Natural Breaks

Section 45(2)(a) of the Special Broadcasting Service Act 1991 provides for SBS to broadcast advertisements "before programs commence, after programs end or during natural program breaks". The Act does not define ‘natural program breaks’ but when the Act was passed, the definition was understood. It was self explanatory, articulated by the legislators consistent with community expectations. 

If a definition had been placed into the Act, arguably it could have been this:-

natural program breaks means the break that occurs between the end of one program and the start of the next program, and the natural-break-in-play of a sporting event where audiences miss none of the play, for example, half time in a soccer match.

The above definition (not in the Act) is a summary based on the debate that occurred immediately before the SBS Bill was voted into law. This debate in which all parties – Government and Opposition – agreed on the meaning of natural program breaks, is found in the 1991 Hansard (House of Representatives and Senate) Second Reading Speeches. The relevant text is quoted below:-

  • Mr SMITH Liberal  half-time in a soccer match … in effect what will happen is that advertising will top and tail programs  
  • Sen ALSTON Liberal  natural program breaks, one would think that it is not too difficult to identify … clearly the half-time break in football and other sporting programs is a fairly common occurrence. The topping and tailing of programs so that good quality films are not massacred by advertisements is something that most people will readily identify with and recognise the breach of very quickly  
  • Sen COLLINS Labor  natural program breaks will be so unobtrusive on audiences as to be almost undetectable
  • Mr LEE Labor  advertisement–at the beginning and the end of the sponsored program. In that way the viewers were not disturbed and were not constantly interrupted, as is the case on some of the commercial television programs
  • Mr SINCLAIR National  let us not try to get the advertising revenue that will make the SBS another commercial channel. If we do, again, that will change its character, and I do not think that is really what we are about

The full Hansard text (at the links above) provides clear evidence that the legislators intended that SBS would not present itself like a commercial broadcaster and the placement of advertising on SBS television would not disrupt programs ever. This was consistent with community sentiment.

For many years, SBS respected the articulated understanding of natural program breaks by placing advertisements between programs only (and half time in sport) but in 2006 obtained legal opinion that led to the broadcaster placing multiple commercial breaks in every program. That legal opinion has never been tested in a court nor publicly released. Not even the Minister has cited it.

The previously accepted definition of natural program breaks (last found in the Codes of Practice 2005) was removed by SBS in their subsequent Codes. This removal was a legal means by which the broadcaster prevented viewers from succeeding with complaints to the regulator, the Australian Communications and Media Authority (ACMA) regarding possible breaches of natural program breaks.

Under section 150(1)(a) or (b) of the Broadcasting Services Act 1992, ACMA may only investigate a complaint made under a Code – not a set of guidelines outside a Code. There is now no definition of natural breaks appearing in any Code. SBS has relegated a definition, one that bears no resemblance to community expectations or that intended by the legislators, to an internal set of guidelines. These are outside the jurisdiction of ACMA.

The current non-legislated SBS definition of a ‘natural break’, is in the Guidelines For The Placement of Breaks in SBS Television Programs. Although the Guidelines specify where breaks may be placed, the circumstances under which a break may be taken is so wide that in practice SBS may virtually interrupt a program for an advertisement almost anywhere and regardless of whether or not a program was constructed to accommodate commercial breaks. The Guidelines state that there "may be deviation from this guide" for any reason that SBS determines.

Post 2006, SBS’s evidence on notice to the Senate’s communications committee revealed that SBS forced some 6000 commercial breaks annually into programs that were never intended to be interrupted for advertisements. The practice is ongoing.

In discussing current practice, 91.7% of 2044 SBS viewers in 2013, and 91.0% of 1176 SBS viewers in 2017 said, "most in-program advertising breaks [on SBS] look forced or artificially contrived and it would be misleading to describe these as natural program breaks". The two different cohorts totalling 3220 SBS viewers were from all Australian States and Territories.

The shift away from that intended by the legislators occurred without any community consultation, is not transparent and remains in defiance of ordinary democratic processes.