This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Contact Officer & Copyright Details
Broadcasting Services Amendment Bill
(No. 1) 1999
Date Introduced: 28 June 1999
House: House of Representatives
Portfolio: Communications, Information Technology and the
Commencement: On Assent, except for Schedules 2
and 3 which commence three months after the Royal Assent
To amend the Broadcasting Services Act
1992 (the BSA) and other legislation to provide for the
- an 'anti-hoarding' regime that will prevent free-to-air (FTA)
television broadcasters from obtaining, but not using, the rights
to show certain sporting events
- measures to restrict pay television (pay TV) operators in
regional areas from showing prime time metropolitan commercial
- a new regime for the re-transmission of FTA broadcasting
- an increase in the time allowed for sponsorship announcements
by community broadcasters.
The first three of the above measures were
introduced in the Broadcasting Services Amendment Bill 1998 that
lapsed when the 38th Parliament was prorogued.(1) That
Bill was the subject of a report by the Senate Environment,
Communications, Information Technology and the Arts Legislation
Committee (SECITALC) which canvassed a number of issues while
ultimately recommending that the Bill be passed without
amendment.(2) The current Bill replicates the anti-hoarding
provisions of the earlier Bill, but makes a number of changes to
the provisions for regional pay TV programming and
Since the introduction of pay TV it has been a
policy objective of all major parties that major sporting and
cultural events remain available to the Australian public on
free-to-air television. Section 115 of the BSA enables the Minister
to list events that are in this category (the 'anti-siphoning
list'). As a condition of their licences, pay TV operators are
prohibited from acquiring broadcasting rights to these events
unless the national or commercial FTA broadcasters have also
acquired the rights. However, there are no provisions in the Act to
ensure that the FTA broadcasters actually show the events for which
they have acquired the rights. The anti-hoarding provisions in the
Bill are an attempt to deal with this situation by establishing a
'must offer' regime for FTA broadcasters who have acquired the
rights to certain events but are unwilling or unable to show them
'live' to the general public.
The provisions will enable the Minister for
Communications, Information Technology and the Arts to make a
disallowable instrument listing events to which the regime will
apply (the 'anti-hoarding list'). If the 'live' broadcasting rights
to a listed event have been acquired by a commercial television
broadcaster or their program suppliers, then they must either
broadcast the event 'live' or offer the event to the national
broadcasters (the ABC and SBS) for the amount of $1. Similarly, the
national broadcasters must offer the listed events to each other if
they do not intend to use the rights.
Compliance with the anti-hoarding rules is a
condition of a commercial television licence, while program
suppliers who intentionally or recklessly breach the rules will be
subject to a civil penalty of 2000 penalty units, currently
The commercial television broadcasters have
questioned the need for the rules, arguing that hoarding does not
take place and that failure to broadcast an event 'live' and in
full has been erroneously equated with hoarding. Pay TV operators
have criticised the proposed rules as ineffective, as there will be
no requirement for the national broadcasters to show those events
that have been passed on to them for a nominal fee. The ABC has
argued that the 'offer time' should be at least 30 days before the
event is to be shown or there may be difficulties with programming
changes and informing viewers. Under the amendments, the offer time
for each event is determined by the Minister when the event is
designated as part of the anti-hoarding list.
Regional Pay TV Programming
Section 212 of the BSA permits the
re-transmission of programs within a licence area by non-licensees.
This provision was intended to facilitate 'self-help' groups to
improve their reception of FTA programs in areas where the signals
were poor or non-existent. The provision has also enabled pay TV
operators to re-transmit the programs of commercial and national
FTA channels for the convenience of their subscribers. In places
where metropolitan and regional licence areas overlap, pay TV
operators can re-transmit the metropolitan programming. While
regional and metropolitan licensees may broadcast the same network
programming, the regional licensees also televise local news, sport
and advertising. The replacement of the regional broadcast by the
metropolitan broadcast could thus have detrimental effects on the
advertising revenue for the regional broadcaster (by reducing their
potential audience) and could threaten the integrity of the licence
The amendments will prevent a regional pay TV
operator from providing a television service if three or more
consecutive program items are identical to any three or more
program items broadcast by a metropolitan FTA broadcaster in prime
viewing hours unless they have the permission of the Australian
Broadcasting Authority (ABA). This approach is somewhat more
specific than that adopted by the 1998 Bill, which prohibited
re-transmission when the majority of programs broadcast were the
same as those provided by a metropolitan licensee. In their
submission to the SECITALC, pay TV operators stated that they
thought the provisions were flawed in that they would
unintentionally catch certain services.
