Speech - Australian Parliament House - Communications Legislation Amendment (Prominence and Anti-siphoning) Bill 2023 - Second Reading

I move:

That this bill be now read a second time.

The Communications Legislation Amendment (Prominence and Anti-siphoning) Bill 2023 will amend the Broadcasting Services Act 1992 and the Australian Communications and Media Authority Act 2005 to introduce a prominence framework for connected TV devices and reform the anti-siphoning scheme.

These measures implement two key election commitments of the Albanese government—to support access to local TV services and free sports coverage in the streaming era—and mark a significant step in bringing the regulatory framework for media services in Australia into the 21st century.

In November last year, the government affirmed its intent to undertake media reform and modernise the regulatory framework in a systematic and sensible way that can be built upon in future years.

The measures contained in the bill represent two immediate priorities for this program of work and will support a strong local media industry and enable all Australians to engage in social, economic and cultural life and participate in democratic processes. Strong local media outlets are vital in achieving these outcomes.

Free-to-air broadcasting services bring communities together, with sports coverage, local information and emergency broadcasts. They keep Australians informed through news and current affairs and support our democratic institutions. And they tell Australian stories with the creative sector and provide a trusted source of entertainment for all Australians, including children. But their ability to fulfil these roles is under threat.

The Australian media sector faces more competition than ever, with a swathe of new online services entering the market over the past decade. Australians are embracing the ability to consume a range of media content at times and on devices of their choosing.

However, our free-to-air broadcasters are not competing on a level playing field. They continue to be subject to the bulk of the obligations to deliver important public policy outcomes while their online competitors are not. This dynamic is putting important public policy outcomes at risk.

The introduction of a prominence framework and reforms to modernise the anti-siphoning scheme will help to address this imbalance and make real progress in bringing online services into Australia's media regulatory framework. These amendments will promote consumer and citizen access and choice, and help support a strong and sustainable media industry.

Schedule 1 to the bill will amend the Broadcasting Services Act and the Australian Communications and Media Authority Act to implement a legislated prominence framework for connected TV devices.

This new framework—comprising a new part 9E of the Broadcasting Services Act—will promote access to certain broadcasting services and broadcasting video-on-demand services that are made available free to Australian audiences and users.

Over the last decade there has been a fundamental transition in the TV market in Australia. Free-to-air television broadcasting services now exist as one of many content options on connected TV interfaces, and are becoming increasingly difficult for consumers to find. Research has shown that a significant portion of the Australian population lacks the skills and knowledge to install and engage with these services on newer devices.

There is also a change in the way content services are made available on TV interfaces. The space on the home screens of connected TV devices is increasingly being monetised, with the positioning and placement of services often dependent on the payment of fees or other consideration. There is a material risk that free-to-air television broadcasters will be crowded out by the larger, international services operating in the Australian market.

In order for the free-to-air broadcasting sector to continue to support the achievement of important policy objectives, it is imperative that their services are easily available to audiences on the devices that are commonly used to access TV content. This is precisely what the prominence framework aims to do.

The key element of the new framework will be a requirement for a manufacturer of a regulated television device to adhere to a set of minimum prominence requirements. Manufacturers will be prohibited from supplying a non-compliant device, and must take reasonable steps to ensure the device continues to comply with the requirements, subject to a number of limitations.

Regulated television devices will comprise domestic reception equipment that is capable of connecting to the internet and receiving broadcasting video-on-demand services, where that equipment is designed for the primary purpose of facilitating the viewing of audiovisual content. This definition has been designed to include devices that are predominantly used for TV viewing, while excluding devices that may technically be used to do so but where this is a secondary function, such as computer monitors or screens, laptops, tablets and mobile phones.

The Australian Communications and Media Authority may make guidelines in relation to whether particular kinds of equipment are regulated television devices and will have power to determine, via legislative instrument, whether specific equipment is or is not a regulated television device. This will be an important circuit-breaker in the circumstance where it is unclear whether a particular device would be a regulated television device.

Regulated television services will be the linear broadcast television services provided by the national broadcasters or by commercial and community television broadcasting licensees and certain broadcasting video-on-demand services provided by free-to-air television broadcasters. Broadcasting video-on-demand services are those that make audiovisual content available on demand for free using a listed carriage service. The Minister for Communications will have a power to determine, via legislative instrument, that a specified service is or is not a regulated television service.

