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2022-2023
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
COMMUNICATIONS LEGISLATION AMENDMENT (PROMINENCE AND
ANTI-SIPHONING) BILL 2023
EXPLANATORY MEMORANDUM
(Circulated by authority of the
Minister for Communications, the Hon Michelle Rowland MP).
COMMUNICATIONS LEGISLATION AMENDMENT (PROMINENCE AND
ANTI-SIPHONING) BILL 2023
GENERAL OUTLINE
The Bill would amend the Broadcasting Services Act 1992 (BSA) to introduce a prominence
framework to support the availability of free-to-air television services on internet connected
television devices, and expand the application of the anti-siphoning scheme to online media.
These measures would enhance the ability of Australian consumers to access free-to-air
television services. The Bill would also make a number of consequential amendments to the
Australian Communications and Media Authority Act 2005 (ACMA Act).
Prominence framework
The Bill would insert Part 9E in the BSA to legislate a prominence framework to support the
ability of Australian consumers to easily find and readily access free to-air television services
on internet connected television devices with minimal effort, input or technical skills and
knowledge.
The prominence framework would operate through an obligation on the manufacturers of
'regulated television devices', being certain internet connected television devices that are
supplied in Australia. Manufacturers would be required to ensure that regulated television
devices carry specific services provided by free-to-air television service providers -
'regulated television services' - comprising of linear broadcast services and 'broadcasting
video on demand' services. Regulated television devices would need to make those regulated
television services accessible to users in a way that meets a set of 'minimum prominence
requirements' to be set out in regulations. It is intended that regulations will be made prior to
the application of the obligation.
The prominence framework would address a number of changes that have occurred in the
Australian media market over the past 5 to 10 years, including the growth in use of internet
connected television devices to access audiovisual content, and the subsequent impact on the
availability of, and access to, free-to-air television services. It would ensure that Australian
audiences continue to have access to the local television services that play a crucial role in
supporting Australia's sense of cultural identity and informing and entertaining all
Australians.
Anti-siphoning scheme
The Bill would amend the BSA to reform the anti-siphoning scheme (the scheme). Under the
current scheme, subscription television broadcasting licensees are prevented from acquiring a
right to televise an event on the anti-siphoning list (the list), until a free-to-air broadcaster -
that is, a national broadcaster or one or more commercial television broadcasting licensees
(other than a licensee who holds a licence allocated under section 38C or subsection 40(1) of
the BSA) - has a right to televise the event. Events are currently removed from the list 26
weeks prior to commencement.
2
The Bill would repeal the current scheme and insert a modernised scheme in Part 10B of the
BSA. The new scheme would prevent media content services (including, but not limited to,
streaming services) from acquiring a right to televise, or otherwise provide coverage of a
listed event to audiences in Australia, until a free-to-air broadcaster has a right to televise the
event on a broadcasting service.
This would extend the scope of the current scheme and mitigate the risks of the coverage of
listed events migrating behind a paywall, or consumers otherwise facing additional costs to
access this content. This will be a positive reform for Australian audiences as it will enhance
the likelihood of free coverage of listed events.
FINANCIAL IMPACT STATEMENT
Nil.
REGULATORY IMPACT ANALYSIS
Impact Analyses have been completed and certified by the Office of Impact Analysis for the
prominence framework and reforms to the anti-siphoning scheme. These documents are
attached in full at the end of this Explanatory Memorandum.
3
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Communications Legislation Amendment (Prominence and Anti-siphoning) Bill 2023
The Communications Legislation Amendment (Prominence and Anti-siphoning) Bill 2023 is
compatible with the human rights and freedoms recognised or declared in the international
instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Bill
The Communications Legislation Amendment (Prominence and Anti-siphoning) Bill 2023
(the Bill) contains measures to support access to free-to-air television broadcasting services.
These measures implement commitments made by the Government in the context of the 2022
election. The Bill comprises amendments to 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 and reform the anti-siphoning
scheme to ensure it is fit-for-purpose in the modern media environment.
Schedule 1: Prominence framework
The Bill would amend the BSA to establish a prominence framework (the framework) for
certain internet connected television devices ('regulated television devices') to ensure that
Australians can easily find and readily access 'regulated television services' - comprising
linear broadcast services and 'broadcasting video on demand' (BVOD) services provided by
Australian free-to-air television broadcasters. The ACMA Act would be amended to provide
the ACMA with appropriate powers to enforce the framework.
Over the last decade, a fundamental transition has occurred in the television content market in
Australia and overseas. This has seen linear television broadcasting services augmented with
on-demand services, where audiences select specific applications that deliver audiovisual
content to them. These applications include those used to deliver live linear television
broadcasts, as well as a range of video-on-demand apps that are owned by Australian
broadcasters and their competitors. In this environment, regulated television devices are the
gateways for users to access services, applications and content, and the availability and
relative positioning of services and applications can influence the services that audiences are
able to access and, in turn, the sustainability of particular services.
The Bill seeks to ensure that Australian audiences have access to regulated television services
on regulated television devices, with the latter being certain internet connected television
devices that are supplied in Australia. Regulated television services play an important role in
ensuring Australians have access to information and content essential to their entertainment
and safety, as well as supporting our national identity, cultural diversity and social cohesion.
The framework would impose an obligation on the manufacturers of regulated television
devices - including smart televisions, set-top-boxes and plug-in devices - to ensure that their
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devices carry regulated television services and to make them available to audiences in a way
that meets a set of 'minimum prominence requirements'. The minimum prominence
requirements would be specified in regulations and it is intended that these requirements
would include obligations to ensure that free-to-air television services are present on the
primary user interface, or home screen, of regulated television devices, and that certain
BVODs are pre-installed or auto-installed on these devices.
Schedule 2: Anti-siphoning scheme
The Bill would amend the BSA to reform the anti-siphoning scheme (the scheme). Under the
current scheme, subscription television broadcasting licensees are prevented from acquiring a
right to televise an event specified on the anti-siphoning list (the list), until a free-to-air
broadcaster - that is, a national broadcaster or one or more commercial television
broadcasting licensees - has a right to televise the event. Events are currently removed from
the list 26 weeks prior to their commencement.
The Government has undertaken a comprehensive review of the anti-siphoning scheme and
the list. Among other matters, the review has found the core objective of the anti-siphoning
scheme - to support free access to televised coverage of events of national importance and
cultural significance - remains relevant and appropriate, but that the scheme needs to be
broadened to incorporate online services.
Changes in technology and media markets have created a latent but material risk that
nationally important and culturally significant events will migrate behind online paywalls,
and no longer be available for free to Australian audiences. There is a 'regulatory gap' in the
scheme in relation to online services, and a case to broaden the remit of the regulatory
framework to mitigate the attendant risks.
The Bill would repeal the current scheme and insert a modernised scheme that would prevent
media content services (including, but not limited to, streaming services) from acquiring a
right to televise or otherwise provide coverage of a listed event to audiences in Australia until
a free-to-air broadcaster - that is, a national broadcaster or one or more commercial television
broadcasting licensees (other than a licensee who holds a licence allocated under section 38C
or subsection 40(1) of the BSA) - has a right to televise the event on a broadcasting service.
The new scheme would also provide that events are automatically removed from the list -
and therefore able to be acquired without restriction under the scheme - 12 months prior to
their commencement.
By bringing online services into the scheme, the Bill would address the risk of nationally
important and culturally significant sporting events migrating behind a paywall, or consumers
otherwise facing additional costs to access this content. This would enhance the ability of the
scheme to support free access to televised coverage of iconic sporting events.
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Human Rights Implications
The Bill is compatible with the human rights and freedoms recognised or declared in the
international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny)
Act 2011.
This Bill engages with the following rights:
• the right to freedom of expression in Article 19 of the International Covenant on Civil
and Political Rights (ICCPR);
• the right of everyone to take part in cultural life in Article 15 of the International
Covenant on Economic, Social and Cultural Rights (ICESCR);
• the right to enjoy and benefit from culture in Article 30 of the Convention on the
Rights of Persons with Disabilities (CRPD) and Article 27 of the ICCPR; and
• the right of the child to access information and material from a diversity of national
and international sources in Article 17 of the Convention on the Rights of the Child
(CRC).
Specific articles and the manner in which the Bill engages them are presented below.
Schedule 1: Prominence framework
Right to freedom of expression
Legislating a prominence framework would promote the right to freedom of expression under
Article 19 of the ICCPR. Article 19(2) of the ICCPR protects freedom of expression,
including the right to seek, receive and impart information and ideas of all kinds, through any
medium, including written and oral communication, media and broadcasting.
As the United Nations Human Rights Council has stated:
"The exercise of the right to freedom of opinion and expression is one of the essential
foundations of a democratic society, is enabled by a democratic environment, which
offers, inter alia, guarantees for its protection, is essential to full and effective
participation in a free and democratic society, and is instrumental to the development
and strengthening of effective democratic systems."1
Free-to-air television services provide local, national and international news, information
during emergencies and natural disasters, sport, drama, and Australian content to all
Australians, regardless of their location or income. By requiring these television services to
be present and easily accessible on regulated television devices, the prominence framework
would increase public access to a range of information and ideas that are of public
significance at a local, regional or national level.
1 United Nations Human Rights Council, Resolution 12/16, preamble.
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The prominence framework is intended to provide regulated television services with no more
than comparable prominence with other television services, such as subscription television
services and international streaming services. In this way, the framework would not impede
other television services from being displayed or accessed. The framework would not require
regulated television services to be promoted above or ahead of these other services, nor
would it require specific content to be given prominence or surfaced through search and
recommendation tools.
The obligations set out in the Bill would not control the content viewed by Australians and
would not prevent consumers from choosing what content they want to watch, or the services
on which they want to watch it. Nor would it prevent consumers from altering the position
and display or installation or uninstallation of content services on regulated television
devices.
The prominence framework may also engage with the right to freedom of expression through
providing explicit access to a range of information at a regional, local and national level that
is essential to social and democratic participation, by ensuring that regulated television
services are available on regulated television devices.
Right to enjoy and benefit from culture and the right of everyone to take part in cultural life
The prominence framework would support the right to enjoy and benefit from culture, and
take part in cultural life, as set out in Article 27 of the ICCPR and Article 15 of the ICESCR.
Article 27 of the ICCPR provides that, where ethnic, religious or linguistic minorities exist,
persons belonging to these minorities must not be denied the right, in community with the
other members of their group, to enjoy their own culture, to profess and practise their own
religion, or to use their own language. As the UN Committee has noted:
"The protection of these rights is directed towards ensuring the survival and continued
development of the cultural, religious and social identity of the minorities concerned,
thus enriching the fabric of society as a whole."2
In conjunction with this, Article 15(1)(a) of the ICESCR, recognises the right of everyone to
take part in cultural life. The UN Committee has noted that this provides for everyone:
" ... to know and understand his or her own culture and that of others through
education and information."3
The prominence framework would support the right to culture by ensuring Australian
communities continue to easily access local, free television services that are meaningful and
locally relevant to them. Free-to-air television services play an important role in reflecting
2 United Nations Human Rights Committee, General Comment No. 23: The rights of minorities (Art. 27),
CCPR/C/21/Rev.1/Add.5, para 9.
3 United Nations Committee on Economic, Social and Cultural Rights, General Comment No. 21: Right of everyone to take
part in cultural life, para 15(b).
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Australian culture and supporting democratic processes by providing local news, sport,
entertainment and events of Australian public significance.
In conjunction with the objectives of the BSA as a whole, the Bill seeks to contribute to
meeting the communications needs of Australia's multicultural society, including ethnic,
Aboriginal and Torres Strait Islander communities, by ensuring that regulated television
services are easily accessible on regulated television devices. In particular, affording
prominence to services provided by the national broadcasters - the Australian Broadcasting
Corporation and the Special Broadcasting Service - supports their ability to fulfil their
respective remits that include reflecting national identity and cultural diversity, and providing
multilingual and multicultural broadcasting services respectively.4
By affording regulated television services prominence on regulated television devices, and
making them easily accessible, the prominence framework may engage in the right to enjoy
and benefit from culture and the right to take part in cultural life, by promoting access to
services that reflect and engage in local culture.
Right of the child to access information
The Bill may engage with the right of the child to access information and material from a
diversity of national and international sources, under Article 17 of the CRC. Article 17 of the
CRC provides that in recognising the important function performed by the mass media, the
child has the right to access information and material from a diversity of national and
international sources, and as such, mass media should be encouraged to disseminate
information and material of social and cultural benefit to the child. The Bill will operate
beneficially by providing a mechanism to enable children to have access to information from
diverse mass media sources, which are of social and cultural benefit.
The prominence framework would not allow the Government to control the output of
communications provided by local television services. Rather, the framework would ensure
that information that is culturally and socially important and relevant to Australian children
remains easily available and accessible, by making regulated television services prominent on
regulated television devices. The prominence framework in the Bill would therefore not limit,
and in many cases would support, any applicable human rights or freedoms.
Schedule 2: Anti-siphoning scheme
Right to freedom of expression
Article 19(2) of the ICCPR protects freedom of expression, including the right to seek,
receive and impart information and ideas of all kinds, through any medium, including written
and oral communication, media and broadcasting. While not expressly stated, implied
broadly in the application of this right, is a person's ability to access online content.
4 Australian Broadcasting Corporation Act 1983 s 6(1)(a)(i); Special Broadcasting Service Act 1991 s 6(1).
8
As confirmed by the Report of the Special Rapporteur on the promotion and protection of the
right to freedom of opinion and expression, Article 19 understands the internet as a medium
by which the freedom of expression, including the right to seek, receive and impart
information, can be enjoyed. 5
The expansion of the scheme to include online media may limit the right to freedom of
expression to the extent that it limits the ability of certain media content service providers to
acquire the rights to events that are included on the list until a free-to-air broadcaster has a
right to televise the event on a broadcasting service.
However, any such limitation achieves a legitimate purpose with respect to the rights of
others. In particular, the scheme provides freedom from discrimination in that all Australians,
regardless of income or location, are able to access coverage of iconic sporting events by
means that are free and easily accessible.
Right to enjoy and benefit from culture and the right of everyone to take part in cultural life
Article 15(1) of the ICESCR recognises the right of everyone to take part in cultural life.
Cultural life includes sports. Articles 19(2) and 27 of the ICCPR also respectively:
• recognise the right to freedom of expression, including the right to receive and impart
information and ideas of all kinds, regardless of frontiers, either orally, in writing or
in print, in the form of art, or through any other media of a person's choice; and
• provide that ethnic, religious or linguistic minorities shall not be denied the right to
enjoy their own culture.
Additionally, Article 12(1) of the CRC and Article 12(1) of the CRPD recognises:
• the right to freedom of expression, including the freedom to seek, receive and impart
information.
Article 31(1) and of the CRC and Article 30(1) of CRDP refer to:
• the right of any child, or person with a disability, to participate freely in cultural life.
The UN Committee on Economic, Social and Cultural Rights has given a very broad
interpretation to the term 'culture'. This could potentially include the ability to access or
participate in sporting events through viewing these events live or on television. This aligns
closely with the objective of the anti-siphoning scheme to promote free access to televised
coverage of nationally important and culturally significant events.
The expansion of the scheme to cover online services would support Australians continuing
to be able to access televised coverage of iconic sporting events for free, regardless of their
5La Rue, F. (2011). Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and
expression. Human Rights Council, 16.
9
location or income, providing the right to receive information, take part in cultural life or
enjoy culture in the form of sport.
The anti-siphoning measures in the Bill therefore do not impermissibly limit any applicable
human rights or freedoms.
Conclusion
This Bill is compatible with the human rights and freedoms recognised or declared in the
international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny)
Act 2011. To the extent that it may engage Article 19 of the ICCPR, it provides access to
crucial information for democratic and social participation. To the extent that it may engage
Article 17 of the CRC, it provides access to mass media, relevant at a regional and national
level. To the extent the Bill may engage in Article 27 of the ICCPR and Article 15 of the
ICESCR, it promotes access to television services that reflect and promote local culture, as
well as providing free access to televised coverage of iconic and culturally significant
sporting events.
10
Terms and abbreviations
For ease of description, this Explanatory Memorandum uses the following terms or
abbreviations:
▪ 'ABC' means the Australian Broadcasting Corporation
▪ 'ABC Act' means the Australian Broadcasting Corporation Act 1983
▪ 'ACMA' means Australian Communications and Media Authority
▪ 'ACMA Act' means the Australian Communications and Media Authority Act 2005
▪ 'Bill' means the Communications Legislation Amendment (Prominence and Anti-
siphoning) Bill 2023
▪ 'BSA' means the Broadcasting Services Act 1992
▪ 'BVOD' means broadcasting video on demand service
▪ 'National broadcasters' means the Australian Broadcasting Corporation and the
Special Broadcasting Service
▪ 'SBS' means the Special Broadcasting Service
▪ 'SBS Act' means the Special Broadcasting Service Act 1991
▪ 'Tel Act' means the Telecommunications Act 1997
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NOTES ON CLAUSES
Clause 1 - Short Title
Clause 1 provides that the Bill, when enacted, may be cited as the Communications
Legislation Amendment (Prominence and Anti-siphoning) Act 2023.
Clause 2 - Commencement
Clause 2 provides for the commencement of the Act.
Item 1 of the table in subclause 2(1) provides for sections 1 to 3 to the Act, and anything in
the Act not elsewhere covered by this table, to commence the day after it receives Royal
Assent.
Item 2 of the table in subclause 2(1) provides for Schedule 1 the Act, which would legislate
the prominence framework, to commence the day after it receives Royal Assent.
Item 3 of the table in subclause 2(1) provides for Schedule 2 of the Act, which would reform
the anti-siphoning scheme, to commence on a single day to be fixed by Proclamation.
However, if the provisions do not commence within the period of 6 months beginning on the
day the Act receives the Royal Assent, they commence on the day after the end of that period.
Clause 3 - Schedules
Clause 3 provides that legislation specified in a Schedule to the Act is amended or repealed as
set out in the applicable items in the Schedule concerned, and that any other item in a
schedule to the Act has effect according to its terms.
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SCHEDULE 1--PROMINENCE FRAMEWORK
Part 1--Main amendments
Amendments in Schedule 1 would legislate a prominence framework to regulate the
accessibility and prominence of free-to-air television services on regulated television devices
supplied in Australia. Regulated television devices would be required to ensure that those
devices carry the linear broadcasting services and the 'broadcasting video on demand'
(BVOD) services provided by Australian free-to-air television broadcasters, known as
'regulated television services'. The manufacturers of regulated television devices would need
to make those regulated television services accessible to users in a way that meets a set of
'minimum prominence requirements' to be set out in regulations. The obligations imposed in
relation to regulated television devices would apply only to a device that is manufactured on
or after the day that is 18 months after the commencement of the Schedule (the day after the
Act receives Royal Assent), and is supplied on or after that day.
Amendments to the Broadcasting Services Act 1992
Item 1 - After Part 9D
Item 1 would insert Part 9E in the BSA, and sets out the prominence framework for regulated
television devices.
Part 9E--Prominence Framework
Division 1--Introduction
Section 130ZZF - Simplified outline of this Part
Section 130ZZF would provide a simplified outline of Part 9E to assist the reader to
understand the substantive provisions of the Part. The simplified outline is not intended to be
comprehensive. The reader should rely on the substantive provisions of this Part to which the
outline relates.
The section would outline that:
• Part 9E sets up a framework to regulate the accessibility and prominent display of
certain broadcasting services and broadcasting video on demand services (called
regulated television services) on devices designed for viewing television (called
regulated television devices).
• The main rules are that a person who is a manufacturer of a regulated television
device, or a related body corporate of a manufacturer:
a. must not supply the device in Australia if the device does not comply with the
minimum prominence requirements for a regulated television service;
13
b. must ensure the device continues to comply with those requirements after the
device is supplied;
c. must not charge a regulated television service provider in relation to the device
complying with those requirements;
d. must take reasonable steps to ensure that the audiovisual content provided by a
regulated television service is not altered or interfered with.
• A person who contravenes these rules may be liable to a civil penalty.
• Regulated television services include national television broadcasting services,
commercial television broadcasting services, community television broadcasting
services and certain broadcasting video on demand services provided free to the
public.
• The regulations may prescribe the minimum prominence requirements for a regulated
television service.
• The ACMA has information gathering and enforcement functions and powers in
relation to Part 9E.
• There is to be a review of the operation of this Part 9E.
Section 130ZZG - Objects
Section 130ZZG would establish that the objects for the new prominence framework in Part
9E are to ensure that audiences throughout Australia are able to access free-to-air television
content in order to support and contribute to certain public policy outcomes, as outlined in
paragraphs 130ZZG(a), (b) and (c).
Paragraph 130ZZG(a) would set out the object of the prominence framework of supporting
Australia's representative democracy by informing Australians of issues or events that are
relevant to public debate and democratic decision making. Paragraph 130ZZG(b) would set
out the object of the prominence framework of ensuring that audiences throughout Australia
are able to access content that is of public significance at a local, regional or national level.
Regulated television services play a critical role in supporting an informed citizenry and
informing Australians of issues and events that are relevant to their ability to participate in
Australia's democratic processes and institutions. These services also play a critical role in
keeping communities informed at the local, regional and national level, enabling Australians
to participate fully in social, economic and cultural life in Australia. By ensuring that
audiences throughout Australia are able to access these services, the prominence framework
will support the fulfilment of these public policy outcomes.
Paragraph 130ZZG(c) would set out the object of the prominence framework of contributing
to meeting the communications needs of Australia's multicultural society, including ethnic
14
and Aboriginal and Torres Strait Islander communities. The national broadcasters, in
particular, occupy unique roles in the Australian media landscape, supporting specific public
policy outcomes consistent with the requirements of the ABC Act and SBS Act respectively.
• The ABC is required, among other matters, to provide (within Australia), innovative
and comprehensive broadcasting services of a high standard as part of the Australian
broadcasting system, including programs that contribute to a sense of national
identity, inform, entertain and reflect the cultural diversity of the Australian
community, and are of an educational nature.
• The SBS is required, among other matters, to provide multilingual and multicultural
broadcasting and digital media services that inform, educate and entertain all
Australians, and reflect Australia's multicultural society.
Affording prominence to television services provided by the national broadcasters would
bolster the role of these broadcasting services, aligned with their respective legislative
requirements, to develop and reflect a sense of Australian identity, character and cultural
diversity.
Section 130ZZH - Definitions
Section 130ZZH would define certain terms used in Part 9E, including a number of 'sign
post' definitions that refer the reader to provisions in the BSA and other Acts. The definitions
are as follows:
audiovisual content would include television programs. This definition is included for the
avoidance of doubt. 'Program' is defined broadly in section 6 of the BSA to include matter
the primary purpose of which is to entertain, to educate or to inform an audience; or
advertising or sponsorship matter, whether or not of a commercial kind.
Australia, when used in a geographical sense, would include all the external Territories. This
definition is included in Part 9E as the prominence framework would apply to connected
television devices supplied in Australia.
broadcasting video on demand service would have the meaning given by section 130ZZK.
community television broadcasting service would mean a community broadcasting service
that provides television programs.
listed carriage service would have the same meaning as in the Telecommunications Act 1997.
manufacturer would have the same meaning as in the Competition and Consumer Act 2010
(currently defined in Schedule 2 to that Act). This is a very broad definition of manufacturer
that is intended to capture the Australian entities responsible for the supply of regulated
television devices in Australia.
15
minimum prominence requirements would have the meaning given by section 130ZZO.
national television broadcasting service would have the same meaning as in Schedule 4 to
the BSA.
offered would have a meaning affected by subsection 130ZZN(9).
primary user interface would have the meaning given by section 130ZZL.
regulated television device would have the meaning given by section 130ZZI.
regulated television service would have the meaning given by section 130ZZJ.
regulated television service provider would mean a person that provides a regulated
television service.
related body corporate would have the same meaning as in the Corporations Act 2001.
supply would have the same meaning as in the Competition and Consumer Act 2010.
Section 130ZZI - Regulated television devices
Section 130ZZI would establish what constitutes a regulated television device for the
purposes of Part 9E. This is intended to include a broad range of devices, including smart
televisions, set-top-boxes and plug-in devices.
The key aspects of the definition are provided by subparagraphs 130ZZI(1)(a)(i) and
130ZZI(1)(a)(ii), which specify that a regulated television device means domestic reception
equipment that:
• is capable of connecting to the internet and providing access to broadcasting video on
demand services; and
• is designed for the primary purpose of facilitating the viewing of audiovisual content.
The first limb of this definition is intended to limit the application of the prominence
framework to devices that are 'connected' (i.e. are capable of connecting to the internet). This
is intended to exclude devices such as monitors and other audiovisual display equipment that
are not capable of connecting to the internet. Such equipment may have a radiofrequency
tuner, but this would not be a requirement for the purposes of this section.
The second limb of the definition introduces a 'primary purpose' test, where only domestic
reception equipment designed for the primary purpose of facilitating the viewing of
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audiovisual content is included within the definition of regulated television device. This is
intended to exclude devices that are not, on balance, designed for viewing audiovisual
content (that would include television programs). Such devices may have the capability of
viewing such content, but that purpose would be ancillary or secondary to other intended
purposes. Indicatively, the types of devices that are unlikely to be designed for the primary
purpose of facilitating the viewing of audiovisual content would include mobile phones,
tablets and laptops.
It is intended that the definitions provided by subparagraphs 130ZZI(1)(a)(i) and
130ZZI(1)(a)(ii) would provide clarity about which devices are regulated under the
prominence framework in most cases. However, there are likely to be 'edge cases' where it is
unclear whether a certain device meets the primary purpose limb set out in subparagraph
130ZZI(1)(a)(ii). Moreover, home entertainment technology develops rapidly and it is
possible that future innovations will make the application of either limb of the definition
unclear in specific cases.
To deal with these circumstances, paragraph 130ZZI(1)(b) would provide that the definition
of regulated television device includes any specified domestic reception equipment that the
ACMA determines, under subsection 130ZZI(2), is a regulated television device.
The note to subsection 130ZZI(1) would indicate that the ACMA may also make guidelines
about regulated television devices under section 130ZZM.
Subsections 130ZZI(2) and (3) would provide the ACMA with the power to, by legislative
instrument, determine that specified domestic reception equipment is a regulated television
device, or is not a regulated television device, respectively.
The notes to subsections 130ZZI(2) and (3) refer the reader to subsection 13(3) of the
Legislation Act 2003, which deals with specification by class.
Section 130ZZJ - Regulated television services
Section 130ZZJ would establish what constitutes a regulated television service for the
purposes of Part 9E. These are the services that are to be afforded prominence under the
framework. It is intended that this definition capture the linear broadcasting and BVOD
services provided by Australian free-to-air television broadcasters.
Paragraph 130ZZJ(1)(a) would list the linear broadcasting services that are regulated
television services. These are broadcasting services (with the same meaning as in section 6 of
the BSA) provided by:
• national broadcasters;
• commercial television broadcasting licensees (other than a licensee who holds a
licence allocated under section 38C or subsection 40(1) of the BSA); and
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• community television broadcasting licensees.
Paragraph 130ZZJ(1)(b) specifies the BVOD services that are regulated television services
for the purposes of the prominence framework. These are BVOD services (as defined in the
section 130ZZK) are those provided by:
• national broadcasters;
• commercial television broadcasting licensees (other than section 38C or subsection
40(1) licensees); and
• related body corporates of commercial television broadcasting licensees (other than
section 38C or subsection 40(1) licensees).
There are two differences between the entities listed in paragraphs 130ZZJ(1)(a) and
130ZZJ(1)(b).
Firstly, regulated television services would include the linear broadcasting services of
community television broadcasting licensees (under paragraph 130ZZJ(1)(a)), but not any
BVOD services provided by a community television broadcasting licensee. The relevant
BVOD service for community television broadcasters - CTV+ - is currently provided as a
joint venture between Melbourne's Channel 31, which is a community television
broadcasting licensee, and Adelaide's Channel 44, which is not.
Paragraph 130ZZJ(1)(c) provides that a regulated television service may include a service
that the Minister determines, under subsection 130ZZJ(2), is a regulated television service. It
would be open to the Minister to make a determination under subsection 130ZZJ(2) to
provide that CTV+ is a regulated television service for the purposes of the prominence
framework. It would also be open to the Minister to make a determination under subsection
130ZZJ(2) to provide that the linear television broadcasting service provided by Adelaide's
Channel 44, which operates as an open narrowcasting television service, is a regulated
television service for the purposes of the prominence framework. These are examples only
and would not constrain the capacity of the Minister to determine that a specified service is a
regulated television service under Part 9E.
Secondly, a regulated television service includes the BVOD services of a related body
corporate of a commercial television broadcasting licensee (other than section 38C or
subsection 40(1) licensee). This is because the BVOD services provided by commercial
television broadcasters 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.
As noted above, paragraph 130ZZJ(1)(c) would provide that any service determined, by
legislative instrument, by the Minister under this paragraph is also a regulated television
service. The power for the Minister to determine, by legislative instrument, that a service is a
regulated television service is provided by subsection 130ZZJ(2), while subsection
18
130ZZJ(3) would allow the Minister to determine that a service is not a regulated television
service.
These Ministerial determination powers are intended to provide flexibility in the application
of the prominence framework. These powers are intended to deal with situations where there
is uncertainty or ambiguity as to the application of the framework to regulated television
devices, or where it may be unreasonable for the manufacturers of regulated television
devices to be required to provide prominence to a given number of regulated television
services.
The notes to subsections 130ZZJ(2) and (3) refer the reader to subsection 13(3) of the
Legislation Act 2003, which deals with specification by class.
Subsection 130ZZJ(4) would provide the ACMA with specific powers to provide advice to
the Minister on any matter relevant to determinations made under subsections 130ZZJ(2) and
130ZZJ(3), on what specified service is a regulated television service and is not a regulated
television service, respectively.
Subsection 130ZZJ(5) would provide that an application is only covered by paragraph
130ZZJ(1)(b) if it is designed for the purpose of access to a particular broadcasting video on
demand service. This is intended to clarify that only specific BVOD applications are intended
to be afforded prominence. Web browsers, for example, are not intended to be regulated
television services, despite being theoretically capable of providing access to BVOD services
on some connected television devices.
Section 130ZZK - Broadcasting video on demand service
Section 130ZZK would provide a two-limbed definition of BVOD services.
Paragraph 130ZZK(a) would set out the first limb of the definition and provide that it is a
service that makes audiovisual content available on demand using a listed carriage service.
It is envisaged that this would include services that provide access to audiovisual content at a
time of a consumer's choosing, where content can be streamed, paused or replayed at their
convenience (for example, iView, SBS On Demand, 7plus, 9Now and 10 Play), using a listed
carriage service (as defined in the Tel Act).
Paragraph 130ZZK(b) would set out the second limb of the definition and provide that
BVOD services are those that are made available free to the general public. This limb aligns
with the objective of Part 9E to ensure that audiences throughout Australia are able to access
free-to-air television content (see section 130ZZG). To satisfy this limb, there would be no
capacity for a service to charge for access to any component of the service. This would
exclude services that provide free access to only some content.
19
A service must satisfy both limbs - paragraphs 130ZZK(a) and 130ZZK(b) - to satisfy the
BVOD definition. This definition is deliberately broad, and would, in isolation, go beyond
the BVOD applications currently provided by free-to-air television broadcasters. For
example, it would capture the ad-supported services provided by some device manufacturers.
However, the application of this definition for the purposes of the prominence framework
needs to be read in conjunction with section 130ZZJ, which defines regulated television
services. Taken together, these provisions mean that only BVOD services provided by a
national broadcaster or by a commercial television broadcaster, as well as any services
specified by the Minister under subsection 130ZZJ(2), would be afforded prominence under
Part 9E.
Section 130ZZL - Primary user interface
Section 130ZZL would establish what constitutes a primary user interface for the purposes of
Part 9E. This is a critical concept for the prominence framework, as it is intended that
regulated television services be afforded prominence on the primary user interface of
regulated television devices.
Subsection 130ZZL(1) would provide that a primary user interface of a device:
• is one or more of the following:
- the home screen or main screen of the device;
- the main interface most commonly used to access broadcasting video on
demand services; and
• meets the description or requirement (if any) determined by the ACMA under
subsection 130ZZL(3).
An interface of a regulated television device must satisfy one or more of the limbs in
paragraph 130ZZL(1)(a), as well as paragraph 130ZZL(1)(b), to meet the definition.
This definition is intended to be broad and flexible enough to apply to a large range of
potential interface designs. This is necessary because each type and brand of device typically
has its own interface design. In principle, it is intended that the primary user interface of a
regulated television device is where applications or other features used to view audiovisual
content are generally accessed. This is where regulated television services should be afforded
prominence.
Subsection 130ZZL(2) would provide that the ancillary hardware or equipment for a
regulated television device does not constitute the primary user interface of the device. This
is intended to clarify that regulated television services are not to be afforded prominence on
remote controls and similar ancillary hardware or equipment.
20
Subsection 130ZZL(3) would provide, for the purposes of paragraph 130ZZL(1)(b), the
ACMA may, by legislative instrument, describe an interface or determine requirements
relating to an interface, for the purposes of the primary user interface definition in subsection
130ZZL(1).
This power is important as there may be contention about what precisely constitutes the
primary user interface on individual devices. Allowing the ACMA to determine what
constitutes an interface, or the requirements relating to an interface, will help to provide a
'circuit breaker' in these cases.
Subsection 130ZZL(4) would provide that, without limiting subsection 33(3A) of the Acts
Interpretation Act 1901, the ACMA may describe an interface, or determine requirements
relating to an interface, differently in relation to different regulated television devices, kinds
of regulated devices, or different kinds of things or circumstances.
The note to subsection 130ZZL(4) would direct the reader to subsection 13(3) of the
Legislation Act 2003, which deals with specification by class.
Subsections 130ZZL(5), (6) and (7) would deal with the situation where legislative
instruments specifying primary user interface requirements for a device made under
subsection 130ZZL(3) may incorporate material by reference.
Subsection 130ZZL(5) would allow an instrument made under subsection 130ZZL(3) to
apply, adopt or incorporate, with or without modification, any matter contained in an
instrument or other writing that exists from time to time.
Subsection 130ZZL(6) would provide that where an instrument made under subsection
130ZZL(3) makes provision in relation to a matter by applying, adopting or incorporating,
with or without modification, a matter contained in an instrument or writing, the ACMA must
ensure that the text of the matter applied, adopted or incorporated is published on its website.
This would ensure transparency and availability of such information.
Subsection 130ZZL(7) would limit the provision set out under subsection 130ZZL(6) to
materials that would not infringe copyright.
Section 130ZZM - ACMA may make guidelines about regulated television devices
Subsection 130ZZM(1) would provide that the ACMA may make written guidelines to assist
in determining whether particular kinds of domestic reception equipment are regulated
television devices.
The note to subsection 130ZZM(1) would direct the reader to subsection 33(3AB) of the Acts
Interpretation Act, which deals with the specification of a matter by class.
21
The intent of these guidelines would be to assist manufacturers and regulated television
service providers to understand what may be considered a regulated television device. These
guidelines are of an administrative character only - the guidelines would not bind the ACMA
and would have no legal effect.
Moreover, the guidelines are not intended to change the meaning of Part 9E or regulations
made under section 130ZZO, including the legal effect on the definition of regulated
television device under section 130ZZI.
Subsection 130ZZM(2) would provide that the Minister may direct the ACMA to make these
guidelines.
Subsections 130ZZM(3) and (5) clarify that the guidelines are not a legislative instrument
and provide that guidelines that are inconsistent with the BSA or the regulations have no
effect to the extent of the inconsistency.
For transparency and access, subsection 130ZZM(4) would provide that guidelines must be
published on the ACMA's website.
Division 2--Minimum prominence requirements
Section 130ZZN - Regulated television devices must comply with minimum prominence
requirements
Section 130ZZN would establish the core obligations of the prominence framework, known
as the 'must carry obligations'.
These obligations are intended to work together to ensure that manufacturers of regulated
television devices and their related bodies corporate:
• cannot supply regulated television devices in Australia unless they comply with the
minimum prominence requirements;
• are responsible for the ongoing compliance of devices until certain circumstances
occur;
• are prevented from requiring regulated television service providers to pay a fee,
charge or any other consideration for, or in connection with, the device complying
with minimum prominence requirements; and
• must take reasonable steps to ensure that the audiovisual content provided by
regulated television services on regulated television devices, including any advertising
or sponsorship matter, whether or not of a commercial kind, is not altered or
interfered with.
22
The minimum prominence requirements with which regulated television devices must
comply are intended to be prescribed in regulations (see section 130ZZO), rather than being
specified in section 130ZZN. The prominence framework is designed to enable the minimum
prominence requirements to be updated and amended over time, if this is appropriate. This
flexibility is necessary for a number of reasons.
• Ongoing developments in the media and broadcasting sectors mean that the minimum
prominence requirements will need to be able to accommodate changes in the way
that free-to-air television content is provided to, and accessed on, regulated television
devices.
• Some minimum prominence requirements are likely to be technical in nature, and
therefore may need to be updated to reflect changes in technology.
• It is possible that through its new information gathering and reporting powers
(provided for in Divisions 3 and 5 of Part 9E) the ACMA may, from time to time,
become aware of market conduct that may warrant reconsideration of the minimum
prominence requirements.
Establishing the minimum prominence requirements through regulations, rather than in
primary legislation, will enable any such alterations and enhancements to be considered and
implemented, should this be warranted in the circumstances.
Subsection 130ZZN(1) would provide the prohibition on manufacturers and their related
bodies corporate supplying regulated television devices to another person in Australia unless
they comply with the minimum prominence requirements for a service that is offered by a
regulated television service provider. This is a point in time obligation, that would apply at
the point of the supply of a regulated television device by a manufacturer or its related body
corporate.
The notes to subsection 130ZZN(1) would clarify that supply in this context does not include
supply for use outside of Australia, and that detail on when a regulated television service is or
is not taken to be offered would be provided in subsection 130ZZN(9).
Subsection 130ZZN(2) would provide the enduring obligation on manufacturers. It would
require that a person subject to a requirement under subsection 130ZZN(1) must take
reasonable steps to ensure that the device continues to comply with the minimum prominence
requirements for a regulated television service during the period beginning immediately after
the time the device is supplied; and ending at the earliest of the following times set out in
paragraph 130ZZN(2)(b):
• the time when an action by a user of the device results in the device not complying
with those requirements;
23
• the time when the software used on the device is no longer provided, updated or
supported by the manufacturer, or by another person on behalf of the manufacturer;
• the time when the regulated television service is no longer offered by the regulated
television service provider.
This is intended to ensure that regulated television services retain prominence on regulated
television devices following their supply by manufacturers or the related bodies corporate.
This is important because consumer access to free-to-air television services necessarily
occurs after devices are supplied.
However, it would not be reasonable for this obligation to endure indefinitely. Subparagraph
130ZZN(2)(b)(i) would provide that the obligation ceases in relation to a specific regulated
television service at the time when an action by a user of the device results in the device not
complying with those requirements. For example, if a user moves or uninstalls a regulated
television service from their device, the framework would not require the manufacturer to
continue to afford that particular regulated television service prominence.
This reflects the intention that the prominence framework not constrain users' ability to
customise their device's interface or make choices about the content they access. Importantly,
user action would only cease the enduring obligation in relation to the device on which that
action occurred, and for the particular regulated television service in relation to which the
action was taken. The obligation would remain in place for the other regulated television
services that are unchanged by the user on the device, and all other regulated television
devices.
The end points that would be provided by subparagraphs 130ZZN(2)(b)(ii) and
130ZZN(2)(b)(iii) reflect considerations of a more technical nature. It would not be
reasonable to expect that manufacturers take reasonable steps to ensure compliance of
regulated television devices after a time at which the regulated television device is no longer
supported by the manufacturer, or a regulated television service is no longer offered by the
regulated television service provider, in respect of that device.
