Bernie Ripoll (Oxley, Australian Labor Party, Shadow Parliamentary Secretary for Industry, Infrastructure and Industrial Relations) Share this | Link to this | Hansard source

I rise to speak in this cognate debate on the Communications Legislation Amendment (Enforcement Powers) Bill 2006 and the Television Licence Fees Amendment Bill 2006. These two bills constitute part of a package of four bills that implement the government’s media law changes that were announced in July. It is fair to say that the bills before this House today represent the less contentious elements of the package. The other place is dealing with the legislation implementing the government’s plan to abolish the cross-media ownership laws. It is my view and hope that this legislation will not make it into this place.

National Party senators delivered a damning criticism of the government in their dissenting Senate committee report last week agreeing with Labor that the government’s plan undermines media diversity and threatens our democracy. On this side of the House we only hope that they hold their nerve, that they follow through and that they keep their commitment, not only to the Senate but to the people they represent. But unfortunately past experience teaches us all that that is often very different from the reality of what the National Party may do. The people of Australia do not want another grandstanding exercise like that around the Telstra debate, where the National Party talked tough but ultimately sold out for a pittance. In contrast to the cross-media ownership legislation in the other place, Labor will support the passage of the two bills we have before the House today.

The Communications Legislation Amendment (Enforcement Powers) Bill contains reforms that are long overdue and ought to be passed. The bill strengthens the enforcement powers of the regulator of the broadcasting and online content industries, the Australian Communications and Media Authority, ACMA. The measures in this bill, in large measure, reflect the findings of a report by Professor Ian Ramsay, a noted academic lawyer from Melbourne university. Back in April 2004, ACMA’s predecessor, the Australian Broadcasting Authority, commissioned Professor Ramsay to assess the effectiveness of its enforcement powers under the Broadcasting Services Act, the BSA. The ABA had become concerned that the powers at its disposal did not reflect parliament’s intention as expressed in section 5 of the BSA—that breaches of the rules should be dealt with effectively and that penalties should be proportionate to the seriousness of the breach concerned. In particular, the ABA believed that it did not have adequate powers to deal with a range of items: narrowcasters providing broadcasting services, breaches of industry codes of practice, and breaches of licence conditions and standards. These are significant matters and powers to deal with them should be part of the capacity of the ABA.

Broadcasters typically pay millions of dollars in licence fees for the privilege of providing commercial services to the community. It is unfair if narrowcasters, who are licensed to provide niche services, are free to breach their operating conditions of business without an appropriate penalty. This would be an unfair system in a very complex and difficult market. Licence conditions and the industry codes of practice reflect community standards of what is acceptable conduct by broadcasters more generally. They deal with things like program classification, accuracy of programs, fairness of programs, advertising, program promotions and complaints handling. There is no point in having strong laws if they are not effectively enforced. This crosses all paths in life. Laws are only as effective as their enforcement and the adherence of organisations to them.

The most recent annual report from the regulator showed that breaches of the act, licence conditions and codes of practice had more than doubled over the previous year. Breaches of the commercial television code of practice in fact tripled, to 30. That is a fair bit, considering the previous numbers. Clearly some broadcasters are not taking the rules seriously and need to be brought into line. The ABA was quite right to seek to address this issue. Having identified its concerns, the ABA asked Professor Ramsay to conduct his work expeditiously. By September 2004 the Minister for Communications, Information Technology and the Arts, Senator Coonan, had received the report, which identified a number of deficiencies in this area. Professor Ramsay warned that the regulator did not have a flexible range of sanctions at its disposal. He stated that the costs of this to the regulator and industry could be high indeed. He said that it would result in less compliance. Faced with this warning, we really need to ask the question: what did the minister, Senator Coonan, do? Unfortunately, the minister just sat on her hands and sat on the report. She did not even release it to the public, which is a great pity. I am sure there were plenty of people out in the community who would be very interested in what the report had to say.

In early 2005 the government created the ACMA by merging the ABA with the Australian Communications Authority. This was a purely administrative merger. The government did not take the opportunity to strengthen the powers of the new regulator, and if I remember correctly I spoke on that bill at the time. It was not until November 2005 that the government finally released an issues paper canvassing options for enhancing the ACMA’s powers under the BSA.

I would like to spend a little bit of time talking about some of the problems with the current act as identified by Professor Ramsay and how this bill actually does address them. The ACMA’s current powers comprise a mix of criminal and administrative penalties. A breach of statutory licence conditions, for example, is an offence. However, pursuing criminal sanctions often presents difficulties for the ACMA. Many offences under the BSA have a subjective element that is difficult to prove under the required standard of beyond reasonable doubt. For minor offences like failing to comply with reporting requirements on time, criminal prosecutions are regarded as excessive. The ACMA is not able to launch criminal prosecutions on its own; it has to actually refer the matter to the Director of Public Prosecutions. The most significant administrative penalty is the power to suspend or cancel a licence. The ACMA could impose such a penalty, for example, if a broadcaster breached a licence condition that it should comply with the code of practice. The ACMA has historically been reluctant to use this power because it has the effect of punishing audiences who use the service as well as the broadcaster. So you can see the difficult circumstances in which the authority finds itself. It is seen as a penalty for extreme circumstances; something not to be used lightly. The ACMA or its predecessor has only cancelled a licence once since the legislation was enacted.

The bill seeks to address the ACMA’s problems with criminal sanctions by establishing a civil penalty regime for a range of offences under the act. These include situations where an open narrowcaster provides a service that is not in accordance with the relevant class licence or where there is a breach of a standard licence condition by a broadcaster. The maximum civil penalty that may be imposed is the same as the maximum fine that could be imposed if the equivalent criminal offence were proved. The introduction of the civil penalty regime will make it much easier for the ACMA to enforce the act properly. The ACMA will be able to pursue civil penalty action on its behalf in the Federal Court. These matters will not need to be referred to the Commonwealth Director of Public Prosecutions.

Most importantly, the ACMA will face a lower evidential burden. It will only be required to show that the breach was committed on the balance of probabilities, not be required to go to the much more difficult situation of beyond reasonable doubt. The bill also gives the ACMA the power to seek an injunction from the Federal Court to restrain a person who is providing broadcasting services without a licence. These provisions are intended to deal with problems of noncompliance by narrowcasters that I spoke about earlier. In his report, Professor Ramsay identified 17 cases where narrowcasters were found to be operating commercial services. An injunction power should assist the ACMA in an area that has proved problematic for a number of years. The bill will also allow the ACMA to accept enforceable undertakings. At present the ACMA can accept voluntary undertakings in relation to its telecommunications functions, but they are not enforceable. This will change under this bill. The bill addresses this anomaly and gives the ACMA similar powers to those of the ACCC and ASIC.

