Michelle Rowland (Greenway, Australian Labor Party, Shadow Minister for Communications) Share this | Hansard source

Labor has a strong record on addressing community concerns around gambling promotions during live sport. Debate on this bill in this place comes a year after Labor called for stronger restrictions on gambling advertising during live sport. Labor supports the Communications Legislation Amendment (Online Content Services and Other Measures) Bill 2017 as a step in the right direction because it enhances consumer protections and sets up a platform-neutral approach to regulation in relation to gambling promotions during live sport. We welcome the government's move to extend restrictions to online platforms and minimise regulatory bypass.

Australia is a sport-loving nation, and Australians should be able to enjoy watching live sport without the unwarranted intrusion of betting odds and gambling promotions. In particular, it is in everyone's interest to ensure that children don't associate betting and gambling as a normal part of enjoying sport. Labor's call for stronger protections last year was in response to ongoing community concern about these issues. In March 2017, in the context of debate on the Interactive Gambling Amendment Bill 2016, Labor moved a successful motion in parliament calling for stronger restrictions on gambling promotions during live sport, noting that industry should be given time to adjust to any changes. Despite the introduction of restrictions on live odds and gambling advertising in 2013, a number of reports found concerning trends around an increase in, as well as the impact of, gambling advertising.

One of the reports Labor was cognisant of was research undertaken by Deakin University in relation to children and gambling advertising on television. The research found that over 90 per cent of children can recall having seen an advertisement for sports betting. About three-quarters of children aged eight to 16 can recall the name of at least one sports-betting brand. Approximately a quarter can recall four brands or more. Seventy-five per cent of children think that gambling is a normal or common part of sport, and parents conveyed concerns that gambling advertising is so prevalent it is actually changing the way their children think and talk about sport.

At the time of Labor's call last year, even high-profile sports players were expressing concern. A February 2017 article in The Ageby Jon Pierik, in relation to the Western Bulldogs premiership captain, Easton Wood, states:

Declaring "gambling advertising is out of control and I think it needs to change", Wood says he cannot understand why AFL players are warned about the dangers of gambling yet television broadcasts of men's and women's games are filled with advertising from betting agencies.

Similarly, an ABC news story by Damian McIver quoted Geelong defender Harry Taylor as saying:

I've got three kids at home and when my eldest can name a lot of the ads on TV that is a bit of a worry.

Furthermore, a range of media reports, including from the ABC's Media Watch, presented data pointing to a marked rise in advertising spend. In the year since, concerns have not abated. Indeed, there has been some evolution in the nature of concern.

Even in January this year UNICEF Australia expressed deep concerns about rates of teenage gambling when it made a submission to the Senate inquiry into this bill. UNICEF's actions prompted Associate Professor Samantha Thomas of Deakin University to state:

This is a further indication that this is an incredibly important issue for children in Australia and that legislation is needed urgently to protect them from exposure to these advertisements.

Further, media reports have noted a shift in the behaviour of online betting companies. An article by Nick Toscano in The Sydney Morning Herald earlier this year reported:

… concerns over sports-betting advertising swelled again on Thursday after tennis player Nick Kyrgios's brother, Christos, wore a bright blue t-shirt printed with a gambling company's logo to a prime-time match and was shown on camera several times during the broadcast.

Stephen Stockwell's piece for Triple j's Hack stated:

The shirts are clearly an advertising ploy by the bookie to get its name on TV during the tournament … because cameras will often swing round to the player's family.

When you look at these findings, you can understand why parents and the community in general are worried about their children being subjected to gambling advertising during live sporting events, and it is clear why both Labor and the government have acted on this issue.

Turning to the bill at hand, the announcement the government went on to make, in May 2017, responded to Labor's call and was the only consumer oriented measure they announced in the raft of industry deals that were done to push their media law changes through the parliament last year. Unfortunately, it took the government another seven months before they introduced this bill into parliament in December 2017. Meanwhile, as I have noted, concerns about children's level of exposure to gambling ads, especially during live sporting events, continued.