The note to section 130ZZN(2) would clarify that for the purposes of subparagraph
130ZZN(2)(b)(ii), detail on when a regulated television service is, or is not, taken to be
offered is provided in subsection 130ZZN(9).
Subsection 130ZZN(3) would provide that a person who is subject to an obligation under
subsections 130ZZM(1) or 130ZZM(2) is prohibited from requiring regulated television
service providers to pay a fee, charge or any other consideration for, or in connection with,
the device complying with the minimum prominence requirements. This may include
payment in the form of monetary fees or charges, as well as shares of advertising revenue or
advertising inventory.
24
Subsection 130ZZN(3) relates only to fees, charges or any other consideration in relation to
compliance with the minimum prominence requirements, and would not prohibit
arrangements beyond the prominence requirements under which regulated television service
providers pay a fee, charge or any other consideration for particular display or visibility (for
example, having a particular regulated television service's content appear first in search
results or in content recommendations).
Subsection 130ZZN(4) would provide that a person who is subject to an obligation under
subsections 130ZZN(1) or 130ZZN(2) is required to take reasonable steps to ensure that the
audiovisual content provided by that service is not altered or interfered with, including the
addition or alteration of any advertising or sponsorship matter, whether or not of a
commercial kind, to the service or content provided by the service.
Subsections 130ZZN(5), (6), (7) and (8) would deal with enforcement of the must carry
obligations.
Subsection 130ZZN(5) would provide that subsections 130ZZN(1), (2), (3) and (4) are civil
penalty provisions.
Subsection 130ZZN(6) would provide an exception to the obligations imposed by subsections
130ZZN(1) or 130ZZN(2). The application of the exception to the obligations given to a
person would require that:
• the person is subject to a requirement under those subsections; and
• the person fails to comply with a requirement provided by those subsections; and
• that failure to comply is because of circumstances that are outside the control of the
person.
The person must satisfy paragraphs 130ZZN(6)(a), (b) and (c) for the exception to apply.
There may be circumstances where manufacturers, or their related bodies corporate, are
temporarily, or from time to time, unable to comply with their obligations under this section
for reasons out of their control. These circumstances may include where there is a technical
problem with the regulated television service that prevents its installation or operation on a
regulated television device, or where there is network failure that prevents the installation of
certain regulated television services.
Subsection 130ZZN(7) would provide that the ACMA may issue a formal warning to a
person where the regulator is satisfied that they have contravened subsections 130ZZN(1),
(2), (3) and (4).
25
Subsection 130ZZN(8) would provide that for the purposes of the BSA and the ACMA Act, a
direction under subsection 130ZZP(2) is taken to be a notice under Part 9E. This would be
applicable to section 205XA.
Subsection 130ZZN(9) would provide that the ACMA may, by legislative instrument,
determine circumstances in which a regulated television service is taken, or is not taken, to be
offered. This is important because, as noted above, the obligations on manufacturers that
would be imposed by subsections 130ZZN(1) and (2) only apply where a regulated television
service is offered.
It is intended that any such determination by the ACMA would prescribe that, for a regulated
television service to be taken to be offered, it must meet minimum technical specifications for
integration into the software used on a regulated television device. Without this requirement,
it may be unworkable for manufacturers to comply with the must carry obligations set out in
subsections 130ZZN(1) and (2).
The note to subsection 130ZZN(9) would direct the reader to subsection 13(3) of the
Legislation Act 2003, which deals with specification by class.
Section 130ZZO - Regulations may prescribe minimum prominence requirements
Section 130ZZO would provide that the regulations may prescribe the minimum prominence
requirements to be complied with under section 130ZZN.
Subsection 130ZZO(1) would provide that the regulations may prescribe requirements in
relation to any or all of the following:
• access to regulated television services on the device;
• the display, location or positioning of regulated television services on the device, or
the primary user interface of the device of: regulated television services; applications
covered by subsection 130ZZJ(5) that are used to access regulated television services;
or any other thing used to access regulated television services;
• installation on the device of applications, covered by subsection 130ZZJ(5), that are
used to access regulated television services;
• the availability for installation on the device of such applications;
• the updating of such applications that are installed on the device;
• any electronic program guide on the device that provides information about or access
to regulated television services.
These provisions are intentionally broad, which will allow the prominence framework to be
flexible as market conditions and technology changes.
26
The regulations are not intended to, and in many cases cannot under section 130ZZO, do the
following:
• constrain the capacity of the manufacturer of a regulated television device to promote,
preference or recommend particular content or services to users, including their own-
brand content and services;
• prevent the manufacturer of a regulated television device from seeking and securing
fee, charge or any other consideration in relation to prominence on the device,
provided that the minimum prominence requirements are complied with in respect of
regulated television services; or
• regulate or affect:
- the search functions of a device; or
- the collection and use of consumer data on the device.
Subsection 130ZZO(2) would provide that, without limiting subsection 33(3A) of the Acts
Interpretation Act 1901, the regulations may prescribe different requirements in relation to
different regulated television devices, regulated television services or different kinds of things
or circumstances.
The note to subsection 130ZZO(2) would direct the reader to subsection 13(3) of the
Legislation Act 2003, which deals with specification by class.
Subsections 130ZZO(3), (4) and (5) would provide for the regulations to incorporate material
by reference.
Subsection 130ZZO(3) would provide that, despite subsection 14(2) of the Legislation Act
2003, regulations made for the purposes of 130ZZO may incorporate by reference a matter by
applying, adopting or incorporating, with or without modification, any other matter contained
in an instrument or other writing that is in force or exists from time to time.
Subsection 130ZZO(4) would provide that if regulations made under section 130ZZO make
provision in relation to a matter by applying, adopting or incorporating, with or without
modification, a matter contained in an instrument or writing, the Minister must ensure that the
text of the matter applied, adopted or incorporated is published on the Department's website.
This would ensure transparency and availability of such information.
Subsection 130ZZO(5) would limit the provision set under subsection 130ZZO(4) to
materials that would not infringe copyright.
As noted above, it is important that the minimum prominence requirements be prescribed in
the regulations to ensure that they are resilient and adaptable to change.
27
• Ongoing developments in the media and broadcasting sectors mean that the minimum
prominence requirements will need to be able to accommodate changes in the way
that free-to-air television content is provided to, and accessed on, regulated television
devices.
• Some minimum prominence requirements are likely to be technical in nature, and
therefore may need to be updated to reflect changes in technology.
• It is possible that through its new information gathering and reporting powers
(provided for in Divisions 3 and 5 of Part 9E) the ACMA may, from time to time,
become aware of market conduct that may warrant reconsideration of the minimum
prominence requirements.
Establishing the minimum prominence requirements through regulations, rather than in
primary legislation, will enable alterations and enhancements to be considered and
implemented, should this be warranted in the circumstances.
Section 130ZZP - Remedial directions--contravention of minimum prominence
requirements
Section 130ZZP would provide that the ACMA may give a remedial direction to a
manufacturer of a regulated television device or its related body corporate in relation to
contraventions of the must carry obligations set out at section 130ZZN. This is to ensure the
ACMA can effectively enforce the new prominence framework.
Subsection 130ZZP(1) would provide that section 130ZZP applies if the ACMA is satisfied
that a person has contravened or is contravening any of the must carry obligations
(subsections 130ZZN(1), (2), (3) or (4)).
Subsection 130ZZP(2) would allow the ACMA to give the person a written direction
requiring them to take specified action directed towards ensuring that the person does not
contravene the minimum prominence requirements, or is unlikely to contravene the minimum
prominence requirements, in the future. It may be possible for a single written direction to
contain one or more specified actions, and this would be considered one direction.
The note to subsection 130ZZP(2) would direct the reader to subsection 33(3) of the Acts
Interpretation Act, which deals with the power to revoke and vary instruments.
Examples of remedial directions the ACMA may give to a person would include the direction
for a manufacturer or related body corporate to implement the auto-installation of regulated
television services, a direction to not charge a regulated television service provider a fee in
connection with the device complying with the minimum prominence requirements, or a
direction to not interfere with audiovisual content of a regulated television service. These
examples are not exhaustive.
28
Subsection 130ZZP(3) would set out that a person, as specified in subsection 130ZZP(1),
must not contravene a direction.
Subsection 130ZZP(4) would provide that subsection 130ZZP(3) is a civil penalty provision.
Subsection 130ZZP(5) would provide that the contravention of subsection 130ZZP(3) is a
separate contravention of that subsection for each day the contravention continues. This is
intended to provide a significant incentive for manufacturers and their related bodies
corporate to comply with the ACMA enforcement action.
The maximum penalties are set out in consequential amendments through the insertion of
subsection 205F(5AC) to the BSA. For persons who are body corporates, the maximum
penalty would be 5,000 penalty units; for persons who are not body corporates the maximum
penalty would be 1,000 penalty units. As the majority of manufacturers to which the
prominence framework is intended to apply are often large, and mostly international, bodies
corporate, the maximum penalty amounts to be imposed are set at a level considered to be
sufficient to deter those entities from conduct that contravenes a remedial direction.
Subsection 130ZZP(6) would provide that subsection 130ZZP(3) is a designated infringement
notice provision. This is intended to provide the ACMA with an efficient enforcement option
short of seeking a civil penalty in relation to the enforcement of remedial directions.
The infringement notice penalty is set out in section 205ZA of the BSA. Consequential
amendments are proposed for this section, with the insertion of paragraph 205ZA(1)(aaa) to
introduce a penalty for persons who are a body corporate of 60 penalty units. For persons
who are not body corporates the penalty of 10 penalty units under paragraph 205ZA(1)(b)
remains. These penalties are consistent with other infringement notice penalties set out in
section 205ZA(1).
Subsection 130ZZP(7) would provide that for the purposes of the BSA and the ACMA Act, a
direction under subsection 130ZZP(2) is taken to be a notice under Part 9E. This is also
reflected in consequential amendments to sections 205XA and 205Y in this Bill (see Items 20
to 22).
Division 3--Information Gathering
Section 130ZZQ - ACMA may obtain information and documents
Section 130ZZQ would provide that the ACMA may obtain information and documents from
a manufacturer of a regulated television device, or its related bodies corporate. It would
provide an equivalent power to obtain information and documents from a regulated television
service provider.
29
Subsection 130ZZQ(1) would specify that section 130ZZQ applies to the following persons if
the ACMA has reason to believe such persons have information or a document that is
relevant to monitoring compliance with Part 9E, or such persons have information or a
document that is relevant and necessary for the ACMA to carry out its functions under
paragraphs 10(1)(a), (la), (lb), (lc), (ld), (n) or (q) of the ACMA Act:
• a manufacturer of a regulated television device;
• a related body corporate of a manufacturer of a regulated television device; or
• a regulated television service provider.
The Bill would amend and add a number of functions to give effect to this (see consequential
amendments to the ACMA Act).
Subsection 130ZZQ(2) would set out that the ACMA may, by written notice to a person
specified in subsection 130ZZT(1), require them:
• to give the ACMA, within the period and in the manner and form specified in the
notice, any such information; or
• to produce to the ACMA, within the period and in the manner specified in the notice,
any such documents; or
• to make copies of any such documents and to produce to the ACMA, within the
period and in the manner specified in the notice, those copies.
Subsection 130ZZQ(3) would set out that a person must not contravene a requirement set out
in a written notice given by the ACMA under subsection 130ZZQ(2).
Subsection 130ZZQ(4) would provide that subsection 130ZZQ(3) is a civil penalty provision,
while subsection 130ZZQ(5) would provide that the contravention of subsection 130ZZQ(3)
is a separate contravention of that subsection for each day the contravention continues.
The maximum penalties in relation to subsections 130ZZQ(4) and (5) are set out in
consequential amendments through the insertion of subsection 205F(5AD) to the BSA. For
persons who are body corporates the maximum penalty would be 40 penalty units, for
persons who are not body corporates the maximum penalty would be 30 penalty units.
Subsection 130ZZQ(6) would provide that subsection 130ZZQ(3) is a designated
infringement notice provision. The infringement notice penalty is set out in section 205ZA of
the BSA. The Bill would make consequential amendments to the section to insert paragraph
205ZA(1)(aaa), which would provide that the penalty for person who are a body corporate
the penalty is 60 penalty units, while the penalty for persons who are not body corporates is
10 penalty units and set out in paragraph 205ZA(1)(b).
30
Subsection 130ZZQ(7) would specify that the period which a person is given to act on the
ACMA's requirement for information of documents, for the purposes of paragraphs
130ZZQ(2)(a), (b) and (c), must not be shorter than 14 days after the written notice requiring
information or documents.
Section 130ZZR - Copies of documents
Subsection 130ZZR(1) would permit the ACMA to inspect documents or copies of
documents produced under Part 9E, and to make and retain copies of, or take and retain
extracts of, such documents.
Subsection 130ZZR(2) would provide that the ACMA may retain possession of a copy of a
document produced in accordance with a requirement covered by paragraph 130ZZQ(2)(c).
Division 4--Miscellaneous
Section 130ZZS - Service of notices by electronic means
Section 130ZZS would override paragraphs 9(1)(d) and (2)(d) of the Electronic Transactions
Act 1999 in relation to any notice under Part 9E, or a notice under any other provision
of the BSA so far as that provision relates to Part 9E.
Section 9 of the Electronic Transactions Act 1999 deals with circumstances where a
Commonwealth law requires or permits certain information to be provided to a person in
writing. Paragraphs 9(1)(d) and (2)(d) of that Act provide that a person who is not a
Commonwealth entity (nor acting on behalf of a Commonwealth entity) must consent to the
production of such information by electronic means. This default position is not considered
appropriate in circumstances where the ACMA is likely to frequently have access to
electronic contact details.
It is highly likely that persons receiving notices that relate to provisions in Part 9E will have
sufficient familiarity with electronic processes and access to monitored and static electronic
mailboxes for this provision. The persons to which the requirements provided by section
130ZZN apply are manufacturers of regulated television devices. These manufacturers are
large, sophisticated electronic goods suppliers. The service of notices by electronic means is
therefore unlikely to be a burden on these persons.
It is also expected that the ACMA will have sufficient means of assuring that the electronic
mailboxes used to contact the recipients of notices is up-to-date and accurate.
The note to section 130ZZS would inform the reader of the subject matter of paragraphs
9(1)(d) and (2)(d) of the Electronic Transactions Act 1999.
31
Section 130ZZT - Relationship with other laws
Section 130ZZT would clarify that Part 9E does not limit the operation of any other provision
of the BSA.
Section 130ZZU - Concurrent operation of State and Territory laws
Section 130ZZU would clarify that it is the intention of the Parliament that Part 9E is not to
apply to the exclusion of a law of a State or Territory to the extent to which that
law is capable of operating concurrently with Part 9E.
Division 5--Review of this Part etc.
Section 130ZZV - Review of this Part
Section 130ZZV would require the Minister to cause a review to be conducted of the
operation, effectiveness and implications of the prominence framework, commencing as soon
as practicable after the end of the 3-year period starting on the day that is 18 months after the
commencement of Part 9E. This timing reflects the application of amendments made by this
Schedule (see Item 25 in Part 2 of this Schedule).
Subsection 130ZZV(1) would provide that the review be conducted about the effectiveness
and implications of:
• Part 9E;
• other provisions of the BSA to the extent to which they relate to Part 9E;
• regulations made regarding minimum prominence requirements (made for the
purposes of section 130ZZO);
• legislative instruments made for the purposes of Part 9E (made under subsections
130ZZI(2) or (3), 130ZZJ(2) or (3), 130ZZL(3), or 130ZZN(9) ); and
• any guidelines made by the ACMA to assist in determining whether particular kinds
of domestic reception equipment are regulated television devices (under section
130ZZM(1)).
Subsection 130ZZV(2) would provide the timing for the review, as noted above.
Subsections 130ZZV(3) and (4) would provide that the persons conducting the review must
prepare and provide the Minister with a written report of the review. The report must not
contain commercially sensitive information and the Minister must table copies of this report
in each House of the Parliament within 15 sitting days of receiving the report.
32
Section 130ZZW - Minister may request report
Section 130ZZW(1) would provide for the Minister to direct the ACMA, by written notice, to
prepare and give a report to the Minister on one or more of the following:
• regulated television devices;
• regulated television services;
• technological developments that relate to regulated television devices or regulated
television services;
• access by users of regulated television services on regulated television devices;
• developments in the broadcasting service industry and broadcasting video on demand
service industry.
Subsection 130ZZW(2) would provide the ACMA must comply with such a direction.
Section 130ZZX - Minister may direct ACMA about the exercise of its powers
Subsection 130ZZX(1) would provide for the Minister to direct the ACMA, by legislative
instrument, about the exercise of powers conferred on it by Part 9E. Subsection 130ZZX(2)
would provide that the ACMA must comply with such a direction.
Part 2--Consequential amendments and application provisions
Part 2 of Schedule 1 to the Bill would set out a series of consequential amendments to the
BSA and ACMA Act, which are necessary as a result of the insertion of a prominence
framework through Part 9E.
Amendments to the Australian Communications and Media Authority Act 2005
Item 2 - Section 3 (subparagraph (b)(i) of the definition of authorised disclosure
information)
Item 2 would insert reference to Part 9E in subparagraph (b)(i) of the definition of 'authorised
disclosure information' in section 3 of the ACMA Act. This would provide that information
obtained by the ACMA as a result of its powers in Part 9E may be provided to certain persons
such as the Minister (see section 59A of the ACMA Act).
Item 3 - Paragraph 10(1)(a)
Item 4 - After paragraph 10(1)(l)
Item 5 - Paragraph 10(1)(n) and (q)
Subsection 10(1) of the ACMA Act sets out the ACMA's content, broadcasting and
datacasting functions. This includes various functions related to monitoring and enforcing
compliance relating to broadcasting.
33
Item 3 would insert reference to 'broadcasting video on demand services' in paragraph
10(1)(a) to provide that it is a function of the ACMA to regulate broadcasting video on
demand services, which applies at large with ACMA's enforcement of the prominence
framework.
Item 4 would insert new, specific functions for the ACMA in relation to the prominence
framework. New paragraphs 10(1)(la), (lb), (lc) and (ld) are inserted to provide that it is a
function of the ACMA to:
• develop guidelines and make determinations about regulated television devices under
Part 9E, which the ACMA would be able to do under section 130ZZM;
• advise the Minister about regulated television services under Part 9E, which the
ACMA would be able to do under subsection 130ZZJ(4);
• monitor compliance with the minimum prominence requirements;
• conduct investigations relating to compliance with the minimum prominence
requirements, which the ACMA would be able to do under section 130ZZQ.
Item 5 would insert reference to 'broadcasting video on demand industry' in paragraphs
10(1)(n) and (q) to provide that it is a function of the ACMA to inform itself and advise the
Minister on technological advances and service trends in the broadcasting video on demand
industry, as well as to report to, and advise, the Minister in relation to the broadcasting video
on demand industry more generally.
Item 6 - After paragraph 53(2)(j)
Item 7 - Paragraph 53(2)(k)
Section 53 of the ACMA Act limits the ability of the ACMA to delegate certain powers. Item
6 would insert a paragraphs 53(2)(ja), (jb), and (jc), to provide a limit on the ability of the
ACMA to delegate its powers under the BSA to:
• make, vary or revoke a determination about regulated television devices under
subsections 130ZZI(2) or (3);
• make, vary or revoke an instrument about primary user interfaces under subsection
130ZZL(3); and
• determine, vary or revoke guidelines about regulated television devices under section
130ZZM.
Other functions and powers conferred on the ACMA under Part 9E would be delegable. This
provides a level of flexibility in the regulator's oversight and administration of the
prominence framework, and is consistent with the approach to existing ACMA delegations
under the ACMA Act. However, it will be important that the ACMA officers delegated with
the duty to make, vary and revoke determinations have the relevant seniority and expertise to
34
undertake these functions. The regulator would be expected to take a prudent approach to
such delegations and ensure that relevant officers do have the relevant seniority and expertise.
Item 7 would amend paragraph 53(2)(k) of the ACMA Act to allow the ACMA, or a Division
of the ACMA, to delegate the power to issue, or extend the time for compliance with, a notice
under Part 9E or any other provision of the BSA that relates to Part 9E. The ACMA would
have the power to issue various notices under Part 9E, or other provisions of the BSA (for
example, Parts 13 and 14E) in respect of investigations of alleged breaches of the minimum
prominence requirements, infringement notices and remedial directions (which are treated as
notices as a result of subsection 130ZZP(7)).
This amendment would make clear that the ACMA's powers to issue (and extend compliance
time for) notices in connection with Part 9E may be delegated. The intent is to allow for
greater administrative convenience for the ACMA in relation to the service of notices in
relation to Part 9E.
Amendments to the Broadcasting Services Act 1992
Item 8 - Title
Item 8 would insert reference to broadcasting video on demand services in the long title of
the BSA to reflect the Act also relates to these services as a result of the introduction of the
prominence framework.
Item 9 - After paragraph 3(1)(h)
Item 10 - Subsection 3(2)
Section 3 of the BSA sets out the objects of the Act. These objects include promoting the
availability to audiences throughout Australia of a diverse range of radio and television
services (see paragraph 3(1)(a)). These objects also include promoting the role of
broadcasting services in developing and reflecting a sense of Australian identity, character
and cultural diversity, as well as promoting the availability to audiences throughout Australia
of television and radio programs about matters of local significance (see paragraphs 3(1)(e)
and (ea), respectively).
Item 9 of the Bill would insert a new object in paragraph 3(1)(ha): to promote access to
certain broadcasting services and broadcasting video on demand services that are made
available free to Australian audiences and users. This would provide explicit support for the
prominence framework in terms of the overall objects of the BSA.
Subsection 3(2) of the BSA sets out the meaning of certain terms for the purposes of section
3. Item 10 would amend this subsection to provide that the term broadcasting video on
demand services has the same meaning as set out in Part 9E under section 130ZZH.
35
Item 11 - Subsections 4(1) and (2)
Item 12 - Subparagraph 4(2)(c)(i)
Item 13 - Subsection 4(4)
Section 4 of the BSA sets out the Parliament's intentions with respect to the regulatory policy
embodied in the BSA.
Subsection 4(1) provides that the Parliament intends that different levels of regulatory control
apply across the range of broadcasting, datacasting, and internet services, according to the
degree of influence that different types of those services are able to exert in shaping
community views in Australia. Item 11 would amend subsection 4(1) to provide that the
Parliament also intends that different levels of regulatory control apply across the range of
broadcasting video on demand services.
Subsection 4(2) sets out the Parliament's specific regulatory policy intention in relation to
each of: broadcasting services and datacasting services; internet carriage services; and,
designated content/hosting services, as guided by the opinion of ACMA. Item 11 also would
insert reference to broadcast video on demand services in subsection 4(2), in addition to
broadcasting services, to reflect the Parliament's regulatory intention in relation to Part 9E.
Similarly, item 12 would amend subparagraph 4(2)(c)(i) to insert reference to broadcast video
on demand technologies, to reflect the Parliament's intention to regulate such broadcasting
video on demand services in a manner that encourages the development and application of
broadcasting video on demand technologies.
Subsection 4(4) of the BSA sets out the meaning of certain terms for the purposes of section
4. Item 13 would amend subsection 4(4) to provide that, for the purposes of section 4, the
term broadcasting video on demand service has the same meaning as set out in Part 9E under
section 130ZZH.
Item 14 - Paragraph 5(1)(a)
Item 15 - Subsection 5(4)
Section 5 of the BSA sets out the ACMA's role under the BSA, with reference to the objects
and regulatory policy intentions of the BSA set out in section 4. Paragraph 5(1)(a) provides
that, in order to achieve the objects of the BSA in a way that is consistent with the
Parliament's regulatory policy intent, the Parliament charges the ACMA with responsibility
for monitoring the broadcasting, datacasting, internet and commercial content service
industries.
Item 14 of the Bill would amend paragraph 5(1)(a) to provide that the Parliament also now
charges the ACMA with responsibility for monitoring the broadcasting video on demand
industry.
36
Subsection 5(4) of the BSA sets out the definition of terms for the purposes of section 5. Item
15 of the Bill would amend subsection 5(4) to provide that, for the purposes of section 5, the
term broadcasting video on demand service has the same meaning as set out in Part 9E under
section 130ZZH.
Item 16 - Subsection 204(1) (before table item dealing with section 143)
Subsection 204(1) of the BSA provides that applications can be made to the Administrative
Appeals Tribunal in relation to certain decisions made under the BSA. Item 16 would amend
subsection 204(1) of the BSA to confer on the Administrative Appeals Tribunal the power to
review decisions made by the ACMA under subsection 130ZZP(2), being the decision to
issue, vary or refuse to revoke a remedial direction.
Item 16 would also provide that where the ACMA issues, varies, or refuses to revoke a
remedial direction, made under the provision of subsection 130ZZP(2), it is the person to
whom the direction was given, that may make an application for the merits review of such a
direction.
Item 17 - After subsection 205F(5AA)
Section 205F of the BSA sets out civil penalty amounts for the contravention of civil penalty
provisions in the BSA. Item 17 would insert subsections 205F(5AB), (5AC) and (5AD) to
specify the civil penalty amounts in relation to the contravention of the prominence
framework through the civil penalty provisions in Part 9E.
Subsection 205F(5AB) would provide the pecuniary penalty amounts payable by a person in
respect of a contravention any of the minimum prominence requirements, as set out under
subsections 130ZZN(1), (2), (3), or (4) in Part 9E or section 205E of the BSA (which deals
with ancillary contraventions), for a person who is a body corporate and a person that is not a
body corporate.
For the calculation of the pecuniary penalty payable by a person who is a body corporate,
paragraph 205F(5AB)(c) would set out that the pecuniary penalty payable will be whichever
amount is the greater between subparagraphs 205F(5AB)(c)(i), (ii) and (iii); and this amount
must not exceed:
• 10,000 penalty units; or
• if the Federal Court can determine the value of the benefit that the body corporate,
and any body corporate related to the body corporate, has obtained directly or
indirectly and that is reasonably attributable to the contravention--3 times the value
of that benefit; or
• if the Federal Court cannot determine the value of that benefit--2% of the annual
turnover (as defined in section 205F(9)) of the body corporate during the period (the
37
turnover period) of 12 months ending at the end of the month in which the
contravention occurred.
These maximum penalties are significant. As the majority of manufacturers to whom the
prominence framework is intended to apply are large, global bodies corporate, the maximum
penalty amounts to be imposed are set at a level considered sufficient to deter those bodies
from conduct that does not comply with Part 9E. The penalty amounts set will ensure that the
civil penalty provides a sufficient deterrent recognising the commercial incentives that may
exist to provide prohibited devices and services.
Paragraph 205F(5AB)(d) would provide the pecuniary penalty payable by a person who is
not a body corporate, in respect of a contravention any of the minimum prominence
requirements, must not exceed 2,000 penalty units. The penalty amount imposed in relation to
an individual who contravenes these provisions is one-fifth of the penalty amount imposed in
relation to a contravention by a body corporate, consistent with broader Commonwealth
policy.
Further, these maximum penalties are consistent with similar penalties. For example, section
45AF and 56EV of the Competition and Consumer Act 2010. They are also consistent with
penalties proposed as part of the proposed Communications Legislation Amendment
(Combatting Misinformation and Disinformation) Bill 2023.
Other civil penalties associated with Part 9E would have smaller penalty amounts,
proportionate to the offending action and sufficient to deter contravention. Subsection
205F(5AC) would provide that the pecuniary penalty payable by a person in respect of a
contravention of a remedial direction under subsection 130ZZP(3) in Part 9E or section 205E
of the BSA (which deals with ancillary contraventions) must not exceed: 5,000 penalty units
if the person is a body corporate; and, 1,000 penalty units if the person is not a body
corporate. A high amount is set for breaches of remedial directions recognising that such a
direction will have been imposed by the ACMA in response to previous infringing conduct.
Subsection 205F(5AD) would provide that the pecuniary penalty payable by a person in
respect of a contravention of or a request to provide information and documents under
subsection 130ZZQ(3) or section 205E of the BSA (which deals with ancillary
contraventions) must not exceed: 40 penalty units if the person is a body corporate; and, 30
penalty units if the person is not a body corporate.
Item 18 - At the end of section 205F
For the purposes of section 205F - in particular subparagraph 205F(5AB)(c)(iii) - Item 18
would insert the meaning of annual turnover. This is necessary for the purposes of the Federal
Court determining the annual turnover of entities.
38
Subsection 205F(9) would provide the annual turnover of a body corporate, during the
turnover period, is the sum of the values of all the supplies that the body corporate, and any
body corporate related to the body corporate, have made, or are likely to make, during that
period. For example, the sum of the values of all the supplies made, or that are likely to be
made, by a manufacturer and its subsidiaries. This sum excludes any of the supplies set out in
the subsequent paragraphs 205F(9)(a), (b), (c) and (d). They are:
• supplies made from any of those bodies corporate to any other of those bodies
corporate;
• supplies that are input taxed;
• supplies that are not for consideration (and are not taxable supplies under section 72-5
of the A New Tax System (Goods and Services Tax) Act 1999); and
• supplies that are not made in connection with an enterprise that the body corporate
carries on.
The calculation of annual turnover would include the annual global turnover of the body
corporate. As such, subsection 205F(10) would clarify that it is immaterial whether the
supplies were made, or are likely to be made, within or outside Australia.
Subsection 205F(11) would clarify that the expressions regarding supplies and types of
supplies used in the prior subsections (9) and (10), have the same meaning as such terms
within the A New Tax System (Goods and Services Tax) Act 1999. These subsections would
adopt these expressions as they are established and understood.
Subsection 205F(12) would clarify that where the question whether 2 bodies corporate are
related to each other is to be determined for the purposes of subsection (9) would arise, for
the purposes of legal consistency, it would be determined in the same way as for the purposes
of the Corporations Act 2001.
Item 19 - Section 205XA
Item 20 - Subsection 205Y(3)
Item 21 - At the end of section 205Y
Items 19 to 21 amend Part 14E to allow an authorised infringement notice officer (that is, the
Chair of the ACMA or an appointed ACMA staff member) to issue infringement notices in
relation to Part 9E without first providing a formal warning. It is a standard requirement of
Part 14E that infringement notices can only be issued after a formal warning has first been
given by written notice.
This amendment is intended to provide the ACMA with flexibility in enforcing the
prominence framework. Given that infringement notices would only be issued for
contraventions of existing ACMA directions or notices under sections 130ZZP and 130ZZQ,
it is intended that the recipients of infringement notices will be sufficiently warned that they
39
are at risk of enforcement action. Separately, the ACMA would still be able to provide formal
warnings under subsection 130ZZN(7) when it is satisfied that a person has contravened the
must carry obligations set out in section 130ZZN.
Section 205XA provides that an authorised infringement notice officer may give formal
warnings that conduct contravenes a designated infringement notice provision. Item 19 would
amend section 205XA to provide that this provision would not apply to designated
infringement notice provisions in Part 9E.
Section 205Y sets out when an infringement notice may be issued. It provides that an
infringement notice may be issued by an authorised infringement notice officer if there are
reasonable grounds to believe that a person has contravened a designated infringement notice
provision of the BSA; and a formal warning has previously been given under section 205XA.
Items 20 and 21 would amend subsection 205Y(3) and insert subsection 205Y(5) to reflect
that authorised infringement notice officer may give a person an infringement notice relating
to a contravention of a designated infringement notice provision in Part 9E, without
previously giving notice through a formal warning.
Item 22 - Before paragraph 205ZA(1)(aa)
Item 23 - Paragraph 205ZA(1)(a)
Section 205ZA provides that the penalties that may be specified in an infringement notice
given to a person under Part 14E must be a pecuniary penalty. Items 22 and 23 would insert
paragraphs 205ZA(1)(aaa) and (aab) and amend paragraph 205ZA(1)(a), to reflect the
additional infringement notice provisions in subsections 130ZZP(3) and 130ZZQ(3).
The effect of the Item 22 would be that, in circumstances where an infringement notice is
issued to a person in relation to a remedial direction related to subsection 130ZZP(3) and the
person was a body corporate, then the penalty specified in the notice must be a pecuniary
penalty equal to 60 penalty units. Similarly, in circumstances where an infringement notice is
issued to a person in relation to a requirement for information and documents related to
subsection 130ZZQ(3) and the person was a body corporate, then the penalty specified in the
notice must be a pecuniary penalty equal to 30 penalty units. Item 23 makes consequential
amendments to the operation of section 205ZA.
Item 24 - Application of amendments
Item 24 would establish that the application of amendments made by Schedule 1 apply in
relation to a regulated television device that is:
• manufactured on or after the day that is 18 months after the commencement of the
Schedule (as specified in Clause 2); and
• supplied on or after that day.
40
This application provision acknowledges and accommodates the lead times associated with
the design, development, manufacture and distribution of electronic goods, which typically
involve global supply chains.
41
SCHEDULE 2--ANTI-SIPHONING SCHEME
Amendments to the Broadcasting Services Act 1992
Item 1 - After paragraph 3(1)(ea)
Section 3 of the BSA sets out the objects of the BSA. A number of these objects are
supported in part by the anti-siphoning scheme, including 3(e): to promote the role of
broadcasting services in developing and reflecting a sense of Australian identity, character
and cultural diversity. However, there is no object that is explicitly relevant to the scheme.
Item 1 would insert paragraph 3(1)(eb): to promote the free availability to audiences
throughout Australia of television coverage of events of national importance and cultural
significance.
Item 2 - Subsection 6(1) (definition of anti-siphoning event)
Item 2 would amend the definition of 'anti-siphoning event' in subsection 6(1) of the BSA by
omitting the wording "a notice under subsection 115(1). For this purpose, disregard
subsections 115(1AA) and (1B)" and substituting it with "the anti-siphoning list. For this
purpose, disregard subsections 146V(2) and (4)".
This is a consequential amendment required as Item 3 would repeal section 115 of the BSA
and Item 4 would replace it with a similar provision at subsection 146V.
The power of the Minister to make the anti-siphoning list would change from subsection
115(1) to subsection 146V(1). The list is referred to as a 'notice' under subsection 115(1),
while under subsection 146V(1) it would be called the 'anti-siphoning list' for clarity. The
delisting provisions in subsections 115(1AA) and (1B) would effectively be replaced with
subsections 146V(2) and (4).
The definition of 'anti-siphoning event' would not be changed in substance. An
'anti-siphoning event' would continue to be an event specified in the anti-siphoning list,
regardless of whether the event has been delisted (see 146V at Item 4 for further details).
Item 3 - Section 115
Item 3 would repeal section 115 of the BSA, which deals with the anti-siphoning list. Section
115 is within Part 7 of the BSA, which is concerned with subscription television broadcasting
services. The expansion of the anti-siphoning scheme to cover media content services (which
encompasses subscription television broadcasting services as well as other services), would
mean that Part 7 of the BSA is no longer an appropriate location for matters relating to the
scheme. Item 4 would insert a similar provision at section 146V in Part 10B of the BSA.
42
Item 4 - After Part 10A
Item 4 would insert Part 10B in the BSA. The anti-siphoning scheme would be set out in this
Part.
Part 10B--Anti-siphoning scheme
Division 1--Introduction
Section 146S - Simplified outline
Section 146S would provide a simplified outline of Part 10B to assist the reader to understand
the substantive provisions of this Part. This is not intended to be comprehensive, and the
reader should rely on the substantive provisions of Part 10B.
The outline would provide that:
• Part 10B sets up a scheme to promote the free availability to audiences throughout
Australia of television coverage of events of national importance and cultural
significance.
• The Minister may, by legislative instrument (i.e. the anti-siphoning list), specify the
events that are covered by the Part.
o If an event is specified in the list, there is a period in which media content
service providers (other than national broadcasters and certain Australian
commercial television broadcasting licensees) are prohibited from acquiring
the rights to televise or otherwise provide coverage of a whole or a part of the
event.
o This ensures that national broadcasters and certain Australian commercial
television broadcasting licensees have the opportunity to acquire the rights and
televise the event for free to the general public.
• If the rights to an event are not acquired within the relevant period (subsection
146V(2) provides 8,760 hours (i.e. 52 weeks)), the event is automatically removed
from the anti-siphoning list, unless the Minister makes another legislative instrument
declaring that the event is to remain in the list.
• The Minister also has a general power to remove events from the list if they consider
it appropriate to do so (for example, if the Minister thinks that doing so is likely to
have the effect that the event will be televised to a greater extent than if it remained in
the list).
• The ACMA has information gathering and enforcement functions and powers in
relation to Part 10B.
43
• There is to be a review of the operation of the Part. Subsection 246ZB provides that
this would be as soon as practicable after the end of the 5-year period starting on the
day on which Part 10B commences.
Section 146T - Definitions
Section 146T would insert definitions that are relevant to the operation of Part 10B. The
definitions are as follows:
anti-siphoning list would mean the instrument made under subsection 146V(1) of the BSA,
which would be inserted by Item 4.
audiovisual content would include television programs. This definition is included for the
avoidance of doubt. 'Program' is defined broadly in section 6 of the BSA to include matter
the primary purpose of which is to entertain, to educate or to inform an audience; or
advertising or sponsorship matter, whether or not of a commercial kind.
Australia, when used in a geographic sense, would include all the external Territories. This
definition is included in Part 10B as the anti-siphoning scheme (and relevant ACMA powers)
would extend beyond Australia.
coverage would mean that coverage involves audiovisual content (i.e. audio and video
together) or moving visual content (i.e. video alone). Coverage would not be limited by
technology, and would include all online, broadcast and other media services.
listed carriage service would have the same meaning as in the Telecommunications Act 1997.
media content service would have the meaning given by section 146U of the BSA, which
would be inserted by Item 4.
media content service provider would mean a person who provides a media content service.
related body corporate would have the same meaning as in the Corporations Act 2001.
Section 146U - Media content service
Section 146U would define 'media content services' that would be subject to Part 10B
(Anti-siphoning scheme). Subsection 146U(1) would provide that a 'media content service'
means any of the following:
• a broadcasting service - which is defined under subsection 6(1) of the BSA;
44
• an online information service (such as a dial-up information service) - which would
be defined by its ordinary meaning;
• an online entertainment service (such as a streaming service or an interactive
computer game service) - which would be defined by its ordinary meaning;
• any other service that allows end-users to access content using a listed carriage
service - listed carriage service would be defined by section 146T;
• a specified service that the Minister determines, under subsection 146U(2) to be a
media content service;
but does not include a specified service that the Minister determines, under subsection
146U(3), not to be a media content service.
The services captured by this definition would be subject to the anti-siphoning scheme under
Part 10B.
Providers of services that are not media content services would not be captured by this
provision and would therefore face no restriction in acquiring the rights to anti-siphoning
events.
Subsections 146U(2) and (3) would allow the Minister, by legislative instrument, to
determine that a specified service is, or is not, respectively, a 'media content service'. This
would enable the Minister to clarify the status of a particular service where there may be
some doubt. Subsection 146U(2) would also provide a failsafe to include services that may be
attempting to evade the anti-siphoning rules.
The notes included at the end of subsections 146U(2) and 146U(3) refer the reader to
subsection 13(3) of the Legislation Act 2003, which deals with specification by class.
Division 2--Anti siphoning rules
Section 146V - Minister may protect the free availability of certain types of programs
Section 146V would regulate events on the anti-siphoning list (these events would be subject
to the 'acquisition restriction' in section 146W of the BSA, which would be inserted by
Item 4). It would be based on section 115 of the BSA (which would be repealed by Item 3),
but would contain updates to reflect the changes to the anti-siphoning scheme that would be
made by Part 10B, and modernise the structure in accordance with current drafting
convention.
Subsection 146V(1) would allow the Minister, by legislative instrument, to specify an event,
or events of a kind, the televising of which should, in the Minister's opinion, be available free
45
to the general public. Such an instrument would be defined as the anti-siphoning list by
section 146T.
The note to subsection 146V(1) makes it clear that an instrument made under subsection
146V(1) can be varied or revoked under subsection 33(3) of the Acts Interpretation Act 1901.
