Broadcasting Services (Anti-Siphoning List) Instrument 2024

The central concept is the “anti-siphoning list” itself - a regulatory schedule of sporting events that must be kept available for free-to-air television. The regime is not a content quota; it is a first-refusal rule. The list defines which events cannot be exclusively acquired by pay TV without a free-to-air window. The instrument uses a layered approach: it names specific competitions (e.g. “Australian Football League Premiership, including the Finals Series”) and then delegates to clause 1 of Schedule 1 a set of interpretive expansions. Those expansions treat a named competition as including:

• each sub-event within a multi-event tournament or series (clause 1(3)(a));
• the competition as held from time to time, regardless of name changes (clause 1(3)(b));
• each competition resulting from a restructuring or rebranding into two or more competitions (clause 1(3)(c));
• each event in an expanded competition (clause 1(3)(d));
• events added when a previously gender-limited competition is expanded to include the other gender (clause 1(3)(e));
• but, crucially, only the final tournament, not the qualification phase, when a competition consists of both (clause 1(3)(f)).

That last exclusion is significant. For example, the FIFA World Cup qualification tournament is not listed in full for men; only matches involving the Australian senior men’s team played in Australia are listed (Schedule 1, item 10(3)). For women, qualifying tournaments played in Australia and involving Australia are listed (item 10(6)). But in general, qualification phases are excluded unless specifically mentioned. This creates a gap: a pay TV operator could potentially acquire exclusive rights to, say, FIFA World Cup qualifying matches that do not feature Australia, or that are played overseas, without triggering the anti-siphoning regime.

Events are listed by sport and level of competition. The list covers the Olympic Games (Summer and Winter, including ceremonies), Summer Paralympic Games, Commonwealth Games, the Melbourne Cup (only the Victoria Racing Club’s running), Australian rules football (all AFL men’s matches including finals; only AFL Women’s finals series), rugby league (all NRL men’s matches and finals, State of Origin; only NRL Women’s finals, women’s State of Origin; senior international tests involving Australia played in Australia or New Zealand; Rugby League World Cup matches involving Australia played in Australia, New Zealand or Papua New Guinea), rugby union (international tests involving Australia in Australia or New Zealand; Rugby World Cup matches involving Australia; men’s and women’s Rugby World Cup finals), cricket (test matches involving Australia in Australia; Ashes matches in Australia or the UK; ODIs and T20Is involving Australia in Australia; Men’s and Women’s Cricket World Cup matches involving Australia in Australia or New Zealand, and finals if played in Australia or New Zealand; similarly for T20 World Cups), soccer (FIFA World Cup matches involving Australia; final; men’s qualifiers in Australia featuring Australia; Women’s World Cup matches involving Australia; final; women’s qualifying tournaments in Australia featuring Australia), tennis (all Australian Open matches; Davis Cup World Group ties involving Australia in Australia; Davis Cup World Group final if Australia is involved - no location condition), netball (only Netball World Cup semi-finals and finals involving Australia), and motor sports (F1 Australian Grand Prix; MotoGP Australian Grand Prix; Bathurst 1000 Supercars Championship race). Events not listed - such as the regular season of AFL Women’s, regular season of NRL Women’s, most domestic rugby union competitions, netball’s domestic league, or international matches not involving Australia - are entirely outside the regime.

The instrument defines “men’s event” and “women’s event” solely by the gender of competitors (clause 1(5)). That is a binary definition that may cause classification issues for emerging mixed-gender or non-binary competitions, but those are not currently listed. The definition is relevant because many events are separately listed for men and women, and some competitions are listed only for one gender.

The instrument directly affects four groups: subscription television licensees, free-to-air broadcasters, sporting organisations that own the rights to listed events, and the viewing public.

Subscription television licensees (such as Foxtel, Kayo Sports, and Stan Sport) are the primary targets of the restrictions. For each event in Schedule 1, they cannot acquire exclusive rights unless free-to-air broadcasters have had a reasonable opportunity to do so and have declined. That limits the subscription sector’s ability to build its content offering around premium live sport. The effect is a reduction in the value of rights for listed events, because the competitive tension that would otherwise exist between free-to-air and pay TV is artificially suppressed. Pay TV operators may still acquire non-exclusive rights or secondary rights after free-to-air broadcasters have secured primary rights, but they cannot outbid free-to-air for exclusivity unless the free-to-air broadcasters choose not to exercise their priority.

