John Murphy (Lowe, Australian Labor Party, Parliamentary Secretary to the Leader of the Opposition) Share this | Hansard source

While the member for Hinkler is still in the chamber, I would like to respond to what he had to say towards the end of his contribution on the Communications Legislation Amendment (Enforcement Powers) Bill 2006, about the related entities test; the other media bills that are going to be coming before the House and the Senate, I understand, this week; and the fact that there will be some limited concentration of media ownership in the cities. With great respect, I need to respond.

I will start by giving the member for Hinkler a tick for taking the battle to the government in relation to this issue. He, like me, has had a passionate interest in media ownership since we worked in the 39th Parliament on the House of Representatives Standing Committee on Communications, Information Technology and the Arts. As the member for Hinkler will recall, I wanted to have an inquiry into media ownership in Australia. He has done a great job standing up for his community against the potential impact of having one powerful media company owning television stations, radio stations, newspapers and monopoly pay television with virtually no other serious competition in the constituency that he represents.

Let me give the member for Hinkler some insight into the consequences of this bill for Sydney. If the proposed bill goes through the parliament, both PBL and News Ltd will have a stranglehold on media ownership in a city like Sydney. News Ltd and PBL would own all the major metropolitan dailies because, under this legislation, PBL could buy Fairfax, and News Ltd could buy a free-to-air television network like Channel 7 or Channel 10. The Minister for Communications, Information Technology and the Arts has consistently avoided, most dishonestly, answering my questions in relation to the two big media companies being allowed to hang on to all of their existing assets and also being allowed to purchase new media. This is going to lead to a massive concentration of media ownership in Australia, to the detriment of the public interest and our democracy. In Sydney, you would find the two big media companies owning all the newspapers, two of the three commercial free-to-air television networks—and no-one else being allowed to own a fourth free-to-air television licence—and having a monopoly on pay television and 70 per cent of the news and information sites on the internet. That is an outrage.

I am most concerned that this government is selling out our precious democracy. That is why I keep raising it in my speeches and in the innumerable questions that I have asked Minister Coonan and her predecessors over the years that I have been in this House. This is a critical issue. The Prime Minister, who does not think that it is much of an issue for him, has made it quite plain that he is not prepared to use much political capital in relation to this legislation. I am pleased that the member who represents the communications minister has come into the House.

There can be absolutely no doubt that Australia’s broadcasting and communications regulator, the Australian Communications and Media Authority, must play an increasingly important role in ensuring that media companies are complying with basic legislative obligations and that they are meeting basic audience expectations. I note that the member for Dawson, in her speech in the second reading debate, stated that ACMA and its predecessor, the ABA, have for some time been concerned about the paucity of regulatory powers available for breaches of the Broadcasting Services Act. The key words are worth repeating, and they are ‘for some time’.

It has long been known that there are a number of deficiencies in the powers of the regulator to adequately address breaches of the act and the standards and industry codes, yet the government has done nothing about it. It has been known since 2000—six years ago—that the polarised regulatory powers of the Australian Communications and Media Authority and its predecessor, the ABA, were making these authorities effectively toothless tigers. The media regulator’s powers are focused on the high end of the scale, including criminal penalties and licence cancellations. Often these remedies are anything but appropriate for low- or mid-range breaches of the Broadcasting Services Act. It would not be naive to assume that the absence of sanctions which are not unduly harsh could mean that ACMA has been unable to effectively deal with breaches of the Broadcasting Services Act, even allowing some breaches to go without consequence for want of there being a suitable punishment.

As the Centre for Media and Communications Law at the University of Melbourne has correctly noted, the potential for breaches to go without punishment clearly ‘undermines ACMA’s role in ensuring regulatory compliance and calls into question the public’s confidence in ACMA to fulfil its function’. Professor Ian Ramsay’s report also identifies shortcomings in the suite of powers available to Australia’s media regulator. He said, inter alia:

The lack of flexible remedies inhibits the capacity to engage in negotiations that might produce better compliance by licensees.

He also said:

There is a lack of useful small penalties for minor breaches so that there are insufficient incentives for compliance with reporting requirements under the BSA.

Given the large number of code breaches and the pattern of recurring breaches that occurs with some licensees, there can be no doubt that a lack of appropriate remedies is hindering ACMA’s ability to take action. There is nothing worse than a regulator that is unable to regulate.

