‘legislate a prominence regime to ensure audiences can easily find Australian services on connected TV platforms, like smart TVs’.[4] This policy addresses the changing reality of Australian media technology and consumption habits. While linear free-to-air (FTA) television (i.e. live broadcast television) was once the sole option for television viewing, its popularity and accessibility is waning, with audiences shifting to online and on-demand platforms.

According to an Australian Communications and Media Authority (ACMA) report released in December 2023, 52% of Australians watched FTA television excluding catch-up TV in a seven-day period, 43% watched FTA broadcast video on demand (BVOD) services, and a record 66% watched paid subscription streaming services.[5] However, Deloitte’s Media & Consumer Insights 2023 report also shows that the growth in digital media subscriptions per household is plateauing as concerns about price mean Australians are spending slightly less per month on subscriptions.[6]

The accessibility of FTA linear television and BVOD services is not guaranteed. The same ACMA report cited above details that 78% of the population own a Smart TV, with 66% owning a Smart TV only (rather than a standard TV).[7] The Department of Infrastructure, Transport, Regional Development, Communication and the Arts’ (the Department) 2022 Television Consumer Survey also indicates that a large proportion of the population (54%) use a TV smart accessory, such as a Chromecast or Apple TV box.[8] Although Smart TVs and TV smart accessories generally have FTA access, this is not always the case.[9] The report details that 49% of survey respondents indicated that their TV does not have all FTA BVOD apps and that 25% have no FTA apps available on their TV.[10]

According to the Explanatory Memorandum, commercial agreements between device manufacturers and content services often determine what services are readily available on certain devices and in what positions – increasing the costs and competition for FTA broadcasters to remain visible and accessible on common devices.[11] Further, even when FTA apps are readily available, consumers may not have the digital literacy skills to download or navigate to this content. These combined factors create an emerging risk that FTA content may become inaccessible on common television devices. Further, with only 44% of respondents always sure of which service (i.e. FTA or a streaming service) they want to watch prior to turning on their device, it is reasonable to assume that app prominence and accessibility may affect viewing habits.[12]

The waning accessibility of linear FTA television presents concerns. While there are standards in place for broadcast television licensees (outlined in the Broadcasting Services Standards), similar standards do not apply to streaming services.[13]

The idea of introducing a prominence framework to address these concerns is not new, nor unique to this government or Australia. The Future of Broadcasting Workshop Group, established under the Morrison Government, agreed to prioritise the issue of prominence during its first meeting in April 2022.[14] There are also examples of prominence frameworks in place in Germany (Section V, Article 84 of the Interstate Media Treaty) and under development in the United Kingdom.

The Government has been developing a prominence framework since taking office. The Minister for Communications consulted with the Future of Broadcasting Working Group on the topic in 2022.[15] These consultations informed the Prominence Framework for Connected Television Devices – Proposals Paper released by the Department for comment from late 2022 to early 2023. This paper outlines a variety of approaches to developing and implementing a framework. The proposals cover 3 types of prominence (p. 10):

1. availability (whether an application or type of TV content is present on a device)
2. positioning (the relative visibility of apps on TV devices) and
3. discoverability (the ability of users to find particular content on TV devices).

The paper also considers the scope of the framework (defining local TV services; defining regulated TV devices; defining responsible parties), different framework models, and different approaches to framework implementation (an industry code, amendments to the BSA, or an industry code with supporting legislation).

Key issues and provisions

The key issues raised by Schedule 1 of the Bill include:

• whether the Bill will improve wide-spread access to information regarding local issues and events to enable Australians to participate in ‘public debate and democratic decision-making’
• whether increasing prominence and access to FTA services will materially impact the current trend of audiences increasingly choosing to access paid streaming services and BVOD services over FTA services
• the reliance on delegated legislation to underpin the prominence framework
• challenges in enforcement and
• potential ancillary (financial) impact on consumers.

Key issue: free-to-air television and ‘democratic decision-making’

The objects of the proposed Part 9E of the BSA are set out in proposed section 130ZZG and clearly demonstrate an underlying policy position that:

• wide-spread access to information regarding local issues and events is in the best interests of Australian audiences and
• access to such information is key in enabling Australians to participate in ‘public debate and democratic decision-making’.

When considered in the context of the proposed prominence framework as a whole, it also definitively positions FTA television as a critical enabler of the sharing of this relevant content.

The proposed prominence framework seeks to protect and ensure access to regulated television services, which includes the national broadcasters (ABC and SBS) and their associated BVOD services, commercial television broadcasting services and associated BVODs, community television broadcasting services and services specified by the Minister (proposed section 130ZZJ).

The proposed prominence framework ensures that regulated televisions devices (as defined in proposed section 130ZZI) such as smart TVs, must provide access to content which is, by definition, made available free to the general public.[16] This contrasts with subscription broadcasting services and subscription video on demand (SVOD) services. Commercial radio is also covered by the BSA and is also, by definition, free to the general public. Radio is not included within the scope of this Bill, however the Government has flagged that they also intend to introduce a prominence framework for radio.[17] The proposed framework does not account for other free to access content services – for example Kanopy and Kayo Freebies ­– nor hybrid platforms that offer both free and paid content – for example, YouTube.Unlike other information sources, FTA linear television is subject to local content requirements. For commercial television broadcasters, these are outlined at 121G of the BSA and in the Broadcasting Services (Australian Content and Children’s Television) Standards 2020; for the ABC and SBS, in their respective enabling legislation; and for community television in the Community television codes of practice.[18] FTA linear television services are also accountable to industry codes of practice, and they play an important role in sharing emergency announcements, such as bushfire warnings.[19] These standards do not apply to subscription broadcasting services or to SVOD services.

The above Broadcasting Services Standards also do not apply to BVOD services, with the exception of the relevant code that applies to the SBS.[20] BVOD services may contain both ‘catch-up’ programming, which has previously or simultaneously been broadcast on FTA linear television, and exclusive online content. The viewer may choose which content to watch. Despite this, the Bill positions BVOD services as an important public service product by providing coverage for them in the proposed prominence framework.[21] This is furthered by item 9 in Part 2 of the Bill, which inserts ‘to promote access to certain broadcasting services and broadcasting video on demand services that are made available free to Australian audiences and users’ [emphasis added] to subsection 3(1) of the BSA (the objects of the Act).