Subsection 146V(2) would set out the 'delisting' arrangements for events before they occur.
An event specified in the anti-siphoning list would be taken to be removed from the list to
8,760 hours (i.e. 52 weeks) before the start of the event (this period would be the 'delisting
time'), unless the Minister, by legislative instrument, declares that the event continues to be
specified before the delisting time. This would increase the delisting time from 4,368 hours
(i.e. 26 weeks) under the current anti-siphoning scheme. The change would occur with the
commencement of Schedule 2 to the Bill.
The purpose of the automatic delisting arrangements is to allow media content service
providers (other than national broadcasters and certain commercial television broadcasting
licensees) the ability to acquire the rights to provide coverage of an event in the
anti-siphoning list after the event is removed from the list. The increase in time is intended to
bring the delisting period more in line with the commercial reality of media rights
acquisition, where media rights deals are typically settled more than a year in advance of the
event taking place. For example, the Australian Football League (AFL) media rights from
2025 to 2031 were settled and announced in 2022. This would provide other media content
services with a greater opportunity to acquire the rights to events that national broadcasters
and commercial television licensees do not wish to acquire.
Subsection 146V(3) would provide that the Minister can only make a declaration under
subsection 146V(2) that the event continues to be specified in the anti-siphoning list, if 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.
Subsection 146V(4) would set out the delisting arrangements for events after they occur. An
event specified in the anti-siphoning list would be taken to be removed from the list 168
hours (i.e. 7 days) after the end of the event (the delisting time) unless: the Minister, by
legislative instrument, declares that the event continues to be specified in the list after the
delisting time; and does so before the delisting time.
The purpose of subsection 146V(4) would be to ensure that events kept in the list by the
Minister under subsection 146V(2) would not be retained in the list in perpetuity. The effect
of this would be, where the Minister has exercised their power to retain an event under
subsection 146V(2), any media content service provider would be able to acquire a right to
televise or otherwise provide coverage of the event 168 hours (i.e. 7 days) after it occurs.
46
Subsection 146V(5) would allow the Minister, by legislative instrument, to amend the
anti-siphoning list to remove an event if, in the Minister's opinion, it is appropriate in all the
circumstances. Two examples are included under subsection 146V(5) of situations in which
the Minister might exercise the power to remove an event from the anti-siphoning list.
• The first example deals with the situation where national broadcasters and
commercial television broadcasting licensees have had a real opportunity to acquire
the right to televise an event, but none of them has acquired the right within a
reasonable time. In that circumstance, the Minister may form the opinion that
removing the event is likely to have the effect that the event will be televised to a
greater extent than if it remained in the anti-siphoning list.
• The second example deals with the situation where the hoarding of an event occurs.
This example is where a commercial television broadcasting licensee has acquired the
right to televise an event, but has failed to televise it or has televised only an
unreasonably small proportion of the event. The Minister may form the opinion that
removing that event, or another event, from the anti-siphoning 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 on the list. Such a situation may occur, for example, where a national
broadcaster or a commercial television broadcasting licensee acquires the right to an
annual sporting event in a particular year, but does not televise that event. The
Minister may form the opinion that removing equivalent events in following years
from the list will increase the chances that those events will be televised.
Section 146W - Events in anti-siphoning list should be televised for free
The anti-siphoning scheme currently operates as an 'acquisition restriction' imposed on
subscription television broadcasting licensees. This is provided by paragraph 10(1)(e) of
Schedule 2 to the BSA, which would be repealed by Item 10.
The Bill would replace this provision with a new acquisition restriction in section 146W to
apply to all media content service providers, except for national broadcasters and certain
commercial television broadcasting licensees. This would provide national broadcasters and
certain commercial television broadcasting licensees with an opportunity to acquire the rights
to televise events (on the anti-siphoning list) for free to the general public. Other media
content service providers would have the opportunity to acquire the Australian coverage
rights for listed events only after a national broadcaster or one or more commercial television
broadcasting licensees have secured a right to televise the event, or the event has been
delisted removed from the anti-siphoning list.
The expansion of the acquisition restriction is intended to capture online services and address
the risk inherent in the current scheme that nationally important and culturally significant
events will migrate behind online paywalls, and are no longer available for free to Australian
audiences.
47
Subsection 146W(1) would provide that the acquisition restriction applies to a media content
service provider other than:
• a commercial television broadcasting licensee (other than a licensee who holds a
licence allocated under section 38C or subsection 40(1) of the BSA); or
• a national broadcaster.
Subsection 146W(2) would prevent media content service providers from acquiring the right
to televise or otherwise provide coverage of the whole or a part of an event that is included in
the anti-siphoning list to end-users in Australia, unless:
• a national broadcaster has the right to televise the whole or a part of the event on any
of its broadcasting services; or
• both of the following apply:
o one or more commercial television broadcasting licensees (other than licensees
who hold licences allocated under section 38C or subsection 40(1)) have the right
to televise the whole or a part of the event;
o the television broadcasting services of that licensee, or of those licensees, cover a
total of more than 50 per cent of the Australian population.
The carveout from the exemption that is applicable to commercial television broadcasting
licences allocated under either section 38C or subsection 40(1), reflects the fact that these
services are (for differing reasons) limited in their ability to provide services to all
Australians, and therefore supports the objective of the scheme.
For avoidance of doubt, it is important to note the following in relation to subsections
146W(1) and (2):
• Commercial television broadcasting licensees (other than licensees who hold licences
allocated under section 38C or subsection 40(1)) would be exempt from subsection
146W, but not any entities that are related to the licensees that might otherwise
constitute a media content service. This means that a commercial television
broadcasting licensee - and not a related body corporate - would need to be the party
to acquire a right to televise listed events under the protection of the scheme.
• Following the automatic delisting time - provided that the Minister does not specify
the event continues to be in the list (see subsections 146V(2) and (4)) - there are no
restrictions on the acquisition of the right to televise or otherwise provide coverage of
events.
• Only the act of acquisition would be restricted under this provision. A party that is
already holding a right would not be captured by this section, provided that an
48
acquisition of a right does not take place. For example, this may include the party that
originates or creates the right, such as a sports body. If that party is a media content
service provider, they would not be prevented from providing coverage of the event,
as they are not acquiring a right. However, any media content service provider that is
acquiring a right would need to comply with subsection 146W(2).
Subsection 146W(3) would provide that subsection 146W(2) is a civil penalty provision. The
maximum penalties would be set out in subsection 205F(5AE) (inserted by Item 7). For
persons who are body corporates, the maximum penalty would be the greater of: 10,000
penalty units; 3 times the value of that benefit; or 2 per cent of the annual turnover. For
persons who are not body corporates the maximum penalty would be 2,000 penalty units.
Subsection 146W(4) would enable the Minister, by legislative instrument, to determine that
subsection 146W(2) does not apply to a specified media content service provider if the
Minister is satisfied that it is appropriate to do so.
Subsection 146W(5) would provide that in making a determination under subsection
146W(4), the Minister may have regard to:
• the object in paragraph 3(1)(eb);
• the extent to which the application of subsection 146W(2) to the provider would, in
the circumstances, impose an undue burden or restriction on the provider;
• any other matter the Minister considers relevant.
This 'reserve power' may be used in the circumstance where it is unreasonable to subject a
party to the restriction imposed by subsection 146W(2). This could, for example, include a
situation where a domestic sports body is acquiring a right to an international event with the
intent of on-selling that right to Australian media entities. If the sports body is subject to the
acquisition restriction imposed by subsection 146W(2), the Minister could consider
exercising their power under subsection 146W(2) to determine that the acquisition restriction
does not apply in that specific circumstance. It should be noted that this is an illustrative
example only.
Section 146X - Extraterritorial application
Section 146X would provide that Part 10B extends to acts, omissions, matters and things
outside Australia. This would clarify that Part 10B would apply regardless of whether
relevant conduct occurs within or outside of Australia. For example, a contract to acquire the
rights to televise or otherwise provide coverage of an event in the anti-siphoning list to
audiences in Australia that is fully executed in another country, would still need to comply
with Part 10B.
49
Section 146Y - Remedial directions
Section 146Y would provide that the ACMA may give a remedial direction to a media
content service provider for contravening the acquisition restriction set out in subsection
146W(2). This would enable the ACMA to require a media content service provider to take
action to promote compliance with the anti-siphoning scheme.
Subsection 146Y(1) would provide that section 146Y applies where the ACMA is satisfied
that a media content service provider has contravened, or is contravening, subsection
146W(2).
Subsection 146Y(2) would provide that the ACMA may give the person a written direction
requiring the provider to take specified action directed towards ensuring that, in the future:
the provider does not contravene subsection 146W(2); or the provider is unlikely to
contravene that subsection.
Item 6 would amend subsection 204(1) of the BSA to confer on the Administrative Appeals
Tribunal the power to review decisions made by the ACMA under subsection 146Y(2) to
give, vary or refuse to revoke a remedial direction. An application for review may only be
made by the person to whom the direction was given.
Subsection 146Y(3) would provide examples of the kinds of directions that may be given to a
media content service provider under 146Y(2). These could include, but are not limited to:
• a direction that the provider implement effective administrative systems for
monitoring compliance with subsection 146W(2);
• a direction that the provider implement a system designed to give the provider's
employees, agents and contractors a reasonable knowledge and understanding of the
requirements of subsection 146W(2), in so far as those requirements affect the
employees, agents or contractors concerned.
Subsection 146Y(4) would provide that a person must not contravene a direction under
subsection 146Y(2).
Subsection 146Y(5) would provide that subsection 146Y(4) is a civil penalty provision. The
maximum penalties would be set out in subsection 205F(5AF) (inserted by Item 7). For
persons who are body corporates, the maximum penalty would be the greater of: 5,000
penalty units. For persons who are not body corporates the maximum penalty would be 1,000
penalty units.
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Division 3--Information gathering
Section 146Z - ACMA may obtain information and documents
Section 146Z would provide the ACMA with information gathering powers to assist the
regulator in monitoring and enforcing the anti-siphoning scheme.
Subsection 146Z(1) would provide that section 146Z applies to: a person who is a media
content service provider, or is a related body corporate of a media content service provider;
if the ACMA has reason to believe that the person has information or a document that is
relevant to:
• monitoring compliance with Part 10B; or
• the performance of the ACMA's functions under paragraph 10(1)(a), (e), (n) or (q) of
the ACMA Act, which are as follows:
o to regulate broadcasting services and datacasting services in accordance with the
BSA;
o to conduct investigations as directed by the Minister under section 171 of
the BSA, which allows the Minister to direct the ACMA to conduct an
investigation;
o to inform itself and advise the Minister on technological advances and service
trends in the broadcasting industry, internet industry and datacasting industry;
o to report to, and advise, the Minister in relation to the broadcasting industry,
internet industry and datacasting industry.
It should be noted that Schedule 1 to the Bill would amend paragraphs 10(1)(a), 10(1)(n) and
10(1)(q) of the ACMA Act in relation to the prominence framework include references to
Part 9E and broadcasting video on demand services (see Items 3 to 5 of Part 2 of Schedule 1
to the Bill).
Subsection 146Z(2) would provide that the ACMA may, by written notice given to the
person, require the person to do any of the following:
• to give to the ACMA, within the period and in the manner and form specified in the
notice, any such information;
• to produce to the ACMA, within the period and in the manner specified in the notice,
any such documents;
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• to make copies of any such documents and to produce to the ACMA, within the
period and in the manner specified in the notice, those copies.
Subsection 146Z(3) would provide that a person must comply with a requirement under
subsection 146Z(2).
Subsection 146Z(4) would provide that subsection 146Z(3) is a civil penalty provision. The
maximum penalties would be set out in subsection 205F(5AG) (inserted by Item 7). For
persons who are body corporates, the maximum penalty would be 40 penalty units. For
persons who are not body corporates the maximum penalty would be 30 penalty units.
Subsection 146Z(5) would provide that a person who contravenes subsection 146Z(3)
commits a separate contravention of that subsection for each day (including a day of the
making of a relevant civil penalty order or any subsequent day) during which the
contravention continues. This is intended to provide a significant incentive for media content
service providers and their related body corporates to comply with ACMA enforcement
action.
Subsection 146Z(6) would provide that subsection 146Z(3) is a designated infringement
notice provision. Item 8 provides that the penalty for a body corporate is 30 penalty units.
This would operate as an alternative to action via the courts.
Subsection 146Z(7) would provide that the period specified to provide the ACMA with what
it is seeking under paragraph 146Z(2)(a), (b) or (c) must not be shorter than 14 days after the
written notice is given.
Section 146ZA - Copies of documents
To assist with information gathering, section 146ZA would ensure that the ACMA has
adequate powers to copy and retain documents.
Subsection 146ZA(1) would allow the ACMA to inspect a document or copy produced under
Part 10B, and make and retain copies of, or take and retain extracts from, such a document.
Subsection 146ZA(2) would allow the ACMA to retain possession of a copy of a document
produced in accordance with a requirement covered by paragraph 146Z(2)(c).
Division 4--Review of this Part
Section 146ZB - Review of this Part
Section 140ZB would provide for a review of the anti-siphoning scheme. Subsection
140ZB(1) would require the Minister to cause a review to be conducted of the operation,
52
effectiveness and implications of: Part 10B; and the anti-siphoning list (which would be made
under subsection 146V(1)).
Subsection 140ZB(2) would provide that the review must commence as soon as practicable
after the end of the 5-year period starting on the day on which Part 10B commences.
Subsection 140ZB(3) would provide that the persons undertaking the review must give the
Minister a written report of the review, and that report must not include information that is
commercially sensitive.
Subsection 140ZB(4) would provide that the Minister must cause copies of the report to be
tabled in each House of the Parliament within 15 sittings days of that House after receiving
the report.
Section 146ZC - Minister may request report
Section 146ZC would enable the Minister to direct the ACMA to prepare reports about
developments relating to the scheme and list. Subsection 146ZC(1) would provide that the
Minister may, by written notice, request the ACMA to prepare and give to the Minister a
report about any of the following:
• developments in the market for rights to provide coverage of sporting events in
Australia;
• trends in the provision and consumption of coverage of sporting events by audiences
in Australia;
• international developments in the regulation of the rights to provide coverage of
sporting events and in the provision and consumption of such coverage;
• technological developments that relate to media content services in Australia.
Subsection 146ZC(2) would provide that the ACMA must comply with a direction under
subsection 146ZC(1).
Item 5 - After Division 1 of Part 11
Division 1A--Complaints relating to anti-siphoning
Section 149A - Complaints relating to anti-siphoning
Section 149A would provide that if a person believes that a media content service provider to
which section 146W applies has breached the civil penalty provision in 146W(2) (the
acquisition restriction), the person may make a complaint to the ACMA about the matter. The
53
right to make a complaint is not limited to a media content service provider or related body
corporate. Any party would be permitted to make a complaint. This allows other parties that
have an interest, such as sporting bodies, to make a complaint.
The note to section 149A would explain that section 146W deals with anti-siphoning
restrictions in relation to persons who provide media content services, other than commercial
television broadcasting licensees and national broadcasters.
Section 149B - Investigation of complaints by the ACMA
Section 149B would enable the ACMA to investigate a complaint if the ACMA thinks that it
is desirable to do so. The ACMA would not be forced to investigate any complaints.
Item 6 - Subsection 204(1) (after table item dealing with Subsection 146D(4))
Subsection 204(1) of the BSA provides that applications can be made to the Administrative
Appeals Tribunal in relation to certain decisions made under the BSA. Item 6 would amend
subsection 204(1) of the BSA to confer on the Administrative Appeals Tribunal the power to
review decisions made by the ACMA under subsection 146Y(2), being the decision to give,
vary or refuse to revoke a remedial direction. An application for review may only be made by
the person to whom the direction was given.
Item 7 - Before subsection 205F(5A)
Section 205F of the BSA sets out civil penalty amounts for the contravention of civil penalty
provisions in the BSA. Subsection 205F(1) provides that the Federal Court may order a
person to pay a pecuniary penalty for a contravention of a civil penalty provision. Item 7
would insert sections 205F(5AE), (5AF) and (5AG) to specify the civil penalty amounts in
relation to the contravention of the anti-siphoning scheme through the civil penalty provisions
in Part 10B.
Subsection 205F(5AE) would provide the pecuniary penalty amounts payable by a person in
respect of a contravention of subsection 146W(2) (the acquisition restriction), for a person
who is a body corporate and a person that is not a body corporate.
For the calculation of the maximum pecuniary penalty payable by a person who is a body
corporate, paragraph 205F(5AE)(a) would set out that the pecuniary penalty payable will be
whichever amount is the greater between subparagraphs 205F(5AB)(a)(i), (ii) and (iii); and
this amount must not exceed:
• 10,000 penalty units;
• if the Court can determine the value of the benefit that the body corporate, and any
body corporate related to the body corporate, has obtained directly or indirectly and
54
that is reasonably attributable to the contravention--3 times the value of that benefit;
or
• if the Court cannot determine the value of that benefit--2 per cent of the annual
turnover of the body corporate during the period (the 'turnover period') of 12 months
ending at the end of the month in which the contravention occurred.
These maximum penalties are significant. However, the value of the sports rights regulated
by the anti-siphoning scheme are significant. For example, the rights deal for the AFL for the
period 2025 to 2031 is worth a $4.5 billion. The penalty amounts proposed in the Bill will
ensure that the civil penalty provides a sufficient deterrent for non-compliance with the
scheme.
Paragraph 205F(5AE)(b) would provide the pecuniary penalty payable by a person who is not
a body corporate, in respect of a contravention subsection of 146W(2), must not exceed 2,000
penalty units. The penalty amount imposed in relation to an individual who contravenes these
provisions is one-fifth of the penalty amount imposed in relation to a contravention by a body
corporate, consistent with broader Commonwealth policy.
Further, this civil penalty is consistent with similar offences across Commonwealth
legislation (for example, section 45AF and 56EV of the Competition and Consumer Act
2010). The other civil penalties as detailed below have smaller penalty amounts,
proportionate to the offending action and sufficient to deter contravention.
Subsection 205F(5AF) would provide that the pecuniary penalty payable by a person in
respect of a contravention of a remedial direction under subsection 146Y(4) of the BSA
(which deals with the acquisition restriction under subsection 146W(2)) must not exceed:
5,000 penalty units if the person is a body corporate; and 1,000 penalty units if the person is
not a body corporate. A high amount is set for a contravention of this remedial direction in
recognition that such a direction would have been imposed by the ACMA in response to
previous infringing conduct.
Subsection 205F(5AG) would provide that the pecuniary penalty payable by a person in
respect of a contravention of subsection 146Z(3) or a contravention of section 205E that
relates to a contravention of subsection 146Z(3), must not exceed: 40 penalty units if the
person is a body corporate; and 30 penalty units if the person is not a body corporate.
Subsection 146Z(3) would specify that a person must comply with subsection 146Z(2), which
relates to ACMA's ability to obtain information and documents. Section 205E deals with
ancillary contraventions of civil penalty provisions.
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Item 8 - After paragraph 205ZA(1)(aab)
Item 9 - Paragraph 205ZA(1)(a)
Part 14E of the BSA sets out a system of infringement notices for the contravention of
designated infringement notice provisions as an alternative to court proceedings. Subsection
205ZA sets out the pecuniary penalties payable under an infringement notice.
Item 8 would insert paragraph 205ZA(1)(aac), which would provide that where an
infringement notice is issued that relates to subsection 146Z(3), and the person is a body
corporate, then the penalty specified in the notice must be a pecuniary penalty equal to 30
penalty units. This would operate as an alternative to action via the courts. Consistent with
subsection 205Y(4) of the BSA, a formal warning (under section 205XA of the BSA) relating
to the contravention, or a similar contravention, must be given before a civil infringement
notice is issued.
Item 9 would amend paragraph 205ZA(1)(a) of the BSA to omit the wording "paragraph
(aaa), (aab) or (aa)" and substitute it with "paragraph (aaa), (aab), (aac) or (aa)". The effect of
this would be to provide that the penalty for infringement notices in 205ZA(1)(a) does not
apply for a provision mentioned in paragraph 205ZA(1)(aac) - the provision that is
mentioned is subsection 146Z(3) (see Item 8).
Item 9 relies on Item 23 of Schedule 1, which also amends subsection 205ZA(1)(a).
Item 10 - Paragraph 10(1)(e) of Schedule 2
Item 10 would repeal paragraph 10(1)(e) of Schedule 2 to the BSA, which makes each
subscription television broadcasting licensee subject to a condition that the licensee will not
acquire the right to broadcast on its service an event in the list unless a national broadcaster
or commercial television broadcasting licensee (other than licensees who hold licences
allocated under section 38C or subsection 40(1) of the BSA) has a right to broadcast the event
(i.e. the existing acquisition restriction). This Bill inserts a new acquisition restriction through
section 146W of the BSA, which covers all media content service providers (including
subscription television broadcasting licensees), making this provision unnecessary.
56
IMPACT ANALYSES
Prominence framework for connected TV devices
Summary
1. What is the problem?
2. Why is Government action needed and what is its objective?
3. Policy options considered
4. Impact Analysis
5. Consultation
6. What is the best option?
7. Implementation and evaluation
Summary
Introduction
The Australian Government is committed to legislating a prominence framework to ensure
local television (TV) services are easy for Australian audiences to find on connected TV
devices.
Over the last decade there has been a fundamental transition in the TV market in Australia.
This has seen linear TV broadcasting services augmented with on-demand services, where
audiences typically use specific software applications (apps) that deliver TV content to them.
These apps include those used to deliver live linear TV programming, as well as video on
demand (VOD) apps that are owned by a range of media providers.
While offering significant benefits for Australian audiences, these technology-driven changes
are creating a more challenging environment for local free-to-air TV services to deliver
content to viewers.
• Free-to-air services now exist as one of many content options on TV interfaces, and are
becoming increasingly difficult for consumers to find on connected TV devices. A
significant portion of the Australian population lacks the skills and knowledge to navigate
to these services on newer devices.
• The commercial arrangements for securing access to these devices can impose additional
costs on broadcasters at a time when they are facing an increasingly challenging financial
environment.
This gives rise to a number of challenges from a policy perspective. Free-to-air broadcasting
has and continues to play a unique role in achieving key media policy objectives in Australia,
including in relation to:
• supporting our democratic processes through an informed citizenry;
• ensuring communities are informed during emergencies;
• developing and reflecting a sense of Australian identity and character;
• reflecting Australia's multicultural society; and
• protecting consumers - particularly children - from material that may be harmful to them.
For free-to-air broadcasters to continue to support the achievement of these media policy
objectives, it is important that their services are easily available to audiences on the devices
that are commonly used to access TV content. The prominence framework will enable
Australian consumers to have access to free-to-air TV services, with minimal input, effort or
capability on the part of the consumer.
The implementation of a prominence framework that supports access to broadcasting services
would have an immediate and positive effect for Australian viewers in ensuring the
availability of local TV services. It would also have positive flow-on impacts for the local TV
broadcasting industry, potentially enhancing the visibility and attractiveness of their content
and therefore improving the ability to generate advertising revenue.
However, a prominence framework must be carefully calibrated to avoid imposing
unreasonable or unintended burdens on the manufacturers of TV devices. In the extreme, an
onerous or overly prescriptive framework could increase the cost of TV devices, or limit the
functionality or number of models available to Australian consumers.
Public consultation
Two phases of stakeholder and public consultation were undertaken in 2022 and 2023 to
support the design of the prominence framework for connected TV devices. The initial phase
involved targeted consultation with stakeholders in the broadcasting, TV manufacturing,
online subscription service, and digital platform sectors. This consultation was conducted in
the second half of 2022.
The subsequent phase of consultation involved the development and release of a prominence
proposals paper, detailing four specific models for the new framework.6 This paper was
released on 23 December 2022 and the submissions period closed 24 February 2023.
Post-consultation analysis
The development of the recommended option has taken into consideration the views of
stakeholders provided during the two consultation phases, and sought to balance the needs of
each sector while supporting the achievement of established media policy objectives. This
has led to the development of a model for the prominence framework that includes a number
of elements from both the 'must-carry' and 'must-promote' models that were publicly
6Department of Infrastructure, Transport, Regional Development, Communications and the Arts (2022), Prominence
Framework for Connected Television Devices - Proposals Paper.
58
consulted on between December 2022 and February 2023. This hybrid model is the subject of
this Impact Analysis (IA), and is presented alongside the status quo option.
Recommended option
Under the recommended option, the prominence framework would support the availability of
free-to-air TV services, delivered both as linear TV broadcasts and broadcast video on
demand (BVOD) apps, on regulated TV devices (those that are primarily used to provide TV
or TV-like content). The framework would be legislated through the Broadcasting Services
Act 1992 (BSA), with the following key features:
1. An obligation on manufacturers of regulated TV devices to make free-to-air broadcasters'
linear TV and BVOD services available on those devices without fee, payment or other
form of consideration, consistent with 'minimum prominence requirements' determined
via regulations. Minimum prominence requirements would include the pre-installation or
automatic installation of free-to-air TV service apps and the availability of linear TV
services and BVOD apps of free-to-air broadcasters from the 'front page' of the device's
user interface.
2. Compliance with the obligation to be subject to free-to-air broadcasters supplying apps
(for their linear TV and BVOD services) that meet reasonable technical standards, with
free-to-air broadcasters responsible for maintaining and updating the software for their
respective apps and for handling any consumer complaints regarding the operation and
functionality of those apps.
3. No restriction on the ability of the manufacturers of regulated TV devices to seek
payment, fees or any other form of consideration for the promotion of apps or content on
relevant devices from any party, provided that the minimum prominence requirements are
upheld for free-to-air broadcasting services. Search functions or other features of
regulated TV devices that operate in response to user input or requests would not be
subject to the minimum prominence requirements.
4. The ability for the regulator - the Australian Communications and Media Authority
(ACMA) - to obtain information, documents or evidence from regulated TV device
manufacturers, regulated TV service providers, or other persons, where the information or
documents are relevant to the oversight and administration of the framework. The
Minister for Communications would also be able to request the ACMA to prepare and
provide to the Minister particular information or reports in relation to regulated television
devices and services, technological developments and user access to these devices and
services, and developments in the broadcasting services and BVOD industry.
5. A requirement for the conduct of a review of the prominence framework once it had been
in operation for three years, to assess whether it is working effectively and whether
amendments may be required.
Under this option, there would be a compliance burden on device manufacturers who would
need to make changes to the operation of their device interfaces to comply with the
59
framework. However, it is expected that this would not require hardware modifications as
changes to the user interface of regulated TV devices should be able to be implemented via
software updates. Free-to-air broadcasters that choose to utilise the framework would also
incur a compliance burden for developing, maintaining and updating the software for their
respective apps and for handling any relevant consumer complaints.
The Impact Analysis process
This IA has been prepared in accordance with the Australian Government IA requirements. In
the subsequent chapters, the seven assessment questions set out in the Australian Government
Guide to Policy Impact Analysis (2023) have been addressed. Methods to determine the
likely regulatory burden and cost offsets for various measures were considered in the
preparation of this IA. However, the information made available through the two phases of
consultation and through additional analysis was not of a nature that would enable this type
of assessment. The seven IA questions addressed are:
1. What is the problem you are trying to solve and what data is available?
2. What are the objectives, why is government intervention needed to achieve them, and
how will success be measured?
3. What policy options are you considering?
4. What is the likely net benefit of each option?
5. Who did you consult and how did you incorporate their feedback?
6. What is the best option from those you have considered and how will it be implemented?
7. How will you evaluate your chosen option against the success metrics?
1. What is the problem?
Australians are increasingly using connected TVs and other devices to access a wide range of
audio-visual media content, including video-on-demand and live streaming services provided
by broadcasters. Audiences have gradually been shifting away from the linear consumption
of free-to-air broadcasts in favour of online and on-demand platforms.7
Although a majority of Australians still watch linear broadcasts,8 some fifteen per cent fewer
Australians watched free-to-air TV in a seven-day period in 2021 compared with 2001.9 As
shown in Figure 1, OzTAM ratings data from 2003-2022 highlights the long-term decline in
7 Deloitte (2021) Media Consumer Survey 2021.
8 Social Research Centre (2023), The 2022 Television Consumer Survey - Summary Report, reported to the Australian
Government Department of Infrastructure, Transport, Regional Development, Communications and the Arts, p. 26.
9 Roy Morgan Single Source, Australians aged 14+, 2001-2022, based on viewing last 7 days.
60
Australians watching commercial free-to-air TV, even with the introduction of multichannels
from 2009.
Figure 1: Commercial free-to-air broadcasters, average primetime audiences: 2003-2022
3
Audience (Millions)
2.5
2
1.5 Primary
Multichannel
1
0.5
0
Source: analysis of OzTAM ratings data. Average audience data is for 6pm-midnight ('primetime') in 5 City Metro, measured as
consolidated +7. Only commercial broadcasters 7, 9 and 10 are included. Data copyright © Oz TAM 2023. The data may not be reproduced,
published or communicated (electronically or in hard copy) in whole or in part, without prior written consent of OzTAM.
As linear broadcast viewership has declined, Australians have rapidly adopted non-linear
services including subscription video on demand (SVOD) and broadcast video on demand
(BVOD), usage of which have increased by 81 per cent and 154 per cent respectively since
2017.10
Figure 2 shows that while the number of free-to-air TV services is static, the number of
streaming services (not including BVODs) has grown exponentially since 2012.
10 Roy Morgan Single Source, Australians aged 14+, April 2016-June 2022, based on usage last 4 weeks.
61
Figure 2: Increase in viewing options for Australians -- number of providers, 1992-202211
35
30
Number of Providers
25
20
15
10
5
0
1992 2002 2012 2022
Free-to-air Subscription TV Streaming
Source: Departmental assessment of service availability
In this changing environment, an emerging challenge for Australian free-to-air TV
broadcasters is the ability to reach consumers. This is due, in part, to the difficulties
experienced by some consumers in finding and accessing TV apps and content via the
interfaces of smart TVs and other connected devices, and in part to increased competition and
a wider range of service offerings made available from other content service providers.
Linear broadcast TV services have historically received 'prominence' (to varying degrees) on
TVs imported into Australia. This is not necessarily the case for newer, connected TVs and
devices. These devices effectively operate as digital content distribution platforms, through
which device manufacturers and operating system providers work with content service
providers to present a range of apps and content for end users. In this environment, the
availability and positioning of particular content and services on a device is commonly
determined through commercial agreements between device manufacturers (or operating
system providers) and content service providers, including free-to-air broadcasters.
The 'interface' for smart TVs and other connected devices has therefore become increasingly
important in shaping how consumers access TV content. For audiences, these 'interfaces' are
the gateway through which they navigate an app and / or content ecosystem. In this
environment, TV manufacturers and operating system suppliers have a high degree of control
in determining where apps and content appear on a device's primary user interface or home
screen, menus or remote, and how content is discovered via search, browsing or
recommender systems.
While some manufacturers use third-party operating systems such as Google TV, a number of
large manufacturers utilise their own user interface with different technical requirements and
11For the purposes of this chart, a single company that provides multiple services is considered as one 'provider'.
'Streaming' is broadly defined and includes a range of online video services, not just SVOD. BVOD services owned by free-
to-air TV services have not been included in streaming.
62
formats. In some cases, recommender systems display a selection of content from a particular
service. Others aggregate content from multiple service providers. These are sometimes
divided into categories including personalised recommendations, genre recommendations,
and other categories such as 'trending now'.
To an extent, the apps and content that are shown on the home screen depend on which apps
a user has installed. If a user wishes to view content from an app that is not pre-installed, they
must generally download the app from an app library or store.
In this ecosystem, free-to-air broadcasters contend that device manufacturers have significant
bargaining power that allows them to dictate the circumstances under which broadcaster
content is made available to Australian audiences. Broadcasters report that some
manufacturers require significant annual payments for apps to be preinstalled on connected
TVs and for apps or content to be featured as 'recommended'. This, in turn, increases the cost
for free-to-air broadcasters to make their services and content readily available to audiences,
and has the potential to impact the availability of linear broadcast and BVOD services for
Australian audiences.
Definition of prominence
Broadly, prominence refers to the ability of users of connected TV devices to access local
free-to-air TV services, including their linear broadcast services, live-streamed online
services, and on-demand online services. This can be further broken down into three types of
prominence.
• The most basic form of prominence is whether an app (or, in some cases, a type of TV
content) is present on a TV device, known as 'availability'. An app that this available on a
device may not be pre-installed on the device, but require activation and downloading
from the device's 'app store'.
• The relative visibility of apps to users on TV devices can be described as 'positioning'. A
prominent app would be easy to find and positioned on the 'home' screen.
• Beyond app positioning, the ability of users to find particular content or programs can be
referred to as 'discoverability'. This can occur within apps, by selecting content through
device menus that aggregate content or programming options, and through search
functions.
The relationship between these terms is depicted in Figure 3.
63
Figure 3: Terminology for accessing television services
IS THE APP ON THE DEVICE?
Selecting content via device menu
Availability
HOW EASY IS IT TO FIND THE APP?
Positioning
HOW EASY IS IT TO FIND A PARTICULAR
SHOW/CONTENT?
Discoverability
Free-to-air TV services remain central to Australia's media policy objectives
Free-to-air broadcasting is an important mechanism for many Australians to access
information and content essential to their entertainment and safety, as well as supporting our
national identity, cultural diversity and social cohesion. The legislative framework for media
services in Australia relies heavily on these services to meet the policy objectives that are
reflected in the objects contained in subsection 3(1) of the BSA.
Among others, these objectives include:
(a) to promote the availability of a diverse range of radio and television services offering
entertainment, education and information;
(b) to provide a regulatory environment that will facilitate the development of a
broadcasting industry in Australia that is efficient, competitive and responsive to
audience needs;
(e) to promote the role of broadcasting services in developing and reflecting a sense of
Australian identity, character and cultural diversity;
(ea) to promote the availability to audiences throughout Australia of television and radio
programs about matters of local significance;
(f) to promote the provision of high quality and innovative programming by providers of
broadcasting services; and
(g) to encourage providers of commercial and community broadcasting services to be
responsive to the need for a fair and accurate coverage of matters of public interest and
for an appropriate coverage of matters of local significance.
The national broadcasters also occupy unique roles in the Australian media landscape,
supporting specific public policy outcomes consistent with the requirements of their
respective Acts.
64
• The ABC is required, among other matters, to provide (within Australia), innovative and
comprehensive broadcasting services of a high standard as part of the Australian
broadcasting system, including programs that contribute to a sense of national identity,
inform, entertain and reflect the cultural diversity of the Australian community, and are of
an educational nature.
• The SBS is required, among other matters, to provide multilingual and multicultural
broadcasting and digital media services that inform, educate and entertain all Australians,
and reflect Australia's multicultural society.
The ability of free-to-air TV broadcasting to support these objectives is a product of the
characteristics of the service. As there are no ongoing costs for audiences to access these
services, they are available to virtually all Australians who have the equipment to receive
them, regardless of their financial means or location. This means that they can provide news
and entertainment to Australians across the country.
Despite the growth of online news outlets, free-to-air TV broadcasting continues to be an
important mechanism for many Australians to access local news and emergency information.
• In 2022, Deloitte Access Economics reported that 65 per cent of Australians found
commercial TV to be a trusted source of news that was essential to democracy.12
• Radio and television broadcasting are also highly effective methods of communicating
time-critical information to large groups of people before, during and after emergency
situations. This is reflected in research undertaken by the Australian Communications and
Media Authority (ACMA), which found that Australian audiences expect to have access
to both general and localised information on unfolding emergencies, including from
emergency services, to protect the life, health and safety of individuals and communities
in times of crisis.13
Free-to-air broadcasters have and continue to play an important role in the provision of
Australian content, with requirements for commercial broadcasters to provide a minimum of
55 per cent of Australian programming on their main channels between 6:00 am and
midnight, coupled with specific program genre requirements under the Broadcasting Services
(Australian Content and Children's Television) Standards 2020 (ACCTS). Numerous studies
and consultation processes have confirmed that Australian content is highly valued by
Australians, including a 2020 survey found that 85 per cent of Australians 'agreed' or
'strongly agreed' that Australian film and TV stories are important for contributing to our
sense of Australian identity.14
The value that Australians place on these aspects of free-to-air TV services are reflected in
the findings of the 2022 Television Consumer Survey (TVCS), commissioned by the
12 Deloitte Access Economics (2022), Everybody Gets It, commissioned by Free TV, p 35.
13 ACMA (2022), What audiences want - Audience expectations for content safeguards, p 17.
14 Department of Infrastructure, Transport, Regional Development and Communications (2020), Media content consumption
survey.
65
Department of Infrastructure, Transport, Regional Development, Communications and the
Arts. As outlined in Figure 4, the most commonly cited 'essential' reasons for watching free-
to-air TV were: no ongoing subscription costs (32 per cent); ease of access (27 per cent); and
national or international news content (26 per cent).15
Figure 4: Combined 'main' and 'essential' reason for watching free-to-air television
Easy to access (e.g., no sign in, appears when I turn the ...
National or international news
No ongoing subscription costs
News and alerts specific to my area / region / state
Available without internet connection
A broad range of Australian TV shows / movies
Has my favourite Australian TV shows / movies
Has my favourite international TV shows / movies
My favourite sporting content
A broad range of international content
Latest, high quality picture definition (e.g. HD, 4k)
0% 20% 40% 60%
Source: 2022 Television Consumer Survey commissioned by the Department of Infrastructure, Transport, Regional Development,
Communications and the Arts.
Free-to-air TV services face prominence challenges
As previously noted, linear broadcast TV services have historically received 'prominence' (to
varying degrees) on TVs imported into Australia. This was a product of the market, not
regulation. TV channels were important to manufacturers in terms of their consumer offering
and, as such, TV services had a degree of leverage in terms of ensuring that those services
were available and prominent on TVs.
If free-to-air broadcasters are to continue to support the achievement of Australia's media
policy objectives, their services need to be easily available to audiences on the devices that
are commonly used to access TV content. Information provided through stakeholder and
public consultations on the design of the prominence framework (described in Chapter 5)
suggests this is not always the case, and that there is a risk that this may worsen in the future.
Social Research Centre (2023), The 2022 Television Consumer Survey - Summary Report, reported to the Australian
15
Government Department of Infrastructure, Transport, Regional Development, Communications and the Arts, p. 40.
66
Free-to-air services may not always be available and prominent
Free-to-air broadcasters raised a range of concerns through consultations on the design of the
prominence framework that their services are increasingly difficult to find on connected TV
devices. It was noted that broadcasters are charged significant fees, or required to provide a
significant share of advertising revenue, by manufacturers in exchange for the placement of
their apps on device interfaces.16 Broadcasters also contend that, even when they pay, their
services can be crowded out by global content services or by services owned by the device
manufacturer or operating system provider.17 The sector argues that this model is not
sustainable, and will result in their services losing prominence on connected TV devices.
Research commissioned by academics at the Royal Melbourne Institute of Technology
(RMIT), and provided through the 2022 proposals paper consultation process, suggests that
there is validity to these concerns.
RMIT found that while all studied models of TV make linear TV services available, only
Samsung and Sony smart TVs have permanent linear broadcast tiles positioned clearly on
their platform home page. It also found that other major brands had non-permanent tiles that
appear and disappear based on the users recent viewing history, while Hisense provided no
direct access from the home screen.18
In relation to BVOD apps, RMIT found that these apps are available for download on tested
models for all major TV brands sold in Australia, with the exception of Hisense which does
not offer 7Plus or 10Play.19 However, BVOD apps are not always pre-installed and often
require consumers to download them from the device's app store.
• The two leading TV manufacturers in Australia in terms of market share - Samsung and
LG, accounting for around 50 per cent of the market - do not pre-install any BVOD apps.
In contrast, these and other leading manufacturers pre-install Netflix, YouTube, Amazon
Prime Video and Disney+.
