Bills Digest no. 21 2015–16
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WARNING: This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.
Jonathan Chowns
Law and Bills Digest Section
9 September 2015
Contents
The
Bills Digest at a glance
Purpose of the Bill
Background
Committee consideration
Position of major interest groups
Financial implications
Statement of Compatibility with Human Rights
Key issues and provisions
Concluding comments
Date introduced: 19
August 2015
House: House of
Representatives
Portfolio: Communications
Commencement: The day
after the Act receives Royal Assent
Links: The links to the Bill,
its Explanatory Memorandum and second reading speech can be found on the
Bill’s home page, or through the Australian
Parliament website.
When Bills have been passed and have received Royal Assent, they
become Acts, which can be found at the ComLaw
website.
Free to air commercial TV
broadcasters and the ABC and SBS each broadcast several channels (‘services’ in
the language of the legislation). They are required to broadcast the primary
service in standard definition (SD).
The primary services include the Prime7, Nine, WIN and Ten
and the ABC1 and SBS ONE channels.
This Bill will provide the broadcasters with the ability
to broadcast their services in SD or high definition (HD).
The change will benefit the free to air TV broadcasters
and almost all viewers.
However, those few viewers who have a television or
set-top box that are not HD capable will find their televisions go blank, if
they try to watch a primary service in HD. They will have to acquire an HD
capable TV or set-top box. No funding is being provided for those caught out as
the Household Assistance scheme, which provided assistance to certain eligible people
to convert to digital TV, concluded on 1 January 2014.
The purpose of the Broadcasting Legislation Amendment
(Primary Television Broadcasting Service) Bill 2015 (the Bill) is
to amend the Broadcasting Services Act 1992 (the BSA) to allow
national and commercial free-to-air TV broadcasters to broadcast their main
service in HD or SD rather than SD, as they now must.
The Bill also makes consequential amendments to continue
the existing captioning obligations and anti‑siphoning list arrangements for
the primary service. Broadcasters have obligations to provide captions on their
primary service.[1]
The anti-siphoning list scheme gives preference to free to air broadcasters
over subscription (or pay TV) operators in relation to sporting events
specified on the anti-siphoning list.[2]
The transition from analog to digital TV broadcasts was announced
by the Howard Government in 1998, although planning for the transition had
begun considerably earlier.[3]
In its 1998 announcement, the Government proposed that the commercial and national free-to-air television broadcasters (FTAs) were
to be lent seven megahertz (MHz) of spectrum in return for which they would be
required to simulcast their existing service in analog and digital format for eight
years. The FTAs would be required to commence digital broadcasting in
metropolitan areas by 1 January 2001 and in regional areas from that date
onwards so that all areas had digital services by 1 January 2004. Following the
start-up of digital television, the FTAs would be required to broadcast minimum
levels of high definition TV, with these levels increasing over time. FTAs would
not be permitted to use their digital spectrum for multi-channelling or
subscription services.
The announcement was followed by the passage of the Television Broadcasting
Services (Digital Conversion) Act 1998.[4]
Amongst other matters, that Act required the Australian Broadcasting Authority
to develop a digital conversion scheme. It also established a simulcast
period during which licensees were to be prohibited from broadcasting a digital
program unless they also broadcast the same program simultaneously in analog.
Several changes took place over the intervening years
including the lifting of the ban on multi-channelling on digital channels. A
research paper by the Parliamentary Library provides a history of the
transition to digital TV to November 2010.[5]
Since then, the full conversion to digital broadcasting was concluded in December
2013.[6]
Consultation Paper: Digital
Television Regulation January 2015
The current position insofar as the Bill is concerned is
described in a Consultation Paper on Digital Television Regulation (consultation
paper) released by the Government in January 2015.[7]
In the section on ‘the role of the primary channel’ the
paper says;
Television broadcasters are required to provide a SD channel
as their primary channel which is linked to their anti‑siphoning and
captioning obligations and, in the case of commercial broadcasters, some
Australian content obligations...
The concept of a core or primary channel is grounded in the
analog era, when each broadcaster offered only one service. This concept
remained important during the simulcast period and the progressive transition
to digital television (where the primary channel was an SD simulcast of the
analog service). With the completion of digital switchover and availability of
a larger suite of services however, it is appropriate to consider whether the
concept of a primary channel continues to be relevant, and whether current
channel specific obligations are fit for purpose in future.
Current legislation requires the primary channel to be SD.
This was important during the transition to digital television when access to
HD channels was not widespread. However, a survey conducted at the end of
digital switchover by Newspoll suggested that 96 per cent of all households had
a main television set or set-top box that was HD capable. It is expected that this figure has grown with
HD capability generally standard in televisions and set-top boxes currently on
the market.