Free-to-air broadcasters are the intended beneficiaries. They gain a statutory right of first refusal over listed events. That allows them to acquire events at a price that is not bid up by pay TV’s exclusive offers. However, the instrument also imposes a burden: free-to-air broadcasters must either acquire the rights or allow them to be offered to pay TV. If they acquire rights they do not truly want (perhaps for brand reasons or to prevent a rival free-to-air network from having them), they incur carriage costs. If they decline, they risk ceding the event to pay TV, which may harm their audience share. The anti-siphoning regime does not guarantee that free-to-air broadcasters will actually televise the events; they could hoard rights without screening them, though the Act contains use-it-or-lose-it provisions (not detailed in this instrument) that require broadcasters to use the rights within a reasonable time or risk the Minister removing the event from the list.

Sporting organisations are the party most economically impacted. For listed events, their ability to maximise television rights revenue is constrained. They cannot run an open auction between free-to-air and pay TV. Instead, they face a sequential negotiation: first offer free-to-air, then (if free-to-air declines) approach pay TV. That reduces the likely final price. For sports that rely heavily on broadcast revenue - the AFL, NRL, Cricket Australia, Tennis Australia - the list effectively caps the upside. The instrument also creates uncertainty for emerging or restructured competitions: clause 1(3) automatically captures new formats, so sports bodies may avoid restructuring or adding women’s divisions if it would bring previously unlisted events onto the list. That is a perverse incentive against expansion. On the other hand, organisations with event that are not listed (e.g., Supercars events other than Bathurst, netball domestic leagues) face no restriction and can freely sell exclusive rights to pay TV.

The viewing public is the stated beneficiary, gaining continued free access to listed events. But the public also bears indirect costs: reduced rights fees for sports may lead to lower investment in grassroots development or higher ticket prices. Further, free-to-air broadcasters may schedule listed events at times that suit their advertising needs rather than viewer preferences, since they face no competition from pay TV for exclusivity. The instrument also confers a benefit on the public only to the extent that free-to-air broadcasters choose to acquire and televise the events; if a listed event is not acquired by any free-to-air broadcaster, it cannot be shown on pay TV until the free-to-air opportunity has passed, which could delay or prevent broadcast entirely. That risks reducing access for some viewers if free-to-air networks decline a high-cost event.

The instrument itself imposes no duties. It is a specification of events. The duties arise under Part 14A of the Broadcasting Services Act 1992. However, from the instrument’s operation, several key rights and obligations can be inferred:

• Right of free-to-air broadcasters: They have a statutory right to be offered the first opportunity to acquire television rights for any event in Schedule 1. That right is not individually enforceable by a broadcaster; it is a structural obligation on subscription television licensees. The practical effect is that free-to-air networks can expect to be approached before pay TV for listed events. They have no duty to acquire the rights; they may decline.

• Duty on subscription television licensees: A pay TV operator must not acquire exclusive rights to a listed event unless it is satisfied that free-to-air broadcasters have had a reasonable opportunity to acquire those rights and have not done so. The exact definition of “reasonable opportunity” is in the Act, not this instrument. But the instrument determines which events trigger that duty.

• Duty on the Minister: The Minister must, in making the list, form the opinion required by section 5: that the televising of the event should be available free to the general public. That opinion is a statutory condition. The instrument recites that the Minister has formed that opinion for all listed events.

• Right of sports bodies to seek de-listing: Under the Act (not the instrument), a sporting organisation can apply to the Minister to have an event removed from the list. The Minister may do so if satisfied that free-to-air broadcasters have had sufficient opportunity to acquire rights and have not used them, or that the event no longer meets the public interest test. The instrument does not address this, but it is the mechanism by which the list can be amended over time.

• Obligation on free-to-air broadcasters (use-it-or-lose-it): The Act includes provisions that require a free-to-air broadcaster that holds rights to a listed event to televise it within a reasonable time or risk the event being de-listed. This is not in the instrument, but it complements the list.

The instrument also creates interpretive duties: anyone applying the list must interpret named competitions expansively under clause 1(3). That means event organisers and broadcasters must assess whether a new competition falls within an existing entry, rather than assuming it is unlisted. For example, if the NRL Women’s competition expands to a full season, the regular season matches remain unlisted (only finals are listed under item 7(3)), but if the competition is rebranded or restructured into two competitions, clause 1(3)(c) may bring both competitions within the existing entry. That imposes a compliance burden on legal teams to predict how regulators or courts would apply the expansive provisions.