• In some cases, consumers are not able to adjust the presentation of these tiles or apps,
even if they wish to do so. For example, the Netflix app is set and locked in the first
position on Hisense TVs.20
The RMIT research also found that BVOD apps do not receive prime position on smart TV
home pages.21
16 Free TV Australia (2023), Submission by Free TV Australia, submission to the Prominence Framework for Connected TV
Devices Proposals Paper, p. 8.
17 Ibid, p. 8-9.
18 Lobato, R., Scarlata, A. and Schivinski, B. (2023) Smart TVs and local content prominence, submission to the Prominence
Framework for Connected TV Devices Proposals Paper, p. 15.
19 Ibid.
20 Ibid.
21 Ibid., p. 18.
67
• The 'first tier' of visible app tiles are typically occupied by manufacturer-owned services
(such as Samsung TV Plus or LG Channels), or international streaming services (such as
Netflix, YouTube, Amazon Prime Video and Disney+).
• Free-to-air broadcasting services tend to be visible on a 'second tier' of app tiles,
alongside services that are not manufacturer-owned or international streaming services.
That is, there is a 'two-tier' app positioning market, and Australian free-to-air TV apps
are competing in this second tier.
These findings suggest that free-to-air services face challenges in ensuring that they remain
readily available on connected TV devices in the contemporary media environment. This
creates a risk that the achievement of key media policy objectives will be impaired, given the
contribution that free-to-air services make to these objectives.
Some consumers find it difficult to access free-to-air services they want
Research commissioned by the Department found that access to free-to-air TV services
remain important to Australian consumers, with some variation between age cohorts.
• The 2022 TV Consumer Survey found that for the majority of respondents having access
to free-to-air TV was either a 'somewhat' (37 per cent) or 'very important' (31 per cent)
factor in their choice of TV model or connected TV device.
• This increased with the age of the cohort surveyed, with the net 'somewhat important'
and 'very important' being 70 per cent for the 35-54 years bracket and 73 per cent for the
55+ age bracket, while for the 18-34 years bracket it was less important (59 per cent).22
However, the same survey found that a proportion of the Australian population has difficulty
in accessing free-to-air services online:
• 25 per cent of Australian adults who used a TV in 2022 indicated that they could not
access any free-to-air BVOD apps on their device;23 and
• between 7 and 30 per cent of Australian adults indicated that they could not access free-
to-air services on plug-in connected accessories, such as Google Chromecast and Amazon
Fire TV.24
These findings may reflect services being unavailable on particular devices. However, they
are also likely to reflect a lack of consumer skill and capability in navigating complex device
interfaces. Through consultation, it was reported that there are more than 500 models of
connected TV devices available for purchase by Australian consumers.25 While many share
22 Social Research Centre (2023), The 2022 Television Consumer Survey - Summary Report, reported to the Australian
Government Department of Infrastructure, Transport, Regional Development, Communications and the Arts, p.49.
23 Ibid, p.45.
24 Ibid, p.32.
25 Consumer Electronics Suppliers Association (2023) Smart TVs and local content prominence, submission to the
Prominence Framework for Connected TV Devices Proposals Paper, p.4.
68
similar interfaces, there are a large range of brands with different interfaces that consumers
need to navigate to access free-to-air TV services.
This is supported by research conducted by RMIT, which found some that some segments of
the Australian population have very low levels of digital skills when it comes to connected
TVs:
• 33 per cent do not know how to download apps;
• 56 per cent do not know how to customise the order of apps; and
• 51 per cent do not know how to adjust privacy settings.26
Collectively, the research found that some 26 per cent of Australians do not know how to do
any of the above. This cohort of low- and medium- agency users can be expected to be takers
of the default experience set by device manufacturers, and are more likely to be older. These
users are also more likely to be influenced by recommendations and prominently positioned
content, with 30 per cent stating they never search for content. For these low- and medium-
agency users, it may not be practical for them to access free-to-air services unless they are
made readily available, as would be required by the prominence framework.
International approaches to safeguarding access to local TV services
A number of international jurisdictions have enacted, or are considering, prominence rules.
The United Kingdom and Germany have focused on prominence of linear TV and BVOD
applications on device home pages, while other frameworks target prominence and
discoverability of domestic content within individual services (e.g. Netflix and Disney+).
United Kingdom
In November 2023, the UK Government introduced a bill into the UK Parliament to reform
the regulation of public service broadcasters (PSBs) 27 in the UK, including improving the
prominence of PSBs. Pay-TV channels such as BT, Sky and Paramount are not considered
PSBs and would not be covered by the proposed prominence regulation.
Part 2 of the Bill would amend the existing framework requiring prominence for linear FTA
broadcasts in electronic program guides (EPGs). The new framework would support
prominence for PSBs' video on demand services on 'Designated TV Platforms' (such as
smart TVs, pay TV operators and global TV platform providers). The UK model is for a
principles-based bargaining framework that would require PSBs and platforms to seek to
pursue mutually beneficial commercial arrangements in the first instance, with regulatory
intervention to resolve disputes and intervene in support of effective negotiations. The
26 Lobato, R., Scarlata, A. and Schivinski, B. (2023) Smart TVs and local content prominence, submission to the Prominence
Framework for Connected TV Devices Proposals Paper, p.10.
27 These broadcasters are those that are considered to operate for public benefit rather than purely commercial interests: the
BBC, ITV/STV, Channel 4, S4C and Channel 5. A number of these broadcasters are commercial, but are subject to certain
public benefit requirements.
69
proposed framework would require PSBs to offer their on-demand services to Designated TV
Platforms, which in turn must carry those services.28
The UK communications regulator, Ofcom, would be required to publish a code of practice,
in addition to intervening in bargaining where necessary.
Prior to introduction, the House of Commons Culture Media and Sport Committee published
its Draft Media Bill: Final Report in September 2023.29 The Committee supported the aims
of the bill, and recommended that it be prioritised for passage through Parliament.
Germany
Germany's Interstate Media Treaty (the Treaty) 30 adopts, and builds upon, the requirements
set out in the European Union's Audiovisual Media Services Directive (AVMSD) - outlined
in more detail below. Enacted in November 2020, the Treaty introduces prominence and
findability rules for digital media platforms.
The prominence rules require that:
• Broadcast services (both public and private) that contribute to plurality must be directly
accessible and easy to find in their entirety on the first level of a user interface.
• BVODs that make a significant contribution to plurality must be easy to find.
The treaty also mandates algorithmic transparency from those platforms regarding how
content is aggregated, accessed, found and presented. Should unjustified discrimination of
information occur, the provider of content is empowered to file a claim with the relevant
broadcasting authority.
The regulation applies to both public and some private broadcasters that deliver content of
public interest, such as news coverage of current affairs or regional information, German or
European productions, and content that appeals to young target groups. Section V of the
Treaty provides that such content is entitled to prominent positions within the operating
system of the platform and that media platforms should ensure that:
• all content offerings must be searchable without discrimination using a search function;
• similar content must not be treated differently in relation to sorting, arrangement or
presentation;
• content must be directly accessible and easy to find on the first selection level (e.g.
through a dedicated button or a single action); and
28 UK Department for Digital, Culture, Media & Sport (2022), Up Next: The Government's vision for the broadcasting
sector, p 24
29
House of Commons Culture, Media and Sport Committee (2023), Pre-legislative scrutiny of the Draft Media Bill
(parliament.uk).
30 Institute of European Media Law (2021) New German State Media Treaty enters into force
70
• any programs that make a particular contribution to the diversity of opinions must be easy
to find.
Following a public consultation process, Germany's state media authorities published a
'public value' list in October 2022. The 'public value' list contains 300 commercial media
services which are considered to significantly contribute to media pluralism and a diversity of
opinions. From April 2023, television and telemedia services must make media services of
public value easy to find on their user interfaces of television.
European Union
In November 2018, the European Commission adopted new rules for the EU Audiovisual
Media Services Directive (AVMSD) which seek to enhance the promotion of European
content in 'on-demand audiovisual media services'.31
The AVMSD recommends that EU member states put in place obligations that on-demand
services reserve a minimum 30 per cent share of European works in their catalogue and that
this content be given adequate prominence.
The revised AVMSD includes the following recommendations for media services:
• indicating the country where a film or series comes from;
• providing a dedicated section for European works that is accessible from the service
homepage;
• providing possibilities for searching for European works by means of a search tool made
available as part of the service;
• placing information and materials promoting European works, including in the
home/front page or when promoting trailers or visuals;
• using European works in promotional campaigns for the service; and
• promoting a minimum percentage of European works in the service's catalogue e.g. by
means of banners or similar tools.32
The EU maintains a relatively broad definition for prominence of "findability and
accessibility of general interest content on significant audiovisual services," though
emphasising that it is of fundamental importance for a democratic society.33 Further, as the
Directive contains recommendations only, ensuring on-demand media services comply with
these rules is matter for individual EU Member States. This has resulted in a heterogenous
implementation across different member states.
31 EUR-Lex (2019), Audiovisual Media Services Directive (AVMSD)
32 European Commission (2018), Digital Single Market: updated audiovisual rules.
33 European Broadcasting Union (2020), AVMSD: EBU Calls on Member States to Ensure Prominence of General Interest
Content.
71
Canada
The Canadian Online Streaming Act, also known as C-11, received Royal Assent on 27 April,
2023.
C-11 introduced requirements for online video streaming services relating to the
discoverability and promotion of Canadian programming. These requirements are not
specified in C-11, and are to be set out by Canada's television and telecommunications
regulator, the Canadian Radio-television and Telecommunications Commission (the CRTC).
C-11 gave the CRTC powers to impose conditions on services in relation to "the presentation
of programs and programming services for selection by the public, including the showcasing
and the discoverability of Canadian programs and programming services, such as original
French language programs".
The CRTC is currently undertaking a public consultation process and intends to implement
its prominence framework in late 2024.34
2. Why is Government action needed and what is its objective?
The prominence framework is seeking to address the challenges identified in chapter 1 and
enable Australians to easily access free-to-air TV services on connected TV platforms. By
doing so, the framework is intended to support the achievement of the policy objectives of the
BSA by providing a regulatory framework that promotes the availability of Australian TV
broadcasting services to the Australian public.
As noted in chapter 1, the 'interface' for smart TVs and other connected devices is
increasingly shaping how consumers access TV and TV-like content. For audiences, these
interfaces are the gateway through which they navigate to an app and / or content ecosystem.
In this environment, there are emerging risks that free-to-air TV services will not be easily
available to Australian audiences, which in turn threaten the achievement of media policy
objectives set out in the BSA. There are two aspects to this change in market dynamic:
• Access to connected TV devices is increasingly being monetised, with content services
having to pay to receive prominent positioning on the user interfaces of devices.
Australian free-to-air broadcasting services are unlikely to be able to compete for this
'interface real estate' with large, multi-national streaming services, or the content services
owned and operated by the device manufacturers themselves. There are a number of
factors that indicate that Australian free-to-air TV services face a bargaining imbalance in
dealing with the leading manufacturers of connected TV devices.
34 CTRC (2023), Regulatory Plan to modernize Canada's broadcasting system.
72
o The two leading TV manufacturers in Australia do not pre-install any BVOD apps
(but do pre-install the apps of large, international streaming services). For some
devices, the app tiles for these large international services are locked and unable to be
reconfigured by Australian consumers.
o The option for free-to-air broadcasters to 'walk away' from negotiations with the
manufacturers of smart TVs (and pursue alternative means of reaching audiences) is
unviable in a practical sense, as these connected devices are increasingly the key
gateways for reaching audiences. In 2022, over 80 per cent of Australian adults with
at least one TV in their home had a TV connected to the internet, and over a third of
these Australians had 2 or more internet-connected TVs.35
• There is a cohort of low- and medium- agency users of connected TV devices that are
unable to download apps, customize the order of apps, or adjust privacy settings. These
consumers are 'takers' of the default experience set by device manufacturers, and are
more likely to be influenced by recommendations and prominently positioned content.
For these Australians, who tend to be older, their ability to access free-to-air services is
likely to be increasingly impaired if those services and apps are not prominently and
easily accessible on the 'default' user interface of connected TV devices.
There is little to suggest that these market trends are abating. Rather, with respect to access
arrangements, there appears to be a trend towards greater use of payments and revenue-share
arrangements. For example, in June 2023, Amazon announced that from 30 September 2023,
a 30 per cent advertising revenue sharing policy would come into effect for all revenue
generated from advertising in the Fire TV Ad-Enabled App.
Market outcomes alone are unlikely to result in Australian consumers being able to easily and
simply access the services and apps of free-to-air broadcasters. Government intervention is
therefore warranted to support the objective of enabling Australians to easily access free-to-
air TV services and apps on connected TV devices with minimal effort, input or technical
skills and knowledge on the part of the user.
However, achieving the objective of increased availability of, and easy access to, free-to-air
TV services will depend on the legislative regime imposing the lowest cost, or burden, on the
industries involved, with minimal negative impacts on consumers.
There are a number of risks in introducing what would be a novel regulatory framework,
including the potential for the regulation being ineffective despite targeting an identifiable
problem, or imposing negative flow-on effects for sectors that were expected to benefit from
the regulation because it is overly proscriptive or burdensome. In the context of a prominence
framework, such risks may manifest in the form of reduced choice of products for consumers
as manufacturers seek to reduce the cost on compliance by limiting the number of models
they produce for the Australian market, or free-to-air TV services and manufacturers having
Social Research Centre (2023), The 2022 Television Consumer Survey - Summary Report, reported to the Australian
35
Government Department of Infrastructure, Regional Development, Communications and the Arts, p. 54.
73
resources tied up in administrative processes to ensure their own respective participation in,
and compliance with, the framework.
While the potential for unintended consequences of new legislation will always be a risk, the
Government has sought to mitigate this risk through two phases of consultation -- one
targeted at relevant sectors prior to the development of a proposals paper, and the second,
public consultation process based on proposals paper. In developing the recommended option
for this IA, the views of all submissions have been considered and assessed against the
objectives of enabling Australians to easily access free-to-air TV services and apps on
connected TV devices and delivering a framework that minimises the potential costs on
industry.
3. Policy options considered
The Albanese Government, in the context of the 2022 election, signaled its intent to legislate
a prominence regime to ensure Australian TV services can easily be found on connected TV
platforms.36
Australia's media policy objectives, as discussed in Chapter 1, include maintaining a
regulatory environment that facilitates an efficient and competitive broadcasting sector that is
responsive to the Australian public's needs; promoting the availability of a diverse range of
TV broadcasting offerings that reflect a sense of Australia's identity and diversity; and
providing appropriate coverage of matters of local significance. In this context, this IA
considers two options:
• Option 1: no intervention (status quo) - no change to current arrangements, and allow the
device / content provider market to continue unchanged; and
• Option 2: implement a prominence framework.
In developing the prominence framework described in option 2, the Government has
considered views and submissions received during two phases of consultation. The proposals
paper released for the second phase of consultation set out proposals for the scope of the
framework for:
• the types of services to be granted prominence;
• the types of devices on which prominence would be granted; and
• the entities that would be responsible for complying with the obligation to grant
prominence.
36Australian Government (2022), Government Commitments - Review the Anti-Siphoning Scheme for Australian TV
Services.
74
The proposals paper also canvassed potential models for addressing the prominence issue that
would achieve differing results -- from gathering evidence to monitor the issues further, to
leveling the playing field for negotiations between local TV services and device
manufacturers, to guaranteeing the availability of local TV services on connected TV devices,
to requiring the promotion of particular local TV services ahead of all other content service
providers on connected TV devices. These models are described further in Chapter 5. Option
2 has been developed as a hybrid model containing elements from both the must-carry and
must-promote models. This option seeks to support the availability of, and access to, free-to-
air TV services for consumers, while minimising costs and burden to industry.
Option 1: No intervention
This option represents the status quo, as it is what would occur if no Government action is
taken.
Under this option, the relationships between device manufacturers and Australian free-to-air
TV services would continue to be determined by market forces and technological change.
Under these conditions, the availability and positioning of apps, as well as the discoverability
of content, would be determined by a combination of:
• commercial agreements between manufacturers and content service providers;
• explicit consumer choices regarding app placement and content consumption; and
• operating system algorithms that use consumer data to determine prominence.
Option 2: Legislate a prominence framework
This option would implement a legislative framework in the BSA to require TV
manufacturers to ensure free-to-air TV services (those regulated under the BSA) are made
available on regulated TV devices. This is predominantly a 'must-carry' model, with the
following key features:
1. An obligation on manufacturers of regulated TV devices to make free-to-air broadcasters'
linear TV and BVOD services available on those devices without fee, payment or other
form of consideration, consistent with 'minimum prominence requirements' determined
via regulations. Specifically, the minimum prominence requirements would include:
(a) no charges, such as a fee, share of TV services advertising revenue, or requirement to
advertise for the device manufacturer for free, may be imposed on free-to-air TV
services for any aspect of prominence covered by the framework;
(b) pre-installation or automatic installation of free-to-air TV service apps, rather than
these apps only being available to download in the app store of the device;
(c) free-to-air TV services to be available on the 'primary user interface' of regulated TV
devices as the default setting;
75
(d) electronic program guides to include linear free-to-air TV services offerings in logical
channel number order; and
(e) device manufacturers and operating system providers to be prevented from altering
the content of free-to-air TV services displayed on devices.
2. Compliance with the obligation to be subject to free-to-air broadcasters supplying apps
(for their linear TV and BVOD services) that meet reasonable technical standards, with
free-to-air broadcasters responsible for maintaining and updating the software for their
respective apps and for handling any consumer complaints regarding the operation and
functionality of those apps.
3. No restriction on the ability of the manufacturers of regulated TV devices to seek
payment, fees or any other form of consideration for the promotion of apps or content on
relevant devices from any party, provided that the minimum prominence requirements are
upheld for free-to-air broadcasting services. Search functions or other features of
regulated TV devices that operate in response to user input or requests would not be
subject to the minimum prominence requirements.
4. The ability for the ACMA to obtain information, documents or evidence from regulated
TV device manufacturers, regulated TV service providers, or other persons, where the
information or documents are relevant to the oversight and administration of the
framework. The Minister for Communications would also be able to request the ACMA
to prepare and provide to the Minister particular information or reports in relation to
regulated television devices and services, technological developments and user access to
these devices and services, and developments in the broadcasting services and BVOD
industry.
5. A requirement for the conduct of a review of the prominence framework once it has been
in operation for three years, to assess whether it is working effectively and whether
amendments may be required.
Regulated TV devices would be: devices that are capable of connecting to the internet and
receiving BVODs, and are designed for the 'primary purpose' of facilitate the viewing of TV
or TV-like content. In practice, the primary purpose approach would mean that smart TVs,
third party set-top-boxes and certain plug in devices, such as Google Chromecast, Amazon
Fire TV Stick and Apple TV, would be expected to be regulated by a prominence framework.
This definition would exclude from the framework:
• devices such as monitors and other displays that, while technically capable of being used
to view TV content, are not configured to directly receive content and are not used to
provide other types of TV-like content; and
• devices whose primary purpose is not to watch TV, such is generally the case today with
personal computers, smartphones and tablets (consumption of audio-visual content can
76
occur via these devices, but it is not generally the intended primary function of the
device).
4. Impact Analysis
The options described above would have a range of impacts on industry, government and
consumers. These impacts are described in this chapter. However, a quantitative estimate of
costs and benefits has not be possible through this IA. The information made available
through the two phases of consultation and through additional analysis was not of a nature
that would enable this type of assessment.
• The successive consultations undertaken in 2022 and 2023, including the consideration of
proposals, did not yield specific information on the potential financial impacts of the
options canvassed (including the 'must-carry' model).
• In large part, this is due to the fact that revenue and cost information is highly sensitive
from a commercial perspective, and relevant parties have been unable or unwilling to
disclose such information.
• A prominence framework would also be a relatively novel regulatory intervention, and
there is no existing data, including from overseas, available to provide an estimate of
potential financial costs to the device manufacturing industry.
• As such, this IA provides a qualitative assessment, based on available information and
submissions,37 of the likely benefits and costs of the options to industry, government and
consumers. These estimates of likely impact have been supported with quantitative data
gathered in independent reports and surveys of audiences' preferences and behaviours in
relation to TV consumption.
Option 1: No regulatory intervention
Regulatory implications
Nil.
Impacts on industry
Impacts on the free-to-air sector
A failure to implement an enforceable prominence framework for connected TV devices is
expected, in the long term, to have a negative impact on the free-to-air TV sector.
Advertising revenues and audience numbers for the commercial free-to-air TV sector are in
long term decline. Figure 5 demonstrates the percentage of Australians watching commercial
37
Public submissions to the 2022 Prominence Framework for Connected TV Proposals Paper are available on the
Department of Infrastructure, Transport, Regional Development, Communications and the Arts website
77
free-to-air TV has declined sharply since 2016, with only minimal improvement during the
COVID-19 pandemic that does not appear to have been sustained.
This is comparable with the long-term decline in audience numbers described in Figure 1,
and the discussion in chapter 1 about the problems facing free-to-air TV broadcasters as
viewers switch from linear broadcasting to online viewing.
Figure 5: Percentage of Australians who viewed free-to-air TV over a seven-day period
100%
95%
90%
85%
80%
75%
70%
2001 2004 2007 2010 2013 2016 2019 2022
Source: Roy Morgan Single Source, Australians aged 14+, 2001 - 2022 (Calendar Years). Based on viewing last 7 days.
In 2019, the Australian Competition and Consumer Commission's (ACCC) Digital Platforms
Inquiry found that online advertising had progressively eroded broadcast TV revenues. The
final report found that expenditure on online advertising in Australia had increased from less
than $1 billion in 2004 to $8.8 billion in 2019, accounting for 53 per cent of total advertising
expenditure in that year.38 While the ACCC found that print media had seen the sharpest
decrease in advertising revenue, expenditure on TV had fallen steadily since 2014.
As noted in Chapter 1, connected TV devices are increasingly the key 'portals' for access to
audio-visual services, including TV content and apps. Maintaining the status quo is likely to
see the continuation of the erosion of audience numbers for free-to-air TV services depicted
in Figures 1 and 5, and lead to lower viewer awareness of, and accessibility to, free-to-air TV
services, with a commensurate decline in advertising revenues. This would have a detrimental
impact on the viability of commercial free-to-air TV services, and impede the ability of the
national and community broadcasters to fulfil their respective remits.
To arrest these trends, free-to-air broadcasters may seek to maintain or increase their
expenditure to secure a position on the interfaces on connected TV devices. This would, for
commercial broadcasters, erode their profitability. For all free-to-air TV broadcasters -
commercial, national and community - the requirement to pay for access to devices would
impede their ability to invest in key content genres, such as local and Australian content.
38 ACCC (2019), Digital Platform Inquiry Final Report, p 121.
78
Impacts on device manufacturers
Nil.
Impacts on international streaming services
Nil.
Impacts on consumers
RMIT research has found that only one of the five leading suppliers of connected TV devices
in Australia, Sony, pre-installed 4 of the 5 existing Australian BVODs.39 As such, Australian
users need to download between one app and five apps for full access to the online content
for free-to-air TV services. Given the inability of many Australians to navigate to, install and
access BVODs, as outlined in Chapter 1, it is reasonable to expect that if no changes are
made to the current regulatory framework, consumers are likely to have increasing difficulty
accessing free-to-air TV services. As a result, the overall ability of consumers to access news,
emergency information and Australian content would be impeded.
Impacts on government
Nil.
Overall assessment
Option 1 would make no changes to the existing regulatory framework and current market
trends - outlined in chapters 1 and 2 - would be expected to continue. The availability of
free-to-air broadcasting services would, over time, be diminished, with detrimental impacts
for Australian free-to-air broadcasters and Australian audiences.
Option 2: Legislate a prominence framework
Regulatory implications
A legislated prominence framework would insert new provisions in the BSA, and empower
the ACMA to administer the framework. This would modify and extend the remit of the
ACMA under the BSA and the Australian Communications and Media Authority Act 2005
(ACMA Act). The establishment of the framework, and its oversight by the ACMA, would
also impose a compliance burden on some sectors of the media industry (discussed below).
Providing additional functions for the ACMA in relation to the prominence framework would
also have budgetary implications for the regulator.
Impacts on industry
Impacts on the free-to-air sector
A legislated prominence framework would have a positive impact on the free-to-air TV
sector, and in particular to the broadcasting services that operate BVODs, including the
39Lobato, R., Scarlata, A. and Schivinski, B. (2023) Smart TVs and local content prominence, submission to the Prominence
Framework for Connected TV Devices Proposals Paper, p.15
79
national broadcasters (ABC and SBS) and the metropolitan commercial broadcasters (Seven,
Nine and Network Ten). The commercial free-to-air TV sector is a significant one in terms of
economic output, contributing an estimated $2.5 billion to Australia's gross domestic product
in 2021 according to Deloitte Access Economics.
A legislated prominence framework would guarantee that free-to-air TV services and apps
could gain and maintain access to the primary user interface on regulated TV devices sold in
Australia, without the need to enter into negotiations with the device manufacturers. This
would help to support viewer awareness of, and access to, free-to-air TV services and apps,
with a commensurate flow on benefits in terms of audiences and advertising revenues.
A legislated prominence framework would also reduce the expenditure required by free-to-air
TV broadcasters to secure access to connected TV devices (compared to what they would
otherwise have to pay to some manufacturers of regulated TV devices in terms of direct fees
or charges, or revenue or ad inventory share arrangements). This would, for commercial
broadcasters, boost their overall profitability.
For all free-to-air TV broadcasters - commercial, national and community - this would
enhance their ability to invest in key content genres, such as local and Australian content.
These likely benefits are based on qualitative information by stakeholders through the
consultation processes undertaken in 2022 and 2023. Submissions received from the free-to-
air TV sector, and other stakeholders, did not provide quantitative data on the actual charges
or outlays required to be paid by content services to secure access to the primary user
interface, or other user interface levels, of a device. However, recent reports of Amazon's
global policy for advertising revenue sharing arrangements for content providers utilizing the
Fire TV Ad-Enabled app would suggest these charges could be as high as 30 per cent of the
advertising revenue generated on the device.40
The framework may also impose compliance costs on free-to-air broadcasters, as they would
need to develop and provide an app for each TV device that was compatible with the
technical specification for the relevant operating system. These costs would include software
development and maintenance costs, and resourcing costs for complaints handling. However,
the costs would be avoidable, as free-to-air broadcasters would not be required to develop
and provide device-compatible apps if they did not feel it was in their overall interests to do
so. A free-to-air broadcaster may determine that the benefits of developing and maintaining
an app for a particular regulated TV device do not exceed the costs. In this circumstance, they
would incur no costs associated with the development and maintenance of the relevant app.
Impacts on device manufacturers
Any prominence framework is likely to increase costs on device manufacturers, as they
would be required to ensure that regulated TV devices are compliant with the framework.
40Buckingham-Jones, S. (2023), Amazon suddenly demands 30pc of ad revenue from TV networks', Australian Financial
Review.
80
Option 2 would implement a prominence framework that contains the minimum requirements
considered necessary to achieve the Government's stated outcomes.
The Consumer Electronics Suppliers Association (CESA) submission to the 2022 proposals
paper provided estimates on the size of the Australian TV device market including:
• A total market of $1.5 to $1.8 million per annum
• 15+ 'alpha' or leading brands in the market
• 5 manufacturers supply more than 60 per cent of the market
• 500+ models and variations sold by alpha brands in 2022
• More than 90 per cent of models sold in 2022 were alpha brand smart TVs.41
Under this option -- a must-carry model -- manufacturers would incur additional expenses
in building and maintaining Australia-specific software to ensure that free-to-air TV services
are installed, available and updated when required, in compliance with the framework. On the
basis of information provided through the consultation processes undertaken in 2022 and
2023, it is expected that the required changes could predominantly be implement through
software updates alone. Where chipset modifications may be required, it is understood that
these could be done through existing Australia-specific factory runs. Such factory runs are
already required for modifications, such as the inclusion of Australian standard power cables.
Therefore, a majority of direct costs would be incurred in developing and maintaining
Australia-specific operating software. While this is an ongoing cost, this is expected to be
relatively modest compared to a framework that required physical modification of devices
and remote controls (i.e. changes to hardware).
There are also expected to be indirect costs imposed on the manufacturers of regulated TV
devices. The largest such cost would be revenue forgone as a result of the prohibition on
charging free-to-air broadcasting services for access to regulated TV devices. The prohibition
on 'payment' would not be limited to monetary fees, and would include any non-monetary
charges such as share of TV advertising revenue. This would reduce the amount of revenue,
or other benefits, that manufacturers are able to receive for their 'screen real estate'. It is not
possible to quantify this opportunity cost, as little or no such information was provided
through the 2022 and 2023 consultation processes.
The potential revenue impacts of a prominence framework would be mitigated by the fact
that the must-carry model proposed would not prevent manufacturers from continuing to sell
the highest profile tile and app positions on the primary user interface to international
streaming services such as Netflix and Disney+. Rather, the must-carry model would only
require the services and apps of Australia free-to-air TV broadcasters to be available on the
41Consumer Electronics Suppliers Association (2023) Smart TVs and local content prominence, submission to the
Prominence Framework for Connected TV Devices Proposals Paper, p. 4.
81
'home screen' of the device and to be pre-installed. The highly valuable existing and future
commercial arrangements with these international firms could remain in place.
Impacts on international streaming services
The must-carry prominence model would not require free-to-air services and apps to be
promoted above or ahead of competitor services, including the larger international streaming
services. As such, the potential impacts of the framework on these international services are
expected to be negligible.
Impacts on consumers
A prominence framework would be of direct benefit to Australian consumers, particularly
those that are not technologically savvy and have difficulty in locating and installing free-to-
air TV services from a device menu or app store. The framework would enhance their ability
to readily access information essential to their safety, through local news and emergency
information, as well as entertainment content that supports our sense of national identity,
cultural diversity and social cohesion.
The framework would not prevent content services, such as Netflix and Disney+, from being
displayed and accessed from the primary user interface. Nor would it prevent consumers from
altering the position and display of content services on regulated TV devices. For example,
consumers could choose to delete the apps of free-to-air broadcasting services from the
'home screen' of the regulated TV device.
In terms of indirect impacts, Australian consumers may incur additional costs if the
manufacturers of regulated TV devices were to pass on any additional costs to consumers in
the form of higher prices. It is not possible to quantify these potential costs at this time, as
specific data was not supplied through the consultation processes undertaken to date.
Impacts on government
The oversight and administration of the new framework would have budgetary implications
for the ACMA. This would need to be considered through normal Budget processes.
Overall assessment
Option 2 would impose a regulatory burden on regulated TV device manufacturers. However,
the quantum of these costs is expected to be modest given the ability of manufacturers to
implement the majority of the requisite changes via software updates. The largest cost to
manufacturers associated with this option would be forgone revenue from charging free-to-air
broadcasters for access to regulated TV devices, which would be prohibited under the
framework. Option 2 would provide significant benefits to the free-to-air TV sector and to
Australian audiences.
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5. Consultation
Two phases of stakeholder and public consultation were undertaken to support the design of
the prominence framework for connected TV devices. The initial phase involved targeted
consultation with stakeholders in the broadcasting, TV manufacturing, online subscription
service, and digital platform sectors. This consultation was conducted in the second half of
2022.
Feedback from this targeted consultation informed the development of specific design
options for the prominence framework. A proposals paper42 was prepared and released on 23
December 2022 and the submissions period closed on 24 February 2023.
The proposals paper canvassed four options that could be implemented through legislation.
The legislative options proposed during the second consultation phase were:
• Reporting framework - requiring regulated parties to report on the systems and processes
they have in place to ensure the prominence of local TV services. Information could be
sought about availability, positioning and discoverability.
• Fair bargaining framework - requiring the technical and commercial terms of access to
regulated TV devices to be 'fair and reasonable', and requiring all local TV services and
the parties responsible for regulated TV devices to engage in 'good faith' negotiations.
• Must-carry (access) framework - requiring regulated TV devices to carry (make
available) local TV services, with no fees, payments or other consideration payable to the
provider of the local TV service to the entity responsible for the device for this basic level
of access. The prominence framework proposed in this IA is a modified version of this
model.
• Must-promote framework - requiring regulated TV devices to carry and promote local
TV services at various points of interaction with users of the device, generally ahead of
other content services.
Feedback was received from members of the public, academics, consumer-focused groups,
the broadcasting sector, the manufacturing sector, and the online subscription service and
digital platform sector.
• The free-to-air sector was supportive of a model of legislated framework that would result
in the promotion of free-to-air services on TV devices above all other content (must-
promote).
• The Consumer Electronics Suppliers Association (CESA), representing device
manufacturers, opposed a prominence framework. However, they noted that if the
Government was to legislate a prominence framework, a framework designed to ensure
42Department of Infrastructure, Transport, Regional Development, Communications and the Arts (2022), Prominence
Framework for Connected Television Devices - Proposals Paper.
83
the availability of free-to-air TV services and a reporting scheme may be acceptable.
• Stakeholders from the online subscription service and digital platform sectors provided a
range of views, with support for both the must-carry and reporting-based models.
• Consumer groups were largely supportive of a must-carry model that would also enhance
disability access features.
• The was little or no support for a fair bargaining model.
Post-consultation analysis
Consultations highlighted the complexity of the Australian media market, and the extent of
which there is interdependency between content service providers and the manufacturers and
suppliers of devices and technologies that facilitate the display of TV content for consumers.
• Commercial television broadcasters strongly support a must-promote prominence model
that would compel the manufacturers of regulated TV devices to prominently display
free-to-air linear broadcast and BVOD services ahead of other services. They argue that it
is essential for their viability.
• The national broadcasters recognise that a must-carry model would be an important
foundational step for a prominence framework, but would prefer a less passive
prominence intervention (i.e. a must-promote model).
• The Australian Children's Television Foundation (ACTF) and Screen Producers Australia
also supported versions of a must-promote model, with a preference for elements that
would increase the discoverability of Australian content. ACTF also recommended the
creation of an Australian children's content app that would be granted prominence on
regulated TV devices, and compatible with other devices used by children, including
tablets and mobile phones.
• Device manufacturers, represented by the Consumer Electronics Suppliers Association,
strongly opposed a must-promote model, instead providing caveated support for a version
of a must-carry model43 that would ensure the availability of local TV services. Device
manufacturers claim that a must-promote model would increase costs (especially given
the size of the Australian market), which would be passed on to consumers, and may limit
the range of device models available in Australia. At a high level, and depending on the
technical specifications of a given model, they argue that changes could be required to
software, chip sets or hardware, or a combination of all three.
• The Interactive Games & Entertainment Association (IGEA), Foxtel and Google all
supported a reporting framework. They argued that this would provide a stronger
43Manufacturers' support was caveated, notably: limiting scope to 'primary-use' devices only; reciprocal obligations on
BVOD providers to offer and maintain their apps; consolidation of BVOD apps within a single 'Freeview' tile / shortcut; and
a minimum two-year implementation timeline.
84
evidence base for future regulation and incentivise the parties to reach positive
prominence outcomes.
• Support for a must-carry model was expressed by a range of other stakeholders, including
consumers (represented by the Australian Communications Consumer Action Network),
Commercial Radio & Audio, Telstra, Netflix and Fetch TV.
These views were carefully considered in developing the proposed must-carry model for the
prominence framework. This option seeks to balance the Government's objectives for a
prominence framework against the needs and interests of the free-to-air TV sector and
connected TV device manufacturers. However, it is acknowledged that the needs and
interests of stakeholders are not aligned.
Although many submissions were forthright in their support for particular model, few
provided any data to enable a quantitative assessment of relative benefits, costs and impacts
of the various options. The information that was provided tended to support for the must-
carry model.44 However, data on consumer behaviours and capabilities (discussed in chapter
2) supported the addition of two particular elements of the 'must-promote' model:
a) the pre-installation or automatic installation of free-to-air TV service apps, rather than
these apps simply being available to download in the app store of the device (i.e.
requiring deliberate action on the part of device users); and
b) the requirement for free-to-air TV services and apps to available on the 'primary user
interface' as a default setting.
These two elements have been included in the proposed option for the prominence
framework.
6. What is the best option?
The option that would best deliver on the Government's commitment for ensuring Australian
TV services can easily be found on internet-connected TV platforms is option 2 --
implement a prominence framework.
The Government's objective for a prominence framework is to enable Australian audiences to
access free-to-air TV services on connected TV devices with minimal effort, input or
technical skills and knowledge on the part of the user. Option 2 would deliver this outcome,
with significant net benefits for Australian free-to-air broadcasters and Australian consumers.
Option 2 would, however, impose costs on the manufacturers of regulated TV devices: direct
costs in terms of developing and maintaining systems to fulfil the minimum prominence
requirements; and indirect costs in the form of foregone revenue from free-to-air TV
44Department of Infrastructure, Transport, Regional Development, Communications and the Arts (2022), Prominence
Framework for Connected Television Devices - Proposals Paper, p. 37.
85
broadcasters for access to regulated TV devices. However, as noted in chapter 3, these costs
are expected to be mitigated by the following factors:
• there would be no requirement for manufacturers to alter or modify device hardware;
• there would be no constraint on the ability of manufacturers to maintain and expand
commercial arrangements with international streaming services for 'premium' positions
on their device interfaces;
• there would be no restriction on the ability of manufacturers to charge free-to-air
broadcasters for access above and beyond the minimum prominence requirement; and
• the framework would have no application to search functions or other 'user-initiated'
features.
Option 1 - the status quo - is not considered to be a viable alternative as it would not address
the risks and issues identified in Chapters 1 and 2.
7. Implementation and evaluation
Implementation
Implementation of option 2 -- a prominence framework -- would be given effect through
amendments to the BSA and consequential amendments to the ACMA Act. The BSA
amendments would establish the key elements of the prominence framework. The use of
secondary legislation, such as regulations, would enable the framework to be adjusted and
amended over time to reflect changes in technology and consumption patterns and
preferences in relation to TV services.
Under the preferred option, the prominence framework would provide the ACMA with the
capacity to obtain information, documents or evidence from regulated TV device
manufacturers, regulated TV service providers, or other persons, where these would be
relevant to the oversight and administration of the framework. These powers would apply to
the discharge of its functions broadly under the framework, as well as in the context of any
investigation of a potential breach of the framework. The Minister for Communications
would be able to direct the ACMA to prepare and provide to the Minister particular
information or reports in relation to regulated television devices and services, technological
developments and user access to these devices and services, and developments in the
broadcasting services and BVOD industry.
Risks
Implementing any new legislative framework carries a number of intrinsic risks, including
whether the framework is effective in meeting its intended objectives, places unintended
86
burdens on stakeholders, and how technological advancements may require further
adjustments.
Throughout the design and development phases of the prominence framework there has been
extensive engagement with relevant stakeholders to identify potential issues and
consequences of the framework. The consultation processes undertaken in 2022 and 2023
highlighted the difficulties in identifying data that would enable these potential impacts to be
quantified. To address this risk, the preferred option for the framework includes a power for
the ACMA to request the information that it considers necessary to provide oversight of, and
administer, the framework. The Minister would also be given the power to request reports
from the ACMA.
It is recognised that the prominence framework would impose new obligations on
manufacturers of connected TV devices and that transitional arrangements will be required to
provide time for these manufacturers to make necessary changes to their product offerings.
For this reason, it is proposed that the prominence framework only applies to regulated TV
devices that are manufactured on or after the day that is 18 months from commencement of
the amending legislation.
Evaluation
The prominence framework would be a new legislative intervention in Australia. As such, it
will be important for the operation and effectiveness of the new arrangements, once
implemented, to be carefully assessed.
Under the recommended option, there is a requirement for the Minister to cause to be
conducted a review of the prominence framework once it has been in operation for a period
of three years. This review would be informed by data gathered by the ACMA in its oversight
of the framework, as well as broad-based stakeholder and public engagement.
