Malcolm Turnbull (Wentworth, Liberal Party, Shadow Minister for Communications and Broadband) Share this | Link to this | Hansard source

by leave—I move opposition amendments (1) to (10) together:

(1) Schedule 1, item 2, page 7 (after line 23), at the end of section 130ZL, add:

(3) For the purposes of the application of this Part to programs transmitted on or after 1 July 2014, if a captioned program begins before midnight and ends on the next day, the part of the program broadcast after midnight is taken to have been broadcast during designated viewing hours.

(2) Schedule 1, item 2, page 8 (after line 7), after subsection 130ZN, insert:

130ZNA This Part does not apply to programming supplied by an international pass-through provider

(1) This Part does not apply to a subscription television service that consists wholly or primarily of programming provided by an international pass-through provider.

(2) An international pass-through provider, in relation to a subscription television service provided by a licensee, is a person who makes available a channel or service to that licensee where that channel or service has been compiled and played out at a location outside of Australia.

(3) Schedule 1, item 2, page 27 (after line 8), at the end of section 130ZUB, add:

(3) If:

  (a) apart from this subsection, a commercial television broadcasting licensee or national broadcaster has breached a provision of this Division; and

  (b) in doing so, has acted honestly and reasonably and, having regard to all the circumstances of the case, ought fairly to be excused;

then the breach is to be disregarded in determining whether the licensee or broadcaster has complied with the provision.

(4) Schedule 1, item 2, page 43 (line 35), before "If", insert "(1)".

(5) Schedule 1, item 2, page 44 (after line 8), at the end of section 130ZZAB, add:

(2) If:

  (a) apart from this subsection, a subscription television licensee has breached a provision of this Division; and

  (b) in doing so, has acted honestly and reasonably and, having regard to all the circumstances of the case, ought fairly to be excused;

then the breach is to be disregarded in determining whether the licensee has complied with the provision.

(6) Schedule 1, item 2, page 46 (line 30), omit ", 4".

(7) Schedule 1, item 2, page 47 (line 6), omit ", 4".

(8) Schedule 1, item 2, page 47 (line 15), omit ", 4".

(9) Schedule 1, item 2, page 49 (line 13), omit ", 4".

(10) Schedule 1, item 2, page 49 (line 17), omit ", 4".

Providing access to services for people with disabilities is one of the most important things government can do. As I said earlier in the second reading debate, we are totally committed to the object of this legislation. Having said that, getting the balance right is vital and we do not think the balance is quite right here.

This bill amends the Broadcasting Services Act 1992 and introduces new legislative requirements, and in some places increases existing requirements for the provision of captioning services for commercial, national and subscription television broadcasters. The bill also introduces new obligations on broadcasters to transmit emergency warnings in the form of text and speech, and caption where reasonably practicable.

While the broadcasters do not seek to shy away from their commitment to providing captioning services, nonetheless they have expressed concern that the increase in captioning obligations is, in certain respects, overly burdensome. The cost of captioning is substantial—$750 an hour or more—and these costs increase significantly for live captioning of programs such as sport and news.

Turning to the amendments, item 1 amends schedule 1, section 130ZL of the bill and adds a clause to allow that where a captioned program begins before midnight and ends the next day, the part of the program that is broadcast after midnight is taken to have been broadcast during designated viewing hours. Currently the bill does not allow broadcasters to include the captioning of the part of the program that finishes after midnight towards their target. Given the cost and difficulty in captioning programs, this amendment gives broadcasters a greater incentive to caption the whole of a program or sporting event that runs past midnight. It stands to reason that we should not have the law as proposed in the government's bill, which would mean that if a sporting event or some other programming was part-heard or part-viewed at midnight, the broadcaster would simply stop captioning it. There would be no point in captioning it after midnight if it does not go to help them achieve their target. This is a perfectly sensible, practical amendment, and I commend it to the House.