Free access to culturally significant content is a strong feature of the Australian broadcasting system, as outlined in the Objects of the BSA.[22] Protecting access to FTA linear television is therefor consistent with that public policy function of connecting Australian audiences with local content, as well as bolstering the unique roles of the national broadcasters, as outlined in their enabling legislation.[23] Further, research suggests that access to local media content – including local political news – generally correlates with civic engagement, which may facilitate democratic decision making.[24]

Smart TVs and the shift to streaming

As mentioned above, 78% of Australians own a Smart TV, 66% of the population own a Smart TV and not a standard TV, and 54% use a TV smart accessory.[25] These devices do not always automatically provide easy access to FTA catch-up TV apps.

Proposed section 130ZZO provides for the prescription of minimum prominence requirements to which regulated television devices must comply in relation to the prominence and availability of regulated television services. As noted earlier, regulated television devices are defined at proposed section 130ZZI in a way that includes internet enabled devices with the primary purpose of facilitating the viewing of audiovisual content, such as Smart TVs and TV smart accessories.

The minimum prominence requirements for Smart TVs and TV smart accessories are intended to ensure that FTA content remains readily and easily accessible on common devices. This is critical to ensure that FTA television does not become redundant, as the definition of commercial broadcasting and community broadcasting within the BSA includes that programming is able to be received by ‘commonly available equipment’.[26]

Currently, large proportions of the population are choosing to engage with non-tradition video content and methods of access. 66% of Australians watched paid subscription streaming services in 2023, and nearly equal numbers of consumers streamed video content on their mobile phone as on their Smart TV. [27]

Increasing prominence and ease of access to FTA services (including BVOD provided by FTA providers), does not ensure that audiences will choose to access such FTA or related BVOD services. Rather, it can be expected to:

• bolster FTA providers as the government's preferred vehicle for the Australian public to engage with content of political and cultural importance
• make it easier for those who want to access such services to do so and
• increase the likelihood that the 56% of consumers that are unsure of which service (i.e. FTA or a streaming service) they want to watch prior to turning on their device will be aware of and may select an FTA or related BVOD service due to app prominence and increased accessibility of such services on their device.[28]

The government’s proposed legislation to introduce local content rules for paid streaming / SVOD services is one approach to ensuring that local content reaches Australian audiences.[29]

The minimum prominence requirements and the prominence of delegated legislation

The Bill leaves many key operational aspects of the prominence framework to delegated legislation. In effect, the Bill provides for the development of a prominence framework through delegated legislation without stipulating in any great detail what that framework is.

The minimum prominence requirements will be formed through regulations as per proposed section 130ZZO. The intended regulations are outlined in the Broadcasting Services (Minimum Prominence Requirements) Regulations 2024 – Exposure Draft, released on 6 February 2024.

This level of delegated legislation is not uncommon, especially in laws regulating rapidly evolving technologies or sectors – it allows for a high degree of flexibility, which is useful, in this case, in the realm of media regulation, where new technologies are constantly emerging. The ability to update and change the minimum prominence requirements without the need for the Government to seek to amend legislation will allow for the framework to remain relevant to changes in media and broadcasting, including technical changes.

This Bill provides for the following matters to be decided under delegated legislation:

• proposed subsections 130ZZI(2) and (3) – ACMA may determine that specified domestic reception equipment is or is not a regulated television device
• proposed subsections 130ZZJ(2) and (3) – the Minister may determine that a specified service is or is not a regulated television service (and therefor included in the prominence framework)
• proposed subsection 130ZZL(3) – ACMA may describe a primary user interface, and determine requirements relating to an interface used by regulated television devices
• proposed subsection 130ZZN(9) – ACMA may determine circumstances in which a regulated television service is or is not taken to be offered and determine different circumstances in relation to different regulated television services or kinds of regulated television services.

This delegated legislation allows ACMA and the Minister to expand the prominence framework to keep pace with developments in technology, services, platforms, and consumer trends. For example, proposed subsection 130ZZI(1) currently defines regulated television device as a device with the primary purpose of facilitating the viewing of audiovisual content. If, however, consumer data showed that audiences were migrating to multi-use devices for accessing audiovisual content, then proposed subsection 130ZZI(2) would allow ACMA to expand coverage of the regulations to these specified devices. Similarly, proposed subsections 130ZZL(2) and (3) allow the Minister to capture new services or platforms that may emerge – this could, for example, include potential BVOD services offered by community television broadcasting licensees, or digital-only providers of free local content. Proposed subsections 130ZZN(9) and 130ZZL(3) acknowledge the idiosyncrasies of different regulated television services and regulated television devices, and allow for regulations to be tailored to different devices and platforms.

Proposed subsection 130ZZN(9), by allowing ACMA to determine different circumstances in relation to different regulated television services or kinds of regulated television services, may allow ACMA to develop different prominence regulations for, for example, the national broadcasters and commercial television broadcaster licensees.

Manufacturer obligations and enforcement

Item 24 of Part 2 of Schedule 1 of the Bill provides that the obligations imposed in relation to regulated television devices under the prominence framework apply to a device that is manufactured on or after the day that is 18 months after the commencement of the Schedule, or is supplied on or after that date. 

Proposed section 130ZZN outlines the obligations and enforcement regime related to the prominence framework.

Obligations

Proposed paragraph 130ZZN(1)(a) positions manufacturers of regulated television devices (or a related body corporate) as the person responsible for complying with the minimum prominence requirements.

Proposed subsection 130ZZN(1) provides that it is the responsibility of the manufacturer to not supply a regulated television device in Australia if it does not comply with the minimum prominence requirements for a regulated television service that is offered. As mentioned above, the minimum prominence requirements will be formed through regulations as per proposed section 130ZZO, with the intended regulations outlined in the Broadcasting Services (Minimum Prominence Requirements) Regulations 2024 – Exposure Draft.

Proposed subsection 130ZZN(2) provides that the manufacturer must take reasonable steps to continue to comply with the minimum prominence requirements from immediately after the time the device is supplied until the earliest of the following times:

• the time when an action by a user of the device results in the device not complying with those requirements (i.e. a user delete’s a pre-installed app)
• the time when the software used on the device is no longer provided, updated or supported by the manufacturer or another person on behalf of the manufacturer
• the time when the regulated television service is no longer offered by the regulated television service provider.

Proposed subsection 130ZZN(3) provides that a manufacturer must not require a regulated television service provider to pay a fee, charge or any other consideration in connection with the device complying with the regulations. Further, proposed subsection 130ZZN(4) provides that a manufacturer must take reasonable steps to ensure that the audiovisual content provided by a service, including any advertising or sponsorship matter, is not altered or interfered with when made available on a device.

Enforcement options available to ACMA

Under the Bill, ACMA has a number of enforcement options available to it to deal with circumstances where a manufacturer does not comply with its obligations as outlined above.