... events on the anti-siphoning list currently cannot be
premiered on an HD multi-channel unless they are also simultaneously shown (or
simulcast) on the primary SD channel. Over recent years, many events have been
removed from the list (or ‘delisted’), allowing them to be shown on an HD
multi-channel. Since 2010, the Government has, by the making of a relevant
notice, delisted events on nearly 60 separate occasions. This also indicates
that current arrangements no longer suit commercial or consumer preferences
with many Australians expecting key sporting events to be available in HD on
both free-to-air and subscription television.[8]
The Government stated that its preliminary position was that
the requirement that the primary channel be provided in SD be removed.[9]
Thirty formal submissions were published.[10]
Of those that addressed this particular matter, with one exception, all were
supportive or did not object to the change. The Coalition of Major Professional
and Participation Sports (COMMPS), however, considers that this measure should
not be implemented without an overhaul of the anti‑siphoning scheme.[11]
The comments of submitters to the consultation paper, including those of
COMPPS, are set out below.
At the time of writing, the Committee has not considered the
Bill.[12]
In Report No. 10 of 2015, of 20 August 2015, the Committee
resolved to recommend that the Bill not be referred to a committee for inquiry.[13]
At the time of writing, the Committee has not considered the
Bill.[14]
Policy position of non-government
parties/independents
The Bill has not been the subject of public comment by the
Labor Party, the Australian Greens or other members or Senators.
A selection of views from submissions the Consultation Paper
are recorded below.
Australian Industry Group
We support the Government’s position to remove SD from the
definition of primary channel and its reason for this removal. As noted by the
Government, SD is a legacy system which has been carried over from the digital
switchover period when the broadcaster had to provide an SD simulcast of the
analog television service on its primary channel. Since the completion of the
digital switchover, television receivers have matured and there is significant
penetration of television receivers in the market that are capable of
displaying HD (and, indeed, decoding MPEG-4).2 Therefore,
the Government’s proposal is consistent with the rationale for amending
obsolete provisions of the Act.[15]
Australian Broadcasting Corporation
The Consultation Paper proposes a number of measures to
increase the flexibility with which broadcasters can determine the mix of
services and formats they offer audiences. The ABC welcomes the proposals that
there be no new restrictions on the number of television services offered by
broadcasters, that the requirement for a broadcaster’s primary channel to be
transmitted in standard definition (SD) mode be lifted and that high-definition
(HD) quotas not be reintroduced.
...
As the Consultation Paper notes, the original decision was
based on a desire to ensure that consumers would have access to lower-cost
alternatives to the initially high prices of HDTV receivers. Today, HD
receivers make up the overwhelming majority of primary television sets in
Australian homes. However, this is not necessarily the case on the second
television set in homes as Australians have a propensity when purchasing new
televisions to retain older, often less-capable, sets as secondary receivers
for use in locations such as the bedroom or kitchen. Reporting on HD
penetration among such secondary receivers is less reliable than for primary
receivers. As a result, broadcasters choosing to convert their primary service
to HD will need to assess the potential loss of audience that might result from
their doing so. However, that should be a business decision for broadcasters,
rather than a matter of regulation.
The ABC also notes that the Consultation Paper does not
propose removing the concept of a primary channel from the broadcasting
framework, even though that concept may be less relevant in a multichannel
television broadcasting environment where there is no need to distinguish
analog services from those offered only in digital. As a decision to remove the
concept of the primary channel would affect a number of regulatory constructs,
including captioning requirements and children’s programming quotas, the ABC
would expect further consultation if that concept were to be considered.[16]
Australian Communications Consumer
Action Network (ACCAN)
ACCAN, an organisation representing consumer interests,
did not comment on this particular proposal.[17]
Australian Subscription Television ASTRA
ASTRA, the peak industry body for subscription
media in Australia, did not comment on this matter.[18]
Coalition of Major Professional and
Participation Sports (COMMPS)
COMPPS represents the following organisations which grant
rights to broadcast sporting events and therefore have the potential to be
affected by changes to the anti-siphoning rules:
- Australian
Football League
- Australian
Rugby Union
- Cricket
Australia
- Football
Federation Australia
- National
Rugby League
- Netball
Australia and
- Tennis
Australia.[19]
COMPPS considers:
The proposal to remove the requirement in the Broadcasting
Services Act that
the so called ‘primary’ digital channel must be provided in a standard
definition (SD) will have the effect that all digital channels can be provided
in HD. This raises an important issue for COMPPS members.