Item 2 amends section 130ZN by inserting an exemption for international pass-through providers. My colleague, the member for Cowper, spoke about this. Briefly, under the bill international news channels, including BBC World News, CNN International, Al Jazeera, Bloomberg, CNBC, Eurosport and Euronews, would become subject to new mandatory captioning requirements. In June 2004, the members of the Australian Subscription Television and Radio Association Inc., ASTRA, made an agreement with the Human Rights Commission to provide captioning on subscription channels with annual increases of the amount of captioning programming of up to five per cent year on year. Under this agreement these international pass-throughs, as honourable members can see from the amendment, are defined as a service that has been compiled and played out at a location outside of Australia—for example, BBC World News is played out of London.

At the moment, if these services are required to be captioned—which is the intention of the bill—it will add such a substantial cost to the subscription television service in Australia that we are advised that a number of these channels will simply no longer be able to be broadcast. That would be a lose-lose situation—that is, the service would not be captioned and the community that is not hearing impaired will be deprived of the channels altogether. So consistent with the previous agreement with the Human Rights Commission, and, we would say, consistent with common sense, these channels should be exempt from the captioning obligations on the basis that, in practical terms, the cost of doing so is unduly burdensome. It has been put to us by the government that these channels would be able to apply for an exemption or a target reduction order under the bill. That is certainly true, but to do so annually for each channel imposes, in our submission, an onerous burden on the providers. It also confers yet more authority and discretion on the minister. There is a Conroybian tendency that we have seen in a lot of legislation from this minister to confer—

Mr Albanese interjecting—

The Conroybian tendency is to grant more and more (Extension of time granted) discretion to the Minister for Broadband, Communications and the Digital Economy. We do not think that is good practice and, with no disrespect to the particular minister, the Conroybian tendency should be resisted. In this case, the best way to resist it is, rather than the government saying to the subscription television services, 'Trust us; we will give you an exemption,' to just exempt those international pass-through channels now in the legislation. If at some point in the future technology becomes available so that it is financially feasible to caption them in Australia then the parliament can change the law.

Amendments (3) to (5) amend clause 130ZUB. They enable certain breaches of the captioning requirements to be disregarded. Broadcasters, both subscription and free-to-air, are legitimately concerned with the current provisions in the bill under which they will be found in breach of their licence conditions if they are unable to provide a captioning service for reasons beyond their control, such as failure by a third party captioning provider to provide the service for reasons unforeseen by the broadcasters. These amendments would amend the new part 9D of the bill by inserting a new subparagraph (d) in the proposed 130ZUB, subsection (1).

The amendment is consistent with both the Competition and Consumer Act 2010 and section 226 of the Australian Consumer Law. The Competition and Consumer Act recognises that civil penalty provisions can apply in circumstances where a party is not at fault and provides a defence in relevant circumstances. The Consumer Law also provides that a defence to an action for recovery of a civil penalty applies where the person acted honestly and reasonably and, having regard to all the circumstances of the case, ought fairly to be excused. So in this case what we are proposing is language which would enable ACMA to disregard a breach in circumstances where it has found that the licensee has acted honestly and reasonably and, having regard to all the circumstances of the case, ought fairly to be excused. It is a practical amendment and it is consistent with the provisions in the Competition and Consumer Act.

I will deal briefly with the final amendments, which are (6) to (10). They address the very burdensome reporting requirements that all broadcasters will be subject to as a result of the bill. Currently they report on their captioning targets. However, the bill introduces new captioning quality standards to be determined by the ACMA which broadcasters are concerned will require them to keep very detailed records of each program captioned. There is no value in imposing these additional reporting requirements, and obviously they add cost. We are opposed to additional red tape and regulation where it adds no value.

What we propose is to delete those provisions. This would mean that the broadcasters would continue to report on their targets and, of course, they would continue to have the obligation of managing their complaints system—in other words, if they do not provide the captioning required, there will be no shortage of complaints to which they will have to respond and to demonstrate that they have responded. Amendments (6) to (10) are a straightforward means of reducing unnecessary red tape and regulation with absolutely no loss to the overall policy objective. I commend the amendments to the House.

Anthony Albanese (Grayndler, Australian Labor Party, Leader of the House) Share this | Link to this | Hansard source

The government will not be supporting these amendments. The disability commission and disability groups are supportive of the bill as proposed and are seeking its immediate passage. They strongly oppose these amendments, which would weaken the bill.

Question negatived.

Bill agreed to.