Firstly, it is a civil penalty for a manufacturer not to comply with proposed subsections 130ZZN(1),(2),(3) or (4) (as provided by 130ZZN(5)). This does not apply if a manufacturer’s failure to comply with 130ZZN(1) or (2) is because of circumstances that are outside of its control (see 130ZZN(6)(c)). The Explanatory Memorandum provides an example of circumstances where this may occur:

There is a technical problem with the regulated television service that prevents its installation or operation on a regulated television service that prevents its installation or operation on a regulated television device, or where there is a network failure that prevents the installation of certain regulated television services.[30]

Proposed subsection (5AB) at Item 17 of Part 2 of Schedule 1 outlines the pecuniary penalty payable in respect of a failure to comply:

• If the person is a body corporate – whichever of the following is greatest:
  • 10,000 penalty units
  • 3 times the value of any benefit that the Federal Court determines that the body corporate, and any related body corporate, has obtained directly or indirectly and that is reasonably attributable to the contravention
  • If the Federal Court cannot determine the value of that benefit – 2% of the annual turnover of the body corporate during the period of 12 months enduring at the end of the month in which the contravention occure
• if the person is not a body corporate – a maximum of 2,000 penalty unites.

Alternatively, proposed subsection 130ZZN(7) provides that ACMA may issue a formal warning to a manufacturer if they are satisfied that they have contravened proposed subsections 130ZZN(1),(2),(3) or (4) – providing an enforcement option other than seeking a civil penalty.

130ZZP further outlines the remedial directions available for contravention of the minimum prominence requirements. 130ZZP(2) provides that ACMA may issue a manufacturer with written direction to take a specified action towards ensuring that they do not contravene these regulations in the future (effectively connecting the provision with the established infringement notice regime within the Act[31]). If the manufacturer contravenes this direction, ACMA may issue an infringement notice (proposed subsection 130ZZP (6)) and a civil penalty order (proposed subsection 130ZZP (4)). A new civil penalty will be counted for each day that the person continues to contravene the direction (proposed subsection 130ZZP (5)). The pecuniary penalties payable in relation to these civil penalties are in proposed subsection (5AC) of Item 17 of Part 2 of Schedule 1:

• if the person is a body corporate – a maximum of 5,000 penalty units
• if the person is not a body corporate – a maximum of 1,000 penalty units.

To assist in enforcing the obligations proposed by the Bill, proposed section 130ZZQ affords ACMA the power to require a manufacturer (or related body corporate) of a regulated television device, or a regulated television service to provide ACMA with information or documents that are relevant to monitoring compliance with the regulations or the performance of ACMA’s functions under paragraph 10(1)(a),(b),(c),(n) or (q) of the Australian Communications and Media Authority Act.[32] Not complying with a request to provide relevant information of documents attracts a civil penalty (see 130ZZQ(4)). The pecuniary penalties payable in relation to this penalty are outlined in proposed subsection (5AD) of Item 17 of Part 2 of Schedule 1.

Issue: Implementation risks

Risks raised by Schedule 1 of the Bill include:

• costs for FTA broadcasters to create device-specific apps in order for apps to be ‘offered’
• a potential reduction in manufacturer’s revenue from the monetisation of app prominence creating disincentives to compliance
• a potential reduction in the variety of software available creating disincentives for innovation.

As outlined above, proposed section 130ZZN includes an obligation that manufacturers ‘must carry’ apps for regulated television services as provided for in the minimum prominence requirements. Further, proposed subsection 130ZZN(9) provides that ACMA may, by legislative instrument, determine circumstances in which a regulated television service is taken or not taken to be ‘offered’. According to the Explanatory Memorandum:

it is intended that any such determination by the ACMA would prescribe that, for a registered television service to be offered, it must meet minimum technical specifications for integration into the software used on a regulated television device.[33] [emphasis added]

However, in the absence of any such determination from ACMA, it appears that whether an app is ‘offered’ by a regulated television service provider or not will take its ordinary meaning. That is, if no version of the app exists that is compatible with a regulated television device, then it will not be ‘offered’ in relation to that device.

As a result, as software changes across regulated television devices, it follows that a registered television service may need to develop multiple apps to be compatible across different regulated television devices. SBS Managing Director James Taylor outlined the practical implications of this during the Senate inquiry into this Bill:

So each manufacturer has its own app environment. We have to develop our app and build our app for that app environment. I think we have 16 separate versions, effectively, of SBS On Demand—one for Sony, one for Samsung, one for Hisense et cetera. They're all slightly different. We bear the full cost of that software development. And, when the manufacturer changes something—does a firmware upgrade or changes one of their standards—we'll wake up in the morning and find out that our app doesn't work properly. So we have to develop it and redeploy an update, in the same way that you see updates all the time on your device.[34]

This could create tensions:

• regulated television services must provide device-compatible apps for a range of different regulated television devices for their app to be considered ‘offered’ and therefore trigger the manufacturer’s obligation to comply with the minimum prominence requirements and
• manufacturers of regulated television devices must carry regulated television services, but only if they are ‘offered’ by a regulated television service provider.

There is a potential disincentive for manufacturers to comply with the prominence framework as it may impact their ability to monetise prominence. While the costs of current commercial agreements are not published, SBS’ James Taylor recounted:

In June 2018 the manufacturer of the best-selling connected TV in Australia wrote to SBS and advised that unless we agreed to a 15 per cent revenue share arrangement and a placement fee, SBS would be removed from the app launcher on the TV homepage for that brand. When SBS refused to pay, the manufacturer carried through on their threat, making it much harder for audiences to find the SBS On Demand app. Then, in August 2020, that same manufacturer delivered the same demand, but this time threatening to take SBS On Demand off the platform entirely… In August 2023, we received notification from another platform operator, that unless SBS agreed to pay them 30 per cent of the revenue we derived from being on their platform, they would exclude us entirely.[35]

Seven West Media’s Chief Executive Officer James Warburton, points to a similar figure of 10–20% of revenue going to manufacturers in order to be on their device, in addition to an outlay of approximately $21 million to develop customised apps for different devices.[36]

There appears to be at least a possibility that manufacturers may opt to develop alternative software environments that are not compatible with current FTA services, to avoid carrying those services and to maintain lucrative commercial agreements with SVOD services. This may increase costs to FTA providers which would need to develop new software to make their apps compatible, if they found it in their best interests to do so.[37]