This delay means that new restrictions for online platforms contemplated by this bill are unlikely to commence at the same time as the new restrictions for broadcast platforms, given the time the ACMA will need to develop new online content service provider rules. Furthermore—and despite the length of time this government has taken to address community concerns—there is a high level of uncertainty amongst industry and consumers about what exemptions will be permitted by the ACMA under the new online content service provider rules. While addressing this issue has not been enough of a priority for this government, and a host of issues are yet to be worked through, Labor does support this bill.

As I mentioned, Labor has a strong record in this area. And this bill builds upon the leadership of the Gillard Labor government in 2013, which took steps to address public concerns and bring in rules to restrict gambling advertising in live sports broadcasting and the promoting of betting odds in particular. The then Prime Minister Gillard and Communications Minister Conroy issued a joint media release on these issues on 26 May 2013. They stated:

The Gillard Government has demanded that Australia's broadcasters amend their broadcasting codes in the following ways to ensure a reduction in the promotion and advertising of gambling during sport:

They noted:

All generic gambling broadcast advertisements will be banned during play. Advertisements of this sort would only be allowed before or after a game; or during a scheduled break in play, such as quarter-time and half-time.

Most importantly for our purposes today, they stated:

The Government will monitor the intensity of generic gambling advertisements within the allowed periods. If it is found to go beyond reasonable levels, the Government will impose a total advertising ban.

In response, the broadcast television industry developed rules to restrict gambling advertising in live sports broadcasting and the promotion of betting odds. The updated codes of practice were then registered by the ACMA in July 2013, almost five years ago now, satisfied they contained the appropriate community safeguards.

While the provisions in these new codes of practice served to limit the promotion of live odds and in particular to restrict gambling ads during play, they continued to allow promotion of betting odds half an hour before play and in the half hour after play by clearly identified gambling representatives and commercials relating to betting or gambling before play has commenced, during scheduled breaks, during unscheduled breaks and after play has concluded. That is to say, the codes of practice allowed significant windows of opportunity for gambling advertising around live sports broadcasts. It is notable that in the background of its media release announcing the code registration the ACMA stated:

… the codes do not cover the field of community concerns around gambling advertising and general sports programming. For example, ACMA research also indicates just over 60 per cent of the community find unacceptable the presentation of odds and general gambling advertisements during sports-related programs.

Back in 2013 both the Labor government and the ACMA noted that further action in this area might be necessary in future once the effectiveness of measures to address community concerns at the time could be examined. In 2017, and in view of ongoing community concern about the level of gambling advertising, Labor called for stronger protections, and the government went on to bring this bill before the parliament.

The aim of the government's approach is 'to create a clear and practical safe zone where parents can be confident children can watch live sport without experiencing messages that normalise gambling as part of sport.' While the government's approach is intended to cause a reduction in gambling promotions during live sports, it remains to be seen whether this clear and safe zone will satisfy the Australian public in practice, given it cuts out at 8.30 pm, a time when high-profile sports programming is often in play. According to research commissioned by the ACMA, the majority of Australians—61 per cent—do not want gambling advertising during live sports broadcasts no matter what time of the day. However, the Turnbull government has acted to restrict gambling advertising during live sport between the hours of 5.00 am and 8.30 pm as well, as provide for a host of exemptions from the online scheme when the majority of Australians don't want gambling promotions during live sport at all.

While selecting the hours of 5.00 am to 8.30 pm does address the time that children are most likely to be consuming media, it does not address the timing of sports programming so neatly. Even the explanatory memorandum to the bill acknowledges this. It states:

… many sports events commence between 7pm and 8pm or take place on weekend afternoons when there are significant child audiences. Children are thus exposed to significant levels of gambling advertising on television which risks increasing adolescents' desire to experiment with gambling. Increased exposure to gambling advertisements has also been associated with more positive youth gambling attitudes and intentions towards gambling.

