What are anti-siphoning laws? A Crikey clarifier

The Albanese government, especially its Communications Minister Michelle Rowland, has made a big song and dance about its changes to anti-siphoning and prominence legislation. Last week, almost every major media executive in the country, as well as a number of sporting executives, showed up to Parliament to have their say on proposed changes to anti-siphoning and prominence laws. But what is anti-siphoning, and why does it affect you? 

What is anti-siphoning? 

Anti-siphoning legislation was introduced in Australia as part of the Broadcasting Services Act 1992, as a response to the uptake of subscription television in the 1990s. First came Galaxy (later absorbed by Foxtel), then Austar (also later absorbed by Foxtel — seeing a theme yet?), Foxtel and Optus Television, all competing for eyeballs with free-to-air broadcasters. 

One of the key tenets of the legislation was anti-siphoning provisions — that is, laws that prohibited pay TV broadcasters from acquiring the rights to events on the anti-siphoning list unless a free-to-air broadcaster also has the rights to televise them. If free-to-air broadcasters don’t acquire events on the list, pay TV broadcasters are free to purchase the rights. 

The list itself is curated by the communications minister and includes events the minister believes should be televised to the Australian public — typically owing to a form of national importance. It currently only includes sporting events, but is not limited to those. 

The events currently on the anti-siphoning list include: 

• The Summer and Winter Olympics, and the Summer Paralympics
• The Commonwealth Games 
• Each running of the Melbourne Cup
• Every game of the men’s and women’s AFL and NRL seasons, including finals and State of Origin 
• Rugby Union tests played by the Wallabies and Wallaroos, and the Rugby World Cup finals
• Rugby League tests played by the Kangaroos and the Jillaroos
• International cricket matches played at home, as well as all Ashes and World Cup fixtures played by Australian teams 
• Every match played in qualifying or the finals of the FIFA World Cup by the Matildas and Socceroos, as well as the final of both tournaments
• The Australian Open and Davis Cup if Australia plays/it is played in Australia 
• The semi-final and final of the Netball World Cup if Australia plays 
• Australian Formula One and MotoGP races, as well as the Bathurst 1000

How does it affect me? 

Anti-siphoning legislation means you, the Australian punter, get access to nationally significant events readily, without having them thrown behind a paywall. They are, in all likelihood, events that you were aware of or might casually watch, such is their social prominence, even if you don’t like sport. 

Critics of the anti-siphoning scheme, however, such as Crikey’s own Bernard Keane, feel it simply acts as a regulatory favour for free-to-air broadcasters. Others say the scheme leaves loopholes for nationally significant but commercially insignificant assets such as one-day international (ODI) cricket to fall by the wayside. Despite ODI cricket being on the anti-siphoning list, with the scheme essentially acting as a right of first refusal, it went behind a paywall in 2018 and has struggled mightily with crowds ever since. 

What’s changing?

The Albanese government went to the last election with a commitment to updating the anti-siphoning list, as well as a promise to implement prominence frameworks for smart televisions. Prominence laws are currently being proposed by the government for smart devices sold in Australia. The laws will make suggested content on smart devices prioritise Australian free-to-air broadcasters and their streaming services over paid subscription services. The Communications Legislation Amendment (Prominence and Anti-siphoning) Bill, which is currently before the environment and communications legislation committee for inquiry, also proposes to expand the anti-siphoning scheme to online media. 

SBS managing director James Taylor told the inquiry this week that the current situation was “frankly scandalous”. Taylor told a Senate inquiry that in 2018, a manufacturer of a top-selling connected TV tried to impose a revenue share fee on the broadcaster. 

“[They] wrote to SBS and advised that unless we agreed to a 15% revenue share arrangement and a placement fee, SBS would be removed from the ‘app launcher’ on the TV homepage for that brand,” Taylor said. 

“When SBS refused to pay, the manufacturer carried through on their threat … then, in August 2020, that manufacturer delivered the same demand, but this time threatening to take SBS On Demand off the platform entirely.” 

The Albanese government also made changes to anti-siphoning laws after the Matildas took the Australian public by storm in 2023, adding the national women’s football team to the anti-siphoning list alongside the men. 

The bill, which has received 26 submissions from stakeholders, is due for a report from the environment and communications legislation committee by March 26.