Alternatively, a legislative instrument made by ACMA under proposed subsection 130ZZN(9) could generally determine that all FTA BVOD are offered at a given time. Manufacturers would then have to develop, adapt, or change software to carry certain services, if required by the guidelines.[38] As outlined by the Consumer Electronics Suppliers Association (CESA) in their submission to the Senate inquiry into this Bill, this may ‘create an uneven playing field with some manufacturers bearing the cost of compliance’.[39] CESA suggests that:

a ‘must carry’ obligation on manufacturers must be accompanied by a reciprocal ‘must offer’ obligation on the regulated television service provider so that if a regulated television service BVOD service app is offered to one manufacturer it must offered to all manufacturers. This is necessary to ensure that the prominence framework is equitable.[40]

It is possible that the costs required for some manufacturers to comply with the proposed prominence framework may encourage manufacturers to opt for a dominant operating system. This may result in a reduction of variety of software in televisions on the market and stifle innovation. Further, the cost of compliance – through the potential loss of income from commercial agreements and/or software changes – may disincentivise smaller manufacturers from entering the Australian market, which reportedly only accounts for 1% of the global television market.[41]

Ancillary impacts

Ensuring that FTA television is readily and easily accessible on all regulated television devices may have the effect of reducing costs to consumers, who may otherwise purchase subscription services in lieu of access to free services in order to access content in which they are interested.

Introducing a prominence framework may increase FTA viewers, in turn increasing FTA advertising revenue. Proposed subsection 130ZZN(3) provides that a person responsible for providing a regulated television device cannot charge a regulated television service in connection with complying with the proposed prominence framework requirements. This means that the prominence framework may reduce expenditure by FTA providers on commercial agreements with manufacturers regarding the availability of their services on devices.

Decreased FTA costs and increased FTA revenue may therefore protect the viability of an industry that has been hit by the growing market power of overseas streaming services.[42]

Additional provisions

Proposed section 130ZZV provides that there will be a review of operation, effectiveness and implications of the prominence framework, which must commence as a soon as practicable after the end of the 3-year period starting on the day that is 18 months after the commencement of proposed Part 9E of the BSA.

Policy position of non-government parties/independents on Schedule 1

At the time of writing, no clear statement from non-government parties/independents were identified indicating their position on the measures contained in Schedule 1 of the Bill.

Position of major interest groups

Prior to the tabling of legislation, the Australian Subscription Television and Radio Association (ASTRA) and Free TV Australia released their positions on the expected framework.

ASTRA launched a campaign against a prominence framework on 6 November, equating the move with government controlling the personal freedom of choosing what to watch, and citing a survey commissioned by Foxtel that shows that 94% of Australians do not want the order of apps on Smart TVs to be controlled.[43] It should be noted that while the survey results have been used to imply that viewers are therefore against a prominence framework, it neglects the fact that the order of apps may already be controlled by the commercial agreements between manufacturers and streaming services.

The campaign may have overlooked the implications of proposed paragraph 130ZZN(2)(b)(i) which states that the minimum prominence standards will cease to apply ‘when an action by a user of the device results in the device not complying with those requirements’ (ie a user’s ability to make changes to their Smart TV will not be impeded).

Free TV Australia countered with a campaign focussed on the importance of a prominence framework to ensure that ‘big tech’ doesn’t control who has access to free content.[44] Free TV Australia’s earlier submission to the government’s 2022 Proposals Paper further stresses the importance of a prominence framework, noting that FTA access supports key media policy aims.[45] It also notes that local TV providers are in a weak bargaining position compared to overseas streaming services regarding negotiating agreements for prominence on television devises, and that Government intervention will alleviate this stress.[46]

Also representing broadcast television, SBS supports the proposed framework as a matter of urgency. It further notes that ‘Australian taxpayers should have unimpeded access to public broadcasting content and services which they have funded’.[47] The Australian Community Television Alliance also supports a framework to ensuring that Australians have access to local content that reflects diverse communities.

In their evidence provided to the Senate Inquiry into this Bill, the FTA broadcasters and Free TV Australia presented general support for the Bill with the united preference that the timeframe for implementation be reduced from 18 months to 6 months.[48]

Netflix generally supports a prominence regime to ensure access to Australian broadcasters but stresses that such a framework should not stifle consumer choice (p. 1). Similarly, Google – speaking as a manufacturer of smart accessories and TV operating systems –supports the policy intent of the framework. It notes, however, that user choice should be respected as paramount, and that the framework should not restrict innovation.[49] They do not support the framework placing compliance obligations on device manufactures, as they note that:

the content displayed on a Smart TV device is contingent on numerous “layers of the stack” each of which has different complexities and levels of control over the customer experience. For example, in the Smart TV space, a given offering may depend on any combination of: the underlying software provider, consumer-facing software provider, one or more device and/or component manufacturers, and the over-the-top content providers.[50]

The Connected TV Marketing Association believes that a prominence framework would ‘would raise platform costs and increase prices to Australian consumers, and stifle innovation of future digital trade in the home’.[51]

Australian Children’s Television Cultures and the Australian Children’s Television Foundation support increasing prominence of Australian content.

Schedule 2 – Anti-siphoning list

What is the anti-siphoning list?

The anti-siphoning scheme was first legislated in the Broadcasting Services Act (BSA) in 1992 and came into effect in 1994, coinciding with the establishment of Foxtel in Australia, and a significant change in the broadcasting environment to include both free-to-air (FTA) and subscription television.[52] Under the scheme, FTA broadcasters have priority acquisition rights over subscription television broadcasters for events on the ‘anti-siphoning list’ – a list of events deemed ‘in the national interest’, created under disallowable instrument. FTA broadcasters are not required to acquire rights to listed events, or to televise events that they do acquire. Further, FTA broadcaster may on sell rights. This mechanism seeks to ‘increase the likelihood’ that such events remain freely accessible to the public.[53] While the anti-siphoning list may include all kinds of events, as of the time of writing, it has only included sporting events.