The review would consider the operation of the framework and the extent to which it has
supported the overall objective of enabling Australian audiences to access free-to-air TV
services on connected TV devices with minimal effort, input or technical skills and
knowledge on the part of the user. This would include consideration of, but not be limited to,
an assessment of the extent to which the framework has:
• maintained or increased in the availability of free-to-air TV services on connected TV
devices; and
• imposed explicit or implicit costs on the manufacturers of connected TV devices or other
entities in the TV market.
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Reform to the anti-siphoning scheme
Summary
Background
1. What is the problem?
2. Why is Government action needed?
3. Policy options considered
4. Impact Analysis
5. Consultation
6. What is the best option?
7. Implementation and evaluation
Summary
Introduction
The objective of the anti-siphoning scheme (the scheme) is to promote free access to
televised coverage of events of national importance and cultural significance. At present, the
scheme seeks to further this objective by regulating the order in which the right to televise
events on the Broadcasting Services (Events) Notice 202345 (the current anti-siphoning list)
may be acquired by licensed television broadcasters. To date, the only programs included on
the list - and therefore regulated under the scheme - have been sporting events.
While the scheme targets the traditional broadcasting sectors, the market in which sporting
events are televised and consumed by audiences is rapidly evolving. It is a very different
market today compared with the one in existence at the time the scheme was implemented.
Two developments best represent this change:
• Australians' viewing options have broadened in the past decade to include online
services, and viewers' habits are changing as a result.
• Sport remains a genre of live programming that continues to attract audiences in
significant numbers, and the value of high-profile sports rights has grown exponentially
over recent years.
These developments are impacting the ability of the scheme to deliver on its core objective.
Public consultation
The Government has undertaken a review of the anti-siphoning scheme and anti-siphoning
list, in line with its 2022 election commitment. This review has been supported by two phases
of consultation in 2022 and 2023.
45 Broadcasting Services (Events) Notice 2023.
88
• The first phase involved the release of a public consultation paper46 and targeted
stakeholder roundtables in November 2022 with: free-to-air broadcasters; subscription
television broadcasters and streaming services; and sporting organisations. The
consultation paper was published on 11 October and the submission period closed on 6
December 2022. Stakeholder roundtables were held in November 2022.
• The second phase of consultation, informed by the views provided to the first
consultation, involved the release of a proposals paper detailing three specific models for
reform of the scheme and three options for reform of the list.47 This paper was published
on 19 August 2023 and the submissions period closed on 17 September 2023.
The review has considered a wide range of issues associated with the scheme and the
regulation of television coverage of key sporting events, and this has informed the
development of the models for reform of the scheme and the options for a remade list
assessed in this Impact Analysis (IA).
Post-consultation analysis
The review has found that the core objective of the anti-siphoning scheme - to promote free
access to televised coverage of events of national importance and cultural significance -
remains relevant and appropriate. The anti-siphoning scheme should continue to operate to
further this objective. However, the scheme needs to be broadened to incorporate online
services.
The risk that nationally important and culturally significant events migrate behind paywalls,
and are no longer available for free to Australian audiences, remains in a contemporary media
environment. There is a 'regulatory gap' in the scheme in relation to online services, and a
case to broaden the remit of the framework to mitigate the attendant risks.
The review also found that the composition of the list needs to be reconsidered. To date, the
list has not included sports that involve athletes with disabilities. To a lesser extent, it has also
tended to involve competitions in which men compete. This is a product of history rather than
deliberate design. Nonetheless, the review has found that there is a case to consider the
composition of the list with respect to women's sports events and Para-sports.
Recommended options
The views of stakeholders and the analysis undertaken through the review process has
informed the development of a proposed approach to reform of the scheme and list:
• a 'broadcast safety net' model for the anti-siphoning scheme, that expands the scheme to
include online services while retaining ubiquitous broadcast services as the means
through which the scheme's objectives are achieved; and
46 Department of Infrastructure, Transport, Regional Development, Communications and the Arts (DITRDCA) (2022),
Review of the anti-siphoning scheme - Consultation Paper.
47 DITRDCA (2023), Anti-siphoning Review - Proposals Paper.
89
• a 'modernised' list option that responds to the finding of the review that the current list is
outdated.
The 'broadcasting safety net' model for the scheme
Under this approach, the scheme would be expanded to prevent content services (other than
free-to-air broadcasters) from acquiring a right to provide coverage48 of a listed event to
audiences in Australia until a free-to-air broadcaster has acquired a right to televise the event
on a broadcasting service. This would extend the scope of the restriction on the acquisition of
rights under the current scheme, which only applies to subscription television broadcasting
licensees.
This model would affirm broadcasting services as the 'safety net' for free access to televised
coverage of iconic sporting events for all Australians. To this end, it provides free-to-air
broadcasters with preferential treatment in terms of acquiring the relevant rights. This
addresses the risk of these events migrating to platforms that involve direct or indirect costs
for Australian audiences.
However, this model doesn't explicitly provide free-to-air broadcasters with preferential
treatment in terms of their 'non-broadcasting' content services (i.e. broadcast video on
demand or other online 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 platform) and would provide free-to-air broadcasters with an
additional commercial advantage over other providers of content services.
Once a right to televise a listed event had been acquired by a free-to-air broadcaster, or the
event is automatically delisted 12 months (this period is 26 weeks under the current scheme)
prior to its commencement, any party would be able to acquire rights to the event without
restriction.
The expanded scheme would be legislated through the Broadcasting Services Act 1992.
The 'modernised' list option
This list option is designed to better reflect the modern media landscape and moderately
broaden the composition of nationally important and culturally significant events. In
particular, this approach seeks to reflect the increased national prominence of women's sports
events and Para-sports, which have traditionally not been listed under the scheme.
The modernised list would involve an increase in the number of events on the list compared
with the current instrument, rising from approximately 1,900 events under the current list to
around 2,500 events. The additional events on this list would include: all events held as part
of the Paralympic Games; the finals matches of the Australian Football League (AFL) and
National Rugby League (NRL) Women's Premierships; and the NRL Women's State of
Origin Series.
48 Providing 'coverage' in this IA includes televised and online video coverage.
90
The list would also include international rugby league, rugby union, cricket and soccer
matches that involve a senior Australian representative team, irrespective of gender, and
irrespective of whether these matches are standalone fixtures or played as part of a world cup
tournament.
The Impact Analysis process
This IA has been written in accordance with the Australian Government IA requirements. In
the subsequent chapters, the seven assessment questions set out in the Australian Government
Guide to Policy Impact Analysis (2023) have been addressed. These are:
1. What is the problem you are trying to solve and what data is available?
2. What are the objectives, why is government intervention needed to achieve them, and
how will success be measured?
3. What policy options are you considering?
4. What is the likely net benefit of each option?
5. Who did you consult and how did you incorporate their feedback?
6. What is the best option from those you have considered and how will it be implemented?
7. How will you evaluate your chosen option against the success metrics?
Background
The Broadcasting Services Act 1992 (BSA) provides the legislative framework for the anti-
siphoning scheme (the scheme). Legislated in 1992, and commencing in 1994 with the
making of the anti-siphoning list, the scheme promotes free access to televised coverage of
events of national importance and cultural significance.
The scheme
The main elements of the anti-siphoning scheme are outlined in section 115 of the BSA,
which includes a power for the Minister for Communications to list in a formal notice
(known as the anti-siphoning list (the list)), events that should, in the opinion of the Minister,
be available free to the general public.
The anti-siphoning scheme operates as a licence condition imposed under paragraph 10(1)(e)
of Schedule 2 to the BSA on subscription television broadcasting licensees, preventing them
from acquiring a right to televise an event on the anti-siphoning list unless a free-to-air
television broadcaster (a national broadcaster or commercial television broadcasting licensee)
has acquired a right. In this way, the scheme considers free-to-air broadcasting to be the
medium by which listed events should be 'freely available', and provides free-to-air
91
broadcasters the first opportunity to acquire rights to events on the list without competition
from subscription television.
Under subsection 115(1AA) of the BSA, events are automatically removed ('delisted') 4,368
hours (26 weeks) before they commence to provide subscription television broadcasters with
some opportunity to acquire the rights to events that free-to-air broadcasters have not
acquired. However, the Minister can prevent automatic delisting and retain a particular event
on the anti-siphoning list if they believe that a free-to-air broadcaster has not had a reasonable
opportunity to acquire rights to the event in question. The Minister can also remove events
from the list at any time.
The scheme does not force free-to-air broadcasters to acquire rights to televise events on the
anti-siphoning list (this remains a decision for broadcasters). Nor does it oblige free-to-air
broadcasters to provide any particular level or type of coverage of anti-siphoning events.
The scheme also does not apply to online media, including:
• subscription streaming services, such as Netflix and Amazon Prime Video
• dedicated sports streaming services, like Kayo Sports and Optus Sport
• broadcast video-on-demand (BVOD) services, such as 9Now and 7plus
• digital platforms, including Twitter and YouTube.
The list
The anti-siphoning list is a legislative instrument made by the Minister specifying the events
regulated under the scheme. The list has been amended at various points since it was first
made in 1994, with events added and removed. To date, all events on the list have been
sporting events. At present, the list includes events spanning 11 sports: Olympic and
Commonwealth Games, horse racing, Australian Rules Football (AFL), rugby league, rugby
union, cricket, soccer, tennis, netball, and motor sports.
The current list - the Broadcasting Services (Events) Notice 2023 - was made in March 2023
as an interim arrangement to maintain the events on the list (and, in turn, the operation of the
anti-siphoning scheme) while broader legislative reforms to the anti-siphoning scheme are
considered.49 A further amendment50 to the list was made in September 2023 to include select
Fédération Internationale de Football Association (FIFA) Women's World Cup matches and
qualifiers (the same as the men's matches on the list) ahead of the closing of bids media
rights for the 2027 tournament.
49 Explanatory Statement to the Broadcasting Services (Events) Notice 2023.
50 Broadcasting Services (Events) Amendment Notice 2023.
92
Televised coverage of sport is important to Australians
Most Australians hold the view that access to sport is an important public policy goal. A
survey commissioned by Free TV in 2021 found that 70 per cent of respondents agreed that
commercial television contributes to Australia's national unity by broadcasting major
sporting events.51 Australians also watch sport on a regular basis.
• In 2022, some 67 per cent of Australian adults had watched sport in the preceding six
months, with 42 per cent watching live sport in the preceding week.
• 46 per cent indicated that they had consumed sport in the past 7 days.
• 17 per cent of Australian adults typically watched sports one to two days a week over the
past 6 months.
• For sports viewers, 36 per cent considered the most important feature was that the content
is freely available on broadcast television.52
Sport remains an important program genre for broadcasters
Televised sports can attract large audiences for broadcasters. The popularity and immediacy
of sport (watching it unfold live rather than on delay) make it an attractive proposition for
live broadcasting. Live sporting events consistently dominate the most popular programs on
both free-to-air and subscription television. In 2022, sport or sport-related programs
accounted for 9 of the top 10 rating programs on free-to-air television, over half of the top 50
rated programs and a little under half of top 500 programs.
51Deloitte Access Economics (2022), Everybody Gets It, commissioned by Free TV, p. 47.
52Social Research Centre (2023), The 2022 Television Consumer Survey - Summary Report, reported to DITRDCA, p. 18,
62.
93
Table 1: Ten most popular programs on free-to-air television in 2022 (metro areas)
Rank Program Audience
1 Tennis: 2022 Australian Open: Day 13 - 2,844,000
Women's Final - Presentation
2 Tennis: 2022 Australian Open: Day 13 - 2,591,000
Women's Final - Barty v Collins
3 AFL: Grand Final - Geelong v Sydney 2,186,000
4 State of Origin Rugby League: Queensland v 1,812,000
New South Wales - third match
5 State of Origin Rugby League: Queensland v 1,806,000
New South Wales - second match
6 State of Origin Rugby League: Queensland v 1,784,000
New South Wales - first match
7 AFL: Grand Final - Presentations 1,776,000
8 The Block - Winner Announced 1,746,000
9 Tennis: 2022 Australian Open: Day 13 - Men's 1,735,000
Doubles Final
10 AFL: Grand Final - On The Ground 1,697,000
Source: OzTAM 5 City Metro | Consolidated 7 | Total Audience | 2022. Data copyright © OzTAM 202353
Sport or sport-related programs accounted for all of the top 50 rated programs and all but 7 of
top 500 programs.
Table 2: Ten most popular programs on subscription television in 2022 (national)
Rank Program Audience
1 AFL: Preliminary Final - Sydney v Collingwood 469,000
2 Men's Cricket: Australia v South Africa - Second 433,000
Test Day 2 - Session 3
3 NRL: Preliminary Final - Cowboys v Eels 426,000
4 Cricket: The Ashes: Australia v England - Fifth 416,000
Test Day 3 - Session 3
5 Cricket: The Ashes: Australia v England - Fourth 412,000
Test Day 5 - Rain Delay
6 Cricket: The Ashes: Australia v England - Fifth 405,000
Test Day 3 - Session 2
7 Cricket: Australia v South Africa - Day 2 - 398,000
Session 2
8 NRL: Preliminary Final - Panthers v Rabbitohs 398,000
9 Cricket: International Cricket Council Twenty20 390,000
(T20) World Cup: Final Pakistan v England
10 AFL: Preliminary Final - Geelong v Brisbane 388,000
53All references to OzTAM data are copyright © OzTAM 2023. The data may not be reproduced, published or
communicated (electronically or in hard copy) in whole or in part, without prior written consent of OzTAM.
94
Source: OzTAM National STV | Consolidated 7 | Total Audience | 2022. Data copyright © OzTAM 2023
Media rights are a key source of revenue for sporting bodies
Media rights are also critical to the sporting bodies and codes themselves. For example, in
2021 over half of the AFL's total revenue of $738.1 million was sourced from broadcasting
and media agreements.54 In the same year, the NRL returned revenues over $550 million and
secured agreements for broadcast investment increase to over $400 million a year from
2023.55
In recent years, the willingness of broadcasters to invest significant sums to secure television
rights has been increasing. Although the full details of these rights deals are not always
public, given the commercial nature of the information, the available data suggests that this
value is continuing to grow (see Figure 1).
Figure 1: Value of select sports broadcasting rights in the Australian market
1600
1400
Olympics
1200
V8 Supercars
indexed to July 2022
$AUD (millions)
1000 English Premier League
Australian A-League
800
Super Rugby
600 Cricket (Aus International Team)
Formula 1
400
NRL
200 AFL
0
Source: SportBusiness Rights Tracker. Includes available values of sports rights contracts for live and delayed free-to-air broadcast, pay TV,
online/streaming, mobile, exclusive and non-exclusive. Available values of sports rights contracts have been annualised and summed by
event. Converted from USD to AUD using average annual exchange rate, and indexed to 2022 dollars with CPI.
Notes: the reduction in value for sports rights in 2020 and 2021 reflects adjustments to contracting and other arrangements stemming from
COVID-19.
Review of the scheme and list
In the context of the 2022 Federal Election, the Albanese Government committed to
undertake a review of the anti-siphoning scheme and give working families the chance to
54 Australian Football League (2022), 2021 Annual Report, pp. 34 and 163.
55 National Rugby League (28 February 2022), 2021 Financial Results, Media Release.
95
watch, for free, events of national and cultural significance. This review was initiated in
October 2022 with the release of the Review of the anti-siphoning scheme: consultation
paper.56 That consultation paper sought comment from interested parties on a wide range of
issues associated with the scheme and the regulation of television coverage of key sporting
events.
Respondents generally recognised the continued importance of promoting free access to
televised coverage of nationally important and culturally significant sporting events. They
also provided comment on the growing coverage of sporting events online and the acquisition
of media rights by streaming services and digital platforms. Respondents to this initial
consultation process requested that they be afforded the opportunity to provide comment on
any specific proposals to the scheme and list before they are introduced into the Parliament.
The second phase of the review was undertaken in August 2023 with the release of the Anti-
siphoning review: proposals paper.57 This paper identified the Government's preferred
reform model and preferred list option, along with a range of alternative models and options.
The potential impacts of these models and options are considered in this IA, informed by the
successive consultation processes undertaken in 2022 and 2023.
The review is discussed in more detail in chapter 5.
1. What is the problem?
The changing media environment
The ways in which Australians now consume media content, including sport content, has
changed dramatically since the anti-siphoning scheme was introduced 1992. It is no longer a
choice between free-to-air and subscription television services, and audiences are migrating
from traditional broadcasts to online services.58
This is the case for a range of content consumption, including live sports. While free-to-air
and subscription broadcasting remain key avenues by which Australians access coverage of
sporting events, there has been a significant expansion in the range of television and
television-like services capable of providing this coverage.
Subscription streaming services, such as Paramount+ and Amazon Prime Video, along with dedicated
sports services, like Kayo Sports. The latter in particular provide extensive coverage of live sports
content. Some sports bodies also provide direct streaming options.
Broadcast video on demand (BVOD) services, such as 9Now and 7plus, provide access to coverage of
sporting content, often in conjunction with linear broadcasts. While users typically have to sign up to an
account for these services, the service itself operates on a free-to-access, ad-supported basis.
56 DITRDCA (2022), Review of the anti-siphoning scheme: Consultation paper.
57 DITRDCA (2023), Anti-siphoning Review - Proposals Paper.
58 DITRDCA (2022), Review of the anti-siphoning scheme: Consultation paper, p. 22.
96
Mobile services that are accessed through apps on portable devices, such as phones and tablets, can
include subscription streaming services as well as free-to-air BVOD services. They may also have links
to the provision of internet or phone services, such as with Optus Sport.
Gambling apps and platforms, such as Tabcorp and Bet365, provide limited access to live streaming of
sports for their users. Although these activities can be limited as a result of the digital rights held by other
media entities, it has a growing market and audience.
Digital platforms, such as YouTube, make large amounts of content available daily, including channels
that offer highlights and replay content for the AFL, NRL and the Olympics, among other sports.
YouTube has also recently secured rights to stream some NFL (American football) matches. 59
Some of these services are supported by advertising and are 'free' in the sense of no explicit
payment by viewers.60 However, many are based on subscription models, including
subscription models that offer some free programs, or 'freebies', and these services have been
embraced by Australians.
• In the first quarter of 2023, Kantar found that 6.12 million Australian homes, or 61.5 per
cent of households, are subscribed to at least one streaming service.61
• The number of Australian subscriptions to Subscription Video on Demand (SVOD)
services increased from 12.3 million to 24.6 million between June 201962 and June
2023.63
• ACMA reported that in 2022-23, there were 6,021 hours of Australian sports content
available across five SVOD services operating in Australia - almost double the figure
from 2021-22 and representing more than half of all Australian content on these
services.64
This trend is also reflected in sports-specific streaming services:
• In 2022, Deloitte found that 30 per cent of Australian households have at least one sports
subscription service, largely driven by subscriptions to Kayo (owned by Foxtel) and
Optus Sport.65
• In 2023, Foxtel reported that Kayo had 1.411 million active subscribers (1.401 million
paid) for the quarter ending 30 June 2023.66
59 YouTube: AFL (official channel); NRL - National Rugby League (official channel); Olympics (official channel); NFL
Sunday Ticket + (official channel).
60 Explicit costs include subscription fees or pay-per-view charges, charged by the content service provider or an
intermediary, to access the coverage of the event.
61 Kantar (1 May 2023), Australian streaming market stabilises despite 1.1 million cancellations.
62 Telsyte (17 August 2020), Subscription home entertainment soars in Australia.
63 Telsyte (28 August 2023), Australia's subscription entertainment market growth eases but remains vital.
64 Australian Communications and Media Authority (2023), Spending by subscription video on demand providers. The
five SVOD services which reported data (Netflix, Stan, Amazon Prime Video, Paramount+ and Disney+), included.
Services such as Kayo and Optus sport did not report data and are not included.
65 Deloitte (2022), Media Consumer Survey 2022, p. 35.
66 Foxtel Group (2023), Foxtel Group Fiscal 2023 Fourth Quarter and Full Year Earnings.
97
• SingTel, of which Optus is a subsidiary, reported that Optus Sport had 926,000 active
subscriptions in the financial year ending 31 March 2023.67
These changes in the Australian media market have exposed gaps in the anti-siphoning
scheme and imbalances in the composition of the anti-siphoning list.
Gaps in the scheme
The review of the anti-siphoning scheme considered whether there is a material risk of
nationally important and culturally significant sporting events migrating to online services
and, in particular, to subscription-based platforms.
The review found that in a contemporary media environment this risk remains. The concern
that key events would be siphoned behind paywalls when the scheme was first introduced is
also present in a digital environment, albeit in a different form. The scheme needs to be
broadened to incorporate online services, and there are a number of factors that support this
preliminary finding.
In recent years, subscription and free-to-air broadcasters have increasingly acquired online
rights as part of their media rights packages.
Foxtel has obtained online sports rights to a range of events and typically provides coverage to
subscribers through its dedicated Kayo streaming service. A wide range of sports and competitions
are available through the service, including the vast majority of AFL and NRL Premiership
matches.
Seven West Media obtained the broadcast rights to the 2020 Tokyo Olympic Games, as well as
the rights to stream the Games. Audiences were able to access coverage of events via 45 channels
across Seven and 7plus.68
Nine Entertainment Co uses its BVOD platform 9Now to simulcast a range of sporting events,
including NRL matches and the 2023 Ashes. It has also provided extensive coverage of matches of
the Australian Open through 9Now.
Subscription-based streaming services that are not owned by broadcasting service providers
have also made some forays into the sports rights market in Australia.
In February 2021, Amazon Prime Video secured a two-year exclusive agreement with Swimming
Australia to stream several Australian swimming events not on the anti-siphoning list.69 This
included the Australian Swimming Trials in the lead up to the 2020 Tokyo Olympic and
Paralympic Games and the qualifying events for the 2022 Birmingham Commonwealth Games.
67 Singtel (2023), Singapore Telecommunications Limited and Subsidiary Companies: Management Discussion and Analysis
of Financial Condition, Results of Operations and Cash Flows for the second half and financial year ended 31 March 2023, p.
43.
68 Mediaweek (14 April 2021) Seven reveals its digital product for 2020 Tokyo Olympics.
69 Carp, S. (4 February 2021), Amazon dips toe in Australian market with swimming streaming deal, Sports Pro Media.
98
In June 2023, Tabcorp secured the digital, free-to-air and subscription television rights to the
Melbourne Cup.70 Tabcorp is not a licensed broadcaster and the event was subsequently shown on
Channel 10 and streamed on Kayo Sports and Racing.com.71
Optus Sport holds the exclusive rights to televise a range of European, Asian and international
soccer matches in Australia. In 2021, Optus Sport acquired the right to stream all 64 matches of the
2023 FIFA Women's World Cup, hosted by Australia and New Zealand.72 Fifteen matches were
made available on the Seven Network,73 and Optus Sport made eleven additional matches available
for free on its platform. However, the remainder of the matches were available only to Optus Sport
subscribers.
International approaches and trends
Around the world, there has also been a trend towards exclusive online coverage of live
sports, reflecting changes in viewer preferences as well as adjustments in the business
strategies of streaming services.
• Forty per cent of global fans now opt to stream live sports events through digital
platforms,74 and subscription-based streaming services are prominent in a number of
jurisdictions.
o In 2021, around 25 per cent of the annual spend on sports coverage rights in Germany
was derived from subscription streaming services and this figure was around 35 per
cent in Italy.75
o This number was estimated to rise to 53 per cent for the Italian market in 2022.76
• The global spend on sports rights by subscription streaming services is forecast to reach
US$8.5 billion in 2023, a 64 per cent increase from US$5.2 billion in 2022 and up from
US$2.9 billion in 2021, with the majority of the spend coming from North America and
Western Europe.77
The increasing consumer take-up of subscription-based services to access coverage of major
sporting events is mirrored in some significant rights deals over recent years.
In the UK, Amazon acquired exclusive rights to televise 20 English Premier League games per
season across three years, starting in 2019. Amazon shared the rights with two major pay TV
broadcasters - Sky Sports and BT Sport. While Amazon did not disclose how much it paid for the
70 Meade, A. (23 June 2023), Ten Network drops bid to secure Melbourne Cup rights over Tabcorp deal, The Guardian.
71 News.com.au (7 November 2023), How to watch and live stream the 2023 Melbourne Cup.
72 Optus Sport (3 August 2021), Optus Sport secures media rights to the FIFA Women's World Cup 2023.
73 7news.com.au (31 October 2022), Women's World Cup live and free on Seven and 7plus in 2023, Matildas match times
and venues revealed.
74 Nielsen (2022), Global Sports Marketing Report, p. 5.
75 Ampere Analysis (2022), Trends and Dynamics in the Sports Broadcasting Sector - Abridged Report for Ofcom Analysis,
p. 23.
76 Ibid.
77 Ampere Analysis (2023), Streaming services will spend over $8bn on sports, p. 1.
99
rights, Sky is reported to have paid around GBP 3.58 billion, while BT Sports reportedly paid GBP
885 million.78 The deal was renewed in 2021 to span the 2022 to 2025 seasons.79
In France, Amazon has recently extended its rights deal for the French Open tennis tournament,
initially in place from 2019, and will provide exclusive coverage of the premier match each
evening for the tournament's initial 11 days for the period 2024 to 2027.80 It will jointly provide
coverage of all high profile matches from the semi-finals onwards along with broadcaster France
TV.
In Italy, streaming service DAZN acquired the exclusive right to televise 7 out of 10 games per
matchday in the Serie A soccer for three years from 2021.81
In the United States, the National Football League has agreed an 11-year deal, valued at over
US$100 billion, with all rights partners across digital and broadcast platforms.82 Amazon is
reported to be paying around US$1 billion per year for the exclusive right to distribute the NFL's
Thursday night matches.83 The NFL also provides a direct streaming option via NFL.com,
including live video streaming and other streaming services. Through this direct service the NFL is
able to manage global distribution of its events not already covered by other rights deals.
There are a range of factors that suggest that Australia will experience similar trends.
• Australia is one of the strongest adopters of new communications technologies in the
world. In 2016, the World Bank's Digital Adoption Index showed Australia's digital
adoption to be roughly 74 per cent higher than the global average.84 This is reflected in
research that found that Australians have been particularly enthusiastic adopters of smart
phones compared with other countries. 85
• Given the take up of communications technology, Australia is clearly an attractive market
for subscription-based media. Netflix launched in Australia in 2015. Since this time, a
significant number of new, online-only streaming services have come to Australia. These
include Amazon Prime Video, Disney+, Apple TV+ and Paramount+. This is in addition
to the domestic streaming offerings of Stan (launched in 2015), Optus Sport (in 2016),
Kayo Sports (in 2018) and BINGE (in 2020).
• While the rate of new entrants to the Australian market is expected to moderate, the
overall streaming market is forecast to continue to grow. The global video streaming
market was valued at US$89.03 billion in 2022 and is expected to grow at a compound
annual growth rate of 21.5 per cent from 2023 to 2030.86
78 PremierLeague.com, Amazon become a Premier League partner for the first time ahead of the 2019/20 season
79 Sweney, M. (13 May 2021), Premier League renews £4.8bn TV deal with extra £100m trickle-down funds, The Guardian.
80 Cunningham, E. (31 March 2023), France TV and Amazon extend domestic Roland Garros rights until 2027, Sportcal.
81 Pollina, E. (27 March 2021), DAZN grabs broadcast rights for Serie A in Italy, Reuters.
82 Belson, K. and Draper, K. (18 March 2021), N.F.L. Signs Media Deals Worth Over $100 Billion, The New York Times.
Note: under the contract arrangement, matches will be broadcast on over-the-air stations in the cities of the participating
teams.
83 Palmer, A. (20 September 2022), Amazon memo says 'Thursday Night Football' drew record number of Prime signups for
a 3-hour period, CNBC.
84 Departmental analysis of data available through: World Bank (2016) Digital Adoption Index.
85 Oviedo-Trespalacios, Nandavar S, Newton JDA, Demant D, Phillips JG (2019), Problematic Use of Mobile Phones in
Australia ... Is It Getting Worse?.
86 Grand View Research, Video Streaming Market Size, Share & Growth Report, 2030.
100
• As noted previously, sports bodies and broadcasters have indicated through the initial
review consultation process that online rights are critical to their future, with consumers
increasingly demanding online sporting coverage and the associated rights deals
providing critical income for sports bodies.
In sum, there is a 'regulatory gap' in the anti-siphoning scheme in relation to online services,
and a strong case to broaden the remit of the scheme to mitigate the attendant risks.
Regulation
A number of overseas countries operate schemes that are similar to Australia's anti-siphoning
scheme. These schemes are concerned with protecting free access to television coverage of
sporting or cultural events of major importance to citizens in the relevant jurisdictions. While
these schemes are similar in purpose to Australia's anti-siphoning scheme, the composition
and rationale for listing certain events and the type of coverage expected on free-to-air
television is different.
The UK listed events regime works by prohibiting the broadcast of exclusive rights of an
event on the list without prior consent from the UK regulator, Office of Communications
(Ofcom). The UK's current list is divided into two categories (Group A and Group B). Where
rights holders make an event available, full live coverage must be offered for purchase first to
free-to-air channels for events in Group A. Group B events may have live coverage on
subscription television provided that secondary coverage or highlights are offered for
purchase first to free-to-air broadcasters. The UK Government has released a draft legislation
to clarify that only public service broadcasting (free-to-air) services will qualify to bid for the
rights to show listed events.87
In the European Union, the Audiovisual Media Services Directive 2010, allows each member
state to draw up a list of designated events to ensure that broadcasters under that state's
jurisdiction do not broadcast on these events on an exclusive basis events. Member states
may determine whether these events should be available by whole or partial live coverage, or
partial deferred coverage.88 Legislation has been enacted in a number of countries to
implement this directive, including Austria, Belgium, Denmark, Finland, France, Germany,
Ireland and Italy.
Impact on Australian audiences
As the boundaries between broadcasting and new media are increasingly eroded, there is a
risk that Australians may miss out on watching events of national importance and cultural
significance. This impacts Australians a number of ways.
87 UK Government (29 March 2023), Media Bill impact assessment, pp. 9-10, 20-21.
88 European Union, Audiovisual Media Services Directive, Article 14.
101
Direct costs
As noted above, many online services operate on a subscription basis. While there are some
free content offerings, most are based on monthly fees. For example, Kayo Sports charges
$25 to $35 per month,89 while Optus Sports charges $6.99 per month for eligible Optus
customers, or $24.99 per month or $199 per year for non-Optus customers.90 Without
regulatory intervention, there is a risk that Australians would have to pay to continue to watch
the events that they have traditionally viewed without fees or explicit payment. Research has
found that cost is the most common factor considered by consumers when determining
whether to cancel an SVOD service.91
Indirect costs
Accessing services online also involves additional, indirect costs associated with an internet
connection, including fixed broadband services, mobile broadband services, mobile services,
satellite or ADSL services. Each service will have costs, typically charged monthly, as well
as upfront costs. While the majority of Australians can afford to meet these access costs, a
small but significant proportion cannot. In 2022, 4 per cent of Australians needed to pay more
than 10 per cent of their household income to gain quality, reliable internet connectivity, with
this figure at 27 per cent of those in the lowest income quintile.92 This research also found
that, in 2022, 32 per cent of those in the lowest income quintile and 27 per cent of those in the
second lowest income quintile expressed some level of concern over the cost of internet
access.93
Access
Take-up of broadband services is high at an aggregate level; as at June 2022, 99 per cent of
Australian adults had some form of access to the internet.94 However, many Australians have
not taken up a home internet connection. In 2022, 6.82 per cent of Australian adults had no
internet connection at home,95 and lower take-up is more prevalent among particular groups:
• 8.51 per cent of regional Australian adults had no internet connection at home, compared
with 5.93 per cent of those in metropolitan areas.96
• 11.71 per cent of Australian over the age of 75 had no internet connection at home.97
Other surveys have found that, although the divide between metropolitan and regional areas
has narrowed in recent years, it remains marked, and that those aged over 75 continue to be
left behind.98 While the availability of internet services is close to universal, there are gaps
89 Kayo Sports, How much does a Kayo subscription cost?
90 Optus Sport, Sign-Up for a Free Optus Sport Account
91 Deloitte (2022), Media Consumer Survey 2022, p. 9.
92 Australian Digital Inclusion Index: Affordability.
93 Ibid.
94 ACMA (December 2022), Communications and media in Australia: How we use the internet, p. 3.
95 ACMA (December 2022), Communications and media in Australia: How we use the internet - data file.
96 Ibid.
97 Ibid.
98 Australian Digital Inclusion Index, Key findings and next steps - Australian Digital Inclusion Index.
102
and discrepancies in terms of take-up for certain groups within Australian society. For these
Australians, there is a risk that a move away from free-to-air broadcasting services would
result in a reduction of free access to televised coverage of nationally important and culturally
significant events as they migrate to freely available, but inaccessible, online platforms.
Impacts on industry
As demonstrated by Table 1, sport is critical for the sustainability of the advertising-funded
services provided by commercial free-to-air broadcasters. This content genre also helps
commercial broadcasters to attract audiences to other adjacent content offerings.99 The review
has found that without regulatory intervention, there is a risk of iconic sporting events
migrating behind online paywalls. This, in turn, would impact the sustainability of the
business model of commercial free-to-air broadcasting.100
Under the status quo, subscription television broadcasting licensees are affected by the
scheme and are limited in terms of their acquisition of rights to events on the anti-siphoning
list. Although not directly regulated, the scheme also impacts sports bodies as it affects the
negotiation process and sequence of acquisition of rights to sporting events. Any extension of
the current acquisition-based rule in the scheme to address the gap in regulation in relation to
online media services is likely to further restrict these parties in terms of their negotiation
over media rights.
Imbalances in the list
The review of the scheme has also considered the anti-siphoning list, and found a case for its
composition to be reconsidered.101 To date, the list has tended to include sports that involve
athletes without disabilities. To a lesser extent, it has also tended to involve competitions in
which men compete. This isn't the product of conscious and deliberate discrimination.
Rather, it reflects the fact that the coverage of sporting events that have been considered
nationally important and culturally significant has historically tended to involve men and has
historically tended to involve athletes without a disability. This is changing. The sports
ecosystem in Australia is continuing to evolve as competitions develop and grow, and as
audience attitudes and preferences change.
Women's sports
Historically, the list has been skewed towards men's sports. In many cases, national women's
competitions were either not in existence at the time that the last major changes to the list
were considered (at or before 2017), or those competitions were relatively nascent in terms of
their development and popularity.
99 Free TV Australia (2023), Review of the anti-siphoning scheme: Response to the Proposals Paper, p. 10 notes that sport is
critical for the sustainability of the wholly advertiser funded services provided by Free TV members.
100 Ibid. p.3
101 DITRDCA (2023), Anti-siphoning Review - Proposals Paper, p. 22.
103
Since that time, many competitions that involve women athletes have undergone significant
growth and development. Participation rates for women and girls are at record levels for
many sports, and many competitions have gone from strength the strength with growing club
memberships and greater media coverage. In 2022, Fox Sports reported that roughly 70 per
cent of Australians watched more women's sport than they did before 2020.102
The Australian Government has already acted to increase the inclusion of women's sport with
the addition of select FIFA Women's World Cup matches and qualifiers to the list in
September 2023 (ahead of the close of bids for media rights the 2027 tournament).103
However, this is a first step. Without inclusion on the list, there is a risk events such as these
would move behind paywalls.
It is important to acknowledge that this risk is not arising at present for all women's sports.
The AFL, for example, has entered into a rights agreement between 2025 and 2031 that
provides for the finals series and the Grand Final of the AFL Women's (AFLW) Premiership
to be televised on the Seven Network and 7plus.104 Similarly, for the 2023 season, all matches
in NRL Women's (NRLW) Premiership and the NRLW State of Origin are being broadcast
live on the Nine Network and 9Now.105 However, given that media rights deals are often
made years in advance (see Table 9), there is a risk that these events may not be available for
free in the future. Including these events on the list will help promote the likelihood of these
events being shown on free-to-air television.
Paralympics
Unlike the Olympic Games and Commonwealth Games, the Paralympics are not included in
the current list. While Australian Para-athletes have successfully competed in the
Paralympics and world championships for many decades, their efforts have historically
received relatively modest reporting and television coverage, particularly prior to the 2000
Summer Paralympics. This is changing. In 2023, Paralympics Australia announced that the
Nine Entertainment Co. would be the broadcasting partner for the Para-Athletics World
Championships in July 2023106 and the 2024 Paralympics.107 Nine intends to provide
coverage of the event via its free-to-air broadcasting services, its BVOD services, as well as
via subscription streaming service Stan and commercial radio outlets. This rights agreement
demonstrates the extent to which the position of Para-sports is changing in the Australian
media landscape.
However, under the current scheme, there would be nothing to prevent future Paralympics
from moving behind online paywalls. This would be a loss for Australians; 68 percent of
102 Fox Sports (7 March 2022), Huge growth of Aussie love for women's sport revealed in new research.
103 DITRDCA (14 September 2023), Matildas FIFA World Cup matches added to anti-siphoning list Media Release.
104 AFL (2022), Seven years, $4.5b: AFL reveals HUGE new broadcast rights deal.
105 Hislop M (28 April 2023), NRLW set for biggest season yet with expansion and new broadcast deal, Women's Agenda;
See for example: NRL (2023), NRLW 2023: When, where to watch Round 1 games.
106 Paralympics Australia (3 July 2023), Live Coverage To Feature Stars Of World Para-Athletics.
107 Paralympics Australia (23 May 2023), Paralympics Australia Secures Landmark Paris 2024 Media Rights Deal.
104
whom watched some part of the Tokyo Paralympics.108 The Australian Paralympic Team
enjoys strong support, with a 2021 survey placing interest in the Australian Paralympic Team
(28 percent) only marginally behind the Australian cricket team (32 percent).109
The review has found that there is a reasonable case to consider the composition of the list
with respect to women's events and Para-sports.
2. Why is Government action needed?
The anti-siphoning scheme was introduced in 1992 to address the concern that nationally
important and culturally significant events would be siphoned behind the paywalls of services
to which most Australians didn't have access. This aligns with several of the objects
contained in subsection 3(1) of the BSA, including:110
(a) to promote the availability to audiences throughout Australia of a diverse range of
radio and television services offering entertainment, education and information.
(b) to provide a regulatory environment that will facilitate the development of a
broadcasting industry in Australia that is efficient, competitive and responsive to
audience needs.
(e) to promote the role of broadcasting services in developing and reflecting a sense of
Australian identity, character and cultural diversity.
(ea) to promote the availability to audiences throughout Australia of television and
radio programs about matters of local significance.
(f) to promote the provision of high quality and innovative programming by providers
of broadcasting services.
(g) to encourage providers of commercial and community broadcasting services to be
responsive to the need ... for an appropriate coverage of matters of local
significance.
As noted in chapter 1, at the time, relevant paywalled services were limited to subscription
television. Since this time, the risk of nationally important and culturally significant programs
being siphoned hasn't abated or diminished, but has been altered and potentially amplified in
a contemporary media environment. There is a latent, although material, risk of listed events
migrating behind online paywalls in the coming years. International trends have seen the
rights to single competitions or leagues being taken up by multiple providers, which can
108 Paralympics Australia (24 August 2022), One Year Since Tokyo, Analysis Shows A Resounding Success.
109 Paralympics Australia (25 November 2021), Report Finds Australian Paralympic Team Among Nation's Most
Popular.
110 Subsection 3(1) of the BSA contains 17 objects of the act. A limited selection of these are presented here, as they are
most relevant to the anti-siphoning scheme and list.
105
require consumers to pay for a number of services to gain access to the competition or league
in question.
The status quo - the maintenance of the current scheme and the current list - will put at risk
the achievement of the policy objective of free access to televised coverage of nationally
important and culturally significant events. The review has affirmed that this core objective
of the scheme remains relevant, and there was general agreement among stakeholders that
providing Australians with free access to coverage of iconic sporting events remains an
appropriate aim.
There is a strong case to maintain regulatory intervention to support this objective, and to
modernise the form of this intervention to accommodate changes in technology, consumption
patterns and preferences for live sport. The impacts and net benefits of the alternative models
and options for this reform are the subject of this IA.
