'Strategic intervention' against Murdoch by minister in chase for AFL rights, but there's one thing missing

New Minister for Communications Michelle Rowland has weighed into the AFL TV rights negotiations. (AAP: Mick Tsikas)

Believe the stereotype, and Australians love sport … and the only thing they love more is watching it free on television.

Indeed, that vision is enshrined in Australian law, which under the so-called anti-siphoning framework prevents sporting events deemed "of national and cultural significance" from being shown on pay-TV before free-to-air stations have had a chance to buy their rights.

It's now safe political territory for both major political parties, though it remains closer to Labor's image as a party for the common people.

Anthony Albanese campaigned on a pledge to keep watching sport free, and new Communications Minister Michelle Rowland yesterday weighed into the multi-billion-dollar negotiations for the rights to broadcast the AFL.

"I encourage the AFL Commission and its broadcast and streaming partners to ensure there is no diminution in the availability of AFL matches on free-to-air television under the new deal," she said.

The comments follow reports suggesting the AFL is chasing an even larger deal than its six-year, $2.5 billion arrangement struck in 2015.

And to do so it may wish to appease pay-TV broadcaster Foxtel — or even owners of streaming platforms — in order to extract more money and deliver outgoing CEO Gillon McLachlan a record result.

The AFL is Australia's most expensive broadcast television property. (AAP Image/Julian Smith)

Some are calling the minister's intervention unprecedented.

David Rowe, Emeritus Professor of Cultural Research at Western Sydney University and perhaps Australia's foremost expert in anti-siphoning law, describes it as "a strategic intervention, a strategic play".

"In some ways you could see this as a political move, because it's a statement to subscription television, which has traditionally been dominated in Australia by the Murdochs in association with Telstra, essentially saying: 'we're the government, we're in charge, we are not going to give up our rights to regulate the market in television in sport. You won't like it, but we don't care'," he said.

"'We think it's important for the general population, but we're also letting you know we're in charge'."

AFL CEO Gillon McLachlan wants to lock in the next AFL broadcast deal before he departs later this year. (AAP: Joe Castro)

The AFL's current arrangement, extended during the pandemic to the end of 2024, gives Channel Seven free-to-air rights. Foxtel and its streaming service Kayo can show all matches.

But even though every match of AFL is protected in the regulations, a Fremantle Dockers fan in Melbourne will struggle to watch their team without a Foxtel or Kayo subscription. Indeed, only three regular season matches are guaranteed to be shown on Channel Seven each week, even in the AFL heartland of Victoria.

The deal was struck between the AFL, Seven and Foxtel behind closed doors in 2015, with different rules for different states.

Similar negotiations are underway now, and Ms Rowland's intervention serves as a reminder to the negotiating parties that they cannot stray too far from the principle that AFL should be free to watch.

Yet it's clear the minister has contemplated a so-called "diminution" that will test the scheme, and its enforcement.

"A reduction of the availability of live and free matches being shown on free-to-air television would be a shame," she told ABC's 7.30, flagging the Australian Communications and Media Authority (ACMA) could look into the AFL's eventual deal.

"But we will be crossing that bridge when we arrive at it."

The pandemic delayed the current round of broadcast negotiations. (AAP: Michael Dodge)

A new era

While deeply embedded, the habit of Australians devouring nation-defining sport on TV will not be around for long.

Research from Free TV Australia — the organisation representing the interests of commercial TV companies — suggests three quarters of Australians agree that free-to-air television ensures Australians have access to iconic sporting events.

But the Netflix generation has well and truly arrived.

For the first time ever, ACMA reported in June there are more people (58 per cent in a given week in 2020-21) watching online subscription video services than there are watching free-to-air television (54 per cent).

The new reality is putting a strain on the anti-siphoning regime in several ways.

Content consumption habits of Australians have changed in a few short years. (ABC News: Matt Eaton)

Free-to-air and subscription broadcasters fear the arrival of streaming multinationals who are not covered by the laws and could conceivably buy the rights to listed events like the Melbourne Cup.

Many Australians no longer own televisions but do not want to miss out on major events.

Fans of particular sports are frustrated by advertisements in broadcasts, or programming that is designed around free-to-air coverage.

There's no requirement for free-to-air companies to actually show the events or to not on-sell them, meaning these legacy entities can assert significant influence over a transitioning market.

And traditional free-to-air broadcasters are also becoming pay TV providers with their new paid streaming platforms. Channel Nine owns Stan, and Channel Ten and Paramount+ are within the same corporate family.

Michelle Rowland faces a challenge as Communications Minister to ensure regulation reflects the current media environment. (ABC News: Matt Roberts)

That dynamic prompted Foxtel's CEO Patrick Delany to declare “what the regime protects is not true anymore".

“Free [to-air] companies are winning rights of free [listed] sports events," he told the Age, "but they’re pushing consumers to their paid outlets.”

Once a shared-rights relationship between Seven and Fox Sports was a practical necessity. But now single corporate entities with free-to-air arms can chop up their offers to sporting bodies like the AFL, enjoying the benefit of the anti-siphoning framework and positioning their own streaming platforms for the future.

Months into its first term, the new government has landed on regulatory ground shaken by new media forces. But criticism will be as firm as it always has been. 