Enforceable undertakings have proved to be a successful tool for regulators in Australia and overseas. Enforceable undertakings are often a more efficient means of ensuring compliance than litigation. They save the time and expense involved in drawn-out litigation processes. They also encourage industry to cooperate with the regulator rather than pursue an adversarial approach. Enforceable undertakings also allow regulators to achieve a more flexible remedy than could be obtained through the court process. The bill also gives the ACMA the power to issue infringement notices in relation to the failure by broadcasters to report changes in control and directorships, to submit annual financial returns or to make records available to the ACMA.

Professor Ramsay also reported that there was a lack of small penalties for minor breaches of the BSA. The consequence is that there are insufficient incentives for compliance. So the bill provides for penalties of up to $6,600 to be imposed on a commercial and subscription broadcaster through an infringement notice. Upon the payment of the penalty specified in the notice, liability for the breach would be discharged and no further regulatory action would be taken. It is felt that companies will simply comply with the notice rather than contest the matter in court, which would be a more complicated, drawn-out and expensive process.

Before I conclude my comments on the Communications Legislation Amendment (Enforcement Powers) Bill 2006, I would like to deal with one other matter. There were a number of significant recommendations made by Professor Ramsay that were not taken up by the government. In his report, Professor Ramsay recommended that the regulator should be given the power to require the broadcast of a statement relating to the findings of an investigation. That power could only be used where the regulator found a breach of a code of practice or a licence condition. This recommendation was strongly resisted by broadcasters in their responses to the issues paper on reforming ACMA’s powers. Labor believes that the power to effectively shame broadcasters for failing to comply with the code of practice could be a useful remedy. Professor Ramsay’s report highlights a number of programs that have repeatedly breached the commercial television code in relation to things like failing to present stories accurately and fairly and breaches of privacy rules.

Labor will not seek to amend this bill now to give ACMA the power to require broadcasters to make these statements. The much needed expansion in ACMA’s powers contained in this bill has already taken too long and Labor will not stand in the way of passing this bill as quickly as possible. Broadcasters should be aware, however, that the community expects better compliance with the codes of practice than has been the situation in the past. If broadcasters do not lift their game, and instead continue with their poor practices, then they must expect tougher regulation and greater application of tougher penalties.

If compliance does not improve, one of the additional measures that Labor would consider is giving ACMA the power to require on-air statements, something I am sure the broadcasters would find somewhat embarrassing and which would chew into their air time. In this bill, however, Labor believes that the additional range of powers proposed is a good step forward in the right direction. It is something that has taken too long and is well and truly due. The bill will help ACMA to deal with things like the cash for comment affair that plagued commercial radio a few years ago or the breaches of classifications standards by Ten’s Big Brother program in 2005, a situation that could be resolved in a more timely and expedient manner.

I would also like to briefly address the Television Licence Fees Amendment Bill 2006 and related issues. This bill is related to the Broadcasting Legislation Amendment (Digital Television) Bill 2006, which is currently before the Senate. It makes a series of amendments to the BSA to allow broadcasters to provide additional content on digital channels, a practice known as multichannelling. The intention is to stimulate the sluggish demand for digital television. At present, it is estimated that only around 20 per cent of households have invested in the necessary equipment to receive digital free-to-air broadcasts. My understanding is that that take-up is still very slow. There does not seem to be any drive out in the community for this new technology.

There are a number of reasons why this may be the case. There is certainly a low level of awareness in the community about the benefits of digital television and what it can provide. Late last year, ACMA released research on the views of people who had not yet made the switch to digital. It found that 17 per cent of respondents had never heard of digital television and probably did not understand exactly what it meant. There is no doubt that, given that we currently get a fairly good signal on free-to-air and a range of other services, people are not yet sure as to exactly what benefits they would get from digital and why they should make the jump. Forty-five per cent of people did not know if digital services were available in their area and 42 per cent said that they were just not interested in switching to digital. Again, this is probably because they found that the current services meet their expectations or they do not know that they can get a better service.

There is strong evidence that providing extra content is the key to driving take-up. You need to educate people and deliver something new and better; otherwise people will not be making that leap forward. The current regime greatly restricts new content. For example, only the ABC and SBS can run multichannels and even they are restricted in the range of programming that they can show. The take-up of digital TV matters from a policy perspective because, when we reach the point that analog broadcasting can be switched off, huge amounts of valuable spectrum will become available for other uses like new TV stations or wireless broadband. There is a whole range of great opportunities.

The switch over to digital will also end the costly simulcasting of analog and digital that currently takes place. On the government’s own figures, it costs taxpayers $50 million a year to pay for the analog transmission costs of the ABC and SBS. As I mentioned earlier, digital TV relaxes the regime so that broadcasters can provide additional content. Relevantly for this bill, broadcasters will be able to run one high definition multichannel from 1 January next year. From 2009, commercial broadcasters will be able to broadcast one standard definition multichannel. Once digital switch-over is achieved, all restrictions on multichannelling will be dropped.

The Television Licence Fees Amendment Bill 2006 contains amendments reflecting the fact that broadcasters will soon be able offer these additional services. Commercial broadcasters are subject to licence fees that are levied as percentages of the gross earnings of the broadcaster. This bill amends the definition of ‘gross earnings’ to reflect the fact that commercial broadcasters may soon be also earning revenue through their multichannels.

During the recent Senate committee inquiry into the media bills, free-to-air broadcasters expressed concern about the decision to extend the licence fee to these new multichannels. They argued that the fee should not apply until it was clear that the services were viable. For the next couple of years, there will still be some quite significant restrictions on multichannelling. Initially, broadcasters will only be able to multichannel in high definition format and there is currently a very small market for high-definition television in Australia. The Seven Network told the Senate committee:

We do not have plans to commence a HD service at this stage. The reason is that high definition is only available to about five per cent of the population, making it very difficult to justify when you have to fund it through advertising revenue. Also, the cost of equipment to consumers is three times the cost of SD equipment.

The government is also going to restrict broadcasters from showing antisiphoning list sport on the multichannel. Broadcasters may see the imposition of a licence fee on the multichannel equal to nine per cent of the revenue it generates as excessive. Labor will not oppose this legislation, but it may be that the government needs to revisit the issue of licence fees if broadcasters do not commence multichannelling next year. Multichannelling is likely to be a key driver of digital take-up in the future. The government must ensure that its regulatory framework allows multichannelling to get off the ground; otherwise costly simulcasting will go on well beyond the planned switch-off date of 2012. I give Labor’s support to this legislation.