Re-transmission of Programs
In 1996 the Full Federal Court held that
simultaneous and unaltered cable re-transmissions of FTA television
services are permitted under the current provisions of the BSA and
the Copyright Act 1968.(3) In that case, Networks Seven,
Nine and Ten unsuccessfully sought to restrain Foxtel from
re-transmitting their programs as part of Foxtel's 20-channel cable
television service. The commercial networks argued that section 212
of the BSA must be given a strict interpretation and therefore did
not apply to Foxtel's re-transmission of their signals. The Federal
Court rejected this argument. It followed from the Court's
interpretation of the section that the Networks also failed in
their copyright and trademark claims. In relation to copyright, the
Court held that section 199(4) of the Copyright Act, which allows a
cable subscription service to transmit a broadcast signal, applied
to Foxtel. It also held that there was no infringement of trademark
because the broadcast signal as re-transmitted by Foxtel would
continue to denote a connection with the commercial networks and
The effect of the judgement is that almost any
person can re-transmit the programs of a FTA broadcaster. As a
result, pay TV licensees continue to re-transmit FTA television
without compensating copyright owners or seeking the permission of
The Copyright Convergence Group (CCG) in its
1994 report(4) recommended that pay TV licensees should pay for
using intellectual property that belongs to others. In this regard
it should be noted that re-transmission involves two distinct
- that relating to the broadcast signal copyright, and
- that relating to the underlying copyright holders whose
material is transmitted and re-transmitted.
The re-transmission provisions of this Bill
- enable 'self-help' arrangements to continue without the need to
gain permission from free-to-air broadcasters to re-transmit their
- require pay TV licensees to compensate underlying copyright
holders for the use of their intellectual property, and
- require pay TV licensees to seek permission from free-to-air
re-transmit their signals.
In their submissions to the SECITALC, the
commercial and national FTA broadcasters supported the legislation.
They argued that their property rights should be respected and
remunerated and that they should have control over their signals to
ensure quality control in transmissions. The pay TV industry
opposed the legislation, arguing that
re-transmission benefits FTA broadcasters and their advertisers by
increasing their reach and ensures a better service for consumers.
The committee also received many submissions from pay TV consumers
who complained that, if the legislation was passed, they might lose
access to FTA service via cable, resulting in a deterioration of
signal quality. The commercial FTA broadcasters emphasised that it
was not their intention to prevent re-transmission, but to control
the conditions under which it occurred.
Proposed new section 146C
enables the Minister to declare a certain event or series of events
to be 'designated'. In making a declaration the Minister must also
determine the 'offer time' (proposed subsection
146C(4)). That is, the time in which a FTA broadcaster
must make unused material available to the national broadcasters.
Proposed subsection 146C(6)
provides that declarations made under section 146C are disallowable
The anti-hoarding rule applies to program
suppliers (proposed section 146F).
Proposed new section 146D sets out the criteria
for determining whether a person is a program supplier of a
commercial broadcasting licensee. A person will be a program
supplier for the purposes of the Act if the person:
- has an agreement to supply a licensee with programs and the
person supplies or may be expected to supply the licensee with at
least two-thirds of televised sporting programs that are or will be
televised by the licensee or all other prescribed programs during
the period of agreement (proposed subsection
- is a related body corporate of the licensee and supplies or
proposes to supply sporting programs or other prescribed programs
to the licensee (proposed subclause 146D(3)).
- is declared by the ABA to be a program supplier. Item
2 amends section 204 to enable a person to seek review by
the Administrative Appeals Tribunal (AAT) of an ABA declaration
under this section.
