Michael Sukkar (Deakin, Liberal Party, Assistant Minister to the Treasurer) Share this | Hansard source

In continuation: the Communications Legislation Amendment (Online Content Services and Other Measures) Bill 2017 amends the Broadcasting Services Act and other legislation to introduce a new regulatory framework to regulate gambling promotions on online content services. The bill will also establish a regulatory mechanism that can be used to apply the new gambling promotion restrictions to broadcasting services, if necessary.

The government has listened to community concern about the scheduling and quantity of gambling promotions shown during live sporting events, particularly in the context of its impact on child audiences.

In response to this, the government's broadcast and content reform package included new community safeguards in the form of additional restrictions on gambling promotions shown or broadcast during live sporting events in children's viewing hours. Importantly, the government determined that these new restrictions should apply across commercial free-to-air television, the Special Broadcasting Service, subscription television, commercial radio and online content services.

The additional restrictions will prohibit all gambling commercials and promotions during live coverage of sporting events from five minutes before the scheduled start of play to five minutes after the conclusion of play. It is intended that under rules made by the Australian Communications and Media Authority (ACMA), the restrictions will apply between the hours of 5 am and 8.30 pm.

The restrictions will apply to all audio and audiovisual live coverage of sports. The types of gambling promotions covered will include advertising, sponsorship announcements and promotional content. The government intends that the new restrictions will be in effect across all platforms by 30 March 2018.

The restrictions will be applied to broadcast services via changes to their industry codes of practice. As no equivalent industry arrangements exist for online content services, this bill will amend the Broadcasting Services Act to establish a flexible, fit-for-purpose regulatory framework that can be used to apply the gambling promotions restrictions to online content services.

The gambling promotions reform will mean that, for the first time, broadcast-like program standards will be applied to online content services.

This bill, once enacted, will add schedule 8 to the Broadcasting Services Act. Schedule 8 is an enabling framework that will allow the ACMA to make service provider rules which regulate gambling promotional content shown on online content services in conjunction with live coverage of a sporting event.

The online content service provider rules will be a legislative instrument for the purposes of the Legislation Act 2003 and subject to parliamentary scrutiny and disallowance.

A key objective of the policy reform is for, to the greatest extent possible, the same restrictions to apply to broadcast, subscription and online providers. It is intended that the online content service provider rules will be similar to existing code based gambling promotions restrictions that apply to broadcast services.

Schedule 8 provides that the ACMA may make rules regulating or prohibiting gambling promotional content provided on online content services in conjunction with live coverage of a sporting event.

Under schedule 8 an 'online content service' is one that delivers or allows the public to access content using the internet, where the service has a geographical link to Australia.

A service will have a geographical link to Australia if an ordinary reasonable person would conclude that the service is targeted at individuals who are physically present in Australia or any of the content provided on the service is likely to appeal to the public or a section of the public in Australia. In addition, for the service to be subject to online content service provider rules, the end user must be physically present in Australia.

Consistent with government policy, under schedule 8, gambling promotional content will be taken to be 'provided in conjunction with live coverage of a sporting event' where it is provided in the period beginning five minutes before the start of play and concluding five minutes after the conclusion of play.

Where the content consists of promotions of betting odds by match commentators or the appearance of representatives of gambling firms at or around sporting venues, these time thresholds are extended to 30 minutes before and after play. This reflects the existing rules in broadcast codes of practice. It will also allow the online content service provider rules to better protect the community from the potential adverse effects of gambling promotions which link sports personalities and gambling products.

Consistent with broadcast codes of practice, 'live' in relation to coverage of a sporting event would include both real time and delayed coverage where the delayed coverage is provided as if it were live and begins no later than the conclusion of the particular sporting event. However, the bill also provides that a program can no longer be considered live for the purposes of the rules once the sporting event itself has concluded.

The term 'sporting event' is defined to include the Olympic Games, Commonwealth Games and other similar games. Given that new kinds of sporting events are constantly emerging, the online content service provider rules may also, for certainty, provide that particular events are or are not sporting events for the purposes of this schedule 8. The term 'sporting event' otherwise has its ordinary everyday meaning.

The government recognises that there are a range of online content services with different business models and technical characteristics and that the online content service provider rules will not need to regulate all online content services. Accordingly, rules made under schedule 8 will not apply to simulcast services—that is, services that do no more than simultaneously stream a broadcast service that is already subject to code-based gambling promotion restrictions. This prevents such content from being subject to two separate regulatory regimes.

Schedule 8 will also empower the ACMA to determine that a specific online content service or online content service provider is exempt from the rules. A refusal to make, as well as a decision to vary or evoke, an individual exemption determination will be subject to merits review by the AAT. In addition, schedule 8 will empower to the ACMA to, through a legislative instrument, determine that online content services or online content service providers included in a specific class are exempt from the online content service provider rules.

In terms of compliance and enforcement, it's anticipated that investigations of potential breaches of the online content service provider rules will, as is the case with the broadcasting codes of practice, be largely complaints driven. The online content service provider rules may also require relevant online content service providers to keep records that will allow the ACMA to ascertain whether they've been complying with those rules or not. Schedule 8, in conjunction with existing provisions in the Broadcasting Services Act, sets out the mechanism that may be used to enforce compliance with the online content service provider rules, including infringement notices, civil penalties and remedial directions. The government doesn't consider that criminal penalties are appropriate sanctions for breaches of online content service provider rules, and I note that breaches of broadcast industry codes of practice do not, of themselves, result in potential criminal penalties.

As noted earlier, the bill also includes a regulatory mechanism that can be used to apply the new gambling promotions restrictions to broadcasting services should industry codes of practice not be amended in time. The minister can report that broadcast sectors are working closely with the government and the ACMA to ensure that their codes are appropriately amended, and the minister anticipates that the government will have no need to mandate these important restrictions. The minister is grateful for the constructive engagement of the broadcast sectors to date.

In conclusion, this enabling legislation which provides increased powers to the regulator and helps ensure a more consistent approach to regulating gambling promotions content across all platforms will send a clear message to the public that the government is committed to implementation of its policy to enact additional restrictions on gambling promotions. The announced gambling promotions restrictions will establish a clear safe zone during which parents and caregivers may have confidence that their children will not be exposed to gambling promotions by viewing live sporting events and, therefore, I commend the bill to the House.

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