The instrument specifies no penalties. Enforcement and penalties reside in the Act. Under Part 14A, a subscription television licensee that acquires exclusive rights to a listed event in contravention of the rules commits a civil penalty. The maximum penalty is set in the Act (penalty units, currently indexed). The Australian Communications and Media Authority (ACMA) is the enforcement body. It can investigate breaches, issue infringement notices, seek civil penalties, or accept enforceable undertakings. The instrument is the critical evidentiary document: if an event appears in Schedule 1, the anti-siphoning rules apply. If it does not, they do not. Therefore, the accuracy of the list is paramount. A sports body that deliberately restructures a competition to remove it from the list (e.g., by renaming it) may still be caught by clause 1(3)(c) if the new competition is viewed as a restructuring. The ACMA could argue that the event remains listed despite the name change, and a pay TV operator that bought rights without a free-to-air opportunity could be penalised.

The instrument does not create any criminal offences. It is a legislative instrument subject to disallowance by either House of Parliament, but that is a parliamentary control, not an enforcement mechanism. A person who suffers loss because a pay TV operator acquired rights in breach of the regime could potentially seek damages for breach of statutory duty, but that is not addressed in the instrument.

The note in section 2 confirms that earlier lists are impliedly repealed. That means obligations under previous lists cease upon commencement. Transactions that were lawful under the old list but become unlawful under the new one could cause transitional issues. However, the instrument commences at the same time as the amending Act (Schedule 2 to the Communications Legislation Amendment (Prominence and Anti-siphoning) Act 2024), so there is a coordinated start. The note also avoids the need for a formal repeal instrument.

The instrument interacts most directly with the Broadcasting Services Act 1992, particularly Part 14A (anti-siphoning) and Part 9A (anti-hoarding). It is made under subsection 146V(1), which was inserted by the Communications Legislation Amendment (Prominence and Anti-siphoning) Act 2024. That amending Act also made changes to the anti-siphoning regime, including extending it to online services and creating new enforcement powers. The instrument replaces lists made under former subsection 115(1), which was repealed by the 2024 amending Act. Therefore, the instrument is the sole operative list under the new framework.

The instrument does not interact with the Competition and Consumer Act 2010 or the Australian Consumer Law directly. However, the anti-siphoning regime may intersect with competition law: by limiting the pool of bidders for rights, the regime reduces competition in the market for sports broadcasting rights. The ACMA and the Australian Competition and Consumer Commission (ACCC) have overlapping interests. The instrument itself does not address competition, but it is a regulatory restriction on trade.

The list may also interact with the Copyright Act 1968 because television rights are a bundle of copyright licences. The instrument does not affect copyright ownership; it only restricts exclusivity. A sports body remains free to grant non-exclusive licences to multiple broadcasters, including pay TV, as long as free-to-air broadcasters have had an opportunity. The instrument does not override contract law; it superimposes a statutory condition on the acquisition of exclusive rights.

There may be interaction with international trade agreements. If the list covers events that are organised by international bodies (e.g., FIFA, IOC, ICC), the restriction on pay TV rights may be seen as a trade barrier for foreign subscription television services. The instrument does not address this, but it is a potential source of diplomatic or legal challenge. However, the instrument applies only to rights acquired in Australia, and overseas broadcasters are not directly subject to it.

The instrument also interacts with state and territory laws on gambling advertising, if listed events are subject to separate restrictions. But that is indirect.

This is the first instrument made under the new subsection 146V(1), inserted by the Communications Legislation Amendment (Prominence and Anti-siphoning) Act 2024. It replaces the Broadcasting Services (Anti-Siphoning) List 2010 and any later amendments to that list. The 2010 list had been amended multiple times over 14 years to add or remove events. The 2024 instrument consolidates and updates the list, reflecting changes such as the addition of women’s sporting events (AFL Women’s finals, NRL Women’s finals, women’s State of Origin, women’s international rugby league test matches, women’s Rugby World Cup final, women’s cricket, women’s soccer qualifying tournaments, and netball World Cup matches). It also restructures the list into a clearer format with separate items for each sport and gender.

The instrument itself is dated 29 November 2024 and was signed by the Minister. It commences at the same time as Schedule 2 to the amending Act, which was passed earlier in 2024. There is no amendment history for this specific instrument because it is new. But it begins a new timeline: any future changes will be made by amending instruments under the same subsection. The note in section 2 confirms that previous instruments are impliedly repealed, so the legal effect is that the 2024 list is the entire operative list.