Proposed new section 146E sets
out the anti-hoarding rule as it applies to commercial television
broadcasters. A licensee will breach the rule if:
- the licensee has, in the licence area, the right to televise
live a designated event or a designated series of events, and
- the licensee acquired the broadcast rights after the
event was designated, and
- the licensee failed to televise live the event at all or in
- neither the licensee nor the licensee's program supplier
offered to transfer the rights to the event to the ABC and SBS
within the offer time specified by the Minister under section
Proposed subsection 146E(2)
provides that a licensee will be taken to have televised live the
whole of an event if all but an insubstantial proportion is
covered. The subsection is designed to allow the broadcast of
commercial breaks and news breaks for example.
Contravention of the anti-hoarding rule will
constitute a breach of the broadcaster's licence condition.
Item 3 amends the licence conditions in Schedule 2
of the BSA. Sanctions for breach of these conditions include
suspension or cancellation of the commercial broadcaster's
Proposed new section 146F
provides that a program supplier must not intentionally or
recklessly contravene the anti-hoarding rule. This provision is
similar to that which applies to commercial broadcasters. Program
suppliers will however be subject to a fine of
2000 penalty units (currently $220,000) for intentionally or
recklessly contravening the rule.
Proposed section 146H provides
that offers must be in writing to the Managing Directors of the ABC
and SBS at 'about the same time'. The offer must be open until the
start of the event or series. Proposed subsection
146H(6) provides that the offer must require the ABC or
SBS to promise to pay $1 for the transfer of broadcast rights.
Proposed section 146J precludes
licensees and their program suppliers from entering into contracts
which allow them to acquire or entitle them to acquire the rights
to televise a designated event or series unless the contract allows
them to offer the rights to the national broadcasters. Contracts
entered into in breach of the section will be void.
Proposed section 146K is
designed to protect broadcasters and their suppliers from breaching
the anti-hoarding provision in relation to simultaneous events in a
designated series. The Explanatory Memorandum gives the
example of Wimbledon Tennis Championships.(5) If two or more events
in the same series overlap in time and the licensee televises one
of those events live, the licensee is taken to have televised live
the remainder of those simultaneous events.
The anti-hoarding rule also applies to the ABC
and SBS (proposed section 146L). Both are captured
by the general provisions of the anti-hoarding rule but are only
compelled to offer live rights to each other.
It is important to note that the effect of
proposed subsection 146L(6) is that the national
broadcasters are not compelled to show a program transferred under
the anti-hoarding provisions from a commercial broadcaster.
Proposed sections 146M,
146N, 146P and
146Q apply to the national broadcasters and mirror
the proposed framework applying to commercial broadcasting
licensees and their program suppliers in relation to 'offer'
requirements, contracts authorising a transfer of rights and the
coverage of simultaneous events in a series.
Schedule 2--Pay TV programming in
Item 1 of Schedule 2 inserts a
new Part 8A, which restricts the content of
subscription television services (pay TV) in regional areas. These
provisions have been substantially amended since the Broadcasting
Services Amendment Bill 1998 (the 1998 Bill) lapsed.
Proposed section 121E is the
key operative provision of the new part. The permission of the ABA
is required if a pay TV operator, or related body corporate,
transmits 3 or more consecutive program items that are identical to
any 3 or more programs transmitted by a metropolitan commercial
television broadcasting licensee during prime viewing hours.
The Explanatory Memorandum notes that
the consecutive requirement only applies to the pay TV broadcaster
or its related body corporate. It is not possible for a broadcaster
to avoid the requirements of the section by changing the order of
programs transmitted by the metropolitan licensee.(6)
As noted above, the new Part 8A is more specific
than the 1998 Bill. In that Bill, pay TV broadcasters required the
permission of the ABA to broadcast in a regional area if the
majority of the material broadcast was the same as
televised by a metropolitan commercial television licensee. In
addition, the role of the Minister in designating programs, which
may not be transmitted by Pay TV in regional areas, has been
removed from the Bill.
Item 2 adds two items to the
table in section 204 of the BSA. Section 204 lists particular
situations where a listed person may apply to the AAT for review of
an ABA decision. The two new items relate to permission either
refused or granted under proposed section 121E
(above). Persons who may apply for review are:
- pay TV broadcasting licensees or a related body corporate,
- commercial broadcasting licensees (if any part of their licence
area overlaps with the regional area).