It is not sophistry to suggest that there have been occasions when the lack of available remedies may have hindered ACMA’s ability to deal with compliance issues. In 2000, concerns were raised that the ABA had no power to impose fines or other civil penalties on radio stations involved in the so-called cash for comment affair. In the absence of clear moral culpability, it was concluded that the issues raised did not warrant criminal sanctions or licence cancellation. As Professor Ramsay has alluded to, ACMA’s unwillingness to enforce criminal penalty provisions is no surprise, given that the moral culpability of many of the offences under the Broadcasting Services Act is relatively low. Irrespective of whether the then ABA would have had cause to use civil penalties against those involved in the cash for comment affair, the government was clearly made aware of potential problems with the scope of remedies available to the regulator. Yet the government did nothing about it.

The Communications Legislation Amendment (Enforcement Powers) Bill 2006 proposes many long-overdue amendments. The bill gives legislative effect to recommendations in a report by Professor Ian Ramsay, entitled Reform of the broadcasting regulator’s enforcement powers, which identified numerous deficiencies in our media regulator’s ability to, of all things, regulate. Remarkably, despite landing on the minister’s desk in September 2004, absolutely no action was taken by the government to implement the report’s recommendations for over a year. It was not until November 2005 that the government released an issues paper canvassing options for enhancing ACMA’s powers under the Broadcasting Services Act. It is now almost six years since the cash for comment incident, a year since the release of the issues paper and two years since the original report was provided to the minister—two years. No doubt the minister will put this absurd two-year delay down as a win for extensive public consultation. I ask: why won’t the minister provide a two-year public consultation period for other elements of the government’s media reform package, notably its intention to abolish cross-media ownership laws in our country?

It takes two years to implement relatively simple changes to ACMA’s powers; yet, with an issue that strikes at the heart of media diversity and Australia’s democracy, the minister has ridden roughshod over public consultation processes with that shotgun Senate inquiry of 28 and 29 September into the Broadcasting Services Amendment (Media Ownership) Bill 2006. The failure to properly tackle the challenges proposed by further media concentration is appalling and an absolute disgrace, as I said three times in this House on Monday.

In any event, the Communications Legislation Amendment (Enforcement Powers) Bill will finally enable the regulator to impose graduated penalties that vary in severity according to the gravity of the contravention involved. While it has been a toothless tiger in the past, it is important that ACMA is now being given teeth to apply fitting and proportionate penalties for regulatory breaches. This reform, unlike the media ownership legislation, is in the public interest and will encourage greater regulatory compliance in the media industry. The public will, hopefully, see the benefit of a more active regulator, armed with more teeth, addressing things like breaches of the commercial television code of conduct. Incidents such as those that occurred last year on Big Brother should no longer go unpunished or be treated with, dare I say, a mild slap on the wrist.

The reforms in this bill will also bring ACMA’s powers into line with other industry regulators, such as the Australian Competition and Consumer Commission. The new powers provided to ACMA will include two important reforms that I wish to speak to in more detail. The bill will allow civil penalties for a range of offences under the Broadcasting Services Act that are currently punishable only by criminal penalties. This will not only hit the hip pocket of those that breach regulations but also reduce ACMA’s burden to prove a breach beyond reasonable doubt. It is patently clear that criminal penalties place an onerous standard of proof on ACMA, including a subjective element that may be difficult to prove for many offences covered by the Broadcasting Services Act. It is also clear that criminal penalties are often an inappropriate and disproportionate reaction to many of these offences.

The bill will also enable ACMA to accept enforceable undertakings in those regulatory areas where it cannot currently do so. Enforceable undertakings have been used with great success by a range of other regulators, including the ACCC and ASIC. Enforceable undertakings provide a new approach to compliance that avoids, where possible, the spectre of a drawn out and costly legal battle. By promoting a working relationship between the regulator and the regulated, it becomes more possible to foster a commitment from the industry player that is subject to regulation. This bill will now enable ACMA to accept enforceable undertakings in relation to its broadcasting, datacasting and internet content regulatory functions.

The bill will also give the power to ACMA to issue infringement notices for breaches of reporting and notification requirements and the power to seek injunctions to prevent the operation of unlicensed commercial broadcasting services. I wish to note further comments made previously by the member for Dawson that the bill will ensure ‘ACMA can undertake the critical regulatory functions required of it in the new media regulatory framework that will be established by the government’s media reform package’.

This bill will undoubtedly improve the ability of ACMA to achieve compliance with existing and future broadcast regulation. As has been mentioned by the Centre for Media and Communications Law, the reforms in this bill will not increase the ambit of ACMA’s regulation over broadcasters but merely enhance the regulator’s ability to seek compliance with requirements and obligations under the Broadcasting Services Act. That gravely concerns me in light of the government’s wilful destruction of important cross-media ownership laws. ACMA will be powerless to act against media giants, who will be given tacit approval to concentrate media in this country by buying radio stations, television stations, newspapers and magazines in a single market. Who will protect diversity of the press and a healthy democracy in this country? Clearly, the Howard government is not going to. Given the planned changes to cross-media laws, this bill will certainly mean that ACMA will not be able to either.