It further states:

… the Department has received and continues to receive a significant amount of correspondence from the community, expressing concern about the impact of gambling advertising on child audiences. In a recent campaign the Department received over 1150 emails calling for gambling advertising in association with live sport to be banned.

Here I would like to make some brief comments on the broadcast industry codes of practice that have recently been updated to reflect government policy in this area. Labor welcomes additional restrictions on gambling advertisements during the broadcast of live sports between 5.00 am and 8.30 pm on commercial TV, pay TV and commercial radio as a step in the right direction. I note that questions remain about inconsistencies in the approach taken under these codes.

The broadcast codes of practice, which have been registered with the ACMA and which were announced on Friday 16 March, permit exemptions for low-audience share channels on subscription television and, for technical reasons, treat time zones differently as between platforms. While these differences may be justifiable under the regulatory policy of the Broadcasting Services Act, the simple fact is the broadcasting platforms have not been treated in the same way under the government's approach when both industry and consumers actually want consistency. The regulatory policy provides that the parliament intends that different levels of regulatory control apply across the range of services, including broadcasting and online content services according to the degree of influence that different types of services are able to exert in shaping community views in Australia. Further, it provides that services be regulated in a manner that enables public interest considerations to be addressed in a way that does not impose unnecessary financial or administrative burden on providers of broadcast and online content services amongst other things.

Overall, Labor is mindful of the regulatory policy and is pleased that the ACMA has stated that it will closely monitor the operation of the additional restrictions in the updated broadcasting codes and, after 12 months, will consider whether to conduct a formal review of their effectiveness.

I turn now to the platform-neutral approach. In the name of consistency, Labor welcomes the move to extend restrictions to online services. The bill seeks to introduce a platform-neutral approach to the restriction of gambling promotions during live sports coverage across broadcast, subscription and online platforms to achieve a level playing field and consistency in consumer protection. However, the bill to restrict gambling promotions during live sport on online platforms permits all manner of exemptions, the detail of which is yet to be worked through after the legislation has passed parliament. Under this government's approach, neither industry nor consumers enjoy clarity or consistency around the application of the additional restrictions.

Turning to the issue of exemptions: while Labor acknowledges the aim of the measures in this bill is to reduce gambling promotions online, the wide range of exemptions permitted under this bill and the lack of policy guidance on those exemptions cause many to wonder what this bill will actually end up achieving in practice. For a sport-loving nation like Australia, the new online provisions are cast very broadly indeed. Schedule 8 covers the internet well. It applies to any service that delivers or allows users to access content using an internet carriage service to the public and has a geographical link to Australia, if the service is targeted at individuals physically present in Australia or any of the content is likely to appeal to the public or a section of the public in Australia. In recognition of the wide variety of online content services with different business models and technical characteristics, the explanatory memorandum to the bill states that 'the online content service provider rules will not need to regulate all online content services', and the bill provides for a very broad range of exemptions. The exemptions to the online content service provider rules will be considered by the ACMA, as I said, once the legislation has passed the parliament.

I would like to note some industry concerns around some of these matters and, in particular, highlight the concerns of the Digital Industry Group, DIGI, about inconsistent regulation. DIGI submits:

There has been limited consultation with the digital industry about the implementation of these restrictions and the proposed introduction of a new Schedule 8 to the Broadcasting Services Act 1992. DIGI has a number of overarching concerns with the proposed amendments—

including that the legislative regime is to be enforced by the regulator, as opposed to industry codes of conduct as for traditional broadcasters. It states:

This significant discrepancy could lead to inconsistent regulation of the broadcasting industry versus the digital industry, and subsequently an uneven playing field.

It is concerned that the approach taken by the government may:

… undermine the ability of online content service providers to manage the services they deliver and place undue and unnecessary burden on content providers by providing a shifting and uncertain legal landscape in which to provide their services to consumers.