Item 3 provides that
contravention, by pay TV licensees, of the programming restrictions
in regional areas will constitute a breach of a licence
Item 4 brings persons providing
an open narrowcasting television service(7) or a pay TV
narrowcasting service(8) within the above provisions.
Schedule 3--Re-transmission of
Schedule 3 has been substantially amended since
the 1998 Bill.
Item 1 inserts a definition of
re-transmission into section 6 of the Act. A re-transmission of
programs occurs where the content of programs is unaltered (even if
the technique of re-transmission is different from the method of
original transmission) and the re-transmission is simultaneous with
the original transmission or if the re-transmission is into a
different time zone - the retransimission is delayed until no later
than the equivalent local time. The Explanatory Memorandum
states that the definition is consistent with the meaning given to
the term by the Full Federal Court in the FOXTEL case.(9) The
insertion of the definition will make it clear that if a program is
altered in any way it will not amount to a re-transmission.
Items 3 and 4 amend the
definitions of 'subscription narrowcasting services' and 'open
narrowcasting services' to exclude re-transmissions of national,
commercial and community broadcasting services. This is to ensure
that such re-transmissions are dealt with by the proposed new
regime inserted by Item 6.
Item 6 inserts a new
Part 14B into the BSA to replace the
re-transmission regime in section 212 of the Act. The Part
specifies certain re-transmissions of radio and television programs
that are exempt from the Act and includes re-transmissions of
commercial and community broadcasting services:
- by a self-help provider for the sole or principal purpose of
obtaining or improving reception. Self-help providers are immune
from proceedings under the Copyright Act (proposed
- by a person other than a self-help provider with the agreement
of the commercial/community licensee
- by any person if the re-transmission is within a declared
remote area. The ABA is empowered by proposed section
205H to make determinations concerning remote areas. These
determinations are disallowable instruments.
In contrast to the 1998 Bill, re-transmissions
within and outside the licence area are now subject to exemptions.
The list of 'in-licence-area' exemptions is contained in
proposed section 205N and the
'out-of-licence-area' exemptions are listed in proposed
A parallel list of exemptions from the Act
applies to the re-transmission of programs transmitted by the ABC
or SBS (proposed section 205V).
Proposed section 205J defines
self-help providers to include amongst others:
- a non-profit body or a local government body which provides the
re-transmissions for the sole or principal purpose of obtaining or
improving reception in a community
- companies operating a mine or oil or gas installation in an
isolated location which provide re-transmissions for the sole or
principal purpose of obtaining or improving reception in a
- a person who provides the re-transmission within a building or
structure for the sole or principal purpose of obtaining or
improving reception for persons in the building or structure.
The Minister is empowered under proposed
section 205K to deal with anomalies by declaring
certain persons to be self-help providers and thus exempt from
proposed Part 14B and other persons to be excluded providers. The
Explanatory Memorandum gives the example of the exclusion
power being applied to a local government body which undertook to
provide the service on behalf of a pay TV operator so that that
operator could avoid the operation of the rules.(10) Determinations
made under the section are disallowable instruments.
Where a re-transmission does not fall within one
of the exemptions outlined above(11), the Bill provides for
remedies. These provisions are intended to capture pay TV services
which currently re-transmit FTA broadcasts as part of their
service. Proposed section 205PA sets out the
'in-licence-area-rule'. The rule is contravened if a person does no
more than re-transmit, within the licence area of a commercial or
community licensee, all the programs that are transmitted by that
Proposed subsection 205PA(2)
entitles commercial and community broadcasters to seek relief in
the Federal Court if a person is breaching or proposing to breach
the in-licence area-rule. Relief available includes an injunction,
damages or an account of profits (proposed subsection
Proposed subsection 205PA(4)
provides that licensees are not entitled to relief under the BSA if
they or their assignees or successors have an action under the
Copyright Act. On September 2, the Attorney-General introduced the
Copyright Amendment (Digital Agenda) Bill 1999. Among other things,
the Bill will remedy the anomaly in the FOXTEL case referred to
above and give broadcasters a technology neutral right to
communicate with the public which will include the right to control
re-transmissions. This Bill is designed to give licensees some
protection prior to the commencement of the Digital Agenda
Proposed section 205PB
establishes the 'out-of-licence-area-rule' and is substantially in
the same terms as the 'in-licence-area-rule' in section 205PA.