I now want to say something about the Television Licence Fees Amendment Bill 2006or the digital TV bill—because it is also part of this debate. The intention of the Television Licence Fees Amendment Bill 2006 is to stimulate the sluggish demand for digital television so that analog broadcasts can be switched off some time between 2010 and 2012. However, I doubt that this bill will do anything of the sort. I do not think that this bill will increase the number of people who choose to take up digital television and I do not think it will benefit consumers as much as it will benefit the powerful commercial interests this government attempts to appease in nearly every piece of communications legislation that is debated in this place.

I do think this bill is a symbol of the government’s incompetence when it comes to handling the issue of media reform. Everything the government tries to do in terms of digital television is nothing short of a triumph for incompetence, a win for stupidity and a victory for ineptitude. We have seen the date marked for the switching-off of analog television moved from 2008 to some time between 2010 and 2012. I doubt this bill—or indeed the entire media package—will do anything to attract more consumers to digital television. It is only a matter of time before the date is shifted again.

According to industry data, only around 20 per cent of households have purchased the necessary equipment to receive digital free-to-air broadcasts. I can assure the House that many constituents in my electorate of Lowe who have taken up digital television are not happy. Only recently I was speaking to a constituent, Dominic Ofner, a resident of Concord, who said his family had recently taken up digital television but were not convinced of its merits, especially due to the restrictions on multichannelling on both ABC and SBS and also the commercial networks. I know the government can do something about this, but clearly it is not going to.

I notice that this bill allows commercial broadcasters to multichannel solely in high definition until 2009. The key words here are ‘solely in high definition’. In my view, this makes no sense. It makes no sense when the market for high-definition services is too small at this stage to entice broadcasters to begin multichannelling. It makes no sense when not even Channel 7 is considering plans to commence a high-definition service. I notice also that the multichannelling genre restrictions on the ABC and SBS are being lifted in this bill. I point out to Minister Coonan that this was Labor Party policy prior to the last election. I am sure the former shadow minister for communications, Lindsay Tanner, the member for Melbourne, is chuffed that the government is adopting our policies. On his behalf, I thank the government for that.

The Television Licence Fees Amendment Bill, however, cannot be passed in its current shape or form. The minister needs to release amendments dealing with the regulatory arrangements surrounding the new digital channels. Furthermore, I believe this bill can be improved by allowing the ABC and SBS to show sport that is on the antisiphoning list on their multichannels. Such a movement would, for instance, allow the ABC to show netball tests live on ABC2 without interrupting vital programming such as the news or The 7.30 Report.

I also note the repeated use of the phrase ‘use it or lose it’. What does this term actually mean? The minister has failed to provide any clear meaning for this phrase. Is the minister talking about showing sport coverage no matter whether or not it is live? Is the minister talking about whether or not sport is shown at a reasonable hour? Is the minister talking about delayed coverage shown at 1 am?

I am passionate that we must do whatever we can in relation to antisiphoning lists to protect Australian families, to protect middle Australia, from having to pay hundreds of dollars a year to watch sporting events that they currently see on the free-to-air networks. I challenge the minister to join me in that fight. The reality is that the restriction on the broadcasting of antisiphoning listed sport is clearly designed to address the interests of our big media proprietors and, in particular, the proprietors of Foxtel, which as you know, Mr Deputy Speaker, is partly owned by Mr Murdoch and Mr Packer. You can only think that the communications minister and the Prime Minister were interested only in what Mr Murdoch and Mr Packer thought when they drafted the media legislation that is coming into the House. As I speak here, I understand, it is being debated in the Senate.

Certainly Mr Murdoch has consistently opposed multichannelling by free-to-air broadcasters unless the antisiphoning list is reduced. One only has to read a newspaper owned by News Ltd, the Daily Telegraph, to see this. Only recently I read an article in the sports section of this paper—yes, even the sportswriters are regurgitating their boss’s views—complaining about the antisiphoning laws. This is also a prime example of the current problems relating to cross-media ownership, where the media mogul has clearly used his ownership of that paper to further the interests of Foxtel. If this is being done now, when there are regulations in place, imagine what will happen when these regulations are removed. If this is being done now in relation to sport, when there are regulations in place, imagine what will happen when the regulations are removed and in domains that influence public debate and opinion.

This may not be a nightmare much longer. It could soon become a dark reality. This bill forms part of the government’s media reform package, a package which in some key parts threatens the very basis of our democracy. As I keep saying, I cannot sit back and let this government run over the democracy of this nation, and I am appalled at the inability of members sitting opposite to realise the serious consequences of the Howard government’s— (Time expired)

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