Wilson Tuckey (O'Connor, Liberal Party) Share this | Link to this | Hansard source

These amending bills—the Communications Legislation Amendment (Enforcement Powers) Bill 2006 and the Television Licence Fees Amendment Bill 2006are fairly routine matters but they raise issues that I am anxious to address in this House. The member for Oxley has given a clear and fairly precise description of their meaning, and I will not necessarily touch on that. I think it is interesting in consulting the explanatory memorandum under the heading ‘background’ to look firstly at the objects of the Broadcasting Services Act. These are of course integral to these issues, which relate to the rights of, in particular, the ACMA, the Australian Communications and Media Authority, in conducting its supervision of our broadcasting services and imposing penalties on those who do not comply. It is pretty interesting to look at what it needs to do in this regard. The objects of the BSA, the Broadcasting Services Act, are contained in section 3 and include:

(a)

to promote the availability to audiences throughout Australia of a diverse range of radio and television services offering entertainment, education and information ...

Sometimes one might wonder just what diversity we do get. It goes on:

(b)

to provide a regulatory environment that will facilitate the development of a broadcasting industry in Australia that is efficient, competitive and responsive to audience needs ...

It is quite interesting, and I will come back to it, that not everything in this regulatory arrangement and the potential to prosecute in civil proceedings really pays attention to the audience. It goes on:

(c)

to encourage diversity in control of the more influential broadcasting services; and

(d)

to ensure that Australians have effective control of the more influential broadcasting services; and

(e)

to promote the role of broadcasting services in developing and reflecting a sense of Australian identity, character and cultural diversity; and

(f)

to promote the provision of high quality and innovative programming by providers of broadcasting services; and…    …    …

(g)

to encourage providers of commercial and community broadcasting services to be responsive to the need for a fair and accurate coverage of matters of public interest and for an appropriate coverage of matters of local significance; and

(h)

to encourage providers of broadcasting services to respect community standards in the provision of program material; and

(i)

to encourage the provision of means for addressing complaints about broadcasting services ...

The second last of those provisions is of some interest to me. It is, typically, why we will not have full-frontal nudity and we will not have this and we will not have that. As I raised in our party forums this morning and as I have stated in press releases, it amazes me that these television stations are still prepared to promote sportsmen who have a drug problem, but, because it is with recreational drugs, by some means or other it is okay.

One reads of Channel 7 and its partner Channel 10 paying $700 million for the rights to broadcast AFL football, yet if you are an AFL footballer you know that the first time you are tested—yes, you get tested—and show a positive to one of these so-called recreational drugs, even if you are a minor, a 17-year-old that has been drafted to an AFL club, the only persons that will know outside of the testing authority are you and the club doctor. Your parents will not get told. If you offend again, things get really tough! The only persons that will then know are you, the club doctor and the AFL doctor. So, if on the law of averages you are unlucky enough—considering this is random testing—to get caught a third time, something is going to happen. We do not know what, but something will happen. This only happens in the AFL; some of the other codes have demonstrated recently a much more zero tolerance approach. I think a rugby league footballer was just told not to come back. In other words, he lost his living.

Might I add, as a one time administrator and chairman of the West Australian Turf Club, that is also the attitude of the racing industry. They do not have a lifetime measure but certainly a very substantial suspension away from your income if you test positive. It is three months the first time and six months on the second occasion. With one offence of which I am aware the offender was relicensed on the grounds that they submitted a monthly urine test—remembering that cannabis, for instance, as with some of these other drugs, will show up for that period of time. AFL is the sport whose grand final attracted the biggest viewing audience of any elite sport. Yet the players, the very recipients of all this money through their players league, have threatened to strike if those rules are changed.

I think it is time that somewhere in the section of the Broadcasting Services Act that talks about respecting community standards there is included a prohibition on the broadcasting of elite football clubs that fail to have, police and prosecute a zero drug tolerance system. As I said, the racing industry, which I think quite unfairly is occasionally portrayed as a bit dodgy, has a tougher zero tolerance policy on drugs than does the AFL, and it extends to all licensed personnel in that industry, including track riders and anybody who needs a licence. And what did we see in Perth the other day? The Eagles come back and 20,000 people are there to welcome them, a large number of whom are teenagers. And isn’t it a nice example we give through our broadcasting medium? I sincerely hope that other members of the House might think about a policy that stops this sort of abuse. Again, as a person with some knowledge of the racing industry, I think I could quote a very long shade of odds on someone getting caught three times in a random testing system of probably a thousand people. So it is an issue for this and for other legislation should it ever come to this parliament.

The other factor that comes out in those statements of what is a proper broadcasting facility is a common theme of the rights of the listener or the viewer. That is fair enough, except that when we get into the second reading speech of the Parliamentary Secretary to the Minister for Transport and Regional Services it is quite interesting that she said:

The bill will enable ACMA to seek injunctions to prevent the operation of unlicensed broadcasting services. The provision of unlicensed commercial broadcasting services—usually by broadcasters in other licence categories, such as narrowcasting—is potentially highly damaging to the commercial viability of licensed commercial broadcasters.

Isn’t it amazing that this parliament, and most state parliaments equally so, considers regulation as a requirement that people make profits. I quoted this morning in our party forum how enraged I am every time I sit in a taxi in a capital city—and more particularly the biggest ones—to think that I am paying a dividend through the fare to a foreign investor who in many cases has paid $300,000 for a licence so that I can sit in a $30,000 vehicle and be driven around by somebody who typically is not in the higher income tax brackets. But that is our system. We should be restricting access to taxi licences on the grounds of the quality of the vehicle and, of course, the integrity of the driver, but instead we have to see that people make a profit and we now have taxis worth virtually half a million dollars running around the countryside, expecting and receiving a fee from some battling worker running late for work which represents that investment.

This is what we have done collectively in this parliament with broadcasting licences. We encourage obscene payments—millions—for a licence. People fight over them. Why? Because we restrict the number—not in the interests of listeners, not to guarantee a diversity of product, but because it seemed a good idea at the time and, of course, we like the revenue. Who pays for that? The consumer does. The listener does. You might say the advertiser does. If you thought they did not include advertising costs in their balance sheet you would be pretty silly. Of course, when Mr or Mrs Worker—whoever happens to be doing the shopping—goes down to the supermarket they pay part of the price to pay off the fee paid to the government for a licence.

Why do we do that? Surely the test is based on the quality of the equipment. The member for Oxley said, ‘Oh, it is all too tough for these television stations to have to run both analog and digital transmissions.’ There are some very good reasons why we should be forcing digital on the community. One of these was pointed out to me years ago and it is probably even more the case today. A single analog television station requires as much of the spectrum as 100,000 mobile telephones. Today a mobile telephone is virtually something you cannot do without—more’s the pity I think, particularly as every journalist has discovered my number. But the fact is that we have this situation where we need to clear the spectrum of analog.