The minimum prominence requirements will be specified through regulations, and the government intends to release an exposure draft of these regulations to support the parliament's consideration of the framework as a whole.

These regulations would operate as a 'must-carry' framework, ensuring that audiences throughout Australia are able to access free-to-air television services. Pending the outcome of the consultation process, it is intended that the regulations would prescribe that regulated television devices must, among other matters:

provide access to regulated television services;

pre- or auto-install regulated television services when the regulated television device connects to the internet for the first time, and automatically update them as required;

present a 'live television' tile, tab or link to provide access to linear broadcast regulated television services on regulated television devices that contain a radiofrequency tuner;

present a separate application tile, tab or link on the primary user interface to provide access to each regulated broadcasting video-on-demand television service;

present those tiles, tabs or links in a similar size and format as the tiles, tabs or links for other content services that are made available on the device; and

present regulated television services in logical channel number order on the electronic program guide of the regulated television services where the device contains a radiofrequency tuner and includes an electronic program guide for linear broadcasting services.

The regulations would not prescribe the exact position of tiles, tabs or links on the primary user interface nor prevent them from occupying a different position on the primary user interface from time to time.

The use of subordinate legislation to specify these requirements will allow them to be adjusted over time to accommodate changes in technology and consumer preferences. This will be particularly important given the rapid rate of change in the TV market in terms of technologies and consumer preferences.

Manufacturers will be prevented from requiring a regulated television service provider to pay a fee, charge or any other form of consideration for or in connection with the device complying with the minimum prominence requirements.

Manufacturers will also be prevented from altering or interfering with the audiovisual content provided by a regulated television service. For example, device manufacturers would be prevented from inserting their own advertising into a broadcasting video-on-demand service provided by a commercial television broadcasting licensee. This won't prevent device manufacturers from charging free-to-air broadcasters for a level of prominence or promotion of content over and above the minimum prominence requirements. But it will guarantee that regulated television devices carry these services at no charge.

The framework will commence the day after the act receives royal assent, enabling regulations and any relevant guidance and determinations to be made well ahead of the application of the scheme to regulated television devices. To this end, the framework will only apply to a regulated television device that is manufactured 18 months after the commencement of the framework, and is supplied on or after this date. 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.

Schedule 2 to the bill will amend the Broadcasting Services Act to modernise the anti-siphoning scheme, which has been in place for close to 30 years.

The scheme promotes free access to televised coverage of nationally important and culturally significant events. It currently does this by preventing subscription television broadcast licensees from acquiring a right to televise an event on the anti-siphoning list unless a free-to-air television broadcaster has a right.

A comprehensive review of the scheme and the list has been undertaken by government over the past year, and this has involved successive phases of stakeholder and public consultation. The review found that the objective of the scheme—to support free access to televised coverage of events of national importance and cultural significance—remains appropriate, but that the scheme needs to be broadened to incorporate online services.

Streaming services are not currently subject to the scheme, and there is no legal impediment to them acquiring the rights to iconic sporting events ahead of local free-to-air broadcasters. As a result of this regulatory gap, there is a latent but material risk that the rights to iconic sports will be siphoned exclusively behind online paywalls, as has occurred overseas.

This would be a poor outcome for Australian audiences. Many would simply be unable to afford to pay for coverage of the sports they've traditionally viewed for free. Even if coverage were to be provided online for free (without explicit charge, such as a subscription fee), a small but significant portion of Australians either don't have access to, or cannot afford to access, online services in the form of charges for broadband and mobile services.

All Australians, regardless of where they live or what they earn, should have the opportunity to enjoy free TV coverage of iconic sporting events. These are events that create shared experiences, foster a sense of collective Australian identity and contribute to grassroots community-based sports participation. The reforms to the anti-siphoning scheme seek to further these outcomes.

Modelled on the existing scheme, the bill modifies the rule that governs the acquisition of the rights to events on the list. This rule will prevent media content service providers (other than free-to-air television broadcasters) from acquiring a right to provide coverage of an event on the list 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 modified rule affirms free-to-air broadcasting services as the 'safety net' for delivering the objective of free access to televised coverage of sporting events to all Australians. This doesn't mean that online coverage of iconic sporting events is unimportant. Market trends are clear, and online coverage of these events will play an increasing role in the overall coverage of sporting events over time. However, the availability of coverage online does not equate to access to coverage online. There are a range of implicit costs and impediments associated with accessing content online—such as internet access charges, the costs of reception equipment or devices, or any requirement to have an account with the service—that mean the platform is not able to fully support the free coverage objective of the scheme in the near to medium term.