COMPPS members support the high quality broadcasting of their
sports. High quality production and broadcasts allows the content of COMPPS
members to be presented in an attractive manner to viewers. COMPPS members have
consistently been at the cutting edge of television production innovations. The
quality of broadcasts of Australian sports has a world class reputation.
However, the issue of whether the primary channel should be
SD or HD must not be considered without also addressing the related issue of
the anti-siphoning regime.
As noted in the Consultation Paper, the anti-siphoning regime
requires listed events to be broadcast on the primary channel. The requirement
that the primary channel be SD has been seen by some stakeholders to be an
important part of the anti-siphoning regime.
COMPPS members do not believe it is appropriate to address in
isolation only one aspect of the anti-siphoning regime without addressing
other, well documented concerns about the regime. The removal of the
requirement that the primary channel be an SD channel
should be undertaken simultaneously with other long overdue amendments to the
anti-siphoning regime.[20]
Community Broadcasting Association of
Australia (CBAA)
5.5 The CBAA supports the removal of the requirement that the
primary service must be in standard definition. In other words, provision of
the primary service in HD ought not be prevented.
5.6 By proposing less regulation of its format, Government
clearly considers the underlying concept of a primary service as continuing to
be relevant.
5.7 The CBAA strongly supports the concept of primary
broadcast services.[21]
Foxtel
The Consultation Paper refers to April 2014 Newspoll research
for [the Department of Communications] indicating that 96 per cent of
households have a main television set or set top box that is HD
compatible. While it is accepted that this
number may have increased since April 2014, it remains a relevant consideration
that many secondary sets in Australian homes may not be HD compatible.
Therefore, by making this change the Government is risking removing access for
Australians to listed anti-siphoning sporting events and Australian content
that is shown on a primary service.
However, notwithstanding the fact that increased HD service
offerings on commercial FTA television may have a commercial impact on Foxtel (because
it is a point of competitive differentiation that Foxtel provides a much larger
HD offering), and so long as the Government is satisfied that HD availability
on secondary sets is sufficiently high, Foxtel does not object to this
proposal. It is accepted that audiences increasingly expect services in HD.[22]
Emma Dawson, policy adviser to the
former Minister for Broadband, Communications and the Digital Economy, Senator
Stephen Conroy
The Government intends to remove the requirement for the
primary channel to be provided in standard definition. Given the widespread
availability of HD receivers, there is no longer any reason to restrict the
format of the primary channel.
No objection to this position.
However, the Government should note that, while the Newspoll
survey conducted at the end of digital switchover found that 96 per cent of all
households had access to HD channels on its main television, it is likely that
a significant number of secondary television sets still in operation are not HD
capable.
It is therefore unlikely that broadcasters will quickly
switch their “main” channels to HD in the short term. Should they do so, it
should be incumbent upon them to ensure viewers are aware of the change in
advance and able to prepare for it.[23]
Free TV Australia
Free TV is an industry body which represents Australia's
commercial free-to-air television licensees. It submitted:
The requirement for the primary channel to be provided in
standard definition is outdated and should be removed. In an all-digital
environment, this requirement no longer has any relevance.
As indicated above, free-to-air broadcasters should be able
to determine the best mix of services to meet audience expectations, including
whether to transmit their primary channel in HD or SD.[24]
SBS
SBS welcomes the proposals that there be no new restrictions
on the number of television services offered by broadcasters, that the
requirement for a broadcaster’s primary channel to be transmitted in standard
definition (SD) mode be lifted and that high-definition (HD) quotas not be
reintroduced.[25]
The Explanatory memorandum says that the Bill is not
expected to have any direct financial impact on Commonwealth revenue or
expenditure.[26]
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.[27]
At the time of writing, the Parliamentary Joint Committee on
Human Rights has not considered the Bill.[28]
Items 1 to 12 make consequential amendments to
the Broadcasting Services Act 1992 (BSA) to apply the same new
arrangements that apply to terrestrial broadcasts to services that are
re-broadcast by satellite.[29]
Items 13, 16, 20 and 23 make changes to
headings.
Under Part 4A of Schedule 4 of the BSA, commercial
and national broadcasters are prevented from televising an anti-siphoning event
on a non-primary multi-channelled television broadcasting service unless the
event is first broadcast, or broadcast concurrently, on the broadcaster’s
primary broadcasting service. Items 14, 15, 17, 18, 21, 22, 22, 24 and
25 make consequential changes to the way the anti-siphoning rules work in
the context of the new arrangements concerning HD broadcasts on the primary
channel.