There is a degree of complexity in the business models for online content that the terms in the bill may not address. DIGI contends further:

The use of the term "online content service provider" presumes that it will always be one entity that delivers the content, the service on which the content appears and any advertising, or gambling promotional content, that appears alongside content. This is a misguided presumption as an online service provider can deliver content that is not produced or created by the online service provider. In some cases, the online service provider may not even be aware of the exact content that is being delivered.

Furthermore, advertising appearing alongside or within online content can be sold, programmed and served by a third party who is also separate from the online service provider. Ultimately, an online service provider can be a separate entity to the online content creator …

This separation of roles and functions in the digital context is rather different to the broadcasting context where the broadcaster typically has direct control over the content being delivered over its spectrum and the advertising that appears alongside that content.

On the definition of a geographic link to Australia, DIGI submitted:

This Clause is vague and creates an incredibly wide link to Australia—potentially all content online may be of interest to Australians.

In the context of sport, this means that broadcasts of sporting events originating from outside Australia that appeal to Australians such as American football or basketball would potentially fall within the scope of these restrictions.

On the matter of time based restrictions to online content, DIGI submitted:

It may not be possible to place time-based restrictions on the delivery of all online content especially considering the increasing preference by users to consume video content on demand. Furthermore, ad insertion technologies have wide ranging functionalities and are likely to differ from service to service.

By way of background, ad serving technology companies provide software to Web sites and advertisers to serve ads, count them, choose the ads that will make the Web site or advertiser the most money, and monitor progress of different advertising campaigns.

These technologies are highly customisable and enable the serving of ads to users to be based on a number of criteria that can be determined by the ad serving company, an online service provider, an advertiser or the online content provider.

Further, I note the reasoned concerns of Responsible Wagering Australia, who submitted to the inquiry into this bill that the government's approach to enacting a framework bill that leaves the detail of the actual rules to be made to the ACMA creates a high level of uncertainty. RWA stated:

From industry’s perspective, this results in a disjointed process under which the entity responsible for the legislation (the Department) cannot speak to nor provide assurances around which exemptions will apply—despite this being a pivotal issue for industry. Similarly, the proposed entity responsible for the consideration of exemptions (the ACMA) is awaiting finalisation of the legislation before it will discuss possible exemptions in any great detail.

Then they stated:

The Bill takes an expansive view of what constitutes an 'online content service' for the purposes of the legislation, with the legislation providing a mechanism for exemptions to be made by the ACMA. In our view, this approach provides no certainty to industry.

As I mentioned earlier, while the Turnbull government made its policy announcement back in May 2017, the legislation was not available publicly until the bill was introduced in the final sitting week in December 2017. And even now a raft of question marks still hang over this bill, a number of which were canvassed during the inquiry into it and will continue to play out.

Moving now to the proposed regulation of the Special Broadcasting Service by this bill: Labor moved an amendment to remove the operation of the SBS from this bill in the Senate which was negatived by only one vote. Clearly Labor is not alone in thinking that the Turnbull government should not be able to pick and choose when the SBS has independence. Let's start with the facts. SBS content is regulated by the SBS Codes of Practice, codes which apply to the SBS's radio, television and online services. Unlike the commercial broadcasters, whose codes of practice apply only to TV and radio services, SBS's online services are regulated by the SBS Codes of Practice. The SBS is committed to implementing appropriate restrictions on gambling promotions during live sporting events in accordance with government's policy by 30 March 2018 on both its broadcast and online platforms. Consistent with past practice, SBS will incorporate the new gambling advertising restrictions by reference to the free TV and CRA codes of practice that have been registered, so there will be consistency between services. In the online space, SBS will be ahead of the rest of the market by implementing restrictions to its online platforms this month. This is likely to happen ahead of the making of any rules by the ACMA, which is yet to be empowered under this bill, to develop and implement online content service provider rules.