Objectives of reform
The proposed reforms to the anti-siphoning scheme seek to address the challenges identified
above and align with the objects of the BSA to promote the continued free access to
nationally important and culturally significant events by all Australians. Consistent with the
objects of the BSA, Australians have come to expect to be able to freely access sporting
content that develops and reflects the Australian identity, character and cultural diversity
(object 3(e)), and that reflects matters of local significance (objects 3(1)(ea) and 3(1)(g)). The
review has found a strong case to maintain and modernise regulatory interventions that
promote free access to these events.
Any reforms will also need to consider the impact of the scheme on industry. Consistent with
object 3(1)(b) of the BSA, reform should support the development of a broadcasting industry
in Australia that is efficient, competitive and responsive to audience needs, building on the
existing scheme. It should not unnecessarily interfere with the market or impose unnecessary
costs. Any interference should support the objective of the scheme (as set out in the
Explanatory Memorandum to the bill that introduced the scheme):
" ... on equity grounds, that Australians will continue to have free access to
important events. It will, however, also allow subscription television
broadcasters to negotiate subsequent rights to complementary, or more
detailed, coverage of events."111
Reform should also seek to provide appropriate opportunity for subscription television
broadcasting licensees and online services to acquire the rights to events on the list, provided
that the overall objective of the scheme can be supported and the risk of events migrating
behind paywalls can be mitigated.
The existing scheme and list are relatively simple in terms of their legislative design. They
operate to restrict subscription television broadcasting licensees acquiring events on a list
111 Explanatory Memorandum to Broadcasting Services Bill 1992, p. 67.
106
until free-to-air broadcasters have acquired a right (or the event is delisted). Any changes to
the scheme and list should continue to be as simple and as uncomplicated as necessary in
order to achieve its objectives.
Risks
Extending the application of the scheme to online media creates the potential for it to become
restrictive to the point where it limits the ability for sporting bodies to maximise their
revenue. The Government has sought to mitigate this risk through two phases of consultation
-- a consultation paper that considered all issues relating to the scheme and the list, and a
proposals paper that set out three models for reform of the scheme and three options for the
remaking of the list. Feedback from these processes has informed consideration of the
optimal way forward.
There is also a risk that by expanding the scheme to online services, this will capture
intermediaries that hold the rights to events, such as sporting bodies or other parties, that are
legitimately holding the rights. To mitigate this risk, legislation to implement reforms to the
scheme will need to be carefully constructed with regard to concepts such as 'content
services' and 'content service providers' (or similar constructions)112 to avoid imposing
regulations that are unreasonably broad.
Adding events to the list could create a risk that the rights to these events are not acquired by
free-to-air broadcasters and remain unsold until they are automatically delisted. Market trends
over the past decade suggest that this risk is negligible, as sports content is highly sought
after by free-to-air broadcasters and critical to their overall service offering. However, any
potential additions to the list will need to be carefully considered. This consideration will be
informed by the extensive engagement undertaken, and feedback received through, the
consultation processes in 2022 and 2023.
3. Policy options considered
The scheme
The scheme does not currently apply to online media services, and three models for reform
are proposed to address this gap. The status quo - maintaining the scheme as it currently
stands - is also considered.
112 All references in this IA to 'content service providers' includes all online, broadcast and other media services.
107
Table 3: Summary of models to reform the anti-siphoning scheme
1. Free-to- 2. Broadcasting 3. Free-to-air first 4. Status quo
view safety net
Summary A new scheme An extension of the A significant No change to the
(to replace the current scheme to extension of the existing anti-
current scheme) prevent the acquisition current scheme to siphoning scheme,
that would of any type of right to prevent the with the current
impose provide coverage of acquisition of any restriction
regulatory an iconic sporting type of right to preventing
obligations event to Australians provide coverage of subscription
(free, live, in by a content service an iconic sporting television
full, on a provider until a free- event to Australians broadcasting
broadly to-air broadcaster has by a content service licensees from
available a right to televise the provider until a free- acquiring events on
platform) on all event on a to-air broadcaster the anti-siphoning
content services broadcasting service, has both a right to list until a right is
(online, or the event is televise the event on acquired by a free-
broadcast or automatically delisted a broadcasting to-air broadcaster or
any other media 12 months prior to service and a right to the events is
service) that commencement. provide coverage of automatically
provide the event on a delisted 26 weeks
coverage of content service, or prior to
iconic sporting the event is commencement to
events to automatically remain.
Australian delisted 26 weeks
audiences. prior to
commencement.
Restriction on No Yes Yes Yes
rights
acquisition?
Free and Yes No No No
broadly
available
obligations?
Live and in full Yes No No No
obligations?
Reduction of the Yes No No No
list?
Model 1: 'free-to-view'
Under this model, the current anti-siphoning scheme would be replaced by a new scheme.
This new scheme would not impose any restrictions on the acquisition of media rights to
listed events. However, if coverage of those events is made available to audiences in
Australia, the relevant content service (any online, broadcasting or other media service)
would need to ensure that coverage complies with the following regulatory obligations in
relation to the event:
• make it available to the Australian public for free and on a broadly available technology platform;
and
• show it live and in full.
108
Requirements of this model
Free availability
The coverage of listed events would need to be 'free'. Coverage would be 'free' if viewers of
the event are not required to explicitly pay to access coverage. In other words, there are no
direct or explicit payments, such as subscription fees or pay-per-view charges, associated
with the coverage of the event by the content service.
The free coverage obligation would not restrict the provision of advertising as part of the
coverage. Nor would it extend to any 'implicit costs' associated with viewing the event, such
as internet access charges, the costs of reception equipment or devices, or any requirement for
users to have an account with the service.
A broadly available technology platform
A content service provider would need to satisfy a requirement that the technology platform
used to provide coverage of the event is 'broadly available' to the Australian population. If
content services were able to use a technology platform available to only a subset or portion
of the Australian population, it would be unlikely to align with the scheme's objective
promoting free access to televised coverage of nationally important and culturally significant
sporting events to all Australians. It is proposed that the content service must provide
coverage using a platform that is available to a minimum of 99 per cent of the Australian
population to satisfy this criterion.
Live coverage
Events would be required to be shown 'live'. The term 'live' would refer to coverage of the
event at the time that the event occurs. This definition would require coverage of events to
occur as play takes place, recognising the primacy of sport being live as opposed to other
genres of entertainment content.
However, exceptions would be permitted in particular circumstances, and this would include
the circumstance where coverage was delayed due to:
• the technical parameters of the particular technology platform (for example, where coverage via a
particular technology or combination of technologies unavoidably involves a 'lag' between play
occurring and coverage being available to the user of the content service); and
• unforeseen technical or service outages, particularly those that are outside the control of the
content service provider (for example, a network outage by a carriage service that impacts the
ability of a content service provider to provide live coverage of the event).
Coverage in full
Events will be required to be shown 'in full'. This obligation would be satisfied if the whole
of an event is shown, apart from an insubstantial proportion of the event. For example,
interruptions by way of commercial breaks, news breaks, program promotions,
109
announcements or brief crosses to other live events would amount to an insubstantial
proportion of the event.
Exceptions
Ancillary coverage
Ancillary coverage would be excluded where:
• it is not more than an insubstantial portion of the event (such as highlights provided in
news bulletins); or
• coverage is secondary to the primary coverage of the event (such as a replay of the event).
This would avoid imposing the live and in full obligations on entities that are legitimately not
providing, and are not authorised to provide, this type of coverage.
Partial rights
Where only a portion of the rights or delayed coverage of the rights to a listed event are
acquired, the live and in full requirements would be deemed to have been met, provided that
the content service provider fully utilises the rights that they hold. This would prevent the
situation of a party being in breach of the live and in full coverage obligation in the
circumstances where they don't hold rights that are sufficient to enable them to fulfil that
obligation.
Application of this model
The above requirements would apply to any content service that makes coverage of the event
available to audiences in Australia, irrespective of whether those rights are transferred from
one content service provider to another. An alternative proposal would be for the
requirements to only apply to the first acquirer, noting that this was preferred by Foxtel.113
However, this would add complexity and uncertainty to the scheme by rendering the liability
for certain actions under the scheme by one party contingent upon the actions of another.
The obligations under the free-to-view model would apply only to content services that
actually provide coverage of a listed event to audiences in Australia. If a person holding a
right to a listed event were to be subject to the obligations simply as a product of holding that
right, then this could have a range of unintended consequences. For example, a sports body or
a sports rights broker or intermediary may, depending on the circumstances, technically hold
a right to a listed event. However, they may not actually be a content service provider or
otherwise be capable of providing coverage of the event to Australian audiences. It would be
unreasonable to impose the obligations in these circumstances.
113 Foxtel Group (2023), Submission in response to the review of the anti-siphoning scheme - Proposals Paper, p. 10.
110
Addressing the problem and objective
The free-to-view model would address the problem set out in chapter 1 by replacing the
existing scheme with a new set of regulatory obligations regarding the availability and
coverage of anti-siphoning events, along with provisions to ensure the application of these
obligations to content services that provide coverage of listed events to audiences in
Australia.
For consumers, the free-to-view model would provide surety of free, live and in-full coverage
(noting that indirect costs are discussed in chapter 4). However, this model can only achieve
this aim via a significant reduction in the list. This is because live and in full coverage of
every event on the current list is unlikely to be technically or financially feasible. For
example, the Australian Open alone contains over 600 events, many of which occur
concurrently (particularly in the early stages of the tournament). The reduction to the list
required for this model would, in turn, potentially impact the ability of Australians to view
events of national importance and cultural significance that they are accustomed to viewing
for free.
This model would not impose any restrictions on the acquisition of rights to events on the list.
As such, it would not impede the ability of sports bodies to negotiate agreements for the sale
of rights to events on the list. This model is expected to be relatively complicated to
implement and administer. In particular, the requirement for content services to provide
coverage using 'broadly available technology platforms' adds a degree of uncertainty, as do
the exemptions to prevent unintended impacts in relation to the proposed availability and
coverage obligations. The introduction of regulatory requirements would also necessitate
additional monitoring and oversight, which may be time consuming and costly.
Model 2: 'broadcasting safety net'
Under this model, the current scheme would be expanded to prevent any content service
provider (other than a free-to-air broadcaster) from acquiring a right to provide coverage of a
listed event to audiences in Australia, until a free-to-air broadcaster has acquired a right to
televise the event on a broadcasting service. This effectively extends the scope of the
restriction on the acquisition of rights under the current scheme, which only applies to
subscription television broadcasting licensees. This model would affirm broadcasting services
as the 'safety net' for free access to televised coverage of iconic sporting events for all
Australians.
Under the current scheme, once a right to televise a listed event has been acquired by a free-
to-air broadcaster, or the event is automatically delisted 26 weeks prior to its commencement,
any party is able to acquire rights to the event without restriction. The delisting period would
be extended to 12 months under this model.
111
Requirements of this model
Acquisition restriction
The sequence of acquisition of media rights to listed events would be regulated under the
broadcasting safety net model, as it is under the current scheme.
The new acquisition restriction would prohibit a content service provider from acquiring a
right to provide coverage of a part or the whole of an event on the anti-siphoning list to
end-users in Australia unless:
• a national broadcaster has the right to televise a part or the whole of the event on any of its
broadcasting services; or
• the television broadcasting services of commercial television broadcasting licensees (other than
licensees who hold licences allocated under section 38C or subsection 40(1) of the BSA) who have
the right to televise a part or the whole of the event cover a total of more than 50 per cent of the
Australian population.
Carve out
The acquisition restriction (above) would not apply to:
• the acquisition by a national broadcaster of the right to televise a part or the whole of the
event on any of its broadcasting services; or
• the acquisition by a commercial television broadcasting licensee of the right to televise a
part or the whole of the event on any of its commercial television broadcasting services.
This carve out would enable national and commercial broadcasters to acquire a right to
televise a listed event on a broadcasting service without restriction under the scheme, as they
would otherwise be prevented from doing so by the operation of the acquisition restriction
and the broad definition of a content service. However, this carve out would only apply to the
broadcasting services provided by free-to-air broadcasters, and not to any other content
services that they may provide to Australian audiences.
No further restrictions
Free-to-air services are by definition 'free' and 'broadly available'. 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.
Addressing the problem and objective
The broadcasting safety net model would address the problems set out in chapter 1 by the
expanding the scheme to cover content services. For consumers, this would increase the
likelihood of being able to view listed events on free-to-air television, without a reduction in
112
the number of events on the list. From an industry perspective, this model provides free-to-air
broadcasters with the first opportunity to obtain television rights to events on the list.
However, it would not provide free-to-air broadcasters with preferential treatment in relation
to their acquisition of rights to provide coverage of events on their BVOD services. It thereby
only impacts competition to the extent necessary to achieve the objective of the scheme. This
model is expected to be relatively straight forward to implement and administer, as it
represents continuation of the existing scheme.
Model 3: 'free-to-air first'
Under this model, the current scheme would be significantly expanded to prevent any content
service provider (other than a free-to-air broadcaster) from acquiring a right to provide
coverage of a listed event to audiences in Australia until free-to-air broadcasters have both a
right to televise the event on a broadcasting service, and the right to provide coverage of the
event to Australians on a content service.
As with the current scheme, once a free-to-air broadcaster had acquired both of the requisite
types of rights, or the event is automatically delisted 26 weeks prior to its commencement,
any other party would be able to acquire a right to the event without restriction.
Requirements of this model
Acquisition restriction
The sequence of acquisition of media rights to listed events would be regulated under the
free-to-air first model, as it is under the current scheme.
The new acquisition restriction would prohibit a content service provider from acquiring a
right to provide coverage of a part or the whole of an event on the anti-siphoning list to end-
users in Australia unless:
• a national broadcaster has the right to televise a part or the whole of the event on any of its
broadcasting services; or
• the television broadcasting services of commercial television broadcasting licensees (other
than licensees who hold licences allocated under section 38C or subsection 40(1) of the
BSA) who have the right to televise a part or the whole of the event cover a total of more
than 50 per cent of the Australian population;
and
• a national broadcaster has the right to provide coverage of a part or the whole of the event
to end-users in Australia on a content service; or
• a commercial television broadcasting licensee has the right to provide coverage of a part
or the whole of the event to end-users in Australia on a content service.
113
Carve out
The acquisition restriction (above) would not apply to:
• the acquisition by a national broadcaster of:
- the right to televise a part or the whole of the event on any of its broadcasting
services; or
- the right to provide coverage of a part or the whole of the event to end-users in
Australia on a content service; or
• the acquisition by commercial television broadcasting licensee of:
- the right to televise a part or the whole of the event on any of its broadcasting
services; or
- the right to provide coverage of a part or the whole of the event to end-users in
Australia on a content service.
This carve out would enable national and commercial broadcasters to acquire a right to
televise a listed event on a broadcasting service, and the right to provide coverage of the
event to end-users in Australia on a content service, without restriction under the scheme.
A free-to-air broadcaster would need to have acquired both a broadcast right and an online
right or other form of right before another party (i.e. any party other than a free-to-air
broadcaster) could acquire a right to the event.
No further restrictions
Free-to-air services are by definition 'free' and 'broadly available'. The same applies to
BVOD services (free to download and broadly available). There was no evidence presented
through the review to suggest that free-to-air broadcasters were 'hoarding' the rights to listed
events (whether broadcast of online rights). This reflects the strong commercial incentive for
broadcasters to fully exploit the rights which they have acquired (typically at significant
cost). For these reasons, a 'live' and 'in full' requirement is not proposed as part of this
model.
Addressing the problem and objective
The free-to-air first model would address the problems set out in chapter 1 by significantly
expanding the scheme to cover online content services. For consumers, this would increase
the likelihood of being able to view listed events on television and online services. However,
from an industry perspective, it would provide free-to-air broadcasters with the first
opportunity to obtain both the television rights and online rights to nationally important and
culturally significant events. This would effectively exclude all other parties from obtaining
broadcast or online rights until a free-to-air broadcaster obtained all of the rights, or the event
is automatically delisted. This would impact competition to a greater extent than necessary to
114
achieve the objective of the scheme. This model is expected to be relatively straightforward
to implement and administer, as it represents a continuation of the existing scheme.
Model 4: 'status quo'
Under this approach, there would be no amendments to the existing scheme. It would
continue to prevent subscription television broadcasting licensees from obtaining a right to a
listed event before free-to-air broadcasters has a right (until the event is automatically
delisted), but there would no impact on streaming services.
Addressing the problem and objective
Under the status quo, the issues and risks set out in chapter 1 would not be addressed. There
is a latent but material risk of consumers being unable to freely access nationally important
and culturally significant events under this option. The impacts on industry would remain as
per the current scheme, and there would be no change to the complexity of the regulation.
The list
The composition of the proposed list options has been informed by the consecutive
consultations undertaken in 2022 and 2023. Where relevant, all list options would clarify the
gender of the events.
Table 4: Summary of list options
1. Streamlined list 2. Modernised list 3. Expanded list 4. Status quo
Summary A significant reduction An increase of the A significant No change to
of the current list. current list. expansion of the the existing list
current list.
Number of ~330 ~2,500 ~2,800 ~1,900
events114
Option 1: 'streamlined list'
The streamlined list would represent a reduction in the number of events on the list (by
around 80 per cent) compared with the current instrument. This list option is detailed at Table
5.
The aims of the streamlined list are two-fold:
• To enable the list to operate effectively with the free-to-view model for the reform of the
scheme (Model 1 - free-to-view).115
• To apply the scheme in more limited circumstances by taking a narrower view of what
constitutes nationally important and culturally significant events.
114 Estimates in this row are indicative only and adopt the caveats and assumptions as the above estimate of the number
events on the current list.
115 The live and in full coverage requirement in Model 1 necessitates a truncated listing of certain events.
115
Relationship with the current list
The streamlined list contains events from the 11 sports represented on the current list, but
reduces the number of events listed under each, with certain cricket matches, men's and
women's FIFA World Cup qualifiers, and the Davis Cup completely removed. However, it
adds the Ashes series matches played in the UK. The current list covers the entire men's
competition - which consists of test matches. The women's tournament also include one day
and T20 matches, which are currently not listed. Therefore, is proposed that the list be
amended to include all Ashes series matches played in the United Kingdom.
Table 5: Proposed changes to the streamlined list
AU = Australia
SART = Senior Australian Representative Team
Sport Current listing Streamlined list Change
inclusions inclusion
Olympic Games Summer Olympic Games Opening and Closing Removal: Non-final
(entire event, including ceremonies. Final medal round events. Final
Opening and Closing rounds of events medal round events
Ceremonies) involving AU athletes. not involving
Australian athletes.
Winter Olympic Games Opening and Closing Removal: Non-final
(entire event, including ceremonies. Final medal round events. Final
Opening and Closing rounds of events medal round events
Ceremonies) involving AU athletes. not involving
Australian athletes.
Commonwealth Games Commonwealth Games Opening and Closing Removal: Non-final
(entire event, including ceremonies. Final medal round events. Final
Opening and Closing rounds of events medal round events
Ceremonies) involving AU athletes. not involving
Australian athletes.
Horse racing Melbourne Cup Melbourne Cup. No change.
AFL AFL Premiership One match on the Removal: Non-finals
(entire event, including following days: ANZAC series matches, other
the Finals Series) Day; Good Friday; than one match
Easter Monday; and the played on each of
King's birthday public these days: ANZAC
holiday in Melbourne. Day; Good Friday;
Each match in the Finals Easter Monday; and
Series. the King's birthday
Clarify men's event. public holiday in
Melbourne, Victoria.
Rugby League NRL Premiership One match on the Removal: Non-finals
(entire event, including following days: ANZAC series matches, other
the Finals Series) Day; and Good Friday. than one match
Each match in the Finals played on: ANZAC
Series. Clarify men's Day; and Good
event. Friday.
State of Origin State of Origin (entire No change.
(entire event) event).
Clarify men's event.
International test matches Each test involving the Removal: Matches
SART and played in played in New
AU. Zealand.
116
Sport Current listing Streamlined list Change
inclusions inclusion
(each test match involving Clarify men's and
the SART played in AU women's event.
or New Zealand)
Rugby League World Cup Each match involving Removal: Matches
(each match involving the the SART and played in played in New
SART played in AU, New AU. Zealand and Papua
Zealand or Papua New Clarify men's and New Guinea.
Guinea) women's event.
Rugby Union International test matches Each match involving Removal: Matches
(test matches involving the SART and played in played in New
the SART; played in AU AU. Zealand.
or New Zealand) Clarify men's and
women's event.
World Cup Each match involving Removal: Matches
(matches involving the the SART and played in played outside AU.
SART) AU.
Clarify men's and
women's event.
World Cup A final played in AU. Removal: Finals
(final) Clarify men's and played outside AU.
women's event.
Cricket Test matches Test matches (each test N/A
(each test match involving involving the SART
the SART played in AU) played in AU).
Clarify men's and
women's event.
Test matches The 'Ashes' series Addition: women's
(each test match involving (each match involving one day and T20
both the SART and the both the SART and the matches Ashes
senior English senior English matches played in the
representative team; representative team; UK.
played in the UK) played in the UK).
Clarify men's and
women's event.
One day matches No listing. Full removal.
(matches involving the
SART; played in AU).
T20 matches No listing. Full removal.
(matches involving the
SART; played in AU).
One day World Cup No listing. Full removal.
(matches involving the
SART; played in AU or
New Zealand)
One day World Cup A final played in Removal: Matches
(final played in AU or Australia. played in New
New Zealand) Clarify men's and Zealand.
women's event.
T20 World Cup No listing. Full removal.
(matches involving the
SART; played in AU or
New Zealand)
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Sport Current listing Streamlined list Change
inclusions inclusion
T20 World Cup A final played in Removal: Matches
(final played in AU or Australia or New played in New
New Zealand) Zealand. Zealand.
Clarify men's and
women's event.
Soccer FIFA men's and women's Each match involving Removal: Matches
World Cups the SART and played in played outside AU.
(matches involving the Australia.
SART)
FIFA men's and women's Finals played in Removal: Finals
World Cups Australia. played outside AU.
(final)
FIFA men's and women's No listing. Full removal.
World Cup Qualification
tournament
(matches involving the
SART; played in AU)
Tennis Australian Open Men's and women's Removal: All
(entire event) singles finals. matches other than
Men's and women's men's and women's
singles matches played singles events.
in the main two stadia of A men's or women's
the tournament after singles match other
7:00 pm Australian than:
Eastern Daylight Time - a final
(AEDT). - matches not played
in the two main stadia
after 7:00 pm AEDT.
Davis Cup No listing. Full removal.
(each match in each tie
involving the SART;
played in AU)
Davis Cup No listing. Full removal.
(final involving the
SART)
Netball Netball World Cup Semi-final involving the Removal: Semi-finals
(semi-final involving the SART and played in played outside AU.
SART) AU.
Netball World Cup Final involving the Removal: Finals
(a final involving the SART and played in played outside AU.
SART) AU.
Motor Sports Formula One World Formula One World No change.
Championship - Grand Championship - Grand
Prix (held in AU) Prix (held in AU)
MotoGP World MotoGP World No change.
Championship - Grand Championship
Prix (held in AU)
(held in Australia)
Bathurst 1000 Bathurst 1000 No change.
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Relationship with proposed models
The streamlined list has been designed to operate in conjunction with the free-to-view model
(Model 1). Elements of the free-to-view model will only work in a practical sense if they are
coupled with a significant reduction in the number and range of events on the list.
The 'live' and 'in full' requirements are unlikely to be technically and financially feasible for
competitions that involve multiple events that occur simultaneously. For example: the
Australian Open tennis tournament, the Summer and Winter Olympic Games, and the
Commonwealth Games. These competitions can involve dozens of events occurring
simultaneously, and a content service provider (or even a combination of providers) is
unlikely to be able to provide live and in full coverage of every single event.
The streamlined list may not be compatible with the broadcasting safety net model (Model 2)
or the free-to-air first model (Model 3). Both of these models are constructed around a
restriction on the acquisition of rights. To be compatible with either of these two reform
models, the streamlined list would need to provide the parties involved (and the regulator)
with certainty regarding the rights that can't be acquired until a free-to-air broadcaster has a
relevant right or rights (depending on the scheme). In this regard, there may be limits on the
ability of a list to characterise events based on factors that are unclear or unquantifiable at the
time of acquisition.
Option 2: 'modernised' list
The modernised list would represent an increase in the number of events on the list compared
with the current instrument (by about 30 per cent). This list option is detailed in Table 6.
The aims of the modernised list are two-fold:
• To enable the list to operate effectively with the broadcasting safety net and free-to-air
first models for the reform of the scheme (Models 2 and 3 respectively).
• To apply the scheme in a way that better reflects the contemporary media landscape and
moderately broadens the construction of nationally important and culturally significant
events.
Relationship with the current list
The modernised list continues to include events and competitions from the same 11 sports
included in the current list. However, this list option would increase the number of listed
events under certain sports, adding:
• all events held as part of the Summer Paralympic Games;
• the finals series matches of the AFL Women's Premiership;
• the finals series matches of the NRL Women's Premiership;
• the NRL Women's State of Origin Series; and
119
• the complete Women's Ashes series played in the United Kingdom (currently only test
matches are listed, but the series currently includes 'one day' and T20 matches).
Table 6: Proposed changes to the modernised list
AU = Australia
SART = Senior Australian Representative Team
Sport Current listing inclusions Modernised list
Olympic Games Summer Olympic Games No change.
(entire event, including Opening
and Closing Ceremonies)
Winter Olympic Games No change.
(entire event, including Opening
and Closing Ceremonies)
No listing. Summer Paralympic Games
(entire event, including Opening
and Closing Ceremonies)
Commonwealth Games Commonwealth Games No change.
(entire event, including Opening
and Closing Ceremonies)
Horse racing Melbourne Cup No change.
AFL AFL Premiership No change.
(entire event, including the Finals Clarify men's event.
Series).
No listing. Women's AFL Premiership
(Finals Series)
Rugby League NRL Premiership No change.
(entire event, including the Finals Clarify men's event.
Series)
No listing. Women's NRL Premiership
(Finals Series)
State of Origin No change.
(entire event) Clarify men's event.
No listing. Women's State of Origin
(entire event)
International test matches No change.
(each test match involving the Clarify men's and women's
SART played in AU or New event.
Zealand)
Rugby League World Cup No change.
(each match involving the SART Clarify men's and women's
played in AU, New Zealand or event.
Papua New Guinea)
Rugby Union International test matches No change.
(test matches involving the SART; Clarify men's and women's
played in AU or New Zealand) event.
World Cup matches No change.
(matches involving the SART) Clarify men's and women's
event.
World Cup matches No change.
(final) Clarify men's and women's
event.
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Sport Current listing inclusions Modernised list
Cricket Test matches No change.
(each test match involving the Clarify men's and women's
SART played in AU) event.
Test matches The 'Ashes' series
(each test match involving both (each match involving both the
the SART and the senior English SART and the senior English
representative team; played in the representative team; played in
UK) the UK)
One day matches No change.
(matches involving the SART; Clarify men's and women's
played in AU). event.
T20 matches No change.
(matches involving the SART; Clarify men's and women's
played in AU). event.
One day World Cup No change.
(matches involving the SART; Clarify men's and women's
played in AU or New Zealand) event.
One day World Cup No change.
(final played in AU or New Clarify men's and women's
Zealand) event.
T20 World Cup No change.
(matches involving the SART; Clarify men's and women's
played in AU or New Zealand) event.
T20 World Cup No change.
(final played in AU or New Clarify men's and women's
Zealand) event.
Soccer FIFA men's and women's World No change.
Cups
(matches involving the SART)
FIFA men's and women's World No change.
Cups
(final)
FIFA men's and women's World No change.
Cup Qualification tournament
(matches involving the SART;
played in AU)
Tennis Australian Open No change.
(entire event)
Davis Cup No change.
(each match in each tie involving
the SART; played in AU)
Davis Cup No change.
(final involving the SART)
Netball Netball World Cup No change.
(semi-final involving the SART)
Netball World Cup No change.
(a final involving the SART)
Motor Sports Formula One World No change.
Championship - Grand Prix (held
in AU)
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Sport Current listing inclusions Modernised list
MotoGP World Championship - No change.
Grand Prix
(held in AU)
Bathurst 1000 No change.
Relationship with proposed models
The modernised list has been designed to operate in conjunction with the broadcasting safety
net and free-to-air first models for the reform of the scheme (Models 2 and 3 respectively).
The modernised list is not designed to be compatible with the free-to-view model (Model 1).
That model is constructed around coverage obligations which require all events on the list to
be shown live and in full. It would not be technically or financially feasible for content
services to provide live and in full coverage of competitions that involve dozens of events
occurring simultaneously. In terms of the current list, this includes the Australian Open tennis
tournament, the Summer and Winter Olympic Games, and the Commonwealth Games.
Option 3: 'expanded' list
The expanded list would represent a significant increase in the number of events on the list
compared with the current instrument. This list option is detailed at Table 7.
The aims of the expanded list are two-fold:
• To enable the list to operate effectively with the broadcasting safety net and free-to-air
first models for the reform of the scheme (Models 2 and 3 respectively).
• To apply the scheme in a way that better reflects the contemporary media landscape and
significantly broadens the construction of nationally important and culturally significant
events.
Comparison with the current list
The expanded list continues to include events and competitions from the same 11 sports
included in the current list. However, this list option would significantly increase the number
of listed events with respect to certain of sports, adding:
• all events held as part of the Summer Paralympic Games;
• all matches of the AFL Women's Premiership, including the finals series;
• all matches of the NRL Women's Premiership, including the finals series;
• the NRL Women's State of Origin Series;
• each match of the Super Rugby Pacific and Super W finals series that involves at least one
Australian team;
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• all matches of the FIFA World Cup (men's) and the FIFA Women's World Cup;
• the complete Women's Ashes series played in the United Kingdom (currently only test
matches are listed, but the series currently includes 'one day' and T20matches);
• each match in each tie of the International Tennis Federation Davis Cup World Group
tennis tournament that involves an Australian representative team (currently the match
must be played in Australia);
• each match in each tie and the final of the International Tennis Federation Billie Jean Cup
tennis tournament that involves an Australian representative team; and
• all international Netball matches that involve the senior Australian women's representative
team that are played in Australia.
Table 7: Proposed changes to the expanded list
AU = Australia
SART = Senior Australian Representative Team
Sport Current listing inclusions Expanded list
Olympic Games Summer Olympic Games No change.
(entire event, including Opening
and Closing Ceremonies)
Winter Olympic Games No change.
(entire event, including Opening
and Closing Ceremonies)
No listing. Summer Paralympic Games
(entire event, including Opening
and Closing Ceremonies)
Commonwealth Games Commonwealth Games No change.
(entire event, including Opening
and Closing Ceremonies)
Horse racing Melbourne Cup No change.
AFL AFL Premiership No change.
(entire event, including the Finals Clarify men's event.
Series)
No listing. Women's AFL Premiership
(entire event, including the
Finals Series).
Rugby League NRL Premiership No change.
(entire event, including the Finals Clarify men's event.
Series)
No listing. Women's NRL Premiership
(entire event, including the
Finals Series)
State of Origin No change.
(entire event) Clarify men's event.
No listing. Women's State of Origin
(entire event)
International test matches No change.
123
Sport Current listing inclusions Expanded list
(each test match involving the Clarify men's and women's
SART played in AU or New event.
Zealand)
Rugby League World Cup No change.
(each match involving the SART Clarify men's and women's
played in AU, New Zealand or event.
Papua New Guinea)
Rugby Union International test matches No change.
(test matches involving the SART; Clarify men's and women's
played in AU or New Zealand) event.
World Cup matches No change.
(matches involving the SART) Clarify men's and women's
event.
World Cup matches No change.
(final) Clarify men's and women's
event.
No listing. Super Rugby Pacific finals series
(matches involving an
Australian team)
No listing. Super W finals series
(matches involving an
Australian team)
Cricket Test matches No change.
(each test match involving the Clarify men's and women's
SART played in AU) event.
Test matches The 'Ashes' series
(each test match involving both (each match involving both the
the SART and the senior English SART and the senior English
representative team; played in the representative team; played in
UK) the UK)
One day matches No change.
(matches involving the SART; Clarify men's and women's
played in AU). event.
T20 matches No change.
(matches involving the SART; Clarify men's and women's
played in AU). event.
One day World Cup matches No change.
(matches involving the SART; Clarify men's and women's
played in AU or New Zealand) event.
One day World Cup No change.
(final played in AU or New Clarify men's and women's
Zealand) event.
T20 World Cup No change.
(matches involving the SART; Clarify men's and women's
played in AU or New Zealand) event.
T20 World Cup No change.
(final played in AU or New Clarify men's and women's
Zealand) event.
Soccer FIFA men's and women's World FIFA men's and women's World
Cups Cups
(matches involving the SART) (entire tournament)
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Sport Current listing inclusions Expanded list
FIFA men's and women's World FIFA men's and women's World
Cups Cups
(final) (entire tournament).
FIFA men's and women's World No change.
Cup Qualification tournament
(matches involving the SART;
played in AU)
Tennis Australian Open No change.
(entire event)
Davis Cup Davis Cup
(each match in each tie involving (each match in each tie
the SART; played in AU) involving the SART).
Davis Cup No change.
(final involving the SART)
No listing. Billie Jean Cup
(each match in each tie
involving the SART).
No listing. Billie Jean Cup
(final involving the SART).
Netball Netball World Cup No change.
(semi-final involving the SART)
Netball World Cup No change.
(a final involving the SART)
No listing. International Netball
(matches involving the SART;
played in AU).
Motor Sports Formula One World No change.
Championship - Grand Prix (held
in AU)
MotoGP World Championship No change.
(held in AU) - Grand Prix
Bathurst 1000 No change.
Relationship with proposed models
The expanded list has been designed to operate in conjunction with the broadcasting safety
net and free-to-air first models for the reform of the scheme (Models 2 and 3 respectively).
The expanded list is not designed to be compatible with the free-to-view model (Model 1).
That model is constructed around coverage obligations which require all events on the list to
be shown live and in full. It would not be technically or financially feasible for content
services to provide live and in full coverage of competitions that involve dozens of events
occurring simultaneously. In terms of the current list, this includes the Australian Open tennis
tournament, the Summer and Winter Olympic Games, and the Commonwealth Games.
125
Option 4: 'status quo'
The existing list would be retained without amendment under this option. The current events
on the list would continue to be subject to the scheme, and the list would remain in place until
it sunsets on 25 March 2026.
4. Impact Analysis
Data assessment
Under the IA framework, there is a preference for IAs to be undertaken with a quantitative
assessment utilising a Cost-Benefit Analysis (CBA), Cost Effectiveness Analysis (CEA), or a
Multi-criteria Analysis (MCA). However, for a range of reasons outlined below, quantitative
data to support such analysis methods is not available or applicable to the consideration of
reforms to the anti-siphoning scheme and list.
This IA provides an assessment of the likely regulatory costs and impacts associated with the
four models for the scheme and the four options for the list. This has been informed by the
consecutive consultations undertaken in 2022 and 2023 as part of the review of the scheme. It
also draws on previous reviews of the scheme that have been undertaken over the past two
decades.
• In 2000, the Productivity Commission's (PC) review of broadcasting considered, among a
range of matters, the anti-siphoning scheme. The PC concluded that the scheme was
exclusionary116 and gave free-to-air broadcasters a competitive advantage over
subscription television broadcasters and increased their revenue. Additionally, the scheme
disadvantaged sport organisations by decreasing their negotiating power in marketing
their products.117
• The PC came to a similar conclusion in 2009, as part of its annual review of regulatory
burdens on business. The PC found the scheme to be anti-competitive, imposing a
protracted negotiation process on subscription television broadcasters and reducing the
bargaining power and potential revenue of sports bodies.118
• Anti-siphoning was also discussed in the report of the Independent Sports Panel in 2009.
This report (the Crawford Report) argued that scheme limited the earning potential for
sports and reduced the quantity and quality of sports coverage on television by
incentivising free-to-air broadcasters to acquire rights to popular sports (to the exclusion
of less popular sports).119
116 Productivity Commission (3 March 2000), Broadcasting Inquiry Report, p. 444.
117 Ibid., p. 434-35.
118 Productivity Commission (15 September 2009), Annual review of regulatory burdens on business: social and economic
infrastructure services, Research Report, p. 157-164.
119 Independent Sports Panel (2009), The future of sport in Australia, (the Crawford Report), Commonwealth of Australia, p.
136.
126
However, none of these reviews and assessments attempted to quantify these impacts on
businesses (or community groups and individuals). It is very difficult and, in many cases,
impossible to quantify opportunity costs due to the complexity of accurately predicting what
a business would do in response to the lessening or modification of a regulation. This was
reflected the submissions to the anti-siphoning review, which did not attempt to quantify the
impacts of the scheme.
Anti-siphoning regulation in Australia restricts the sequence and timing of the acquisition of
sports rights. However, it doesn't prohibit the acquisition of such rights. At present, the
scheme prevents the acquisition of a right to televise an event on the list until a free-to-air
broadcaster has acquired a right. It is therefore not possible to isolate and quantify the impact
that this regulation of the sequence and timing of the acquisition of sports rights has on
particularly parties, nor any potential changes to those regulations. The inability to quantify
impacts of the regulation of sports rights is not unique to Australia. The Impact Assessment
for legislation to amend the UK scheme does not attempt to do so.120 It is therefore not
possible to quantify those impacts or to precisely predict how changes in regulation may or
may not alter those impacts.
It is also important to acknowledge that decisions to acquire sports rights, and the nature of
those rights, are driven by a wide range of commercial and other factors, and are not solely
those related to regulations imposed under the BSA. Factors that might impact these
decisions include:
• the type of right being offered (for example, exclusive rights, bundling with non-listed
events, bundling platforms, pre-packaged products);
• the attractiveness of other competing content being offered at the time;
• the length of the rights deal;
• the popularity of the event;
• the relevant sports body's preference for a particular medium;
• the time zone in which the event is being played, and the time zone in which it is being
viewed;
• previous negotiations and the relationship between the parties;
• competition from other parties;
• openness to joint bids; and
• external factors (for example, the Covid-19 pandemic).
120 UK Government, (29 March 2023) Media Bill impact assessment, p. 1, 21-22.
127
Financial data relating to the coverage of sporting events is also highly sensitive for the
relevant parties and is generally not publicly disclosed. For example, media reports speculate
that Optus paid anywhere from $10 million and $60 million dollars for the 2023 FIFA
Women's World Cup, and that the Seven Network paid Optus was between $4 and 5
million.121
Even where figures may be known, it is also not possible to quantify what may be paid in the
future based on previous deals. For example, the AFL signed a deal covering free-to-air,
subscription television, and online streaming in 2015 for $2.5 billion from 2017-22. The deal
was revised and extended in 2020 due to the Covid-19 pandemic until 2024 for $946 million.
In 2022, a new deal was negotiated for $4.5 billion from 2025 to 2031. The new deal is worth
$643 million per season - a significant increase on the $473 million per season under the
preceding arrangements.122 It is not possible to determine how the scheme impacted on the
current or future rights arrangements and the value ascribed to them.
Moreover, previous data is not a reliable indicator of what is likely to occur in the future.
This is demonstrated by the FIFA Women's World Cup. The average audience for matches
involving Australia was 119,000 in 2015 and 193,000 in 2019.123 In 2023, Seven Network
indicated that an average of 6.24 million viewers tuned in watch the semi-final between
Australia and England for the 2023 FIFA Women's World Cup on television.124 The increase
is likely to be attributable, at least in part, to the tournament being held in Australia. Although
future tournament locations are not known, it is reasonable to expect that future tournaments
will generate higher audiences than have historically been seen over the past decade.125
Noting the above, a CBA, CEA, nor MCA are not feasible methods to ascertain the impacts
of the scheme and list or any changes to them. This IA has therefore been supported by a
qualitative assessment of the impacts of the potential models and options. These qualitative
assessments have, where possible, been supported with quantitative data sources, as outlined
in Table 8.