Background to proposed reforms

Ahead of the 2022 Federal Election, Labor committed to reviewing the anti-siphoning scheme in the context of online streaming platforms.[54]

The scheme has been reviewed multiple times since its inception. A history of the anti-siphoning scheme is contained in this Library publication, and a list of past reviews is included in the Australian Government’s 2010 report on a review of the anti-siphoning scheme.[55] The composition of the list itself has often been a source of contention and has been reformed on numerous occasions. Reviews have noted the scheme’s shortcomings and the difficulty of balancing viewer’s and stakeholders’ interests. For example:

• the Productivity Commission’s (PC) 2000 Broadcasting Inquiry Report found the scheme gave competitive advantage to FTA broadcasters while impacting sporting organisations and viewers[56]
• a 2009–2010 Government review noted that the scheme may adversely affect sporting bodies and that 'its effectiveness in ensuring free-to-air coverage of significant sporting events could be improved’[57] and
• the PC’s 2009 Annual Review of Regulatory Burdens on Business: Social and Economic Infrastructure Services suggested the option of abolishing the scheme should be explored.[58]  

The emergence of the internet as a source of sports streaming was flagged as early as the 2000 PC review.[59] The 2009–2010 review further identified the emergence of new media platforms for watching sport – such as Telstra’s Bigpond Sport website, Fox Sports’ English Premier League coverage, and various mobile network’s coverage of various sporting competitions – and the inadequacy of current legislation to regulate in this area. The review’s discussion paper notes that:

The anti-siphoning scheme was introduced in 1994, when concern was raised about the impact of the then emerging pay television services on free-to-air television services. As a result, the scheme affects television broadcasters only and does not affect sports coverage on any other media platform.[60]

The review report, released in 2010, however, concluded that:

At present, sports coverage via new media platforms appears to be supplementary to that of traditional television. New media services such as IPTV remain in their infancy in Australia and there are no examples to date of sporting events being siphoned exclusively to these platforms.

…

it is possible that in the future subscription-based new media services may indeed pose a threat to free access to sport for Australian audiences.[61]

The broadcast environment has continued to change significantly since 2010, with a substantial rise in online streaming services and subscription-based new media services. FTA stakeholders have been calling on the government to review the anti-siphoning scheme in the context of online streaming platforms since at least late 2016.[62] Such changes were flagged ahead of the 2017 Communications reforms – which included some changes to the anti-siphoning list – but ultimately not pursued.[63]

The Government released a Review of the anti-siphoning scheme: Consultation paper in October 2022. The stated aim of the review was to ‘examine the role and impact of the scheme in a contemporary media environment’, noting that ‘the central question for this review is whether this broad objective of free access to televised coverage of important events is being met by the scheme and the anti-siphoning list in their current form, and whether changes to these regulatory arrangements are warranted.’[64]

The consultation paper was followed by a Proposals Paper, released in August 2023. The paper accepts the suitability of the scheme in terms of addressing policy intentions of providing free access to events of national and cultural significance. It explores three different models for the reform of the scheme, and three approaches to a review of the list itself. The proposals paper focuses on what it describes as a ‘regulatory gap’ relating to the scheme’s lack of application to online services, leading to a ‘latent although material risk of listed events migrating behind online paywalls in the coming years’.[65]

It should be noted that, to date, only one event on the anti-siphoning list at the time of rights acquisition, has been acquired by a content provider other than a national broadcaster or commercial broadcaster – in July 2023, Tabcorp acquired the rights to the 2024 Melbourne Cup.[66] Optus also acquired the rights to the 2023 FIFA Women’s World Cup, with select games broadcast over Seven and free on Optus Sport, with other tournament games behind a paywall.[67] This event has since been added to the anti-siphoning list.[68]

Key issues and provisions

Schedule 2 repeals section 115 of the BSA – which allows the Minister to create the anti-siphoning list – and replaces it with a similar but expanded provision at proposed Part 10B, as well as making other minor amendments to the BSA. The provisions relating to the anti-siphoning scheme has moved from Part 7 to proposed Part 10B as Part 7 is specific to subscription television broadcasting services and therefore is no longer appropriate.

There is also a proposed modification to the composition of the anti-siphoning list. This is expected delegated legislation and not part of the Bill.

The key issues raised by Schedule 2 of the Bill include:

• what constitutes ‘free’ access to content
• the competitive advantage afforded to FTA providers for digital rights as well as television rights
• the impact of the anti-siphoning list on sporting bodies, and
• the duration of listings on the anti-siphoning list and the Minister’s power to extend listings.

What does ‘free’ mean?

A key tenet of the anti-siphoning list – not dissimilar to that of the prominence framework – is the importance of free access to content of ‘national significance’. The proposed amendments to the anti-siphoning list seek to mitigate the risk of listed events migrating behind paywalls.

In relation to this, Schedule 2 of the Bill raises issues including:

• free-to-air broadcast television is prioritised over online free-to-access services
• there are audiences who cannot access FTA broadcast television, just as there are audiences who cannot access the internet to stream content
• commercial broadcasters need only to access 50% of the population to qualify for priority acquisition rights.

This Bill enacts what the 2023 Proposals Paper referred to as a ‘broadcasting safety net’. This approach maintains the basic architecture of the existing scheme but extends coverage to prevent media content service providers (apart from the national broadcasters and certain commercial television broadcasting licensees) from acquiring media rights for listed events until a national broadcaster or a certain commercial television broadcasting licensee that reaches more than 50% of the Australian population has a right to televise the event (proposed section 146W). A listed event is automatically removed from the anti-siphoning list 8,760 hours (12 months) before the start of the event, unless the Minister determines it should remain on the list (proposed subsection 146V(2)).

While subscription television can be seen as an opposite to FTA – in that subscription television is inherently not-free – broader media content providers are not inherently paid services.

YouTube, for example, is a new media captured under the expanded definition in proposed section 146W, where the majority of content is currently freely available. SVOD services – such as Kayo Freebies and Optus Sport – also provided dedicated free coverage of some events. Further, as was indicated with the coverage of the 2023 FIFA Women’s World Cup by Optus, all games featuring the Matilda’s (at the time not on the anti-siphoning list, but now included) were made freely available online and through the sub-licencing broadcast rights to Seven. Despite this, Schedule 2 of the Bill further positions and preferences FTA broadcast television as the primary source for free access, rather than other media (even free to access media) by extending the anti-siphoning scheme to broadly cover media content services.

Underpinning the preferencing of FTA is the question of what is meant by the term ‘free’. As outlined in the Proposals Paper, there are both ‘explicit’ and ‘implicit’ costs associated with accessing content. Explicit costs amount to subscription fees to access content, and implicit costs cover other costs implicit in accessing content, such as equipment, electricity, and internet connection.[69]

As outlined in the Explanatory Memorandum, there remains a small but significant percentage of the population who do not have access to internet, or to the broadband capacity required for streaming video. Further, there have been instances where online services have not been able to keep up with audience demand.[70] On the inverse, as noted in the discussion of Schedule 1 of the Bill, there is also an audience that does not have access to linear FTA television; however, this would be addressed through the proposed prominence framework. Further, certain commercial broadcasters need only to access over 50% of the population to qualify for priority acquisition rights (proposed paragraph 146W (2)(b)(ii)).