I am one of those in this town fortunate enough to remember when suddenly colour television turned up, and it was obscenely expensive also. We all bought it and the more of us who lined up to buy it the cheaper it got. I would disagree with the member for Oxley on his casual remark. People quote the percentage of people who have taken up digital and, more particularly, high-definition digital. I do not think Harvey Norman or, in my state, some of the other retailers—Rick Hart, Retravision and others—would be running two-page ads nearly full of a variety of LCD or plasma broad-screen television sets if the sets were not going out the door at a particularly fast rate. The price has dropped from virtually $10,000 to $2,000 for the equivalent set. As that happens, more and more people will take up digital. I am not entirely across the technology, but I think you can purchase a digital set-top box that will run your old analog TV anyway and I do not think a pretty basic outfit is any more than a couple of hundred dollars. I have made the shift. I am probably a bit financially better off than others who might go into that shop, but I think HDTV is amazing and, as your eyesight dims a little, it gives you a point of clarity that you would not otherwise realise. I am sure some people who might be sight challenged because of some personal disability would find the service of those brilliant screens well and truly worth it.

My concern is that whilst we quite properly and sensibly resort to commercial penalties for breaches of the legislation—and some of those could be a failure to provide a service that meets community standards—if that failure were sufficiently bad, I would say that a criminal penalty might be the appropriate answer. But for most of the activities of a licensed broadcaster I think that the legislation and its capacity to impose enforceable undertakings is a sensible move. The legislation in that regard is sensible and necessary, as the second reading speech on the other piece of legislation relating to fees indicates. It simply extends the right of government to collect licence fees for other forms of broadcasting that are now imminent, particularly digital technology.

So both pieces of legislation are sensible. But I am concerned that we continue to have this view that government should collect very substantial ingoing fees and restrict the number of licences that can be issued. I was in the hotel industry and I thought it was pretty good that nobody else could get in. That protected my profits. That is not a common view today, and the Labor state government in Western Australia is attempting to relax those conditions quite substantially. They have my philosophical support and I think they are gradually getting the support of my Liberal colleagues in Western Australia who had a conservative view about that.

The reality is that we are looking at giving people services. There is other legislation that I presume will be debated in this place that talks about some of these matters and reform. As I have said, if you are worried about consolidation in the industry, that is because you restrict the number of licences. If you opened up the number of licences, would Mr Murdoch buy one of the existing ones to complement his newspapers or would he start a new one? As far as I am concerned, he should have the opportunity to start a new one. But I will not go any further into that because it is an issue for another day.

In terms of this legislation, we are changing the penalty regime so that ACMA can protect the commercial rights of licensed broadcasters. I do not agree with that. I do not think that is their job. Nothing on that list I read to you says that they are there to protect the commercial rights of licensed broadcasters. They are all things to look after the people, and I am totally supportive of that. I would just like to put these matters forward and I hope that it will draw the attention of other people to those facts. One day they might find themselves in a position to deal with these matters in the community interest.

Of course we want maximum standards in terms of transmission. We do not want static and we do not want snowy screens and all those sorts of things. We must make sure that when we license someone they provide the best available equipment and their programming of course is of an acceptable standard—and I wish I could add ‘has some diversity’, but that is a little bit hard. I will not go into some of the examples I gave some time ago when the member for Melbourne, Mr Tanner, had to correct me on my naming of a particular program. I think I got it right, but not in terms of the label that one sees on the screen.

It is a fact of life that this legislation—and I welcome the opposition’s support for it—is good, practical stuff. It addresses much more sensibly the way that ACMA does business with these people. It is not appropriate to have criminal penalties for many of the breaches that will occur. On the other hand, I wish that they did not have to prosecute people simply on the grounds that they are affecting the commercial viability of another company. Thank you.

Lindsay Tanner (Melbourne, Australian Labor Party, Shadow Minister for Finance) Share this | Link to this | Hansard source

It is often said that if you hang around in politics long enough you see everything, and this evening I have achieved a new first. Finally, after 13½ years in the place, I have heard the honourable member for O’Connor, Mr Tuckey, say something sensible. I should note that down in my diary as a very significant event for 2006! I endorse his comments on the importance of competition in broadcasting. Sadly, I think the government does not endorse them and the legislation before the House this evening does not either. We are seeing yet another instalment in what is slowly becoming possibly the longest, most painful, most prolonged, most embarrassing public policy fiasco in Australian history. There are a few contenders for the title, I concede. There are one or two contenders. Nonetheless, the painful, protracted and messy transition to digital broadcasting in Australia, which has now been going for not far short of a decade and is still nowhere near completion, is witnessing today another small instalment in the endless tinkering, fiddling, protecting and, ultimately, messing with what should be a reasonably straightforward process.

We only need to look at the level of take-up of digital receivers in Australia to see what an extraordinary failure the transition from analog to digital broadcasting has been. The take-up is still extremely low, for a very simple reason: there is no substantial motivation for anybody to buy a set-top box even though prices are now fairly cheap. I have not got one. I still have only an analog TV. I have got Foxtel so I have got a digital pay TV service, but I do not have a digital terrestrial service because there is no reason for me to. I get no particular benefit from it—and, from 1998, when I did not have Foxtel, I saw no reason to get a terrestrial free-to-air digital service through a set-top box over that period either. Why? Because it meant simply that I was watching, by and large, the same programs through a different transition mechanism. There was no graded choice, no greater diversity, no proliferation of different options that gave me an incentive to go digital.

Contrast this with the United Kingdom and the introduction of FreeTV, which is owned by a consortium of different media companies, which sends roughly 30 digital channels and signals into about 55 or 60 per cent of British households. Although most of those channels would not particularly excite the average viewer, if you put together 30 or so channels there is a reasonable chance that there will be something for just about everybody to supplement the viewing experience that traditionally has been based on only four or five analog channels. This has given people an incentive to get a set-top box to go digital. In Australia, there has been virtually no incentive and, as a result, the government’s strategy to transition to digital has failed. So the package of legislative measures that we are in part dealing with this evening is designed to tweak that process without unduly upsetting anybody who may have a bit of political power—that is, incumbents in the industry. Therefore, it is not addressing the core problems that exist.