Equivalent relief for national broadcasters is available under
proposed section 205VA where there is a
contravention of the 'national broadcasting rule'.
The Bill also imposes requirements on pay TV
licensees or related bodies corporate which re-transmit a
metropolitan commercial television service in a
metropolitan/regional overlap area. Under proposed
subsection 205W(1), if a regional commercial television
licensee is related to the metropolitan licensee and the regional
licensee consents to
re-transmission, the Pay TV service must retransmit the programs of
the regional licensee in the overlap area.
Where a Pay TV service re-transmits a
metropolitan commercial television service into an overlap area
where there is no regional licensee related to the
metropolitan broadcaster, proposed subsection
205W(2) requires Pay TV licensees to re-transmit all
programs transmitted by regional licensees in the overlap area. As
with subsection 205W(1), the consent of the regional licensees is
required for re-transmission.
Proposed section 205X provides
that the Minister must appoint an arbitrator if a Pay TV service
cannot agree on terms with a regional broadcaster to re-transmit
programs as required under proposed section
Proposed Section 205ZB is
another section that was not present in the 1998 Bill. It provides
that the re-transmission regime inserted by the Bill must be
reviewed within 2 years of commencement.
In order to implement the new re-transmission
regime, Item 7 repeals existing section 212 of the
BSA which deals with the re-transmission of programs.
Item 9 amends existing
subclause 7(2) of Schedule 2 extending the list of circumstances
where a commercial television licensee may broadcast outside its
licence area. Currently, services may be broadcast outside the
licence area if the broadcast occurs by accident or as a necessary
result of the provision of commercial television services within
the licence area.
Item 9 extends the list of permissible outside
licence area broadcasts to include:
- broadcasts made in exceptional circumstances(12) with the
written approval of the ABA and
- broadcasts made to persons not receiving adequate reception of
commercial television (that is, persons in 'black-spots') with the
written approval of the ABA.
Item 11 applies to commercial
radio broadcasters and mirrors the provisions of Item
Item 13 applies to community
radio and television broadcasters and mirrors the provisions of
Items 9 and 11 above.
Items 18 and 19 amend the
Copyright Act. Item 19 inserts proposed section
199B which provides that, in certain circumstances,
copyright in a broadcast is not infringed by
re-transmissions in declared remote areas. To obtain the protection
of the section, the re-transmission:
- must be made in accordance with an agreement between the
re-transmitter and the owner of the copyright in the broadcast
- the re-transmitter must have given an undertaking to pay an
equitable amount of remuneration determined by the Copyright
- the re-transmission must be covered by contingent tribunal
order. That is an order of the Copyright Tribunal made prior to
re-transmission or taking effect on the commencement of
re-transmission (see proposed subsection
Item 18 inserts proposed section
152AB which empowers the Copyright Tribunal to determine
the amount that it considers to be equitable remuneration to the
owner of copyright in a broadcast for re-transmission in declared
These amendments to the Copyright Act have no
application to re-transmissions by
self-help providers. They are specifically exempted by proposed
subsections 205N(3), 205P(5) and 205V(3) of the BSA.
Schedule 4-- Sponsorship announcements
by community broadcasting licensees.
Item 1 will amend the BSA to
allow community broadcasting licensees to broadcast sponsorship
announcements that run for no more than 5 minutes per hour of
broadcasting. The current limit is 4 minutes per hour.
The Anti-Hoarding Provisions
The proposed anti-hoarding regime in the Bill
imposes a 'must offer' requirement on FTA broadcasters. The
proposed anti-hoarding provisions will complement the
anti-siphoning regime which prevents a pay TV licensee acquiring
the rights to an event or events listed on the anti-siphoning list
unless an FTA licensee has also acquired the rights to broadcast
the event. As the controversy surrounding the broadcast of the
Ashes Series in 1997 demonstrated, the anti-siphoning rules do not
necessarily result in a designated event being broadcast on FTA
The effectiveness of the proposed 'use or lose'
regime as far as the public is concerned will depend upon which
events are placed on the anti-hoarding list. In his Second Reading
Speech, the Minister for Arts and the Centenary of Federation,
Peter McGauran stated that:
'it is envisaged that the Ministerial
designation power will be used only in limited circumstances - for
example where there is a widespread public expectation, based on
past practice, of the full live televising of an event'.(13)
The prospects of the Bill having any impact on
hoarding of major sporting events in the immediate term seem to be
limited. The Bill will not have any retrospective operation.