While the Government regards a technology-neutral model as an ideal long-term approach to the anti-siphoning list (ie treating free online services and free broadcast television services as equally accessible), the Government has chosen to preference broadcast television coverage over free online services, considering it, at this time, as the most reliable and equitable mode of free access to culturally significant content.[71] This focus is evident in the proposed amendment to insert ‘to promote the free availability to audiences throughout Australia of television coverage of events or national importance and cultural significance …’ [emphasis added] within the objects of the BSA (at proposed paragraph 3(1)(ea) and the simplified outline of proposed Part 10B (at proposed section 146S).

Television and online rights

While the Government has chosen the proposed model to reform the anti-siphoning list to preference broadcast television coverage of listed events, it is difficult to measure in practice how much listed content will ultimately be televised on FTA. While the amendments enhance the likelihood of listed events being presented on dedicated free services (and FTA in particular), there remains a risk that events will be broadcast predominantly online. The amended scheme therefore provides FTA broadcasters with a competitive advantage over other free providers of online content, even if there is no practical difference for most consumers. This creates an unnecessarily anti-competitive environment in pursuit of the scheme’s objects.

Anti-siphoning list and acquisition of rights for events by FTA providers

Schedule 2 of the Bill appears to increase the likelihood that events on the anti-siphoning list will be made available to audiences for free. However, it raises issues regarding the acquisition of rights for events on the anti-siphoning list, including:

• as the anti-siphoning list regulates the order of rights acquisitions rather than the type of rights that can be acquired, free-to-air broadcasters are granted priority acquisition rights for bundled television and BVOD streaming rights
• FTA broadcasters need to only acquire television rights for part of an event for the event to be delisted
• FTA broadcasters’ associated BVOD and SVOD services are afforded an implicit advantage in the acquisition of broadcast rights.

Proposed subsection 146W(2) prevents media content service providers – other than certain commercial television broadcasting licensees or the national broadcasters – from acquiring rights until:

• the above exempt parties have acquired the right to televise or
• the delisting time for the event has passed and the Minister does not elect to extend the period of time the event is on the list (discussed below under the heading ‘The expiry of the list’).

While the Explanatory Memorandum implies that the ‘carve out’ at proposed subsection 146W(2) allows broadcasters to acquire the right to televise a part or the whole of event, and not other rights, there is no basis for this interpretation within the wording of the Bill.[72] As the national broadcasters and certain commercial broadcasters are exempt from proposed subsection 146W(2), it may be presumed that the national broadcasters and certain commercial television broadcasting licensees face no restrictions in the purchasing of rights of any type. The acquisition restrictions apply only to the sequence of acquisition, rather than the type of rights that may be acquired.

It follows that a national broadcaster or a certain commercial television broadcasting licensee may acquire both the broadcasting rights and the digital rights to an event, just the broadcasting rights, or just the digital rights. If only the digital rights were acquired, the event would remain on the anti-siphoning list until a broadcaster acquired the right to televise part or the whole of the event, or the event was de-listed.

As noted in the Explanatory Memorandum:

There was no evidence presented through the review to suggest that free-to-air broadcasters are ‘hoarding’ the rights to listed events (acquiring the rights and not providing coverage, or not otherwise making those rights available to other parties). This reflects the strong commercial incentive for broadcasters to fully exploit the rights they have acquired (typically at significant cost). For these reasons, a ‘live’ and ‘in full’ requirement is not proposed for this model.[73]

While it is logical that FTA broadcasters have a strong incentive to fully make use of the rights that they have acquired, it remains that it may not be in the best interest of an FTA broadcaster to acquire television rights or rights to the whole of an event in the first instance.

Sub-licensing rights to events

All commercial television broadcasting licensees have associated BVODs, and some have associated SVODs (Channel 10 and Paramount; 9 and Stan). These non-broadcast services ‘are typically not provided by the same incorporated entity that holds a commercial television broadcasting licence, but rather a related body corporate of a commercial television broadcasting licensee’.[74]

While only the body corporate of the certain commercial television broadcasting licensees may acquire the rights to an event unimpeded, the Bill does not prevent an FTA licensee acquiring rights to an event and later sub-licencing rights, in part or whole, to an associated BVOD or SVOD service (provided an FTA provider can do so under the terms of the agreement to acquire the rights entered into with the rights-holder). This is because rights are offered in different ways – including exclusive rights, the bundling of platforms, and the bundling of events.[75] Precedent shows that subscription television and streaming services are often involved in rights deals with FTA broadcasters for events on the anti-siphoning list.[76] This could continue to occur.

Commercial impacts of the anti-siphoning list

As sports is a key genre for broadcasters – it attracts large audiences and large advertising revenue – it follows that FTA broadcasters would wish to make use of their priority access to rights.

However, they may, in some circumstances, seek to on-sell rights to the event or parts of the event to other entities, including other media content services providers that are not exempt from the restrictions imposed by the anti-siphoning list. Under proposed subsection 146W(2) once an FTA broadcaster acquires rights to televise part (not the whole) of an event, other media content services providers may then acquire (or attempt to acquire) rights to event or part of it. Whilst this increases the ease at which broadcasters could buy various digital rights for associated services, it does not necessarily automatically ensure that events for which rights have been acquired will be televised on FTA.

Further, while it is in the best commercial interests of a broadcaster to fully exploit all rights that they have acquired (often at a significant cost), there is no obligation for those holding rights to use them, meaning that it is possible that events could be streamed online and not broadcast on television. Free TV Australia’s submission to the Proposal Paper cites data that BVOD revenue currently accounts for 10% of FTA services’ revenue in 2022, and this is projected to rise to 25% in 2027 and 50% in 2033.[77] This suggests that there may be increasing incentive for FTA providers to acquire and use online rights for listed events.

However, proposed paragraph 146V(5)(b) seeks to address this issue by allowing the Minister to, by legislative instrument, de-list an event where ‘in the Minister’s opinion, it is appropriate in all the circumstances’. A note to proposed paragraph 146V(5)(b) provides an example of such circumstances as were:

A commercial television broadcasting licensee has acquired the right to televise an event, but has failed to televise the event or has televised only an unreasonably small proportion of the event. The Minister is of the opinion that removing that event, or another event, from the list is likely to have the effect that the removed event will be televised to a greater extent than it would be if it remained in the list. [emphasis added]

The Explanatory Memorandum states that:

the model doesn’t explicitly provide free-to-air broadcasters with preferential treatment in terms of their ‘non-broadcasting’ content services… to do so would go beyond the aim of this particular model (which is founded on the accessibility of the stable and ubiquitous terrestrial free-to-air television broadcasting platforms) and would provide free-to-air broadcasters with an additional commercial advantage over other providers of content services.[78]