The core problems are things like mandating that the broadcast be in high definition. Initially, it was for 20 hours a week and then it was subsequently converted—in one of the numerous fiddles that the government has undertaken—to 1,040 hours per year. There is a list of other deficiencies, including the refusal up until now to allow multichannelling and the refusal to contemplate wider competition. There is a long list of deficiencies in the government’s approach to digital broadcasting which have all collectively manifested themselves in a transition that is not happening. If it continues at the rate at which it has been occurring, it will probably be consummated in about 2070 or thereabouts, by which stage we will probably all have TV screens implanted in our heads or something. I think that is a very damning indictment of the government’s approach to this issue.

The previous framework legislation that was adopted seven or eight years ago by the parliament, with the support of both sides, contemplated a switch-over to digital and a shut-off of the analog spectrum by 2008. It has been widely recognised for several years that that was an impossibility and that it is not going to happen. This legislation now contemplates that changeover occurring somewhere between 2010 and 2012. I doubt whether there is anyone in the government who would confidently assert with a straight face that the digital switch-over is going to occur according to that timetable. It is almost inevitable that we will see further backsliding, further delay and further procrastination that will ensure that the ultimate switch-off point for analog broadcasting in this country will be substantially later than the new delayed target dates.

The bill that we are dealing with this evening is in effect a relatively minor toe in the water for slight, further liberalisation of the regime that was put in place by the government some years ago. The genre restrictions that apply to the national broadcasters, SBS and the ABC, with respect to their multichannels are to be lifted—not immediately, but they are to be lifted. The commercial broadcasters are to be permitted to multichannel one standard definition multichannel from 2009 and one high-definition multichannel from next year but, until such time as the analog switch-off is completed, they are not allowed to broadcast sport on either of those multichannels. The restrictions on multichannelling generally are supposedly to be lifted at the point of switch-over, from which time one would assume that the commercial networks will be free to broadcast as many multichannels as they can fit within the spectrum to which they are entitled.

The extraordinary thing about the debate on multichannelling over the years has been the demand by two of the three commercial broadcasters that multichannelling should not be permitted because they could not establish a business case for it. So, in other words, you have people who are ostensibly capitalists, who believe in free markets and competition, arguing for the government to ban them from a particular use of the spectrum which they have lawfully acquired and are lawfully using, not because there is some kind of antisocial dimension to the use of that spectrum in this particular way or because this might hurt anybody else but because they do not think they can make money out of it. It is vaguely the equivalent of telling a pub that they are not allowed to sell red wine because they do not think they are going to be able to sell any bottles—something which I find, frankly, completely bizarre.

What is even more bizarre is that up until now—and still, to some degree, even now—the government accepts this argument: there is something wrong with allowing full use of the digital spectrum which these companies have been given and allowing them the option—not requiring them to send out three or four different channels or signals but allowing them the option to do that—which has been sought for many years by one of them, the Seven Network.

The government is dipping its toe in the water of reform on this front. It is taking very small microsteps towards liberating the possibilities that digital does actually open up. But it is extraordinary that the government has gone to great lengths to prevent the potential for diversity, greater content and greater choice that digital broadcasting opens up because it is a much more efficient user of spectrum than analog broadcasting. Even now, with this slight liberalisation, there are still restrictions, regulations, interventions and all kinds of things that restrict the capacity for people to innovate, test markets, try new things and narrowcast to particular sections of the community.

One of the fundamental weaknesses of free-to-air broadcasting in this country for many years has been the one-size-fits-all dimension, the inevitable lowest-common-denominator dimension, which is driven by the fact that there are only three signals. All of those companies that are competing in this market have to go to the predominant mass market and they have very little opportunity to target intermediate sized markets. Ultimately, this has been in many respects the core business of the ABC—to cater for the intermediate sized viewer markets that are not adequately catered for by the commercial networks. But there is no particular reason why the ABC should have a monopoly on those markets and why people with those interests should only have one option to choose from, one mechanism through which to view broadcasting content that is of interest to them.

The particular aspects that I have referred to are part of a wider package which is currently being considered in the Senate. Some of the more exciting and titillating parts of that package are the subject of interesting negotiations between members of the government and ostensible members of the government who belong to the National Party. This legislative package has a number of key features. Firstly, there will be no new competition for the existing free-to-air broadcasters. Secondly, there is a recycled, rebadged and revised version of Richard Alston’s failed datacasting experiment, where the two datacasting licences that were put on the block some years ago—and that, ultimately, nobody was interested in—have been kind of tarted up and fiddled with a bit so that you now have one datacasting licence that is yet to be fully defined and another that is available for broadcasting to mobile phones. In a recent extraordinary backflip by the government, the initial proposition that the existing free-to-air broadcasters were not going to be permitted to acquire these licences was abandoned, so they are now free to bid for these pieces of spectrum for limited and narrow broadcasting purposes. Finally, there is of course the removal of fairly longstanding cross-media and foreign ownership restrictions that are designed to guarantee a minimum level of diversity and Australian ownership in the Australian media market.

The net dominant factor in all of these proposals is that they differ only very marginally from the propositions advanced by the former, longstanding communications minister Senator Alston. There is very little difference. There is a little tweak and a little fiddle here and there, and there are slight modifications, such as broadcasting to mobile phones and the like, but basically the orientation of these changes is pretty much the same as what Senator Alston advocated. In fact, it is with some amusement that I have noted that apparently the government has agreed with the National Party to make the two out of three restriction—in other words, prospective proprietors would be prohibited from owning any more than two out of three of a newspaper, a TV station and a radio station—a national restriction. There was somebody in the past who actually proposed this as an alternative way of dealing with cross-media ownership regulation: Senator Alston. So, bit by bit, Senator Coonan is drifting into precisely the same propositions, sets of proposals and ideas that were promoted and largely abandoned by Senator Alston as communications minister in the past.

The fundamental problem with this package, of course, lies in the effective abrogation of the cross-media ownership laws. Although the proposition that is being floated has danced around from time to time, and we are yet to see what the final proposition put to the Senate will be, there is an underlying problem. Whether we have the complete removal of the cross-media ownership laws or whether we have the ludicrous five-voices test that says that sports radio station SEN in Melbourne, Gold 104 or Vega, in the domain of influencing and forming public opinion and in providing public debate, have significance equal to the Herald Sun, 3AW, Channel 9, Channel 7 or Channel 10, there is the ludicrous proposition that somehow this test would act as a protector of diversity. That has been abandoned, by the sound of it. That is certainly a good thing. But whether a two out of three mechanism is of any great benefit to the Australian media, in terms of protecting diversity, is entirely debatable because it still leaves open the possibility that we will end up with a media in this country that is almost completely dominated by two giant corporations—one built around News Ltd and one built around Telstra.