Proposed section 146E provides that the anti-hoarding rule will
only apply if the licensee acquired the right to broadcast when the
event was a designated event. The rights to some prominent sporting
events have already been secured for some time. For example, the
Nine Network holds the rights to FTA Rugby League broadcasts until
2006 and the Seven Network has already acquired the rights to the
Ashes cricket in England in 2001. Consequently, the Bill will not
impact on the broadcast of these events until after this time.
It is also important to note that neither the
ABC nor SBS are compelled by the legislation to show live an event
or series transferred under the anti-hoarding amendments.
The proposed re-transmission regime will require
pay TV operators to obtain the consent of FTA broadcasters in order
to re-transmit their service and will thus supersede the Federal
Court's ruling in the Foxtel case. In the SECITALC report,
Government, Opposition and Democrat Senators agreed that FTA
broadcasters were entitled to compensation for the use of their
broadcast signal by pay TV operators.
Opposition and Democrat Senators however
expressed concern that the pay TV industry and in particular, their
subscribers would be adversely affected if FTA broadcasters and the
pay TV industry were unable to come to an agreement to permit
While the Bill does provide for an arbitration
procedure in relation to the mandatory
re-transmission of regional commercial television (see proposed
sections 205W and 205X), this Bill, like its 1998 predecessor,
makes no provision for arbitration if a Pay TV provider and FTA
broadcaster cannot agree to terms and conditions for
re-transmission outside a metropolitan/regional overlap area.
The Opposition and the Democrat Senators argued
that the Copyright Tribunal should be appointed as the
In rejecting the need for an arbitration
provision, the Government members of the Committee noted that the
Government was allowing a minimum six month period between
enactment of the legislation and proclamation by the
Governor-General to enable negotiations to occur. It indicated that
proclamation of the relevant Schedule could be delayed if FTA
broadcasters and Pay TV operators had not reached an agreement.
However, the commencement provisions have been changed in the
current Bill. Proposed section 2 provides that Schedule 3 will
commence three months after Assent. The mechanism identified by the
Government Senators in the previous Bill to promote agreement has
Although the Bill does provide that the
re-transmission regime will be reviewed in two years, negotiations
between the Pay TV and FTA broadcasters over the price and
conditions of re-transmission may be facilitated by the insertion
of an arbitration provision prior to the commencement of the new
- For an analysis of that Bill, readers are directed to
Kilmurray, Ross., Bills Digest No. 6 1998-99, Broadcasting
Services Amendment Bill, Law and Bills Digest Group, Department of
the Parliamentary Library, 6 August 1998.
- Senators and Members can obtain the SECITALC report (together
with Minority Reports from the ALP and Democrat Senators) at the
website for the Senate Environment, Communications, Information
Technology and the Arts Committee.
- Amalgamated Television Service Pty Ltd and others v FOXTEL
Digital Cable Television Pty Ltd and Another (1996) 136 ALR
319 (the FOXTEL case).
- Copyright Convergence Group, Highways to Change: Copyright
in the New Communications Environment, 1994 p. 24.
- Explanatory Memorandum, p. 30.
- ibid, p. 35.
- As defined in section 18 of the BSA.
- As defined in section 17 of the BSA.
- Explanatory Memorandum, p. 38.
- Explanatory Memorandum, p. 44.
- That is, the person is not a self-help provider, the
re-transmission is not within a declared remote area and does not
occur with the agreement of the commercial or community
- The ABA has the discretion to determine what situations
constitute 'exceptional circumstances'. The Explanatory
Memorandum suggests that the term may include a situation
where a natural disaster has rendered another broadcaster
transmission infrastructure inoperative, p. 58.
- Second Reading Speech, Hansard, 28 June 1999, p.
Kim Jackson and Mark Tapley
1 September 1999
Bills Digest Service
Information and Research Services
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