Table 8: Assessment of available data for quantitative Impact Analysis
Data Sources Assessment
Sports rights deals News media, Ampere, The volume and nature of sports rights
Sportbusiness, and consultation deals (i.e. which competitions are
submissions picked up by which broadcaster or
content service provider) provide
insight into the sports being made
available to consumers. However,
commercial deals are informed by a
range of factors, many of which are
independent from the anti-siphoning
scheme. It is not possible to quantify
the interplay between the anti-
121 James Manning (14 August 2023), Seven's best buy Women's World Cup: Matildas made it a bargain.
122 AFL (2022), Seven years, $4.5b: AFL reveals HUGE new broadcast rights deal.
123 DITRDCA (2022), Review of the anti-siphoning scheme: Consultation paper, p. 52.
124 Seven West Media (21 August 2023), Media release, FIFA Women's World Cup 2023™ draws 18.6m.
125 Calum Jaspan (13 August 2023), FIFA looks to cash in on Matildas' success as 2026 men's rights battle kicks off,
Sydney Morning Herald.
128
Data Sources Assessment
siphoning scheme and other market
forces to effectively assess the impacts
of potential options.
Value of sports rights purchased News media, Ampere, Because the dollar value of sports
Sportbusiness, annual reports, and rights deals - particularly multi-party
consultation submissions deals where a number of buyers have
made a joint bid for rights - is
commercially sensitive, information
about the value of these deals is not
consistent or comprehensive. There is
also a lack of transparency about the
nature of the deals in many cases.
Therefore, the value of sports rights
purchased is presented in aggregate, or
as evidence to support the qualitative
assessment in this IA.
Sports participation rates Annual reports of sporting bodies Sports participation rates are related
but not integral to the objectives of the
anti-siphoning scheme. It would be
inappropriate to attempt to quantify the
impact of the scheme in terms of sports
participation. For example, Golf
Australia's 2021/22 Participation
Report has indicated that more than 2.7
million Australians play golf.126 Yet,
golfing events have in the past been
removed from the list in part due to the
relatively low television ratings.127
Number of events Public sources, consultation The number of events has been used in
submissions, and websites of this IA as a proxy to communicate the
sporting bodies scope of the proposed changes to the
anti-siphoning list. However, it is
important to note that this figure is not
generally comparable between
different types of sports, as the
competition structure and the meaning
of 'event' varies widely. It would be
inappropriate to use these figures as a
metric of impact of the scheme given
the schism between the numbers and
real-world impact.
Hours of sports made available ACMA, Ampere, TV Guides, and Comprehensive assessment of the
Online content libraries number of hours of sport available on
broadcast television and online
services has not been undertaken.
There is, therefore, no extant data
source that can provide a complete
understanding of hours of sport
available to consumers that may be
used to quantify the impacts of the
scheme.
As a metric for impact analysis, hours
available would be inappropriate, as
there is an upper limit to the feasible
and commercially viable number of
126 Golf Australia (24 May 2023), The golf boom continues in Australia.
127 Explanatory Memorandum to the Broadcasting Legislation Amendment (Broadcasting Reform) Bill 2017, pp. 71-72
129
Data Sources Assessment
hours of sport that a linear channel
may broadcast. Additionally,
broadcasters must abide by other
regulations, such as the Australian
Content and Children's Television
Standards (ACCTS) for commercial
broadcasters, which mandate that
certain genres sses of content that are
not sport be provided at some level on
linear channels.
Television ratings of key News media, consultation The television audience for sports on
competitions submissions, and OzTAM free-to-air and subscription
broadcasters provides important
context for the business imperative for
various sectors in obtaining rights to
major sporting events. However,
audience measures are impacted by a
wide range of factors beyond the scope
of the anti-siphoning scheme,
including the type of sport; the existing
fanbase; live attendance; the
competition structure; the time of
broadcast; the teams or individuals
playing, among other matters. It would
be inappropriate to rely on television
audience measure for a quantitative
assessment of impacts.
Consumption patterns & News media, Research reports, and Consumer behavior is an important
Consumer attitudes Department-commissioned surveys consideration for the suitability of
reform options to ensure the efficacy
of the scheme. Where possible,
information about peoples' use of
media and attitudes towards various
platforms, sporting events, and sports
broadcasting has been used to support
the qualitative assessment in this IA.
However, as reform to the scheme will
primarily have direct impact on the
way that industry entities (sports
bodies and content platforms)
negotiate rights deals, it would be
inappropriate to rely on consumer
behavior as the only quantitative
measure of impact.
The scheme
Model 1: 'free-to-view'
Impact on industry
Free-to-air broadcasters
The free-to-view model would negatively impact the free-to-air television sector, as these
broadcasters would no longer have the first opportunity to acquire rights to listed events. This
would be a significant impact on commercial free-to-air broadcasters, for whom the rights to
130
televise sporting events are critical to their respective businesses. The free-to-view model
would negatively impact their bargaining position in relation to sporting bodies. This may, in
turn, limit their ability to acquire listed events.
National broadcasters are expected to be impacted to a lesser extent, as they have not
historically tended to acquire rights to listed events at the same rate as their commercial
counterparts (with limited exceptions like SBS's acquisition of the FIFA World Cup (men's)
rights). However, under the current scheme, national broadcasters were afforded a degree of
advantage due to subscription broadcasters being unable to acquire events while they are on
the list. This, combined with their ability to provide extensive exposure, would advantage
their negotiating position should they seek to acquire rights. National broadcasters would lose
these advantages under the free-to-view model. Because of the commercial sensitivities of
negotiating rights deals, these opportunity costs cannot be quantified.
Due to the imposition of requirements to show listed events live, in full, free, and on a
broadly available platform, free-to-air broadcasters would also be subject to new and novel
obligations under the scheme. The free-to-air business model is, by definition, free, and their
broadcasting services and BVOD apps are already broadly available. However, they would be
subject to the 'live' and 'in full' requirements. There was no evidence presented through the
review of the anti-siphoning scheme to suggest that free-to-air broadcasters were 'hoarding'
the rights to listed events. This reflects the strong commercial incentive for broadcasters to
fully exploit the rights that they have acquired (typically at significant cost). Therefore, the
impact of the regulatory obligations, including compliance costs, would not be expected to be
substantial.
Conversely, the effective removal of the regulation of the acquisition of the rights to listed
events under this model could be expected to have an impact on free-to-air broadcasters,
although the quantum of this impact is difficult to discern. Through the review process, free-
to-air broadcasters argued that the effective removal of the current scheme would lead to the
'cherry picking' of digital rights by online content services, which would threaten the long-
term sustainability of free-to-air services given the importance of sports rights to the free-to-
air business model. They argued that there is a power imbalance between the free-to-air
networks and "well-funded" online content service providers, which would leave free-to-air
broadcasters to acquire what is left after the events on the list have been picked by other
providers.128
By contrast, the 2009 PC report found that for events that are likely to attract large audiences,
free-to-air broadcasters would be in a strong position to acquire rights, even without the
protection of the scheme.129 While this model would also require entities to adhere to
coverage and availability obligations, this analysis is likely to carry some weight even if the
acquisition rule were to be removed.
128Free TV Australia (2023), Submission to the anti-siphoning scheme proposals paper, p. 13.
129Productivity Commission (15 September 2009), Annual review of regulatory burdens on business: social and economic
infrastructure services, Research Report, p.160.
131
Subscription television and streaming services
Subscription television services would benefit from the adoption of the free-to-view model.
Currently, subscription television broadcasting licensees are restricted from acquiring listed
events (until they are delisted). The removal of any acquisition restriction, combined with the
streamlined list (Option 1), would allow them to acquire rights to televise listed events at any
time. This would be expected to have provide a significant commercial benefit for
subscription television broadcasters.
However, this model also imposes regulatory obligations on subscription television
broadcasting services as they would have to comply with live, in full, and free obligations for
their online services for the first time. This is not expected to be onerous, as subscription
broadcasters also have an incentive to fully exploit the rights that they have acquired at
significant expense.
The free-to-view model would extend regulatory obligations to content service providers that
are not currently subject to the scheme, such as streaming services. For these firms,
complying with the regulatory obligations would have a significant impost, particularly the
requirement for 'free'. However, some online subscription service providers do provide free
content as part of their business model.130 For example, Kayo offers free content on 'Kayo
Freebies'131, and Optus Sport provided free coverage of 11 matches of the 2023 FIFA
Women's World Cup.132 These providers would be expected to receive a significant benefit
from being able to acquire coverage rights to listed events without restriction under the
scheme, should they succeed in acquiring them.
While these variables are not possible to quantify, this model is likely to impose less burden
on subscription television and streaming services than the broadcasting safety net and free-to-
air first models (Models 2 and 3), provided it is coupled with a reduction in the list. This is
demonstrated by the submissions from Foxtel and Optus to the proposals paper which flagged
the free-to-view model as their preferred option. The Optus submission argued that the free-
to-view model achieves the benefits of a competitive open market rights process. 133
Sporting bodies
Sporting bodies would benefit from this model (in comparison to the existing scheme). By
targeting the coverage outcome, rather than the preceding acquisition of rights, this model
would place no restrictions on the ability of sports bodies to sell their media rights.
However, the limitations imposed by this model on the acquiring content service providers
(live, in full, free, via a broadly available platform), may impact sporting bodies to the extent
that it may require them to make certain rights available to content service providers. This is
130 Foxtel Group (2023), Submission to the anti-siphoning scheme proposals paper, p. 2; Optus (2023) Submission to the
anti-siphoning scheme proposals paper, p. 8.
131 Kayo (2023), What is Kayo Freebies?.
132 Optus Sport (2023), How to watch the FIFA Women's World Cup 2023™ live in Australia on Optus Sport.
133 Foxtel Group, Submission to the anti-siphoning scheme proposals paper, p. 2; Optus (2023) Submission to the anti-
siphoning scheme proposals paper, p. 8.
132
likely to be the case for streaming services that predominantly operate on a subscription-
based business model, rather than advertising-based. To the extent that the 'free' requirement
impacts on the demand for rights by pay-based streaming services, this may impact on the
ability of sports bodies to maximise the revenue from the sale of rights.
As with subscription television and streaming services, this option is likely to impose the
least burden on these sporting bodies - provided it is coupled with a reduction in the list. The
Coalition of Major Professional and Participation Sports (COMPPS) submission to the
proposals paper argued that the scheme is anti-competitive and not necessary to protect the
interests of the Australian public, but goes onto state that the free-to-view model was their
preferred option, contingent upon a reduced list.134
Impact on Australian consumers
Coverage
This is the only model, of those considered in this IA, that incorporates a mandatory set of
coverage obligations (live and in full). In theory, this would operate to enhance the outcome
for consumers. However, as noted above, there is little to suggest that broadcasters and other
online service providers are not already providing live and in full coverage of major sporting
events, given the significant sums that are required to be paid to secure media rights. As such,
the overall benefit to consumers may be minimal.
In addition, the free-to-view model is dependent upon being implemented with the
streamlined list (Option 1). This would necessarily reduce the number of events that are
subject to the scheme and therefore subject to the coverage requirements. The overall
consumer benefit is likely to be negative in this circumstance.
Access
Access to listed events would require those events to be shown on a 'broadly available'
technology platform. It is proposed that the relevant threshold would be a content service that
is available to a minimum of 99 per cent of the Australian population. However, availability
doesn't equal access, and the practical realities of providing coverage of listed events via a
given technology or technologies are relevant to the fulfilment of the overall objective of the
scheme. The free-to-view model relies on consumers having adequate access to the internet to
ensure that listed events can be viewed for free, by all Australians.
Availability
In a contemporary environment, the internet is widely available to Australians. As at
September 2020, 99.3 per cent of premises could connect to the NBN.135 Mobile internet
coverage is also high, with 99.5 per cent of the population able to access Telstra's 4G
134 Coalition of Major Professional and Participation Sports (2023), Submission to the anti-siphoning scheme proposals
paper, p. 2-3.
135 DITRDCA (2020), International comparison of fixed broadband performance - coverage and minimum speeds, p. 1.
DITRDCA (2020), International comparison of fixed broadband performance - coverage and minimum speeds.
133
services136 and 85 per cent able to access its 5G services.137 However, with respect to mobile
coverage, there are discrepancies in availability depending on which network a consumer
uses.
• The Optus 4G network reaches some 97.3 per cent of the Australian population.138
• TPG's (Vodafone's) business model focuses on metropolitan areas, with its 5G network
covering more than 96 per cent of the population in Australia's ten largest cities.139
Mobile-only users of the internet are a minor but significant portion of the Australian
population.
• In the 12 months to June 2020, 16 per cent of Australian adults were mobile-only users of
the internet at home (mobile broadband or mobile phone), including 21 per cent of those
aged 18 to 24.140
• A separate study found that certain groups, including First Nations people and those on
the lowest incomes, tend to be overrepresented in this cohort of mobile-only users of the
internet.141
This is relevant to the question of whether the free-to-view model can deliver on the objective
of the scheme, given the variance in population coverage across mobile networks.
Take-up
The take-up of broadband services is also high at an aggregate level.
• 99 per cent of Australian adults accessed the internet (and 93 per cent had a home internet
connection) as at June 2022.142
• As at 30 December 2022, analysis of 13 leading retailers revealed there were 7.9 million
retail broadband internet services in operation (7.5 million of which were NBN).143
• As at 31 December 2022, there were approximately 28.7 million mobile services and
some 4.4 million mobile broadband services.144
136 Telstra, Our Network
137 Telstra, Australia's Largest 5G Network.
138 Optus, Prepaid Mobile.
139 Vodafone Australia (15 February 2023), Vodafone sets a new 5G high-speed score at the SCG.
140 ACMA (2020), Mobile-only Australia: living without a fixed line at home | ACMA.
141 Australian Digital Inclusion Index, Key findings and next steps - Australian Digital Inclusion Index.
142 ACMA (December 2022), Communications and media in Australia: How we use the internet, p. 3.
143 ACCC (June 2023), Internet activity report - For the period ending 31 December 2022, p 8. It is unclear how many of
these services included broadband, p. 7.
144 ACCC (June 2023), Internet activity report - For the period ending 31 December 2022, p. 8.
134
However, many Australians have not taken up a home internet connection. In 2022, some
6.82 per cent of Australians had no internet connection at home,145 and lower take-up is more
prevalent among particular groups:
• 8.51 per cent of regional Australians had no internet connection at home, compared with
5.93 per cent of those in metropolitan areas.146
• 11.71 per cent of Australians over the age of 75 had no internet connection at home.147
Other surveys have found that, although the divide between metropolitan and regional areas
has narrowed in recent years, it remains marked, and that those aged over 75 continue to be
left behind.148
While the availability of internet services is close to universal, there are gaps and
discrepancies in terms of take-up for certain groups within Australian society. For these
Australians, it is possible that the free-to-view model would result in a reduction of free
access to televised coverage of nationally important and culturally significant events as they
migrate to freely available, but inaccessible, online platforms.
Indirect costs
The free-to-view model would require coverage of listed events to end-users in Australia to
be free (with no direct or explicit payments, such as subscription fees or pay-per-view
charges). However, accessing services online involves additional, indirect costs associated
with an internet connection. This requires a fixed broadband service, mobile broadband
service, mobile service, satellite or ADSL service. Each will have costs, typically charged
monthly, as well as upfront costs.
The take-up of internet services (above) demonstrates that the majority of Australians can
afford to meet these access costs. However, this doesn't include all Australians.
• In 2022, 4 per cent of Australians needed to pay more than 10 per cent of their household
income to gain quality, reliable internet connectivity, with this figure at 27 per cent of
those in the lowest income quintile.149
• This research also found that, in 2022, 32 per cent of those in the lowest income quintile,
and 27 per cent of those in the second lowest income quintile, expressed some level of
concern over the cost of internet access.150
Cost is also a factor relevant to the level of take up of streaming and other online services.
145 ACMA (December 2022), Communications and media in Australia: How we use the internet - data file.
146 Ibid.
147 Ibid.
148 Australian Digital Inclusion Index, Key findings and next steps - Australian Digital Inclusion Index.
149 Australian Digital Inclusion Index: Affordability.
150 Ibid.
135
• In June 2022, research found that 19 per cent of Australians did not watch any online
services in the previous 7 days, up from just over 12 per cent in the year prior.151
• Cost was the most common factor for consumers when determining whether to cancel an
SVOD service.152
Service capabilities
The value of sport lies in the moment that the competition occurs, and the events included on
the anti-siphoning list are typically viewed by millions of Australians simultaneously.
In this regard, Kayo Sports recommends an internet connection of at least 7.5 Mbps to stream
its service in full High Definition (HD 1080p), noting that an internet connection of below 4
Mbps would only allow for Standard Definition streaming.153 Similarly, for standard
definition streaming, while 7plus and Stan recommend 3 Mbps.154 The Australian
Competition and Consumer Commission (ACCC) reports that a high definition Netflix
stream requires around 2.2 Mbps.155 While it is possible to watch these services with lower
speeds, this would be unlikely to provide an equivalent quality to the High Definition sports
coverage provided through free-to-air broadcasts.
There have been instances in the past where online services have not been able to
accommodate audience demand. Australian consumers experienced poor quality streams on
Optus Sport of matches played as part of the 2018 FIFA World Cup. Optus eventually
allowed SBS to simulcast the remaining matches of the tournament.156 However, Optus was
subsequently able to provide high quality coverage of the 2023 FIFA Women's World Cup
following significant investment in upgrading its content distribution infrastructure and
scaling up capabilities in the lead up to the event.157
These types of congestion issues could arise again if coverage of significant events were to be
provided solely via an online platform, although this risk will moderate as the capacity of
networks improves.
The free-to-view model is therefore likely to have a negative impact of some consumers, as
Australians on lower incomes may get left behind if coverage of iconic sporting events were
to migrate exclusively to online platforms.
Impact on government
This model is expected to have a moderate budgetary impact on the ACMA, which would be
required to oversee and administer a complex framework to give effect to the regulatory
151 ACMA (July 2023) Communications and media in Australia: Trends and developments in viewing and listening, 2021-
22, p. 10.
152 Deloitte (2022), Media Consumer Survey 2022, p. 9.
153 Kayo Sports, What internet speed do I need to use Kayo?.
154 See: 7plus, Frequently Asked Questions; Stan, Minimum Internet Requirements.
155 ACCC, (August 2022), Measuring Broadband Australia: Report 18, Appendix, p. 2.
156 Duke J (28 June 2018), World Cup: Optus surrenders final games to SBS after streaming fail, The Sydney Morning
Herald.
157 Optus (2023), Submission to the Anti-siphoning review - proposals paper, p. 7.
136
requirements (free, live, in full, on a broadly available platform). To ensure parties with the
rights to listed events are complying with these requirements, the ACMA would need to
increase its monitoring functions. There may also be a need for additional reporting
requirements for rights owners which the ACMA would have to enforce. As the quantum of
requirements would increase under this model, so could the number of potential compliance
issues. This could increase the time the ACMA spends on its enforcement functions. The
ACMA would require increased resources to fulfil this function.
Overall assessment
The free-to-view model would be a technology-neutral approach to regulating the coverage of
nationally important and culturally significant sporting events. It would seek to ensure that all
Australians are able to access free, live and in full coverage of these events where coverage is
provided in Australia.
By targeting the coverage outcome, rather than the preceding acquisition of rights, this model
would avoid a number of the acknowledged concerns with the scheme. Sports bodies would
have greater freedom to negotiate with content services regarding their rights. Subscription
television broadcasting licensees would not be restricted in terms of their acquisition of rights
in the same way as they are under the current scheme. The free-to-view model would also
draw into the scheme content service providers that are not currently subject to any regulatory
obligations, such as Amazon Prime Video, Disney+ and YouTube (among others).
However, the ability of this model to deliver on the overall objective of the scheme - free
access to televised coverage of nationally important and culturally significant events - is
technology-dependent, with implicit costs. Availability doesn't equal access. Although 99 per
cent of Australians can theoretically connect to high quality internet services, take-up of these
services is inconsistent across the country. Without adequate internet, audiences would not be
able to access coverage of sport via online services, even without an explicit charge for those
services. Model 1 will also only work with Option 1 for the list (a streamlined list). As noted
in chapter 3, this would see a reduction in the events on the list of around 80 per cent,
compared with the current list.
Model 2: 'broadcasting safety net'
Impact on industry
Free-to-air broadcasters
The broadcasting safety net model would extend the commercial advantages afforded to free-
to-air broadcasters under the current scheme, and is likely to advance their negotiating
position with regard to sports rights compared with their competitors. This is a product of the
requirement for a free-to-air broadcaster to have acquired a right to televise the event on a
broadcasting service before another party can acquire a right to the event.
These benefits are likely to primarily accrue to commercial free-to-air broadcasters, as
opposed to the national broadcasters, given the importance of the sports content genre to their
137
businesses. Historically, commercial free-to-air broadcasters have expended more on major
sports rights deals than their national counterparts. Between 2015 and 2022, commercial free-
to-air broadcasters are estimated to have spent around $1.3 billion each on sports rights
compared to just under $250 million each for the national broadcasters.158
In 2022, sport or sport-related programs accounted for 9 of the top 10 rating programs on
free-to-air television, over half of the top 50 rated programs and a little under half of top 500
programs. This supports the argument made by the commercial free-to-air broadcasters that
sport is critical for the sustainability of wholly advertiser funded services. Commercial free-
to-air broadcasters have also noted that sport is important in helping to build and maintain an
audience for adjacent content like news, entertainment and Australian drama.159
While the benefit to free-to-air broadcasters is not possible to quantify, it is anticipated to be
material. Foxtel indicates that the broadcasting safety net model would distort the playing
field more than the current scheme and provide free-to-air broadcasters with even greater
freedom from competition.160
"It will also increase the FTAs' already substantial advantage in relation to the
acquisition of other kinds of coverage rights, notably streaming rights. It is currently
common for sporting bodies to bundle their broadcast rights and streaming rights
together, often for both listed and unlisted events, to secure the highest cumulative
price for those rights."161
However, this potential competitive advantage is mitigated by a number of factors. The
model would not extend to BVOD services in that it wouldn't require a free-to-air
broadcaster to have acquired a right to provide coverage of a listed event on a content service
(such as a BVOD) before another party can acquire a right. Free TV has indicated that the
broadcast safety net model puts at risk the future sustainability of free local media, as these
services rely on policy makers to create regulatory frameworks that support the gradual
adoption of free local media services on their BVODs.162 Free TV's cites data that indicates
that BVOD revenues accounted for around 10 per cent of total free-to-air service revenue in
2022, and projects that this medium will account for 25 per cent of revenue by 2027, and
50 per cent by 2033.163
Additionally, the automatic delisting period will be extended from 26 weeks to 12 months
under this option. This would provide an opportunity for parties other than free-to-air
broadcasters to acquire the rights to events on the list at an earlier point, compared with the
current 26-week delisting arrangements. This may also mitigate any potential competitive
advantage conferred on free-to-air broadcasters under this option.
158 Ampere Analysis, Sports - Media Rights (2022); Departmental analysis based on available aggregated data on the value
of sports media rights. Aggregated figures have been averaged by categories of broadcaster.
159 Free TV Australia (2023), Review of the anti-siphoning scheme: Response to the Proposals Paper, p. 10.
160 Foxtel Group (2023), Submission in response to the review of the anti-siphoning scheme - Proposals Paper, p. 2.
161 Ibid, p. 4.
162 Free TV Australia (2023), Review of the anti-siphoning scheme: Response to the Proposals Paper, p. 10, 16.
163 Ibid, pp. 11-12.
138
Subscription television and streaming services
This model would adversely impact subscription television broadcasting services to the
extent that they are also online providers. The proposed acquisition restriction under this
model would increase the burden on these services by constraining their ability to acquire the
online rights to listed events, and presumably impact their negotiating position.
'Standalone' online service providers (those not associated with or part of a broadcasting
enterprise) would be negatively impacted by this model as they would be drawn into the
scheme and would be subject to acquisition restrictions. This may constrain their negotiating
position, particularly if media rights to particular events are sold as a 'bundle' (broadcasting
and online rights sold together).
In its 2009, the PC found that the scheme imposes considerable anti-competitive distortions
and additional burdens on subscription broadcasters in acquiring those rights. While not
attempting to quantify this impact, the PC stated that:
"The anti-siphoning provisions directly limit competition between subscription and
free-to-air networks. While subscription television providers regularly gain access to
listed events, the regime shifts the balance of negotiating power in favour of free-to-
air networks, as subscription television broadcasters are unable to compete for
exclusive broadcast rights for listed events."164
In criticising the scheme, the PC noted that sport is typically the most popular viewing option
of those consumers that subscribe to subscription television, suggesting that it is those
viewers particularly interested in watching sport that are most likely to subscribe.165 It is
arguable that the scheme would have a similar impact on online services if expanded to them.
The impact of this effect is difficult to quantify, but it is expected to be material. However, it
is anticipated to be moderated by the fact that the market has adjusted to the existing scheme,
which has been in place now for close to close to 30 years. Rights deals are typically
negotiated and settled with all forms of media provider (free-to-air broadcasters, subscription
broadcasters and online service providers). This has been the case with AFL, NRL and
cricket over recent years.166 The potential impact of the revised acquisition rule may be more
muted to the extent that similar rights negotiation arrangements are pursued in in future years.
It is also notable that preventing paywalled services from acquiring the rights to nationally
important and culturally significant events ahead of a free service (free-to-air broadcasters),
but still providing a reasonable opportunity to acquire such rights, is the balance that the
scheme is seeking to achieve.
The extension of the automatic delisting period from 6 to 12 months may would also provide
content service providers other than free-to-air broadcasters - including subscription
164 Productivity Commission (15 September 2009), Annual review of regulatory burdens on business: social and economic
infrastructure services, Research Report, p. 157.
165 Ibid, 158.
166 DITRDCA (2022), Review of the anti-siphoning scheme: Consultation paper, pp. 23-24; AFL, Media Release: Seven
years, $4.5b: AFL reveals HUGE new broadcast rights deal.
139
broadcasters - with an opportunity to acquire rights to events an earlier point. As noted in the
Optus submission - which advocated for an 18-month delisting period - an extended
delisting period could help provide additional time for budgeting, planning, investment and
preparation.167
In terms of the costs for compliance with the scheme under this option, the burden on both
subscription television and streaming services is expected to be negligible. This is because
the scheme does not include any regulatory compliance measures, but simply governs the
sequence and timing of the acquisition of rights to events on the list. Businesses involved in
these negotiations are expected to have legal functions that would ensure compliance with the
scheme as a matter of usual practice.
Sporting bodies
Sporting bodies would be negatively impacted by this model (in comparison to the existing
scheme) to the extent that it further constrains their ability to negotiate with content services
regarding their rights.
The PC noted that negotiations are more complex, drawn out and burdensome than if
subscription broadcasters could negotiate directly with the underlying rights holder. It
concluded that the anti-siphoning regime is likely to distort the relative prices of broadcast
rights of listed events relative to non-listed events, potentially reducing the price received by
sporting organisations for listed events.168 Restricting acquisition by additional parties is
likely to exacerbate this effect.
However, as noted above, rights deals are typically negotiated and settled with all forms of
media provider, so the potential impact of the revised acquisition rule may be more muted.
Nevertheless, the impact is still anticipated to be material. As noted in Table 9, many sports
deals are often made years in advance. This means that sports rights owners are effectively
required to make their rights available to free-to-air broadcasters, or wait until events are
delisted. This may decrease the value of those rights for sporting bodies. Extending the
automatic delisting period from 6 to 12 months may mitigate this impact.
Table 9: Selected sports rights deals
Sport Events in deal Rights Period Deal announced
AFL AFL Premiership, AFLW 2025-2031 6 September 2022
Matches
AFL Premiership, AFLW 2023-2024 12 June 2020
Matches
NRL NRL Premiership, NRL 2023-2027 20 December 2021
Women's Premiership
167Optus (2023), Submission to the Anti-siphoning review - proposals paper, p. 10.
168Productivity Commission (15 September 2009), Annual review of regulatory burdens on business: social and economic
infrastructure services, Research Report, pp. 157-158.
140
Cricket Australian National Cricket 2024-2031 3 January 2023
Team/Australian Women
National Cricket Team
Australian National Cricket 2018-2024 13 April 2018
Team/Australian Women
National Cricket Team
Tennis Australian Open 2025-2029 11 November 2022
Australian Open 2020-2024 29 March 2018
As with subscription broadcasters and streaming services, compliance costs for sporting
bodies are expected to be negligible under this option.
Impact on Australian consumers
The broadcasting safety net model is expected to provide a high likelihood of live and free
coverage of listed events, and hence a benefit for consumers, given the preferential treatment
afforded to broadcasters through the scheme and the strong commercial incentives to fully
utilise any rights acquired to listed events.
While this model would not provide the same level of surety of a free, live and in full
outcome as the free-to-view model (Model 1), it would potentially apply to a broader range of
events (given the necessity for a relatively short list with Model 1). This model doesn't
include coverage or availability obligations, as free-to-air broadcasting services are, by
definition, 'free' and 'broadly available'.
The extension of the automatic delisting period from 6 to 12 months creates a risk that listed
events may be bought by parties other than free-to-air broadcasters and provided behind
paywalls. However, as noted above, most sports rights deals are settled well in advance of 12
months from the commencement of the relevant events.
Impact on government
The broadcasting safety net model is expected to have a minor budgetary impact on the
ACMA, who would be required to oversee and administer a framework that effectively
extends the current regulatory arrangements. However, this is not expected to be as complex
and resource-intensive as the oversight of the free-to-view model (Model 1).
Overall assessment
The broadcasting safety net model adopts the basic architecture of the current scheme, but
modifies and extends it to capture online and other services. It would continue to prefer and
prioritise free-to-air broadcasting services as the key means to promote the achievement of
the scheme's objective (free access to televised coverage of iconic sporting events), and
provide all other parties with the opportunity to acquire rights once a right to televise a listed
event is acquired by a free-to-air broadcaster.
It would enhance the likelihood of these events being freely available to all Australians, and
mitigate the risk of audiences being subject to additional costs to access this content. These
141
potential costs would be both direct (subscription or other fees or charges imposed on end-
users to access coverage), or implicit (associated with the cost of assessing content online).
To this end, this model would provide significant benefits for Australian consumers.
This model would exacerbate a number of the acknowledged concerns and risks with the
current scheme. It would broaden the effective restriction on sports bodies in terms of their
ability to negotiate with content services regarding their rights. It would also draw into the
scheme content service providers that are not currently subject to any restrictions in terms of
rights acquisition. Services such Amazon Prime, Disney+ and YouTube (among others)
would not be able to acquire a right to provide coverage of events on their services until a
free-to-air broadcaster had acquired a right to televise the event, or the event is automatically
delisted.
However, this model would provide relatively unimpeded access to rights by content service
providers once a right to televise an event has been acquired by a broadcaster, or it has been
automatically delisted.
Model 3: 'free-to-air first'
Impact on industry
Free-to-air broadcasters
The free-to-air first model would significantly extend the commercial advantages afforded to
free-to-air broadcasters and materially advance their negotiating position with regard to
sports rights compared with their competitors. This is a product of the requirement for a free-
to-air broadcaster to have acquired a right to televise the event on a broadcasting service and
a right to provide coverage of an event on an online service before another content service
provider could acquire a right to the event. They would also be able to acquire broadcast
rights or online rights without the acquisition restriction lifting.
The benefits would be particularly significant for commercial free-to-air broadcasters, for
whom sporting rights are critical. The national broadcasters would also experience the
benefits, although to a lesser extent, as they have not historically secured rights to major
sporting events to the same extent as their commercial counterparts.
Free TV has argued that extending the scheme to the online services provide by free-to-air
broadcasters will help to secure the sustainability of the sector,169 noting that its BVOD
revenues are expected to increase from around 10 per cent in 2022 and 50 per cent in 2033.170
While the benefit to free-to-air broadcasters is not possible to quantify, it is anticipated to be
more significant than the broadcasting safety net model. Free-to-air broadcasters would be
afforded significant power during the negotiating process under this option.
169 Free TV Australia (2023), Review of the anti-siphoning scheme: Response to the Proposals Paper, p. 16.
170 Ibid, pp. 11-12.
142
Subscription television and streaming services
This model would negatively impact subscription television broadcasting services to the
extent that they are also online providers. 'Standalone' online service providers (those not
associated with or part of a broadcasting enterprise) would also be negatively impacted by
this model as they would be drawn into the scheme and would be subject to acquisition
restrictions.
For both sectors, the requirement for a free-to-air broadcasters to have acquired both a
broadcasting right and an online right before they can acquire any form of right is expected to
have a significant impact on their negotiating position. This marks a point of difference with
the broadcasting safety net model. As noted above, PC found that the scheme imposes
considerable anti-competitive distortions and additional burdens on subscription broadcasters
in acquiring those rights. The limit to competition is difficult to quantify, but would be
greater than the broadcasting safety net model (Model 2).
Sporting bodies
Sporting bodies would be negatively impacted by this model (more so than the broadcasting
safety net model (Model 2)). The free-to-air first model would broaden the effective
restriction on sports bodies in terms of their ability to negotiate with all content services
regarding all forms of media rights. As noted in Table 9, sports deals are often made years in
advance. This means that sports rights owners are effectively required to make all major
media rights available to free-to-air broadcasters ahead of any other parties. This may erode
the value of those and result in protracted rights negotiations.
As noted above, the PC raised concerns about the scheme distorting the relative prices of
broadcast rights of listed events.171 The bargaining power that free-to-air broadcasters are
likely to have under this model would create the potential for a reduction in the prices of
online rights and a lowering of their cumulative value. While difficult to quantify, the impact
would be more significant that the broadcasting safety net model.
Impact on Australian consumers
For consumers, the free-to-air first model would provide a high likelihood of live and free
coverage listed events on both broadcasting services and online, given the preferential
treatment afforded to broadcasters through the scheme and the strong commercial incentives
to fully utilise any rights acquired to listed events.
While this model would not provide the same level of surety of a free, live and in full
outcome as the free-to-view model (Model 1), it would potentially apply to a broader range of
events (given the necessity for a relatively short list with Model 1). Compared with Model 2,
the free-to-air first model would enhance the likelihood of the coverage of events being
provided via the online services of free-to-air broadcasters. However, from a consumer
perspective, this may involve additional 'indirect' or 'implicit' costs in terms of accessing
171Productivity Commission (15 September 2009), Annual review of regulatory burdens on business: social and economic
infrastructure services, Research Report, pp. 157-158.
143
content online. This model doesn't include coverage or availability obligations, as free-to-air
broadcasting services are, by definition, 'free' and 'broadly available'.
There is a risk under this model that events will not be shown at all if they are not picked up
by a free-to-air broadcasters, as other content service providers would not have an
opportunity to acquire them until delisting.
Impact on government
The free-to-air first model is expected to have a minor budgetary impact on the ACMA, who
would be required to oversee and administer a framework that effectively extends the current
regulatory arrangements. However, this is not expected to be as complex and resource-
intensive as the oversight of the free-to-view model (Model 1).
Overall assessment
The free-to-air first model would impede access to both the broadcast and online rights to
events by parties other than free-to-air broadcasters, and adversely impact sports bodies and a
relatively broad set of media entities. It would also seek to treat the content services provided
by free-to-air services (i.e. BVOD services) differently to content services provided by other
parties where there is no subscription or other explicit fee imposed - although to the
consumer there is likely to be little practical difference.
The broadcasting safety net model adopts the basic architecture of the current scheme, but
modifies and extends it to capture online and other services. It would provide free-to-air
broadcasters with significant commercial advantage and would place free-to-air broadcasters
- rather than free-to-air broadcasting services - as the key mechanism to support the
achievement of the scheme's objective of free access to televised coverage of iconic events.
This is likely to deliver benefits to Australian consumers and mitigate the risk of audiences
being subject to direct costs to access this content (subscription or other fees or charges
imposed on end-users to access coverage). However, audiences may be subject to implicit
costs (associated with the cost of assessing content online) if broadcasters opted to provide
exclusive coverage of listed events on their BVOD services.
This model would exacerbate a number of the acknowledged concerns and risks with the
current scheme. It would substantially broaden the effective restriction on sports bodies in
terms of their ability to negotiate with content services regarding their rights. It would
significantly extend the commercial advantages afforded to free-to-air broadcasters - more so
than the broadcasting safety net (Model 2) - and advance their negotiating position with
regard to sports rights compared with their competitors. It would also draw into the scheme
content service providers that are not currently subject to any restrictions in terms of rights
acquisition such as Amazon Prime Video, Disney+ and YouTube (among others).
144
Model 4: 'status quo'
Impact on industry
Free-to-air broadcasters
Under this model, the anti-siphoning scheme would remain unchanged. The scheme would
continue to provide a benefit to the free-to-air sector, although this benefit may be eroded
over time if streaming or other online services seek to acquire additional rights to listed
events.
Subscription television and streaming services
Subscription television broadcasters would continue to be subject to the scheme. These
adverse impacts (in terms of their ability to seek and secure the rights to listed events) may be
magnified if their competitors ('standalone' online streaming services) are not subject to
regulation, and are free to acquire the rights to listed events ahead of them. In turn, these
online streaming services would benefit from the status quo, as they would not be subject to
any regulation under the scheme.
Impact on sporting bodies
Sporting bodies would continue to be able to sell their rights to free-to-air broadcasters and
online services without restriction, with the only restriction being their ability to sell rights to
subscription television broadcasting licensees. There would be little change from the current
arrangement, which has been in place for around three decades.
Impact on Australian consumers
The status quo would be expected to result in a detrimental impact on Australian consumers
over time, to the extent that the rights to listed events migrate behind online paywalls (a trend
seen in overseas markets over the past decade).
Impact on government
The ACMA would continue to be responsible for the oversight and enforcement of the
current scheme, with no material change in resource demands.
Overall assessment
The status quo model would do nothing to address the regulatory gap identified in the review
of the scheme undertaken in 2022 and 2023. The risk of the coverage of nationally important
and culturally significant events migrating behind online paywalls would grow, to the
detriment of Australian consumers.
145
The list
Option 1: 'streamlined list'
Impact on industry
Free-to-air broadcasters
This list option would see a reduction of around 80 per cent in the number of events on the
list, from approximately 1,900 events to approximately 330 events. Close to half of this
reduction in the estimated number of events on the list is attributable to the removal of the
bulk of the Summer Olympic Games, the Winter Olympic Games and the Commonwealth
Games.
As such, this would detrimentally affect free-to-air broadcasters as they would no longer be
afforded preferential treatment in the acquisition of the rights to approximately 1,600 events.
If coupled with the free-to-view model (as intended), the streamlined list would require free-
to-air broadcasters to provide live, in full and free coverage of any events to which they
acquired the rights. However, this is unlikely to have a material impact, as they provide
coverage of this nature.
Subscription television and streaming services
Subscription television services would significantly benefit from the changes. This list would
be considerably reduced and - coupled with the adoption of the free-to-view model - they
would no longer be restricted in terms of the acquisition of listed events.
Standalone online streaming services would be brought into the scheme for the first time if
they opted to acquire the rights to provide coverage of events on the streamlined list.
However, this impact may be relatively modest, given the narrow range of events on the list.
Sporting bodies
The streamlined list would provide sporting bodies with a greater opportunity to negotiate
deals for rights without restriction under the scheme, given the significant reduction in the
number of events included under this list option. There would be no limitations on the
negotiation process for sporting competitions that are removed from the list. Where
competitions remain on the list, but are reduced, the possible parties that could acquire the
right without restriction would be broadened.
146
Impact on consumers
For the relatively small number of events that would remain on the streamlined list, this
option (in conjunction with the free-to-view model) would provide Australian audiences with
a guarantee of live and in full coverage. Importantly, this guarantee would be in place
regardless of whether the coverage was provided via a free-to-air broadcasting service, or via
an online streaming service (or any other form of content service).