With Telstra being privatised and with the effective abolition of the cross-media ownership laws, although the two out of three provision, if that is what the government adopts, would in practice probably end up keeping such giant corporations out of radio—perhaps we should be grateful for small mercies—it would nonetheless still enable a massive concentration of ownership and power, particularly in the case of Telstra, which would end up potentially owning, for example, the Nine Network, Fairfax, three-quarters of Foxtel and, of course, the vast bulk of Australia’s telecommunications infrastructure, two-thirds of the entire activity in telecommunications and over 90 per cent of the profits. That would enable a privately owned Telstra to have massive dominance in the formation of public opinion in this country, enormous control over content, enormous market power to the great disadvantage of not only people who have alternative points of view and seek to have differences in public debate but also prospective competitors in both the infrastructure and the content spheres. This legislation opens up that possibility.

If you think it is fanciful, reflect on the fact that, even under its previous management, which was a significantly less aggressive management than the current one, Telstra tried to buy the Nine Network and Fairfax. So those ambitions are there, the pockets are deep, the possibilities are endless and there is every chance—maybe not immediately; maybe not even this year or next year—that, if the legislation does ultimately go through, then, even in the form of a two out of three test, the end result will be a massive concentration of power in a very small number of hands and a massive reduction in the number of voices in our mass media, which is ultimately the overwhelmingly dominant point of intersection between the ordinary citizen and the democratic process.

The reality that we all face as representatives in this House is that, if we are to obtain a mass audience, if we are to get a message across to a large number of people to seek to persuade or influence people to our point of view, it has to go through a relatively small number of media outlets. Although it is true to say that the development of internet and digital technology—notwithstanding the government’s best efforts to retard the shift to digital broadcasting—is slowly eroding the dominance of traditional media like newspapers and television, that is a slow process. The companies that own those media are busily moving into new media like the internet and establishing very powerful positions as well. It is not of much benefit to anybody to say that we will effectively regulate for a world that might be 15 or 20 years away. It is not much of benefit to public debate and democracy in this country to regulate on the basis that we are already at that point, when in fact it could well be 20 or more years away before we literally have the unlimited voices and the enormous diversification that, supposedly, the emergence of the internet and digital broadcasting will provide. Eventually it will happen, but it could be a long way away.

Finally, it is worth noting that the position the Howard government has taken with respect to digital broadcasting is characteristic of its attitude to competition, which is, namely, that competition is a very good theoretical proposition which should be applied to individual workers—especially individual workers who do not have much bargaining power and do not earn much money—in order to drive down their wages and conditions. The government is very strongly in favour of competition for those people. However, the government supports compulsory unionism for wheat farmers. It is very strongly opposed to compulsory unionism for workers, but it is gung-ho in its support for compulsory unionism for wheat farmers through the AWB, notwithstanding that the AWB turned out to be world champion bribers of Saddam Hussein. The government is very strongly in favour of protecting pharmacies from wider competition from companies like Coles Myer and Woolworths. It is very strongly in favour of protecting Qantas from wider competition in areas like the Pacific route, even though that would be of substantial benefit to the Australian tourism industry. And it is very strongly in favour of doing nothing to enhance the degree of competitive pressure on Telstra to ensure that we get serious high-speed broadband in this country, accessible to all Australians.

The broadcasting example is just the most extreme example of how, in practice, this government always goes for the special interest. It always goes for the special interest; it never pursues real competition when big-business mates and special interest groups are in there with their interests to protect. All those people out in the Australian community like plumbers, hairdressers, panelbeaters and accountants, who do not get protection from competition, who do not get special deals, who have to put up with the prospect of somebody setting up shop next door to them and competing with them, should think about the Howard government’s attitude to competition. (Time expired)

Paul Neville (Hinkler, National Party) Share this | Link to this | Hansard source

The Communications Legislation Amendment (Enforcement Powers) Bill 2006 goes to the heart of my concerns about the enforcement of rules that we as legislators lay down for broadcasting content. My concerns in this matter are well known. I hold a fundamental belief that, when an industry is allowed to regulate itself through a code of practice, it has a clear and unambiguous obligation to maintain those standards. I also believe that we have seen too many examples of where this has not happened. The government must give the Australian Communications and Media Authority, ACMA, and the Australian Competition and Consumer Commission, ACCC, the teeth to significantly penalise broadcasters who wantonly flout accepted standards.

ACMA was created last year by amalgamating the Australian Communications Authority and the Australian Broadcasting Authority so that the government could better regulate and administer our rapidly evolving communications sector. Until recent times, the nature of communications technology and infrastructure meant that we could clearly delineate between the responsibilities of the ABA and the ACA. That is no longer the case. When I spoke on the Australian Communications and Media Authority Bill last year, I confessed that I was one of the most strident critics of the old ABA, and I said I wanted to see ACMA have greater focus and rigour in carrying out its responsibilities. So I gave fair warning that I would hold ACMA to high and rigorous standards, but unfortunately I have been somewhat disappointed in that respect.

That is why I welcome the opportunity to speak to this bill. I believe ACMA should have the tools in its armoury to properly enforce standards in both broadcasting and regulation, and I want to see the body use those powers wherever and whenever necessary. This bill does not create new offences; rather, it enhances ACMA’s broadcasting regulatory powers under the BSA by providing ACMA with key new powers in the areas of civil penalties, injunctions, enforceable undertakings and infringement notices. The bill also requires ACMA to develop guidelines relating to the exercise of its broadcasting enforcement powers.

The Broadcasting Services Act spells out very clearly what ACMA’s purpose is. A number of those objectives reinforce the importance of a firm regulatory system for Australia’s media and telecommunications sectors. One of those objectives is:

(b)

to provide a regulatory environment that will facilitate the development of a broadcasting industry in Australia that is efficient, competitive and responsive to audience needs ...

Let me stress that: ‘responsive to audience needs’. This cannot be emphasised strongly enough, and it is something Australian audiences are not afraid to speak out on.

Just one example of the need for ACMA to be given some teeth is the appalling content we saw broadcast on free-to-air television in recent times in the form of Big Brother Uncut. Quite apart from dumbing down national television standards, it was mind numbing in its presentation. It was full of banality and random crudeness; it really scraped the bottom of the barrel when it came to Australian programming. While those programs are flourishing, there are going to be even fewer opportunities for quality programming, let alone for giving jobs to young drama graduates and practitioners of the theatre so they can get a fair slice of the radio and television opportunities that should exist.

