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 views, beliefs and 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) Committees, Second and Third 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 (available 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 expectations.
In mid 1991, the Minister exercised his discretion allowing SBS to broadcast advertisements for a trial period. The purpose was to gauge public reaction and see how advertising would be presented on SBS. The broadcaster was very careful to place advertisements before and after a program only. This non-intrusive style appeased community concerns and by December 1991 convinced the Parliament to pass the law permitting advertising on SBS permanently and subject to the same constraints as seen during the trial period. The Hansard reflects that.
Back then, SBS was only on-air from afternoon until just after midnight. The broadcaster wanted to run advertisements before programs commenced in the afternoon and after programs ended late at night, as well as between programs. SBS’s desire was met under section 45 of the Act but in 2006, the SBS Board reinterpreted that section as if it had been written to allow advertisements ‘before a program commences, after a program ends, and during a natural break’. Under this new interpretation programs were interrupted for commercial breaks.
Until then, SBS respected the articulated understanding of natural program breaks by placing advertisements between programs only and half time in sport – precisely as the legislators articulated. But in 2006 SBS obtained legal opinion that led to the broadcaster placing multiple commercial breaks in every program. From 13 January 2006 to 9 August that year, SBS corresponded with Mr Bret Walker SC. A legal opinion was formed amid 152 pages of correspondence. However, that opinion has never been publicly released nor tested in a court. Not even the Minister has cited it.
SBS now exploit their perceived loop-hole in the law to disrupt programs for ad breaks.
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 or policy outside a Code. There is now no definition of natural program breaks appearing in any Code.
In late 2006, SBS adopted a non-legislated definition of a ‘natural break’, in their public Guidelines For The Placement of Breaks in SBS Television Programs. These are outside the jurisdiction of ACMA.
Although the 2006 Guidelines specified where breaks may be placed, the circumstances under which a break could be taken was so wide that in practice SBS virtually gave themselves permission to interrupt a program for an advertisement almost anywhere and regardless of whether or not a program was constructed to accommodate commercial breaks. The 2006 Guidelines stated that there "may be deviation from this guide" for any reason that SBS determines.
However, in 2019, the 2006 public Guidelines appear replaced by, or possibly are to be read alongside, an internal policy for SBS staff titled, Policy for the Placement of Internal Breaks in SBS Television Programs. The internal policy does not attempt to clarify where a break may be taken but does state: "the interests of viewer experience will be taken into account when considering the placement of breaks".
Under the 2019 internal policy, half hour programs are to have two commercial breaks, and one hour programs three breaks. In movies and feature length documentaries under two hours there are slightly less breaks but with a twist. A 119 minute movie will have four breaks. That’s about one break every half hour. Yet a 121 minute movie will contain six commercial breaks or one break every 20 minutes approximately. This is similar to a movie screened on commercial television.
The intent of the legislators that the placement of advertisements would be limited to "natural program breaks" is now lost.
In discussing current practice, 91.7% of 2,044 SBS viewers in 2013, 91.0% of 1,176 SBS viewers in 2017, and 95.37% of 6,632 SBS viewers in 2020 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 three different cohorts of 9,852 SBS viewers were from all Australian States and Territories. Extrapolating the data to the entire Australian population is accurate to within a margin of error about 1.2% with 95% confidence.
In 2008, SBS admitted to a Senate hearing that it forced some 6000 commercial breaks annually into programs that were never intended to be interrupted for advertisements. The practice is ongoing and by 2020 SBS was forcing around 60,000 breaks into programs annually. Forced breaks are not natural program breaks.
Evidence presented to a Senate committee in 2015 of monitoring SBS from 2009 to 2014 showed it averaged 9 minutes of interruptions (promos and ads) per hour into programs. By 2020, SBS had up to 15 minutes of non-program matter per hour disrupting programs. This is about a minute more than commercial television. Generally SBS did not exceed the legislated 5 minute hourly advertising cap.
Viewers still complain that the number of commercial breaks on SBS is excessive and seek a return to first principles: that programs on SBS should not be interrupted.
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.