Shadow communications minister Senator Sarah Henderson told the ABC "the minister's statement is unprecedented, because it looks like she's in opposition".

The Liberals' communication spokesperson Sarah Henderson wants firmer action to protect sport on free-to-air. (ABC News)

"What I was expecting the minister should have said today is we won't allow these games, these very valuable games, including with the AFL, to sit behind a paywall," she said.

What's missing

Ms Rowland said the government's upcoming review into the anti-siphoning scheme "will give stakeholders and the public the opportunity to share their views on which events should be on the list, and how the scheme should work".

Changing consumption habits are no doubt undermining the functioning of the scheme, and putting more events on the list may further entrench the influence of commercial networks.

But the anti-siphoning list stands as a legislated statement of the sporting events that matter to Australians.

There's irony then, that such an intervention would arrive just as the new season of the AFLW launches.

There are reports the AFLW and AFL will be packaged together in the next broadcast deal. (AAP Image: Darren England)

The significant bias towards men's sport on the list is impossible to ignore in 2022.

For fans of the AFLW, Ms Rowland's surprise intervention — while perhaps unprecedented — could be seen as a missed opportunity.

The current anti-siphoning list

Sport	Event
1  Olympic Games	(1)  Each event held as part of the Summer Olympic Games, including the Opening Ceremony and the Closing Ceremony.
	(2)  Each event held as part of the Winter Olympic Games, including the Opening Ceremony and the Closing Ceremony.
2  Commonwealth Games	Each event held as part of the Commonwealth Games, including the Opening Ceremony and the Closing Ceremony.
3  Horse racing	Each running of the Melbourne Cup organised by the Victoria Racing Club.
4  Australian rules football	Each match in the Australian Football League Premiership competition (including the Finals Series).
5  Rugby league football	(1)  Each match in the National Rugby League Premiership competition (including the Finals Series).
	(2)  Each match in the National Rugby League State of Origin Series.
	(3)  Each international rugby league test match that:
	(a)  involves the senior Australian representative team; and
	(b)  is played in Australia or New Zealand.
	(4)  Each match of the Rugby League World Cup that:
	(a)  involves the senior Australian representative team; and
	(b)  is played in Australia, New Zealand or Papua New Guinea.
6  Rugby union football	(1)  Each international test match that:
	(a)  involves the senior Australian representative team selected by the Australian Rugby Union; and
	(b)  is played in Australia or New Zealand.
	(2)  Each match of the Rugby World Cup tournament that involves the senior Australian representative team selected by the Australian Rugby Union.
	(3)  The final of the Rugby World Cup tournament.
7  Cricket	(1)  Each test match that:
	(a)  involves the senior Australian representative team selected by Cricket Australia; and
	(b)  is played in Australia.
	(2)  Each test match that:
	(a)  involves both:
	(i)  the senior Australian representative team selected by Cricket Australia; and
	(ii)  the senior English representative team; and
	(b)  is played in the United Kingdom.
	(3)  Each one day cricket match that:
	(a)  involves the senior Australian representative team selected by Cricket Australia; and
	(b)  is played in Australia.
	(4)  Each Twenty20 cricket match that:
	(a)  involves the senior Australian representative team selected by Cricket Australia; and
	(b)  is played in Australia.
	(5)  Each match of the International Cricket Council One Day International World Cup that:
	(a)  involves the senior Australian representative team selected by Cricket Australia; and
	(b)  is played in Australia or New Zealand.
	(6)  The final of the International Cricket Council One Day International World Cup if the final is played in Australia or New Zealand.
	(7)  Each match of the International Cricket Council World Twenty20 tournament that:
	(a)  involves the senior Australian representative team selected by Cricket Australia; and
	(b)  is played in Australia or New Zealand.
	(8)  The final of the International Cricket Council World Twenty20 tournament if the final is played in Australia or New Zealand.
8  Soccer	(1)  Each match of the Fédération Internationale de Football Association World Cup tournament that involves the senior Australian representative team selected by the Football Federation Australia.
	(2)  The final of the Fédération Internationale de Football Association World Cup tournament.
	(3)  Each match in the Fédération Internationale de Football Association World Cup Qualification tournament that:
	(a)  involves the senior Australian representative team selected by the Football Federation Australia; and
	(b)  is played in Australia.
9  Tennis	(1)  Each match in the Australian Open tennis tournament.
	(2)  Each match in each tie of the International Tennis Federation Davis Cup World Group tennis tournament that:
	(a)  involves an Australian representative team; and
	(b)  is played in Australia.
	(3)  The final of the International Tennis Federation Davis Cup World Group tennis tournament if the final involves an Australian representative team.
10  Netball	(1)  A semi‑final of the Netball World Cup if the semi‑final involves the senior Australian representative team selected by the All Australian Netball Association.
	(2)  The final of the Netball World Cup if the final involves the senior Australian representative team selected by the All Australian Netball Association.
11  Motor sports	(1)  Each race in the Fédération Internationale de l’Automobile Formula One World Championship (Grand Prix) held in Australia.
	(2)  Each race in the Fédération Internationale de Motocyclisme Moto‑GP held in Australia.
	(3)  Each Bathurst 1000 race in the V8 Supercars Championship Series.