While it is true that the amendment scheme doesn’t provide an explicit advantage, the commercial interests of FTA commercial broadcasters and their priority access to online rights over stand-alone online content services (ie services not associated with commercial broadcasters) provides a substantial and implicit preference to ‘non-broadcasting’ services associated with commercial broadcasters. The Explanatory Memorandum acknowledges that standalone online services may be constrained in their negotiating position, ‘particularly if media rights are sold as a ‘bundle’’ but describes it as ‘only a modest advantage’.[79] 

It is also worth noting that while the amended legislation broadens acquisition restrictions to media content services (defined at proposed section 146U) – it does not cover bodies that are not media content services. Other interested, non-traditional, parties could still acquire rights to listed events without restriction, and sublicence these rights (potentially with added conditions, as indicated by Tabcorp – now covered by the definition of media content services – with the Melbourne Cup). Further, as the scheme covers rights acquisition and not the initial rights holder, it would not prevent the sporting body as rights holder from eschewing broadcasting partners and themselves making the content available – as demonstrated internationally by the NFL establishing its own streaming channel.[80] However, in that regard it is worth noting that proposed subsections 146U(2) and (3) allows to, by legislative instrument, determine that a service is or is not a medica content service.

While the amendments reduce the risk of events being exclusively shown online behind paywalls, there is no guarantee that much or all of events will be provided on FTA broadcast television. The scheme provides implicit commercial advantage to commercial FTA providers for online streaming rights – even when there is little practical difference to (most, but not all) consumers between FTA-linked BVOD and other free online content services.

How to support sport?

There may be a risk that the anti-siphoning list, while increasing the likelihood of free access to coverage of sporting games, could operate to decrease sporting bodies’ ability to monetise their games and invest the resulting funds in sport.

Underpinning the anti-siphoning list is the implication that there is a social benefit to be gained from watching events of national importance and cultural significance (particularly sport).[81] Televising sports, especially on FTA, removes barriers of accessing in-person sports games, including travel and ticket costs.

The trade-off for preferencing the viewer and prioritising free access to content on the anti-siphoning list is the inherently anti-competitive nature of the scheme. Limiting initial competition for event rights to FTA broadcasters decreases sporting organisations’ ability to maximise value of rights to their events. This is significant, as broadcasting rights are the highest form of income for most sporting codes; income which many codes invest in the development of sport.[82] The PC’s 2000 report found, referenced above, found that disallowing subscription broadcasters from competing for rights was a ‘significant’ reduction in competition, ‘reducing the potential benefit to the sporting codes’ (p. 436).[83] The PC’s 2009 review noted that listed events are devalued relative to non-listed events.[84] It stands to reason that this conclusion would apply equally to media content services that are not FTA in the current media environment.

It should be noted, however, that the analysis by the Department contained within the October 2022 Consultation Paper shows the continued growth in sports rights since 2001, suggesting that high-profile sporting rights are still able to grow exponentially in value despite a restricted competitive market, and that FTA broadcasters are willing to grow their investment in securing rights.[85]

Impact on sporting bodies

Sporting codes have indicated that the anti-competitive nature of the scheme is particularly detrimental to traditionally less popular sports that are listed.[86] This is specifically pertinent in regard to women’s sports and para sports – which the Minister has flagged to be included in the revised anti-siphoning list. The listing of less popular events may increase the likelihood of them being picked up by FTA broadcasters, increasing viewership and reinforcing or reframing the importance of these sports and encourage uptake of these games. However, limiting the ability of the codes to maximise profits through the sale of rights may reduce the amount invested into the development of these codes. Further, if FTA broadcasters are not interested in attaining broadcast rights, then there may not be enough time for another party to acquire the rights – meaning the event is not broadcast – or the sporting organisation may be left to sell the rights cheaply to incentivise take-up.[87]

The lack of income to certain sporting organisations may be counter-balanced by other government policies, such as the recent announcements of investment in women’s sports by the state and territories following the success of the Matildas in the Women’s World Cup.[88] Further, it may be possible that increased viewership on FTA may increase the desirability of corporate sponsorship for teams or players, which may offset the lost income from rights.

Further, it is in the best interests of sporting codes to both maximise profits through rights and reach a large audience. As the Australian Professional Leagues (APL) pointed out in their submission to the Consultation Paper, the APL (the peak body for professional football in Australia, which is not covered by the anti-siphoning list) has been able to maximise profits and reach a large audience through negotiating broadcasting arrangements with linear FTA, BVOD and SVOD services.[89] Critically, this arrangement would not have been possible, had APL games been listed. One can only speculate about what would happen were the anti-siphoning list not in action, but the example of the APL indicates that sporting codes may still seek deals that include wide and free coverage of games, as well as generating substantial revenue for the sporting body.

The expiry of the list

An automatic delisting provision of 1,008 hours (6 weeks) was first introduced to the scheme in 2001; amended to 2,016 hours (12 weeks) in 2005; and to the current 4,386 hours (6 months) before the event in 2017.[90] The amended legislation changes the automatic delisting time for an event to 8,760 hours (12 months) before the start of an event (proposed subsection 146V(2)).

This means that an event specified in the anti-siphoning list is automatically taken to be removed from the list 12 months before the start of the event – making it open to the broader competitive market of medica content service providers other than FTAs – unless the Minister intervenes.

As broadcasting arrangements are often finalised well in advance of events, a longer delisting period increases the chances of a broadcasting deal being struck with a media content provider should a deal not be finalised between an FTA and a sporting code while the event is listed. This increases the chances of an event being broadcast. The longer period may, however, incentivise sporting codes to effectively ‘hold out’ on negotiations with FTA broadcasters until 12 months before an event – if they think that it is likely that they may attain a more competitive deal on the wider market. The longer period may therefore undermine the legislation’s provisions to prioritise FTA broadcasting deals. Though, as deals are often made longer than 12 months in advance, sports bodies acting in this way may be an unwise or risky.

Minister can extend listing time

Proposed subsections 146V(4) and (5) provide that the minister can, before an event is automatically de-listed, intervene and retain it on the list by making a declaration (that is a legislative instrument) to that effect where, ‘in the Minister’s opinion, it is appropriate in all the circumstances’. Examples of such circumstances are set out in notes to proposed subsection 146V(5) include where:

• A commercial television broadcasting licensee has acquired the right to televise an event, but has failed to televise the event or has televised only an unreasonably small proportion of the event and the Minister is of the opinion that removing that event, or another event, from the list is likely to have the effect that the removed event will be televised to a greater extent than it would be if it remained in the list or
• the Minister is satisfied that at least one commercial television broadcasting licensee or national broadcaster has not had a reasonable opportunity to acquire the right to televise the event concerned.