The arrangements for making the anti-siphoning list and removing events from the list are, in substance, the same as the current scheme, with one exception. The new scheme would extend the automatic delisting period from six months to 12 months. The automatic delisting arrangements enable parties other than free-to-air broadcasters to acquire rights where a free-to-air broadcaster hasn't done so under the protection of the scheme. As the rights to iconic sporting events are typically acquired more than 12 months before they take place, it is appropriate to better align the automatic delisting period with this commercial reality. Events can be retained on the list where the minister is satisfied that at least one commercial television broadcasting licensee or a national broadcaster has not had a reasonable opportunity to acquire the rights to televise the event concerned.

Alongside the reforms to the scheme in the bill, the government is also proposing to amend the list in order to modernise it and bring it into line with contemporary community expectations. To date, the list has not included sports that involve athletes with disability. To a lesser extent, it has also tended to involve competitions in which men compete. This is a product of history and the evolution of competitions and coverage, rather than deliberate design. Nonetheless, there is a case to consider the composition of the list with respect to women's sports events and Para-sports.

The government commenced this modernisation process earlier this year, by providing equivalent listing of the FIFA World Cup—the men's tournament—and the FIFA Women's World Cup. This listing will enhance the likelihood of Australians being able to watch the Matildas for free in future FIFA Women's World Cup tournaments.

The government will publish an exposure draft of a new list to aid the parliament's consideration of the anti-siphoning framework as a whole. The draft list would retain the composition of the current list, and would include men's and women's international rugby league, rugby union, cricket and soccer matches that involve a senior Australian representative team. It would also include a number of additional events:

• 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
• the complete Women's "Ashes" played in the United Kingdom.

These additions will ensure the 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 reformed scheme will commence on a day to be fixed by proclamation, and no later than six months from the day the act receives royal assent. It is intended that the new list will commence at the same time as the revised scheme.

Contravention of the minimum prominence requirements and the anti-siphoning scheme will be civil penalty provisions, subject to the greater of a maximum of 10,000 penalty units, three times the value of the benefit obtained as a result of the contravention, or two per cent of the annual turnover of the body corporate during the last 12 months. These are significant penalties. However, they are commensurate with the entities involved, and are comparable to similar civil penalty provisions in the Competition and Consumer Act 2010.

The ACMA will have the capacity to utilise its graduated enforcement framework in overseeing both frameworks, including remedial directions and enforceable undertakings. The regulator will have the power to obtain information and documents relevant to monitoring compliance with the new arrangements and its functions, and the Minister for Communications will have a power to request specific reports from the ACMA on matters relevant to TV prominence or anti-siphoning.

Both frameworks will be subject to review: the prominence framework after three years of its operation; and the reformed anti-siphoning scheme after five years of operation. These reviews will assess the operation, effectiveness and implications of the respective frameworks, including any subordinate legislation.

These two measures are key components of the government's overall media reform program. Our goal for reform is clear. The government is committed to a strong and sustainable media sector that keeps us informed, reflects our diverse cultures and perspectives, upholds and respects community standards, and provides equitable access to services for all Australians irrespective of where they live or what they earn.

Among other matters, this means a level playing field: one in which Australian media outlets can thrive while maintaining Australia's well-earned reputation as a desirable place to invest and grow new businesses. The introduction of a prominence framework and reforms to the anti-siphoning scheme will help to foster that environment.

The prominence framework will enable Australian consumers to access free-to-air television services, with minimal input, effort or capability on the part of the consumer. It will also have positive flow-on impacts for the local broadcasting industry, without imposing unreasonable or unintended burdens on the manufacturers of regulated television devices.

The reforms to the anti-siphoning scheme and list will mitigate the risks of the coverage of listed events migrating behind paywalls, or consumers otherwise facing additional costs to access this content. This will be a positive reform for Australian sports fans, as it will enhance the likelihood of live and free coverage of listed events.

I commend the bill to the House.