Items 19, 26 and 27 make the
substantive changes giving effect to the new arrangements. The provisions
amended deal with the mechanism by which an SD service is established as the
primary service. The amendment removes the requirement that the primary service
be in SD and allows HD services to be primary services.
The Bill implements a positive measure that has wide
support.
However, the Bill will leave those who have a non-HD
capable TVs or set-top box without service for those channels broadcast in HD.
That problem can be addressed with a new HD set-top boxes which are
inexpensive.
There is no funding for those caught out as the Household
Assistance scheme, which provided assistance to certain eligible people to
convert to digital TV, concluded on 1 January 2014.[30]
Members, Senators and Parliamentary staff can obtain
further information from the Parliamentary Library on (02) 6277 2500.
[1]. Department
of Communications website, Television
captioning, accessed 8 September 2015.
[2]. Department
of Communications website, Anti-siphoning,
accessed 8 September 2015.
[3]. R
Alston (Minister for Communications, Information Economy and the Arts), Digital
– A New Era in Television broadcasting, media release,
24 March 1998, accessed 8 September 2015.
[4]. Television Broadcasting
Services (Digital Conversion) Act 1998, accessed 8 September 2015.
[5]. Dr
R Jolly, Going
Digital: tracing the transition to digital terrestrial television in Australia,
Research paper, 7, 2010–2011, Parliamentary Library, Canberra, 2011, accessed 9
September 2015.
[6]. Department
of Communications, ‘Digital
Dividend Spectrum’, Department website, accessed 8 September 2015.
[7]. Department
of Communications, Consultation
Paper: Digital Television Regulation, January 2015, accessed 8
September 2015.
[8]. Ibid.,
pp 12-14.
[9]. Ibid.,
p. 14.
[10]. Department
of Communications, Digital
television regulation, consultation paper, The Department, Canberra,
January 2015, accessed 8 September 2015.
[11]. COMPPS,
Submission
to Department of Communications, Digital television regulation—Consultation
paper, 31 March 2015, p. 4, accessed 8 September 2015.
[12]. House
of Representatives Selection Committee, Australian Parliament website,
accessed 28 August 2015.
[13]. Senate
Standing Committee on Selection of Bills, Report,
10, 2015, The Senate, 20 August 2015, accessed 28 August 2015.
[14]. Senate
Standing Committee for the Scrutiny of Bills, ‘Alert
digest 2015’, Australian Parliament website, accessed 4 September 2015.
[15]. Australian
Industry Group, Submission
to Department of Communications, Digital television regulation—Consultation
paper, 26 March 2105, p. 3, accessed 8 September 2015.
[16]. ABC,
Submission
to Department of Communications, Digital television regulation—Consultation
paper, March 2015, pp. 2–3, accessed 8 September 2015.
[17]. ACCAN,
Submission
to Department of Communications, Digital television regulation—Consultation
paper, 31 March 2015, accessed 8 September 2015.
[18]. ASTRA,
Submission
to Department of Communications, Digital television regulation—Consultation
paper, 2 April 2015, accessed 8 September 2015.
[19]. COMPPS,
Submission
to Department of Communications, Digital television regulation—Consultation
paper, 31 March 2015, p. 2, accessed 8 September 2015.
[20]. Ibid.,
pp. 4-5, accessed 8 September 2015.
[21]. CCBBA,
Submission
to Department of Communications, Digital television regulation—Consultation
paper, April 2015, pp. 4-5, accessed 8 September 2015.
[22]. Foxtel,
Submission
to Department of Communications, Digital television regulation—Consultation
paper, March 2015, p. 5, accessed 8 September 2015.
[23]. Emma
Dawson, Submission
to Department of Communications, Digital television regulation—Consultation
paper, 31 March 2015, p. 4, accessed 8 September 2015.
[24]. FreeTV,
Submission
to Department of Communications, Digital television regulation—Consultation
paper, 2 April 2015, p. 13, accessed 8 September 2015.
[25]. SBS,
Submission
to Department of Communications, Digital television regulation—Consultation
paper, 8 April 2015, p. 3, accessed 8 September 2015.
[26]. Explanatory
Memorandum, Broadcasting Legislation Amendment (Primary Television
Broadcasting Service) Bill 2015, p. 3.
[27]. The
Statement of Compatibility with Human Rights can be found at pages 4-6 of the
Explanatory Memorandum to the Bill.
[28]. Parliamentary
Joint Committee on Human Rights, Australian Parliament website, accessed 4
September 2015.
[29]. Broadcasting Services
Act 1992, accessed 9 September 2015.
[30]. Australian
Government, Household Assistance Scheme, fact
sheet, June 2011, accessed 8 September 2015.
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