It is unclear what it means for a reasonable opportunity, including factors such as price and timeframe, and whether a sporting code could retain the right to reject all offers from FTA services during the listing period.

Additional provisions

Proposed section 146ZB provides for a review of proposed Part 10B as soon as practicable after the end of the 5-year period starting on the day on which this Part commences.

Policy position of non-government parties/independents on Schedule 2

Liberal Party

While the Opposition have made no formal comment on the current reforms, the Shadow Minister for Communications, Senator Sarah Henderson stated in September 2022 that:

It is concerning that the current anti-siphoning laws do not prevent a major sports body from selling "broadcast" rights directly to digital or streaming platforms such as Facebook, Amazon Prime, Google and Netflix.

At a time when so many Australians are facing increasing cost of living pressures, this constitutes a major threat to the right of every Australian to watch their favourite sports, live and free.

Australia's anti-siphoning laws, which prohibit major Australian sports and cultural events from being "siphoned" off directly to subscription TV operators but not to global digital platforms, are no longer fit for purpose.[91]

Australian Greens

While the Australian Greens have made no formal comment on the current reforms, a media release by Senator Sarah Hanson-Young following the tabling of the latest anti-siphoning list in March 2023 stated a desire for women’s sports to be included on the anti-siphoning list as well as ‘action to update the anti-siphoning scheme to be fit-for-purpose in the streaming age’.[92]

Katter’s Australian Party

Bob Katter MP published a media release on 6 December 2023 in which he ‘vowed to work with Free TV Australia to ensure that we enshrine in Commonwealth legislation the rights of all Australians to watch iconic sporting events on free TV services.’[93]

Position of major interest groups

Free to air broadcasters

The ABC, SBS, and Free TV Australia (the peak body representing FTA commercial broadcasters) in their submissions to the government’s October 2023 Proposals Paper, all supported a broadening of the scheme to cover online platforms. They all expressed concern over a free-to-view or technology neutral model’s reliance on internet connectivity, and fear that such an approach would limit the accessibility of sporting content and underline the policy aims.

Both SBS and Free TV Australia advocate that media content service providers should not be able to acquire rights to listed events until a broadcaster has acquired both the right to televise and rights to broadcast over other means (in other words, via their BVOD streaming apps that would be captured by Schedule 1 of the Bill). Free TV Australia advocates that more viewers are watching BVOD services and that there needs to be a continuity between broadcast television and BVOD content, rather than fragmentation.[94] They also point out that an open market for rights (even if content was then required to be made available for free) would jeopardise the future of FTA broadcasters, which rely on advertising revenue. Free TV Australia and the FTA broadcasters’ evidence to the Senate Inquiry into this Bill further stressed their desire for this proposed change.[95] The government’s assessment of this approach (‘free to air first’) is provided in the Proposals Paper.[96] Free TV Australia’s submission argued that a more robust test or set of criteria is needed for whether a ‘reasonable opportunity’ has been afforded to FTA for the acquisition of rights (regarding delisting); and that sports organisations may delay negotiations in order to trigger the automatic delisting period.[97]

Contrary to other FTA groups, the ABC, notes that ‘the provision of coverage of a listed event by a free-to-air broadcaster via a streaming service is little different from the provision of coverage of a listed event by a non-broadcaster [if free]’.[98] This comment reinforces the loophole in the proposed legislation, which would allow a FTA broadcaster who had acquired rights to an event to broadcast the event on a BVOD platform without also broadcasting it on its FTA television channels.

Other media content service providers

Both Optus and Foxtel opposed the proposed legislative changes, in their submissions to the Proposals Paper. While they support the policy objectives of providing free access to significant events, they support a free-to-access model – as outlined in the Proposal Paper – as a more appropriate approach.

Optus uses the example of the delivery of the 2023 Women’s World Cup to demonstrate what may be achieved when a free-to-view outcome is the focus, rather than a restriction.

Both stakeholders suggests that the barriers to access to broadband are overstated, with Foxtel pointing out that this reasoning is unsound as the government is investing in widespread broadband availability. They note that internet streaming services can currently reach 98% of population,[99] which contrasts with the legislation, which stipulates that terrestrial (FTA) broadcasting only needs to reach more than 50% of the population.

Foxtel suggests that a free-to-view model should be adopted with an additional interim transition obligation for the ‘first acquirer’ of rights to ensure that listed events are broadcast to FTAs on reasonable commercial terms.[100]

Optus supports a longer delisting period – suggesting 18 months.[101]

Sporting bodies

Across both their submissions to the consultation paper and the proposal papers, the Coalition of Major Professional and Participations Sports (COMPPS), representing the four major football codes, cricket, netball, and tennis, opposed the anti-siphoning scheme in both its current and proposed models. Their response to the consultation paper notes that ‘the revenue derived from the sale of media rights is the single most important revenue stream for COMPPS members’ and that any reforms to the anti-siphoning scheme should not undermine or impact the ability for COMPPS members to appropriately commercialise their product and maximise income.[102]

They also note that ‘COMPPS members have an inherent interest in ensuring appropriate free access to their content, to help ensure the growth of their competitions and sports.’[103] Further, that:

rather than adding women's sport to the anti-siphoning list, COMPPS submits that certain events need to be removed from the anti-siphoning list so the sports can maximise their commercial revenues which can be used to help develop and support the women's game.[104]

In their response to the proposals paper, they preference a free-to-view model and support a longer de-listing period – suggesting 2 years.

Commonwealth Games Australia suggests the need for a nuanced approach to deal with individual events within the Commonwealth Games – as some sporting organisations have multiple sources of income, while others do not, and that streaming may be more appropriate for some sports.[105] The Commonwealth Games Federation similarly supports the ability for rights to individual components of the Commonwealth Games to be carved up.[106] They also support a longer delisting period – suggesting 2 years.

Other stakeholders

The academics Emeritus Professor Rodney Tiffen of the University of Sydney, Emeritus Professor David Rowe of Western Sydney University, and Professor Brett Hutchins of Monash University reiterate the importance of centring the public policy intention of the anti-siphoning list – free access to events of cultural significance – when considering scheme changes. They agree with the government that a ‘“technology-neutral” framework is more vulnerable to social inequity than one that relies on broadcast television to maximise actual – as opposed to notional – reach under mid-term foreseeable circumstances.’[107] To strengthen this, they suggest that FTA broadcasters should not be able to on sell rights in ways that don’t allow free access and that they should broadcast event live and full whenever possible (requirements that the Bill does not seek to impose). [108]