I do not resile from the public stance that I and other MPs took on Big Brother Uncut which prompted the Australian Communications and Media Authority to discipline Channel 10 for breaching the Commercial Television Industry Code of Practice. ACMA declared the network in breach of the code for three episodes of the program which had systematically aired coarse language and demeaning and gratuitous sexual activity to titillate its broad audience. Setting aside its promotion of erotic content, I have to say that the episodes I watched were mind-numbingly dull. To my way of thinking, they plumbed the depths of poor standards of broadcasting. It is insulting to Australian viewers to suggest that a semicircle of double beds containing nubile girls and fit and healthy young men in a group situation is reflective of community standards in this country. It is simply a nonsense and it is demeaning of our young population.

A number of episodes were clearly beyond the MA15+ classification. After much hue and cry from the parliament, ACMA found that to be the case in at least three instances. People have a right not to be confronted with free-to-air programming that would otherwise be excluded under normal censorship provisions. I well understand and empathise with the anger of people who have been affronted by this program. When the water cooler topic of the day is whether John and Susie have actually had sex under the doona while other people are in the room, I think the time has come to ask ourselves whether it is not better to switch off the TV or at least switch off those sorts of TV programs. That is a thought which should send shivers down the spines of program developers. Funnily enough, another of the objectives of the Broadcasting Services Act is:

... to promote the role of broadcasting services in developing and reflecting a sense of Australian identity, character and cultural diversity ...

If turkey slapping, constant foul language and unbridled sexual activity are an accurate reflection of the identity and character, much less the culture, of this country, it is very sad indeed for all of us.

One of my suggestions—that Big Brother Uncut be subject to viewing and classification prior to broadcast—was actually adopted by the ACMA in its rulings. As I have previously said, I am no prude. But when people rent videos, go to the movies or buy an X-rated product from the ACT or the Northern Territory, they do so with the clear knowledge of what they are buying and what they are getting.

Australia has a fairly good censorship regime. We have ‘General exhibition’ and ‘Parental guidance recommended’ classifications. We have two levels of M certification, one requiring accompaniment by adults. In addition to that, we have the R classification category. Everyone knows what they are watching and what they can expect to see when they access that type of material. But free-to-air television is a different medium. The public has a right to expect that licensed television stations will maintain the high standards expected of them and work within the guidelines of the code of practice. We are entitled to expect that free-to-air television will maintain high standards because of the very definition of free-to-air content.

As it stands, many breaches of provisions of the Broadcasting Services Act or of the basic licence conditions established by the BSA are subject only to criminal penalty. I think that is a mistake. It has not been possible in those instances to apply civil sanctions to a broadcaster. In those instances, ACMA has to comply with the rigorous process of referring to the Commonwealth Director of Public Prosecutions and then establishing the breach of the criminal standard of proof and demonstrating a broadcaster’s intent to breach the provisions. That makes it a very high bar. This makes it very difficult for ACMA to see penalties imposed for such breaches.

This bill will rectify the situation by establishing civil penalties in relation to a number of breaches of the BSA and licence conditions, thereby giving ACMA the tools to initiate Federal Court action against licensees, with a lower civil standard of proof. The bill will also give ACMA more teeth when it comes to the broadcasting of unlicensed material, via new powers to issue remedial directions. Instead of just issuing a notice to broadcasters airing such content, ACMA will have the power to bring civil or criminal action against licensees which provide unlicensed services or breach licence conditions and certain codes of practice. ACMA will also be granted further powers to seek an order from the Federal Court to prevent unlicensed broadcasting. This is aimed primarily at licensees such as narrowcasters which are outside commercial broadcasting categories.

This bill will also fix an anomaly in relation to the enforcement of voluntary undertakings in the broadcasting, content and datacasting areas. As it stands, ACMA can accept voluntary undertakings in these areas, but they are not enforceable. This is in stark contrast with its powers in the area of telecommunications. Although undertakings in the areas of broadcasting, content and datacasting will remain voluntary, measures contained in the bill will now give ACMA the power to bring Federal Court action for any breaches. As is understandable, ACMA will also be required to consult with the industry to develop guidelines for the appropriate use of enforceable undertakings, infringement notices and civil penalties.

The Television Licence Fees Amendment Bill 2006 has been included for debate with this legislation. It is related to amendments made to the Broadcasting Legislation Amendment (Digital Television) Bill 2006. In a nutshell, it will alter the definition of the term ‘gross earnings’ contained in the Television Licence Fees Act 1964 to reflect the fact that, when commercial broadcasters are able to provide more than one service, their revenue sources—that is, advertising opportunities—will expand correspondingly. As of 1 January next year, commercial broadcasters will be able to provide a non-simulcast high-definition or HDTV service—that is, multichannelling. From 1 January 2009, broadcasters will also be able to provide one standard definition and a number of multichannels from the end of the simulcast period. This is provided for in the Broadcasting Legislation Amendment (Digital Television) Bill 2006.

Under existing legislation, the fees payable by broadcasters are calculated on the basis of the gross earnings of the licensee. Accordingly, this bill amends the definition of ‘gross earnings’ to reflect the fact that commercial television broadcasting licensees will be able to earn revenue from the provision of multiple services. The effect of the bill is that all revenue derived by a commercial television broadcasting licensee from the televising of advertisements or other material on all services provided by that licensee will be included for the purposes of calculating the licence fee.

Moving away from the technical side, this bill is one of several that we are going to consider over the next few days. I have to say I am looking for greater transparency in a number of areas. One thing that I really want to see come out of this process—and it may have to wait until after the Elmi case is resolved—is the development of an associates test or a related entities test to make it absolutely and abundantly clear that one company or proprietor of a media outlet cannot, by way of financial control or program or content control, exercise influence over another broadcaster or another media outlet. I suspect that in an indirect way that is already happening in the market, and it should be stamped out.

We should also have tracing provisions. While we are talking today about these new regulatory and enforcement powers, we should also be looking at tracing provisions, because inherent to a number of the bills that we will consider in the coming weeks is the fact that there will be some limited concentration in the capital city and regional media markets. I think that fact carries with it an added weight of responsibility for the broadcasters and the newspaper proprietors. That goes not only to having an associates or related entities test but also to having a tracing test. The public are entitled to know, especially when media is concentrated beyond the levels we have accepted over recent years, where we are going in the future. They have a right to know who exactly owns and runs that company—who controls it. The tracing provisions should go to the provision of financing. They should go to things like financial instruments. They should go to things like shares. They should go to debt structuring and the like. At any time, any Australian citizen should be able to know who owns any media entity in their particular market. I think the combination of those two things will lead us to much higher levels of probity.

