A copy of SBS’s new contract with producers shows that it makes producers themselves criminally liable under the federal government’s untried, untested and controversial sedition laws if they fail to tell SBS that the content of their program is seditious. SBS has quietly slipped this one in alongside defamation and breach of confidence.

One senior Australian producer described the change as “chilling”.

The clause treats sedition in the same way that it treats defamation, contempt of court or breach of confidence. The clause requires the producer to “fully and frankly disclose all information within its knowledge to SBS relating to any potential Causes of Action and will make further inquiries at the request of SBS.” If, in the opinion of SBS’s lawyers, the producer has failed to do so, SBS will not indemnify them against any legal action.

SBS also has the right to remove any material that they consider seditious from a program.

In part, this is nonsense, as the penalties for most of the other offences contained in the clause are civil and financial. The penalty for sedition is criminal and up to seven years’ imprisonment.

The likely outcome is to constrain filmmakers – and especially documentary filmmakers – from expressing controversial decisions openly and honestly.

The full clause of the contract is below:

5A Legal consultation and litigation

5A.1 The Licensor will consult with the Commissioning Editor to consider whether the production or publication of the Program could expose SBS to liability in relation to any of the following causes of action (Cause of Action):

(a) defamation;

(b) contempt of court, parliament or similar body;

(c) breach of any duty of confidence;

(d) breach of any legal restriction prohibiting the identification of individuals in certain circumstances; or

(e) sedition.

5A.2 The Licensor will fully and frankly disclose all information within its knowledge to SBS relating to any potential Causes of Action and will make further inquiries at the request of SBS. If the Licensor becomes aware at any stage of any fact or circumstance which may prevent SBS from exercising its rights in the Program or which may give rise to a Cause of Action, then the Licensor will promptly give written notice to the Commissioning Editor.

5A.3 SBS will raise any concerns that the Program may give rise to a Cause of Action with its legal advisers for the purpose of seeking legal advice for the benefit of both SBS and the Licensor. The Licensor will fully cooperate with SBS and its legal advisors and shall take such steps as SBS and its legal advisors may require to minimise the parties potential liability in relation to any Cause of Action.

5A.4 If SBS’s legal advisors advise that any material in the Program gives rise to a Cause of Action for which there is no readily available defence, then SBS may request that the material in question be deleted from or altered in the Program and the Licensor must company with the request without delay and in any event prior to the first broadcast of the Program.

5A.5 If any proceedings in respect of any Cause of Action in relation to the Program (the Proceedings) are commenced against the Licensor and / or SBS, then SBS will have full conduct and control of the Proceedings and the Licensor will cooperate fully with SBS in respect of the conduct of the Proceedings.

5A.6 (a) Provided that the Licensor has complied with the preceding provisions of this clause SBS will in respect of the Proceedings to the extent permitted by law indemnify the Licensor against any and all financial liability the Licensor may incur in connection with the Proceedings including costs incurred in defending the Proceedings;

(b) For the purposes of the indemnity given under paragraph
5A.6(a) above, such indemnity will be construed as being given to the Licensor and in addition (but only insofar as the matters to which such indemnity relates arose in connection with the performance of their duties in relation to the Program) to the Licensor’s officers and servants;

(c) Without prejudice to the limitation contained in paragraph 5A.6(a) above, if the Licensor is in breach of any provisions of this Agreement, the indemnity provided in paragraph 5A.6(a) shall not apply to the extent that the Proceedings relate to the subject matter of such breach.

5A.7 For the avoidance of doubt, this clause 5A operates independently of the Licensor’s warranties under this Agreement.”

Peter Fray

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