The change in legislative base from subsection 115(1) to subsection 146V(1) reflects a broader reform of the anti-siphoning framework. The 2024 amending Act modernised the regime to cover online services and to give the Minister more flexibility. The instrument is the first exercise of that new power.

The instrument is new (2024) and no litigation has occurred regarding its specific provisions. There is no mention of any cases in the source. However, previous anti-siphoning lists have been the subject of litigation. The High Court in Foxtel Management Pty Ltd v The Queen (2005) considered the constitutional validity of the anti-siphoning regime (a challenge by Foxtel to the 2003 list). The instrument would be subject to similar constitutional scrutiny, but the legislative basis has changed (new subsection 146V(1) is in the same Act, so likely valid). No case law is cited in the instrument, and it does not incorporate any court rulings.

The instrument does not create private rights of action, so litigation is most likely to arise from administrative law challenges (e.g., a sporting body seeking judicial review of the Minister’s decision to include an event, on the ground that the opinion in section 5 was unreasonable). Or a pay TV operator might challenge the application of the expansive interpretation clause to a new competition format, arguing that clause 1(3) does not capture it. The instrument’s interpretation provisions (clause 1) are broad enough to generate disputes over whether a rebranded competition is “the same” or “restructured.” No litigation has yet tested these clauses.

Several traps in the instrument can catch out the unwary.

1. Qualification phases are excluded unless specifically listed. Clause 1(3)(f) provides that for a sporting competition consisting of both a qualification phase and a final tournament, the reference is only to the final tournament. This means that most qualifying matches for World Cups, Olympic qualifying events, and the like are not listed unless particularly mentioned. For example, FIFA World Cup qualifiers for men are listed only if involving Australia and played in Australia (item 10(3)). For women, qualifying tournaments in Australia involving Australia are listed (item 10(6)). But qualifiers for other sports (e.g., rugby union Rugby World Cup qualifiers, cricket World Cup qualifiers) are not listed at all unless they happen to fall within a general “match” description. A pay TV operator could acquire exclusive rights to all Rugby World Cup qualifiers anywhere in the world without any free-to-air obligation, even if the final tournament itself is listed.

2. Women’s regular seasons for AFL and NRL are not listed. AFL Women’s matches are listed only for the “Finals Series” (item 6(2)). Regular season matches are unregulated. Similarly, NRL Women’s matches are listed only for the Finals Series and State of Origin (items 7(3) and (4)). A pay TV operator could buy exclusive rights to all regular season AFLW and NRLW matches without restriction. That is a major gap: the instrument appears to protect only the playoff matches, not the bulk of the season.

3. Overseas location restrictions limit coverage. Many events are listed only if played in Australia or specified countries. For example, international rugby league tests are listed only if played in Australia or New Zealand (item 7(5)). Cricket World Cup matches are listed only if played in Australia or New Zealand (items 9(5)-(8)). That means a Rugby League World Cup match involving Australia played in England is not listed. A pay TV operator could acquire exclusive rights to that match without giving free-to-air any opportunity. Similarly, an Ashes test played in England is listed (item 9(2) includes the UK), but a rugby union test involving Australia played in South Africa is not listed (item 8(1) only covers Australia or New Zealand).

4. Davis Cup final has no location condition. Item 11(3) lists the final of the Davis Cup World Group if it involves an Australian representative team, with no condition on where it is played. That is an exception to the usual location restriction. So a Davis Cup final played in, say, Spain involving Australia would be listed. But ties before the final are listed only if played in Australia (item 11(2)). That asymmetry could confuse: the final is protected regardless of venue, but earlier ties are not.

5. Netball coverage is minimal. Only semi-finals and finals of the Netball World Cup involving Australia are listed (item 12). Regular Netball World Cup matches, Commonwealth Games netball (already covered under item 4), and domestic netball are not listed. So a pay TV operator could buy exclusive rights to the entire Netball World Cup except the semis and final if it excludes Australia. And domestic netball league (Suncorp Super Netball) is completely unregulated.

6. Motor sports: only races held in Australia. The F1 Australian Grand Prix, MotoGP Australian Grand Prix, and Bathurst 1000 are listed (item 13). But other races in those series, even if equally significant (e.g., F1 Monaco Grand Prix), are not listed. If they involve an Australian driver, that does not matter; the list is location-based. So a pay TV operator could buy exclusive rights to all other F1 races.