Television and radio in particular—the electronic media—are very important parts of our daily life. They have an immense capacity to influence public opinion. For nine years I have closely monitored how the media in this country works. I have stood my ground on many occasions, and I will do no less with the current bills, which we will consider over the coming weeks. We should not be too sanguine or passive about the idea of the fourth estate. It is not just some amorphous concept. It is real. It is tangible. It guarantees our freedom of expression. When you bring it down to a country or regional and rural level, it is the way of expressing the hopes, the expectations, the character, the culture and the community of the regions that those radio stations, television stations in particular and, to a lesser extent, daily newspapers serve.

I welcome this raft of measures. As I said before, after the Elmi case we still have some distance to go. There is also a good case, I think, for strengthening the power of the ACCC in relation to the media. The ACCC does a marvellous job and I have immense respect for Graeme Samuel, but I would like to see it hand in hand with what I have spoken about today. I would like to see the increase in the power to enforce that will be given to ACMA extended by some amendment to the ACCC, giving it a wider focus on the field of the media. I think this is one of a number of good measures that we are going to see in the near future, and I commend the bill to the House.

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

Peter Lindsay (Herbert, Liberal Party) Share this | Link to this | Hansard source

I am sorry, member for Lowe; I would like to allow you to continue, but standing orders do not allow me to.

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

Someone could move for an extension of time.

Ian Causley (Page, Deputy-Speaker) Share this | Link to this | Hansard source

The honourable member does not have the call.

Greg Hunt (Flinders, Liberal Party, Parliamentary Secretary to the Minister for the Environment and Heritage) Share this | Link to this | Hansard source

In presenting the case for the government on the Communications Legislation Amendment (Enforcement Powers) Bill 2006 and the Television Licence Fees Amendment Bill 2006, I want to start with a contextual point and then deal with, firstly, the comments from those on both sides of the House; secondly, some of the specific provisions of the enforcement powers bill; and, thirdly, the Television Licence Fees Amendment Bill.

Firstly, I want to put the legislation in the context of technological development. These bills come about for a very clear reason. They come about because of an evolution in technology. The world that was in place two decades ago, even a decade ago, is evolving rapidly. Against that background, Senator Coonan, the Minister for Communications, Information Technology and the Arts, has set out to revolutionise the marketplace for media and communications. These bills are within that context. In particular Minister Coonan is helping to establish a regime which will allow Australia over the next 20 years to maximise the opportunities for new content, for ordinary consumers throughout Australia to have access to as wide an array of content and as many options as possible, through the creation of digital TV and the supporting services that provide it. In addition, this is about ensuring that there is adequate protection for the consumers, for the viewers and for the general population against any abuse of market power or of the broadcasting regime.

Let me turn now to the comments of those who have spoken. I thank all five members who have contributed to the debate today. I want to deal firstly with the point raised by the member for Oxley. He made a passing reference to the fact that this legislation was overdue. We make no apology for the fact that we were utterly comprehensive in our consultations with the community. We began with the Ramsay report recommendations of 2004 and went on to the discussion paper in November 2005. There was the establishment, along the way, of ACMA, and now we have this legislation in 2006.

The honourable member for O’Connor made some powerful points about the need and the capacity to link what we are doing with the social subject matter of much of television—in particular, sports—and the fact that this legislation or subsequent legislation could become a vehicle for ensuring that there is compliance on drug testing. Whether or not this is the appropriate vehicle, his substantive point is powerful. There should be no soft options in this community and over the coming 20 years for our major sporting bodies in Australia to avoid drug testing and drug detection.

The member for Melbourne set out a case which was allegedly pro competition in theory but unreservedly afraid of the market in practice. He diverted largely from much of the substance of these two bills but focused very much on the general notion of competition in broadcasting. I reject absolutely the fundamental principle that the government’s direction is anticompetitive. What we are doing is precisely what he in theory seeks to achieve—and that is to allow the market to provide as many options as possible. What we are seeking to do is to remove restrictions. That is the broad general direction which the minister for communications and the Prime Minister are taking in pursuing our suite of communications reforms. These two bills fit within that context because they would provide hard enforcement mechanisms if there were any attempts to misuse that position, whether direct, intentional or even negligent. We are putting forward a new regime to protect the public, and we do that without apology to anybody and with recognition that the complaints made by the member for Melbourne are absolutely and utterly unfounded.

We also heard from the member for Hinkler. He set out a position which I think is very important. He is concerned about standards in the Australian community as is the member for O’Connor. His view is that we have to be ever vigilant of abuse of the public’s capacity to watch in confidence without knowing what may befall young Australians under the age of 16 if there is not adequate warning of what is about to be seen. Again, his points about protecting public sensibility and morality are strong and powerful and are consistent with a view he has taken over many years.

The final member to speak, the member for Lowe, set out a position effectively against the general population having a full right of access to as many different sporting events as possible. There was an implicit endorsement of siphoning. It was a position which I found quite extraordinary. What he was effectively saying was, ‘Let’s walk away from the antisiphoning provisions which we have set in place to protect the broad population against the loss of events and icons which are essentially of national importance and national significance.’ I thank all of the speakers, but I respectfully make those answers in response.

In relation to the two different bills, the first thing I want to do is to look at the Communications Legislation Amendment (Enforcement Powers) Bill 2006. To sum up the government’s position, this bill reforms the Australian Communications and Media Authority’s regulatory powers in order to strengthen its capacity to effectively regulate the broadcasting industry. Essentially it fills a gap, because at present ACMA only has at its disposal the options to impose criminal penalties or to cancel or suspend licences. It lacks appropriate responses where incidents are minor or are one-off events. Against that background, this bill seeks to set out an appropriate regime which allows for the graduation of enforcement powers. I think that that is a sensible, moderate and reasonable step which responds to the new regime.

The second of the two bills in this cognate debate is the Television Licence Fees Amendment Bill 2006. This bill relates to the amendments to be made in the Broadcasting Legislation Amendment (Digital Television) Bill 2006, the digital TV bill. That provides a commercial television broadcasting licence which will hereafter authorise the provision of more than one service—or channel, if you prefer—from 1 January 2007. The key thing here is that it allows for the bundling or grossing-up of fees across an entire entity. The bill amends the definition of ‘gross earnings’ to reflect the fact that commercial television broadcasting licences will be able to earn revenue from the provision of multiple services. It recognises the reality of how these services operate. Taken together, these two bills represent an evolution in the broad package of protections in relation to communications legislation and television licence fees. They represent a recognition of the role to be played by digital television and, hopefully, will assist that process and help more Australians to see digital television. For those reasons I am delighted to commend both bills to the House. I thank the minister for communications, Senator Helen Coonan, and all of those officers and staff who have worked with her on creating this package of legislation.

Question agreed to.

Bill read a second time.

Message from the Governor-General recommending appropriation announced.