However, there are differences between access and availability. The provision of coverage of
events online does not, at present, mean that all Australians would necessarily have free
access to this coverage. Variations in consumer take-up of broadband or mobile services, and
the impact of factors such as indirect costs and service capabilities, mean that the objective of
the scheme of promoting free access to televised coverage of these events by all Australians
may not be fully realised.
The guarantee of live and in full coverage of these events is also likely to be little different to
current consumer outcomes. While the current scheme (and the two alternative reform
models proposed in this paper) do not contain mandatory coverage requirements, the high
profile and iconic events proposed for inclusion on the streamlined list have historically
received live and in full coverage via free-to-air television services. This is unlikely to change
over the near- to medium-term, given this high profile and popularity of these events.
For the range of events effectively removed from the list under the streamlined list option -
around 1,600 events - there is a risk that these events will not receive live, in full and free
coverage. The anti-siphoning scheme would have no application to these events, and content
service providers - including traditional subscription television broadcasting services and
newer, subscription-based streaming services - could opt to provide coverage of these events
on subscription-based platforms. They could also opt to provide partial coverage of these
events.
This outcome is by no means certain. Content service providers (including broadcasters) may
continue to seek to acquire rights of events removed from removed from the list and provide
coverage of these events live and in full and on 'free' platforms. However, under the
streamlined list option, there is an increased risk of these events being siphoned to paywalled
services. Whether this is an acceptable risk ultimately depends on the importance of
providing free access to coverage of these approximately 1,600 events.
Impact on government
Assuming the streamlined list is implemented in conjunction with the free-to-view model
(Model 1), this is expected to have a moderate budgetary impact on the ACMA, who would
be required to oversee and administer a complex framework to give effect to the coverage
and availability requirements.
147
Overall assessment
The streamlined list would significantly pare back the reach and scope of the anti-siphoning
scheme. It is also the only list option of those considered in this IA that is likely to be
compatible with the free-to-view model. The reduction in events would benefit subscription
television broadcasting licensees and would be detrimental to free-to-air broadcasters.
However, key impacts associated with this list option (when coupled with the free-to-view
model) also arise for consumers.
For the approximately 330 events that remain on the list, the outcome for consumers is likely
to be little different from current arrangements, given the high profile of these particular
events. However, for the range of events effectively removed from the list under the
streamlined list option - around 1,600 events - there is a risk that these events will not
receive live, in full and free coverage. The anti-siphoning scheme would have no application
to these events, and content service providers - including traditional subscription television
broadcasting services and newer, subscription-based streaming services - could opt to
provide coverage of these events on subscription-based platforms. They could also opt to
provide partial coverage of these events.
Option 2: 'modernised list'
Impact on industry
Free-to-air broadcasters
By increasing the number of events regulated under the scheme by approximately 30 per cent
(from around 1,900 events to around 2,500 events), the modernised list would afford free-to-
air broadcasters preferential treatment in terms of the acquisition of rights to these events
(assuming that the modernised list is coupled with either Models 2, 3 or 4). The should
provide free-to-air broadcasters with a moderate benefit, noting that more than 500 of these
additional events are part of the Summer Paralympics.
Subscription television and streaming services
By expanding the list - compared with the current list - subscription television broadcasting
licensees would face additional restrictions on their ability to purchase and monetise the
additional events proposed to be included on the modernised list (until the events are
delisted). However, the impact would vary, given that the rights for these events are secured
for the medium term (for example, the AFLW rights are settled through until 2031).
Under Models 2 and 3, streaming and other content services would be brought into the
scheme for the first time. These entities would face the same restrictions on the acquisition of
right to listed event as subscription broadcasters under this scenario. In other words, they
would lose the opportunity to secure the rights to event that were (in terms of their own
operations) previously unrestricted.
148
Sporting bodies
The additions to the list under this option would negatively affect the relevant sporting
bodies, as they would be restricted in terms of the allocation of the rights to these additional
events. These bodies would effectively be required to allocate rights to free-to-air
broadcasters before allocating rights to other parties. However, as noted above, rights deals
are typically negotiated and settled with all forms of media provider.
Impact on Australian consumers
The modernised list would constitute an increase of around 30 per cent compared with the
current list, from approximately 1,900 events to approximately 2,500 events. This increase in
events in the modernised list could help support the ability of Australians to view those
sporting events (by restricting the ability of parties other than free-to-air broadcasters to buy
those events). Without being listed, any party would be able to acquire the rights to an event
at any time and place them behind a paywall.
Currently, the entire men's AFL and NRL Premierships are included on the list, but there are
no AFLW Premiership or NRLW matches included on the list. Similarly, the rugby State of
Origin is on the list, but its women's counterpart is not. This does not reflect the growing role
of women's sport in Australian society.
Being on the list supports free availability of the listed Australian sports. This is particularly
significant for women and girls given the 'you can't be what you can't see' effect. Research
commissioned by Fox Sports in 2022 found that two-in-five adult viewers of women's sport
say they have been inspired or considered playing the sport themselves after watching on
television.172
While it is not guaranteed that free-to-air broadcasters would seek to acquire the relevant
rights to these additional events, recent rights deals suggest that these broadcasters have a
strong interest in providing coverage of these events.
• The 2024 Paris Paralympic Games are to be televised by Nine Entertainment across the
Nine Network, 9Now and Stan.173
• At least 30 AFLW Premiership home-and-away matches, the finals series and the Grand
Final will be televised on the Seven Network and 7plus under the recently agreed 2025-31
rights agreement.174
• For the 2023 and 2024 seasons, all matches in NRLW Premiership and the NRLW State
of Origin are being broadcast live on the Nine Network and 9Now.175
Fox Sports (7 March 2022), 'Huge growth of Aussie love for women's sports revealed in new research'.
172
173 Paralympics Australia (2023), Nine Seals Exclusive Rights For Paris 2024 Paralympic Games.
174 AFL (2022), Seven years, $4.5b: AFL reveals HUGE new broadcast rights deal.
175 Nine for Brands (27 April 2023), Nine to broadcast every NRLW game live and free in 2023; Nine for Brands (13
November 2023), Nine is the home of women's rugby league from 2024.
149
• NRLW State of Origin series will on the Nine Network until 2027176
Each of the proposed additions to the list is considered below.
Proposed All events held as part of the Summer Paralympic Games
addition
Over the past two decades the Paralympics have grown significantly in terms of events and
media coverage.
• In 2021, the Australian audiences for the 2020 Tokyo Summer Paralympics were
significant.177 The Opening Ceremony attracted an average national audience of 667,000,
across the Seven Network.178
• The five-city average primetime free-to-air audience for the Tokyo Summer Paralympics
was 242,000 179, with a daily average reach of more than two million and nearly one
million utilising Seven's streaming platform 7plus.180
The benefits of including the Paralympics go beyond direct audience numbers. Paralympics
Australia notes that:
68 percent of all Australians watched some part of the Tokyo Paralympics
58 percent said the Australian athletes made them feel proud to be Australian
96 percent said they felt inspired by the athletes
91 percent described them as wonderful role models
82 percent said the Paralympics change negative perceptions of people with a
disability.181
This is likely to be particularly relevant in the lead up to the 2032 Summer Paralympics in
Brisbane.
176 Nine for Brands (29 May 2023), Women's State of Origin live and free on Channel 9HD; Nine for Brands (13 November
2023), Nine is the home of women's rugby league from 2024.
177 The 2020 Tokyo Summer Paralympics was postponed to 2021 due to the COVID-19 Pandemic.
178 OzTAM 5 City Metro | Consolidated 7 | Audience Measures for Paralympics | 2021.
179 Ibid.
180 Paralympics Australia (24 August 2022), One Year Since Tokyo, Analysis Shows A Resounding Success.
181 Ibid.
150
Proposed The finals series matches of the AFLW Premiership
additions
The finals series matches of the NRLW Premiership
The NRLW State of Origin Series
The participation of women in the AFL and NRL is high.
• The AFL reported in 2022 that nearly 600,000 women and girls participate in the AFL
and there are more than 2,500 community football teams around the country, compared to
around 600 in 2015.182
• In early 2023, the NRL announced that female participation was up 22 per cent from the
same time in 2022, with an estimated 33,000 women and girl players.183
The AFL and NRL introduced women's leagues in 2017 and 2018 respectively. This was
concurrent with, or after, the last major changes to the list were made in 2017, and these
competitions have grown significantly since their inception.
• The 2022 AFLW grand final was viewed by 213,000 (5 city metro average) and 288,000
(5 city metro average) in 2021.184 The 2022 AFLW finals series was watched by a 5-city
metro average of 82,000 and by 90,000 in 2021.185 These figures show a small decline in
average viewing figures between the 2021 and 2022 seasons. However, this does not take
into account the fact that two AFLW seasons were played in 2022. The later saw an
increase in the number of clubs from 14 to 18, and an increase in the number of matches
played.186 It is clear that the AFLW is attracting an increase in the number of viewers
overall. The second 2022 AFLW finals series garnered a total gross audience of 463,000
viewers (up from 374,000 in 2021).187
• The 2023 NRLW grand final was watched by 422,000 viewers (5 city metro average), an
increase of over 250 percent on the previous year's Grand Final viewership of 117,000 (5
city metro average). The NRLW finals series had a total gross audience of 226,000
viewers in 2023,188 a 70 per cent increase on the previous year's finals series viewership
(153,000 - 5 city metro average, 2022).189 This demonstrates how quickly the NRLW is
growing.
182 AFL.com (12 June 2022), AFL sets out plan to drive women and girls participation.
183 Edward, Colleen (19 April 2023), Rugby league celebrates club participation growth across the nation.
184 OzTAM 5 City Metro | Consolidated 7 | Audience Measures for AFL Women's | 2022.
185 Ibid - Finals series figures are not reported separately. This figure is taken from the average of the Qualifying and
Preliminary Finals matches.
186 AFL.com, 2022 Annual Report, p. 29.
187 OzTAM 5 City Metro | Consolidated 7 | Audience Measures for AFL Women's | 2021-2022 | Sum total of network
audience for each finals series game (excluding Grand Final).
188 OzTAM 5 City Metro | Consolidated 7 | Audience Measures for NRLW | 2022-2023.
189 OzTAM 5 City Metro | Consolidated 7 | Audience Measures for NRLW | 2022-2023 | sum total of network audience
for each finals series game (excluding Grand Final).
151
• The NRLW State of Origin attracted an average (5 city metro) audience of 255,000 in
2022.190 Media reports indicate the audience numbers for 2023 have increased.191
This demonstrates that Australians are tuning into women's sports. While these numbers are
not yet exceedingly high, this reflects the fact that these competitions are relatively nascent
compared to their male counterparts. However, there has been a significant growth in these
competitions over the past few years. These proposed listings seek to balance the benefits to
Australians of promoting the free access to televised coverage of AFLW and NRLW
matches, against the burdens that sporting bodies may encounter (discussed in List 3 below).
Proposed All Ashes series matches played in the United Kingdom (currently
Change only Ashes test matches are included)
This current list includes any test matches played by the senior Australian representative team
and the English senior representative team) played in the UK listed. This includes the entire
men's Ashes, but does not cover the women's 'one day' and T20 matches played as part of
the Ashes. The 'modernised list' would include all Ashes matches played in the UK.
The amendment would ensure that both the complete men's and women's Ashes series are on
the list. This would provide for a more consistent and equitable listing of Ashes matches
involving the senior Australian representative sides.
Impact on government
Assuming the modernised list is implemented in conjunction with either the broadcasting
safety net or free-to-air first models (Models 2 and 3 respectively), this is expected to have a
minor budgetary impact on the ACMA, who would be required to oversee and administer a
framework that effectively extends the current regulatory arrangements.
Overall assessment
The modernised list would involve an increase in the scope and application of the scheme
compared with the current list, although this is relatively modest in terms of the competitions
involved (given that the bulk of this increase is attributable to the addition of the Summer
Paralympic Games, which take place every four years).
As with each of the list options, this proposal takes an inclusive approach to international
matches that involve a senior Australian representative team, and include standalone fixtures
and world cup matches that involve a men's or women's senior representative side.
It would also include a limited number of AFL and NRL matches, and minor adjustments in
terms of cricket and rugby union.
190Ibid.
191Sports Industry AU (2 June 2023), A record crowd and 919,000 tune in for Womens State of Origin I; Media Week (23
June 2023) TV Ratings June 22, 2023: Game II of Women's State of Origin saw NSW win, but QLD take the shield.
152
From an industry perspective, this option would continue to limit the ability of sports bodies
to negotiate openly with respect to their rights, and modestly increase this level of restriction.
This would be beneficial to free-to-air broadcasters, and detrimental to subscription television
broadcasting licensees and online streaming services (although the overall increase in
restrictions would be relatively modest).
For consumers, this list option would increase the likelihood of free access to televised
coverage of these additional events for Australian audiences and, commensurately, would
mitigate the risk of these events being placed behind a paywall.
Option 3: 'expanded List'
Impact on industry
Free-to-air broadcasters
The expanded list would significantly increase the scope of the anti-siphoning scheme,
increasing the number listed events by close to 50 per cent compared with the current list,
although the bulk of this increase is attributable to the inclusion of the Paralympic Games and
the AFL and NRL Women's Premiership competitions. This would provide free-to-air
broadcasters with a significant commercial advantage as it would advance their negotiating
position with regard to the relevant rights (assuming that the modernised list is coupled with
either Models 2, 3 or 4).
Subscription television and streaming services
By substantially expanding the list - compared with the current instrument - subscription
television broadcasting licensees would face additional restrictions on their ability to
purchase and monetise the additional events proposed to be included on the modernised list
(until the events are delisted).
Under Models 2 and 3, streaming and other content services would be brought into the
scheme for the first time. These entities would face the same restrictions on the acquisition of
right to listed event as subscription television broadcasters under this scenario. In other
words, they would lose the opportunity to secure the rights to event that were (in terms of
their own operations) previously unrestricted.
Sporting bodies
The expanded list option would continue to limit the ability of sports bodies to negotiate
openly with respect to their rights, and to a greater degree than the other list options. The
additions to the list would impact the negotiation process for the sporting bodies offering the
rights to those events, with these bodies having fewer parties to engage with for the
acquisition of rights without regulatory restriction. This may hinder the ability of sports
bodies to maximise their rights and invest back in their sport, particularly given the breadth of
listings proposed under this list option.
153
Impact on Australian consumers
The significant increase in events in the expanded list could help support the ability of
Australians to view those sporting events for free (by restricting the ability of parties other
than free-to-air broadcasters to acquire the rights to those events). Without being listed, any
party would be able to acquire the rights to an event at any time and place them behind a
paywall.
This would be done with the aim of increasing the likelihood of free access to televised
coverage of these events for Australian audiences and, commensurately, seek to mitigate the
risk of these events being placed behind a paywall. However, this outcome would be
dependent on free-to-air broadcasters opting to acquire the relevant rights to these events.
Proposed All events held as part of the Summer Paralympic Games
additions
The NRLW State of Origin Series
All women's 'Ashes' played in the United Kingdom
(currently 'one day' and T20 'Ashes' matches are not on the list)
These proposed additions mirror those advanced in the modernised list. Please refer to that
section for an assessment of the potential consumer impacts.
Proposed The entire AFLW Premiership
additions
The entire NRLW Premiership
Listing the AFLW Premiership and the NRLW Premiership competitions in their entirety
may lead to an outcome where the coverage of these matches is provided to Australian
audiences for free.
• The 2023 NRLW Premiership season had an average audience of 63,000192 and an
average viewership of 72,000 in 2022.193
• The 2022 AFLW Premiership season had an average viewership of 56,000 (Saturday
afternoon games) and an average viewership of 82,000 (Sunday afternoon games) in
2021.194
Although coverage of these relatively new competitions on free-to-air television has
historically been modest, recent rights agreements have enhanced the level of coverage. The
192 NRLW viewership reflects the average viewership across all matches in that year - Source: OzTAM 5 City Metro |
Consolidated 7 | Audience Measures for NRLW | 2023.
193 Ibid.
194 AFLW Premiership viewership average reflects the average audience for all games played in a single timeslot that had the
most games played in that year - Source: OzTAM 5 City Metro | Consolidated 7 | Audience Measures for AFLW | 2022.
154
2025 to 2031 AFL media rights deal includes at least 30 AFLW home and away games,
AFLW finals and the AFLW Grand Final on Seven and 7plus.195 Likewise, Nine has
indicated that its 2023 to 2027 NRL media rights deal would expand its broadcast coverage196
and committed to broadcast every NRLW game live and free in 2023 and 2024.197
Proposed The entire FIFA World Cup
additions
The entire FIFA Women's World Cup
Listing the FIFA men's and women's tournaments in their entirety may lead to an outcome
where the coverage of these matches is provided to Australian audiences for free. These
tournaments have consistently drawn high ratings.
• The 2022 men's tournament (held in Qatar) had an average audience of 733,000 for
matches involving Australia, while the grand final attracted 447,000 viewers. This
was down from the 2018 tournament (held in Russia), where 1,391,000 viewers tuned
into matches involving Australia and 538,000 to the grand final.
• The 2019 women's tournament held in France had an average audience of 193,000 for
matches involving Australia, while 58,000 viewers watched the grand final.
The 2023 tournament held in Australia was one of the highest rating events on television. The
Seven Network indicated that an average of 6.24 million viewers tuned in watch the semi-
final between Australia and England for the 2023 FIFA Women's World Cup, adding that the
tournament was viewed by 14.76 million on television.198
SBS has secured the rights to the 2026 men's tournament.199 It previously held the rights of
the 2022 tournament. It is not clear who will host the women's tournament in 2027, but Optus
Sport held the rights to 2023 tournament and made200 15 matches were made available on the
Seven Network.201
Proposed Each match in each tie of the International Tennis Federation Davis
Additions Cup World Group tennis tournament that involves an Australian
representative team (currently the match must be played in Australia)
195 AFL (2022), Seven years, $4.5b: AFL reveals HUGE new broadcast rights deal.
196 NRL (2022), Explainer: What broadcast deal means for the game.
197 Nine for Brands (27 April 2023), Nine to broadcast every NRLW game live and free in 2023; Nine for Brands (13
November 2023), Nine is the home of women's rugby league from 2024.
198 Seven West Media (21 August 2023), Media release, FIFA Women's World Cup 2023™ draws 18.6m.
199 SBS (10 November 2023), Everything you need to know about the FIFA World Cup 2026™ LIVE and FREE on SBS.
200 Optus Sport (3 August 2021), Optus Sport secures media rights to the FIFA Women's World Cup 2023.
201 7news.com.au (31 October 2022), Women's World Cup live and free on Seven and 7plus in 2023, Matildas match times
and venues revealed.
155
Each match in each tie and the final of the International Tennis
Federation Billie Jean Cup tennis tournament that involves an
Australian representative team
All international Netball matches that involve the senior Australian
women's representative team that are played in Australia
Each match of the Super Rugby Pacific and Super W finals series that
involves at least one Australian team.
The listing of these events may enhance the likelihood of them receiving coverage on free-to-
air television. However, this will depend on the willingness of free-to-air broadcasters to
acquire the rights and provide any such coverage. Broadcasters would consider a range of
factors when making these decisions, including audience numbers. Historically, the audience
numbers for these events have relatively modest.
The highest average audience figures for matches involving Australia in the 2021 Billie Jean
King Cup was 21,000.202 The Super Rugby Pacific and Super W have seldom been on
free-to-air television in recent years, and when they have, their ratings have been low. For
example, Super W had an average audience of 16,000 per match in 2022.203
If these events are listed and free-to-air broadcasters do not buy their rights, all other parties
will be prevented from buying the rights to these events until they are delisted, which may
have a negative impact for consumers that do wish to watch them.
Impact on government
Assuming the expanded list is implemented in conjunction with either the broadcasting safety
net or free-to-air first models (Models 2 and 3 respectively), this is expected to have a minor
budgetary impact on the ACMA, who would be required to oversee and administer a
framework that effectively extends the current regulatory arrangements.
Overall assessment
The expanded list would significantly increase the scope of the anti-siphoning scheme. As
noted above, this would see an increase in the number of events of the list of close to 50 per
cent compared with the current list, although the bulk of this increase is attributable to the
inclusion of the Paralympic Games and the AFL and NRL Women's Premiership
competitions.
This would be done with the aim of increasing the likelihood of free access to televised
coverage of these events for Australian audiences and, commensurately, seek to mitigate the
of these events being placed behind a paywall. However, this outcome is would be dependent
on free-to-air broadcasters opting to acquire the relevant rights to these events under either
202 Source: OzTAM 5 City Metro | Consolidated 7 | Audience Measures for Billie Jean King Cup Tennis| 2021.
203 Source: OzTAM 5 City Metro | Consolidated 7 | Audience Measures for Super W| 2022.
156
the broadcasting safety net or free-to-air first models for the scheme (Models 2 and 3
respectively).
There is a risk that free-to-air broadcasters may not seek to do so, resulting in little net benefit
for audiences compared with current listing arrangements if coverage is ultimately provided
on subscription-based platforms (i.e. the rights to these additional events continue to be
acquired by entities other than free-to-air broadcasters). Previous rights deals suggest this has
been the case for some events included on the expanded list.
If the rights to these additional events are not acquired by free-to-air broadcasters, all other
parties would be prohibited from acquiring any rights until the event is delisted (26 weeks or
12 months prior to commencement, depending on the model adopted). If this were to
disincentivise entities other than free-to-air broadcasters from seeking to take up those rights,
then there may be an erosion in overall benefits for audiences (i.e. if there were to be reduced
or no coverage of the additional events).
From an industry perspective, the expanded list option would continue to limit the ability of
sports bodies to negotiate openly with respect to their rights, and to a greater degree than the
other list options. Free-to-air broadcasters would benefit from the expanded list as it would
maintain and, in some respects, advance their negotiating position with regard to sporting
rights.
Conversely, subscription television broadcasting licensees would face restrictions on their
ability to purchase and monetise the additional events proposed to be included on the
expanded list (until the events are delisted).
Online streaming services and other content services would be brought into the scheme for
the first time if they opted to acquire the rights to provide coverage of events on the expanded
list. The number of events they would lose the opportunity to obtain without restriction under
the expanded list would be greater than the streamlined and modernised list options.
As with the other list options, this proposal would take an inclusive approach to international
matches that involve a senior Australian representative team, including standalone fixtures
and world cup matches that involve a men's or women's senior representative side.
Option 4: 'status quo'
Maintaining the current list would effectively involve no change to the Broadcasting Services
(Events) Notice 2023, which covers approximately 1,900 events. As such, the impact of the
rule on industry, consumers and government is likely to be maintained, pending decisions
regarding the reform of the scheme itself.
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Impact on industry
Free-to-air broadcasters
Free-to-air broadcasters would continue to benefit from the current scheme, more so if Model
3 and (to a lesser extent) Model 2 were implemented. This option for the list is unlikely to be
workable for the free-to-view model for reform of the scheme (Model 1), for the reasons
noted above, and isn't considered further for this reason. The status quo option for the
scheme (Model 4) would mean the scheme would continue to have the same impact as it
currently does, applying to the same events.
Subscription television and streaming services
Subscription television broadcasting licensees would continue to face restrictions on their
ability to acquire the rights to events on the list, albeit the same set of events as currently
included in the Broadcasting Services (Events) Notice 2023. The adverse impact on
subscription broadcasters would be amplified if the broadcasting safety net model (Model 2)
and (to a greater extent) the free-to-air first model (Model 3) were adopted. This option for
the list is unlikely to be workable for the free-to-view model for reform of the scheme (Model
1), for the reasons noted above, and isn't considered further for this reason.
The impact of this list option for online streaming services will also depend on the model for
reform. Under the status quo model (Model 4), the anti-siphoning scheme would continue to
not apply to these services, and hence there would be no particular impact. Models 1, 2 and 3
would each draw in online streaming services, although Model 1 isn't compatible with this
list option and isn't considered further. Model 2 (broadcasting safety net) and Model 3 (free-
to-air first) would have a more significant detrimental impact on online streaming services.
Sporting bodies
Sports bodies would continue to face restrictions in terms of the sequence of acquisition of
their rights under Models 2, 3 and 4. Model 3 would have the greatest adverse impact on
sports bodies as it would require a free-to-air broadcaster to have acquired both a right to
televise a listed event on a broadcasting service and an online right to the event before a right
could be acquired by any other party. Model 1 is not relevant to this consideration as it is
likely to be incompatible with this list option.
Impact on Australian consumers
Under the status quo list option, the imbalances in the current list identified through the
review of the scheme - particularly in relation to women's and Para-sports - would be
maintained. The scheme would continue to regulate sports that are predominantly played by
men and athletes without a disability. Australian consumers may have more limited
opportunities to view additional women's and Para-sports for free under this list option,
depending on the choices make by sports bodies and media entities in terms of the acquisition
of rights and coverage of relevant events.
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Impact on government
The ACMA would continue to have responsibility for oversight and administration of the
scheme. Under this list option, the scope of that work would remain unchanged (pending
decisions regarding the model for reform).
Overall assessment
The status quo list would maintain the current scope of the Broadcasting Services (Events)
Notice 2023. The imbalances in the current list identified through the review of the scheme -
particularly in relation to women's and Para-sports - would be maintained. More broadly, the
impact of this list option on consumers will depend on the model for reform of the scheme.
5. Consultation
The Government has undertaken a review of the anti-siphoning scheme and anti-siphoning
list, in line with its 2022 election commitment. This review has consisted of two phases of
consultation, as outlined below.
Public consultation
The first phase of public consultation occurred in the fourth quarter of 2022 with the release
of a public consultation paper: Review of the anti-siphoning scheme - consultation paper.204
The consultation paper sought views on:
• the policy objective of providing free access to televised coverage of important events
and the mechanism to achieve it (currently the scheme and the list);
• the potential application of the scheme to new media, such as streaming services;
• the use and disposal of rights to televise events on the list, including transparency and
information disclosure; and
• the composition of the list -- sports and events that should be included on the list and
arrangements to remove events from the list.
Twenty-five submission were received during this first tranche of consultation. Three
stakeholder roundtables were also convened in November 2022 with: free-to-air broadcasters;
subscription television broadcasters and streaming services; and with sporting organisations.
Submissions to this consultation paper, and views expressed at the roundtables, informed the
development of a set of specific proposals for reform of the scheme and list. These proposals
204 DITRDCA (2022), Review of the anti-siphoning scheme: Consultation paper.
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were included in the Review of the anti-siphoning scheme - proposals paper205, which was
released for public consultation between 19 August 2023 and 17 September 2023.
The proposals paper outlined a number of preliminary findings of the review to date:
• the core objective of the anti-siphoning scheme remains relevant;
• the scheme has an on-going role but needs to be broadened to incorporate online services;
and
• the composition of the anti-siphoning list needs to be reconsidered.
The proposals paper also outlined three models for reform the scheme and three options for
reform of the list. The free-to-view model (Model 1) and streamlined list (List 1) were closely
aligned with the views and concerns of subscription television broadcasting services,
streaming services and sporting bodies. The free-to-air first model (Model 3) and the
expanded list (List 3) endeavoured to address the views and concerns of free-to-air
broadcasters.
The broadcasting safety net model (Model 2) was put forward as the Government's preferred
approach to reform of the scheme. It would affirm broadcasting services as the 'safety net'
for free access to televised coverage of iconic sporting events for all Australians. It would
address the risk of iconic sporting events migrating to platforms that involve direct or indirect
costs for Australian audiences (benefiting consumers), but would enable other providers to
acquire non-broadcasting rights once a right to televise an event had been acquired by a free-
to-air broadcaster, or it had been automatically delisted.
The modernised list (List 2) was put forward as the Government's preferred list as it
moderately broadens the construction of nationally important and culturally significant events
to better reflect the contemporary media landscape.
These models and options have been the subject of the assessment undertaken through this
IA, in addition to the status quo for both the scheme and list.
Seventeen submission were received in response to the proposals paper.
Post-consultation analysis
The views and positions of stakeholders were carefully assessed in the development of the
proposals paper and in the subsequent consideration and refinement of various models and
options. This assessment was augmented by analysis of available information and reports
regarding sports broadcasting in Australia and developments and trends in comparable
overseas jurisdictions.
Free-to-air broadcasters strongly supported the extension of the current scheme to online
services. With respect to the reform models outlined in the proposals paper, the sector
205 DITRDCA (2023), Anti-siphoning Review - Proposals Paper.
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generally argued that the free-to-air first (Model 3) and the expanded list (Option 3) should
be adopted, with some adjustments and qualifications. It was argued this would provide
access to live and free sports coverage regardless of technology, would sustain free-to-air
broadcasters, and is consistent with audience expectations of free access. The Australian
Broadcasting Corporation (ABC) noted that this risks the broadcasters only providing
streaming coverage of listed events and supported broadcasting safety net model (Model 2),
as it would best support the likelihood of listed events being freely available.206
Subscription television and streaming services supported the free-to-view model (Model 1),
and argued that the broadcasting safety net model (Model 2) and (to a greater extent) the free-
to-air first model (Model 3) would exacerbate the anti-competitive impacts of the scheme by
further favouring free-to-air broadcasters. These entities generally argued that online services
are capable of promoting the outcome of free access to iconic sporting events, and that Model
1 would best align with sporting bodies' ability to maximise their revenue. The streamlined
list (Option 1) was the preferred list option. It was suggested that it would help to maximise
investment in sport and was the only list consistent with the concept of "nationally important
and culturally significant".
Sporting bodies supported the free-to-view model (Model 1) and the streamlined list (Option
1), emphasising the importance of being able to maximise the commercial value of their
media rights. There was some acceptance of broadcasting safety net (Model 2) as an interim
measure if coupled with the streamlined list (Option 1), contingent on concrete steps being
undertaken to implement Model 1 in the near term. It was argued that media rights are critical
to sporting bodies, and this approach helped support competition and increased the
negotiating position of sporting bodies.
Other industry, academics, and the general public had a range of views. The broadcast safety
net model (Model 2) was supported by some, as a relatively modest adjustment intended to
protect segments of the population. There was some support for the free-to-view model
(Model 1) and the streamlined list (Option 1) as the internet is affordable, capable and not
limited by channels. Feedback on the list was varied and there was some support for all the
lists for similar reasons outlined by the stakeholders above. Comments from the public
generally supported additions to the list, with some variation.
These views and perspectives have informed the final design of the model to reform the
scheme and the composition of a new anti-siphoning list.
6. What is the best option?
The broadcasting safety net model (Model 2) and the modernised list (Option 2) are
considered to be the optimal combination of reforms to further the objective of promoting
free access to televised coverage of events of national importance and cultural significance, in
line with the Government's 2022 election commitment.
206 Australian Broadcasting Corporation (2023), Submission to the Anti-siphoning review - proposals paper, p. 3.
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The scheme
The broadcasting safety net model is considered to be the optimal model for reform of the
scheme. This approach would affirm free-to-air broadcasting services as the 'safety net' for
free access to televised coverage of nationally important and culturally significant sporting
events for all Australians. To this end, it would provide free-to-air broadcasters with
preferential treatment in terms of acquiring the relevant rights, and address the risk of these
events migrating to online platforms that involve direct or indirect costs for Australian
audiences. This approach would provide net benefits to Australian consumers.
The broadcasting safety net model would adversely impact sports bodies and a broader set of
media entities (including online streaming services). However, it would provide relatively
unimpeded access to rights for content service providers once a right to televise an event has
been acquired by a broadcaster, or it has been automatically delisted. It would also provide
free-to-air broadcasters with only modest advantage in relation to the acquisition of those
non-broadcasting rights.
On balance, the broadcasting safety net model would bring online services into the scheme
and mitigate the risks of the coverage of listed events migrating behind a paywall, or
consumers otherwise facing additional costs to access this content. Although this model
would adversely impact sports bodies and a broader set of media entities (including online
streaming services), the additional impositions are outweighed by the relative benefits of the
model in supporting the objective of the scheme. It is also a model that is well-calibrated to
the technology landscape for the next 5 to 10 years.
To this end, the model best achieves the objectives for reform highlighted in chapter 2. The
changes would promote the continued free access to televised coverage of nationally
important and culturally significant events by all Australians, while maintaining and
modernising the regulatory interventions to achieve this. This model would not be contingent
on a reduction in events, and would promote Australians' continuing access to free sport. The
reforms would also support the development of a broadcasting industry in Australia that is
efficient, competitive and responsive to audience needs, building on the existing scheme.
This option supports Australian consumers being able to access sport for free without unduly
restricting other content services from subsequently acquiring online rights.
The broadcasting safety net model is also relatively simple in terms of its legislative design. It
extends the acquisition restriction under the current scheme to prevent content service
providers, other than free-to-air broadcasters, from acquiring events on a list until a free-to-
air broadcaster has a right to televise the event (or the event is delisted).
The free-to-view model (Model 1) is likely to be a suitable and appropriate model for the
anti-siphoning scheme in the longer-term. It would represent a technology-neutral approach
to the regulation of the coverage of nationally important and culturally significant sports
events as it would directly target the consumer outcome - the availability and coverage of
these sports - rather than the preceding acquisition of rights. However, technology and
market conditions in Australia are not mature enough to enable the adoption of this model in
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the near- to medium-term. The adverse impacts on consumers would outweigh the potential
benefits of this approach for at least the next 5 to 10 years. The free-to-view model could be
considered once online services are able to promote free access to televised coverage of
nationally important and culturally significant sporting events for all Australians, regardless
of their financial means, location or other factors.
The free-to-air first model (Model 3) would mitigate against the risks of coverage of
nationally important and culturally significant sporting events migrating behind a paywall, or
consumers otherwise facing additional costs to access this content. In this regard, this model
is similar to the broadcasting safety net approach (Model 2). However, the free-to-air first
model would provide free-to-air broadcasters with significant commercial advantage and
would place free-to-air broadcasters - rather than free-to-air broadcasting services - as the
key mechanism to support the achievement of the scheme's objective of free access to
televised coverage of iconic events.
It would impede access to both the broadcast and online rights to events by parties other than
free-to-air broadcasters, and adversely impact sports bodies and a relatively broad set of
media entities. It would also seek to treat the content services provided by free-to-air services
(i.e. streaming services) differently to content services provided by other parties, although to
the consumer there is likely to be little practical difference.
The level of regulatory intervention envisaged under the free-to-air first model may be
justified in the future, depending on technology and market developments. However, at this
point, the net benefits of this model do not outweigh the recommended reform model
(broadcasting safety net).
The status quo (Model 4) would do nothing to address the regulatory gap identified in the
review of the scheme undertaken in 2022 and 2023. The risk of the coverage of nationally
important and culturally significant events migrating behind online paywalls would grow, to
the detriment of Australian consumers. This model is not considered to be sustainable.
The list
The modernised list (Option 2) is considered to be the best option for reform of the list. This
approach would involve an increase in the scope and application of the scheme compared
with the current list, although this is relatively modest in terms of the number of competitions
involved (given that the bulk of this increase is attributable to the addition of the Summer
Paralympic Games, which take place every four years). Under this approach, the number of
events on the list would increase from approximately 1,900 events to approximately 2,500
events. Importantly, the additional inclusions proposed for the modernised list would seek to
ensure a consistent and inclusive treatment of nationally important and culturally significant
events regardless of the gender or the disability status of the athletes competing in them.
The modernised list supports the continued free access to televised coverage of nationally
important and culturally significant by retaining the events on the existing list that
Australians are accustomed to viewing for free, and making measured additions to include
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women's and Para-sports. The proposal does not materially add to the complexity of the list
as its construction and operation would be very similar to the current instrument.
The streamlined list (Option 1) would significantly pare back the reach and scope of the
scheme - from around 1,900 events to around 330. It is also the only list option of those
considered in this IA that is likely to be compatible with the free-to-view model (Model 1).
This reduction in events would benefit subscription television broadcasting licensees, but
would be detrimental to free-to-air broadcasters. However, the key impacts arising with this
list option (when coupled with the free-to-view model), affect consumers. For the range of
events effectively removed from the list under this option - around 1,600 events - there is a
risk that these events will not receive live, in full and free coverage. The anti-siphoning
scheme would have no application to these events, and content service providers - including
traditional subscription television broadcasting services and newer, subscription-based
streaming services - could opt to provide coverage of these events on subscription-based
platforms. They could also opt to provide partial coverage of these events.
The expanded list (Option 3) would significantly increase the scope and application of the
scheme compared with the current list, from around 1,900 events to around 2,800. The
additional inclusions would seek to ensure a consistent and inclusive treatment of nationally
important and culturally significant events regardless of the gender or the disability status of
the athletes competing in them. While this may enhance the overall outcome for Australian
audiences (and support the objective of the scheme of free access to televised coverage of
iconic events), this outcome is not assured. Ultimately this would depend on whether
broadcasters opt to provide coverage of the range of additional events. This list option would
also have the greatest detrimental impact on sports bodies, subscription television
broadcasters and online streaming services, significantly impairing their ability to negotiate
for the acquisition of rights to the additional events (assuming the adoption of either Model 2
or 3).
The status quo list (Option 4) would maintain the current scope of the list (around 1,900
events). However, the imbalances in the current list identified through the review of the
scheme - particularly in relation to women's and Para-sports - would be maintained. It is not
considered to be an appropriate approach to the future list for this reason.
7. Implementation and evaluation
Implementation of Model 2 and Option 2 would be given effect through amendments to the
BSA (with respect to the scheme) and the making of a legislative instrument (with respect to
the list).
In order to provide industry with sufficient time to prepare for the new arrangements, the new
scheme will commence via proclamation. The new list would also commence on the same
day as the reforms to the scheme to support a smooth transition to the new arrangements.
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Industry have been made aware of the Government's preferred reform options through the
proposals paper process.
The ACMA would have oversight of the scheme (as it currently does) and would have
powers to gather information about compliance with the scheme. This would allow for
ongoing assessment of the operation of the scheme and the identification of any particular
issues or concerns. However, the scheme would not include periodic or ex ante reporting by
relevant parties as this would impose an unreasonable burden on these entities.
Risks
As noted in chapter 2, extending the application of the scheme to online media creates the
potential for it to become restrictive to the point where it impairs the ability for sporting
bodies to maximise their revenue. The Government has sought to assess and mitigate this risk
through two phases of consultation. Feedback from these processes has informed the
evaluation of options and the identification of the preferred approach.
However, there is a risk that that the scheme may apply to entities that it was not intended to
capture. This risk will be mitigated through the construction of the legislation in a way that
enables exceptions to the scheme to be provided in specific circumstances.
There is also a risk that - notwithstanding the inclusion of an event on the list - that a free-to-
air broadcasters does not acquire the right to the event and that televised coverage of the
event is not freely available to Australian audiences. This has always been a risk in the
scheme, and is not new. However, the history of rights acquisition and coverage
arrangements for listed events over the past decade has highlighted that this risk is negligible.
Free-to-air broadcasters have a strong commercial incentive to acquire and fully utilise the
rights to events on the list, and this is expected to continue into the future.
Evaluation
The reforms to the scheme would require the conduct of a review of the scheme and list to be
undertaken once the new arrangements had been operating for a period of five years. The
review would enable the impacts and outcomes of the reforms to be thoroughly assessed and
to consider the need for any changes to scheme. This review would be informed by
information gathered by the ACMA in its oversight of the scheme, as well as broad-based
stakeholder and public engagement.
Specifically, the review would assess the extent to which it has supported the overall
objective of promoting the free availability to audiences throughout Australia of television
coverage of events of national importance and cultural significance. This would include
consideration of, but would not be limited to, as assessment of the extent to which the
scheme:
• has supported the ability of Australians to watch events of national importance and
cultural significance for free;
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• has imposed unreasonable or unanticipated costs or burdens on affected parties; and
• whether the model for the regulation of sports rights remains appropriate for the
contemporary media environment, taking into account changes in technology, consumer
preferences and the overall market for sports rights.
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