7. Expansive interpretation clause may capture unintended events. Clause 1(3) automatically includes restructured or rebranded competitions. For example, if the AFL Women’s competition is expanded to include a full regular season, and that is considered a “restructuring” of the existing competition (which was previously only finals), the new regular season matches might fall within the listed “Finals Series of the Australian Football League Women’s Premiership” via clause 1(3)(c). That would be an unexpected expansion of the list without any ministerial action. Sports bodies could inadvertently bring new events onto the list by restructuring existing ones. Conversely, they might try to avoid the list by not rebranding, which stifles innovation.

8. The Minister’s opinion in section 5 is not reviewable on its merits. The instrument says the Minister specifies events because, in his or her opinion, the televising should be free to the public. That is a political judgment. A court would review it only on administrative law grounds (e.g., unreasonableness, failure to consider a mandatory factor). Challenging the inclusion of a particular event is difficult.

9. The instrument does not address digital or streaming services directly. The parent Act was amended to cover online services, but the instrument itself uses the term “televising.” The Act’s definition may treat an online stream as televising. But the instrument does not clarify; it only references “televising.” This could cause confusion for services that are not traditional television.

Compliance with the instrument means compliance with the anti-siphoning regime in the Act. The instrument is the starting point: identify whether an event you intend to acquire exclusive rights to is listed in Schedule 1.

For subscription television licensees: Before acquiring exclusive rights to any broadcast-quality television rights for an event, check Schedule 1. Use the interpretive rules in clause 1 to assess whether the event falls within a named competition. If in doubt, err on the side of caution and treat it as listed until a legal opinion or ACMA guidance clarifies. Do not assume that a new competition name or restructuring takes it off the list. If the event is listed, you must ensure that free-to-air broadcasters have had a reasonable opportunity to acquire the rights. That means you must not approach free-to-air broadcasters yourself; the rights holder must offer them first. You can only proceed if the rights holder certifies that free-to-air broadcasters have been given a reasonable opportunity and have declined, or the time period (set in the Act) has expired. Keep records of the offers, responses, and any documentation from the sports body. If you acquire rights but later discover the event was listed and the free-to-air opportunity was not properly given, you face civil penalties.

For free-to-air broadcasters: You have a statutory opportunity but no obligation to acquire rights. If you want to acquire a listed event, negotiate with the sporting organisation. The instrument does not force you to bid, but if you pass, the event can go to pay TV. Be aware of use-it-or-lose-it obligations: if you acquire rights and do not broadcast the event within a reasonable time, the Minister may de-list the event, which would allow pay TV to step in. Also, do not hoard rights you have no intention of using; that could lead to regulatory action.

For sporting organisations: When selling television rights, identify which events are listed. For listed events, structure the sale so that free-to-air broadcasters receive the first offer. That can be done by holding a separate negotiation window before approaching pay TV, or by offering non-exclusive packages. You cannot sell exclusive rights to pay TV without first offering free-to-air. If you inadvertently sell exclusive rights to pay TV for a listed event, you may be in breach of the Act (though the obligation is on the pay TV licensee, not you). However, the ACMA could take action against both parties if you knowingly circumvent the regime. Consider seeking a determination from the ACMA on whether an event is listed, especially for new or restructured competitions. Beware of clause 1(3): a rebranded competition may still be listed. Before rebranding or expanding a competition, check the interpretation clause and possibly seek a private ruling from the ACMA. Also, if you want to de-list an event because free-to-air broadcasters have not acquired it for a long period, apply to the Minister under the Act.

For event organisers of unlisted events: You are free to sell exclusive rights to pay TV without any free-to-air obligation. But if your event grows in significance and the public expects free access, political pressure may lead to it being added to a future list. That creates long-term uncertainty. You may wish to negotiate contracts that address the possibility of future listing (e.g., termination rights, price adjustments). The instrument does not provide for compensation if an event is later listed.

General compliance steps: Maintain a current copy of the instrument and any amending instruments. Train media rights negotiation teams on the list and the expansive interpretation rules. Document every rights acquisition for listed events with records of the free-to-air opportunity and responses. Monitor ACMA guidance and enforcement actions. If you are uncertain, seek legal advice: the instrument’s interpretation clauses are broad, and mistakes can be costly.