However, despite all this, this bill proposes to regulate SBS programming with rules developed by the ACMA. This implementation mechanism is inappropriate for application to a public broadcaster such as SBS. It permits a level of ACMA intervention over SBS programming that is actually inconsistent with SBS's independence and the co-regulatory framework set out in the Broadcasting Services Act. The Special Broadcasting Service Act requires the SBS board to maintain the independence of SBS and limits the matters on which SBS can be directed by the minister. In turn, the Broadcasting Services Act, which this bill seeks to amend, recognises the independence of SBS and contains distinct processes for code notification, the investigation of complaints and any actions the ACMA may take in relation to the SBS. These actions are quite distinct from the actions the ACMA may take in relation to the commercial and subscription broadcasters.

It is straightforward. Labor's view is that the SBS should not be captured by the regulatory regime set out in the bill. Instead, implementation of new restrictions for the SBS should be achieved by establishing one set of rules in the SBS codes that cover both broadcast and online platforms. While in theory the bill permits the ACMA to exempt SBS from the online content service provider rules, there is no assurance the ACMA would do so and, in any event, with all respect to the ACMA, rules around SBS programming should not be a matter of ACMA discretion. Furthermore, subjecting SBS to this bill is contrary to the stated policy objective of the government to pursue opportunities for self- and co-regulation to a greater, and not a lesser, extent.

Recent examples of government support for self- and co-regulation, which are being ignored in this bill, include the ACMA's work on optimal conditions for self- and co-regulatory arrangements. First published in June 2010 and updated in September 2011 and April 2015, this occasional paper notes:

Self- and co-regulation are promoted by key international and government organisations as alternatives to direct regulation. The Australian Government encourages the use of light-handed regulatory options, such as self- and co-regulatory mechanisms, as part of its best-practice regulation agenda.

In 2014, the Department of Communications published Regulating harms in the Australian communications sector, a policy background paper which notes that the telecommunications and broadcasting legislative frameworks both enunciate a preference for co-regulation and that there is an industry-wide assumption that co-regulation 'should be the first port of call when new concerns emerge'. Furthermore, in relation to the broadcasting industry, the paper noted:

It may be timely for industry to ask itself about how it could make greater use of self‐regulation …

More recently, in the final report of the Department of Communications and the Arts review of the ACMA, it is noted:

Best practice regulatory design … suggests that in the communications sector, with its fast pace of change and innovation, greater reliance on co-regulatory and self-regulatory models should lead to better outcomes for consumers and industry.

In days gone by, the Liberal government made a great song and dance about deregulation and cutting red tape. Yet today they wish to force the SBS, which is currently self-regulating effectively, to submit to direct regulation. This is costly, duplicative and inconsistent of the Turnbull government. As a matter of law and government policy, and in order to alleviate the burden on taxpayers, the SBS should in fact be encouraged to regulate by codes of practice where possible, which it is already doing.

In closing, in essence this bill highlights the ongoing failure of this government and this minister to adapt the regulatory framework for media and communications in the 21st century. The bill proposes to regulate online platforms by tacking yet another schedule for online services onto the outdated, pre-internet Broadcasting Services Act, now over 25 years old, and clumsily draws the SBS into the regime. This government hasn't done the intellectual hard yards to address the many broken or strained concepts in the regulatory regime; nor has it worked out how to restrict gambling promotions during live sport online, having handballed the problem to the ACMA. If the Turnbull government wants to regulate both broadcast and online platforms coherently, or alter the co-regulatory framework in the Broadcasting Services Act vis-a-vis the SBS, it should conduct full and overdue reform of the Broadcasting Services Act. Clearly, Labor's concerns about the inclusion of the SBS and the concerns of the DiGi group and others in relation to the capacity of online services to self-regulate would indicate there is further work to be done to update the regulatory framework and think through the implications of the government's policy intent that self- and co-regulation be pursued.

In the meantime, in the absence of this government having done those hard yards in the past nearly five years, and on the issue of consumer protection in relation to gambling advertisements during live sport, Labor regards this bill as a step in the right direction. It is in everyone's interest to ensure that children don't associate betting and gambling as a normal part of enjoying sport.

See this speech in context