Julian McGauran (Victoria, National Party) Share this | Link to this | Hansard source

Following the receipt of satisfactory responses, at the request of the Chair of the Standing Committee on Regulations and Ordinances, Senator Watson, and pursuant to standing order 78, I give notice of Senator Watson’s intention, at the giving of notices on the next day of sitting, to withdraw business of the Senate notice of motion No. 1 standing in Senator Watson’s name for four sitting days after today for the disallowance of the Broadcasting Services (International Broadcasting) Guidelines 2005. I seek leave to incorporate in Hansard the committee’s correspondence concerning these guidelines.

Leave granted.

The correspondence read as follows—

Broadcasting Services (International Broadcasting) Guidelines 2005

8 December 2005

Senator the Hon Helen Coonan

Minister for Communications, Information

Technology and the Arts

Suite MG.70

Parliament House

CANBERRA ACT 2600

Dear Minister

I refer to the Broadcasting Services (International Broadcasting) Guidelines 2005. These Guidelines remake the previous Guidelines with amendments made necessary by the replacement of the Australian Broadcasting Authority with the Australian Communications and Media Authority. Notwithstanding the fact that the Guidelines are the same in substance as the previous Guidelines, the Committee raises the following matters with regard to this instrument.

As a general comment, there are several clauses in these Guidelines which permit programs to be broadcast where, for example, the matter is in the public interest, is presented reasonably, or is for an academic, artistic or scientific purpose. It is not clear how such matters are to be decided where there is a dispute or complaint, and what criteria will be used in deciding whether, for example, a broadcast has been ‘presented reasonably’. Further, it is not clear what consequences follow for a broadcaster if a program is found to have breached these guidelines.

The Committee also notes that subclause 2.2(3) permits the making of a program that seriously offends a cultural sensitivity, incites hatred, or vilifies persons on certain grounds, if the matter is ‘a fair report’ or ‘a comment’. The Committee seeks your advice on whether the second term should be amended to read ‘a fair comment’.

The Committee would appreciate your advice on the above matters as soon as possible, but before 30 January 2006, to enable it to finalise its consideration of these Guidelines. Correspondence should be directed to the Chairman, Senate Standing Committee on Regulations and Ordinances, Room SG49, Parliament House, Canberra.

Yours sincerely

John Watson

Chairman

26 February 2006

Senator John Watson

Chairman

Standing Committee on Regulations and Ordinances

PARLIAMENT HOUSE

CANBERRA ACT 2600

Dear Senator Watson

International Broadcasting Guidelines

Thank you for your letter of 8 December 2005 concerning the making of the Broadcasting Services (International Broadcasting) Guidelines 2005.

I note that there were no substantive changes to the previous Guidelines and that the amendments reflected the merging of the Australian Broadcasting Authority (ABA) and the Australian Communications Authority (ACA) to form the Australian Communications and Media Authority (ACMA).

As ACMA has responsibility for the administration of these Guidelines, I sought its advice in relation to the matters raised by the Committee.

Determining compliance with the Guidelines

ACMA has advised that the provisions similar to those identified in your letter appear in most of the Codes of Practices developed by the various industry groups in the broadcasting sectors and included by ACMA in its register under s.123(4) of the Broadcasting Services Act 1992 (the Act) [eg. the Commercial Television Industry Code of Practice developed by Free TV Australia.] Judgments about whether material is in the public interest, etc. are routinely made by licensees in their everyday operations, particularly in the context of news and current affairs programming. Such judgments are required not only in relation to code of practice matters, but also in relation to general law issues such as defamation.

In other broadcasting sectors such judgments in the context of codes of practice are subject to complaint and review by ACMA, and ACMA may find that a particular broadcast, claimed by a licensee to be in the public interest, was not in the public interest. Under the Act, ACMA is the arbiter of such questions in relation to those services, and has established procedures for its investigations into such matters in the light of the principles of administrative law. The licensee might thus be found not to have complied with the relevant Code of Practice in broadcasting the particular material.

However, ACMA is precluded by the Act [s.121FR] from dealing with complaints about international broadcasting services: its role in relation to such services is very different to the role it has in relation to other broadcasting services. ACMA considers compliance with the Guidelines in two situations only: after receipt of an application for an International Broadcasting Licence (IBL) [s.121FB], and following a request from the Minister for Foreign Affairs [s.121FM]. In each of these situations, ACMA is required to provide a report to the Minister for Foreign Affairs as to whether the service complies with the Guidelines. The application form approved by ACMA requires each applicant to provide ACMA with a written commitment to abide by the Guidelines (in the form of a statutory declaration) with its application for an IBL. The Guidelines describe how the making of, or failure to make, that commitment in the application will be treated, in Part 13.

Failure to comply with the Guidelines

ACMA has also advised that while s.121FP of the Act requires ACMA to formulate guidelines for international broadcasting services, there is in the Act no obligation on licensees to operate in accordance with the Guidelines. ACMA does report to the Minister for Foreign Affairs on a proposed service’s compliance with the Guidelines after an application is received [ss.121FB(1)(d) and 121FB(5)(d)], and may also report to the Minister on this matter at any other time, at the Minister’s request [s.121FM]. Such reports may be taken into account by the Minister in making decisions and giving directions to ACMA [ss.121FD, 121FL]. The Minister’s focus in making such decisions, however, is on the national interest, and it is explicit that the Guidelines need not be confined to that matter [s.121FP(2)].

There may well be provisions in the Guidelines, therefore, which do not relate to the national interest and, while ACMA may include comment on compliance with such provisions in its report to the Minister for Foreign Affairs, the Minister is required by the Act to focus on Australia’s national interest in directing ACMA to act in relation to an IBL.

The Minister for Foreign Affairs’ power under s.121FL to direct ACMA to formally warn a licensee, or to suspend or cancel an IBL, is also based on the Minister’s view that the service is contrary to the national interest. As in the case of other broadcasting licensees, there are ‘suitability’ provisions relating to IBL licensees. At the time of receipt of an application for an IBL, ACMA may form a view about the applicant’s ‘suitability’. [In the language of the Act, ACMA would decide that s.121FC applied to the applicant.] A negative view of the applicant would prevent referral of an application to the Minister for Foreign Affairs [ss.121FB(1) and (5)], and the application could then go no further. ACMA would be required to refuse to allocate an IBL [ss. 121FB(2) and (6)].

‘Comment’ or fair comment’?

ACMA has advised that it appears that the terms of clause 2.2 of the Guidelines are a paraphrasing of some of the words of clauses 1.8 and 1.9 of the Commercial Television Industry Code of Practice (the Code). Subclause 2.2(3) of the Guidelines appears to be based on clause 1.9.3 of the Code. However, that in relation to comment, it is noted that the Code uses the phrase ‘a fair comment’, while the Guidelines refer merely to ‘a comment’.

ACMA has advised that it is not aware of the ABA’s intention regarding the original

Guidelines drafted in 2000. ACMA has also advised that the omission of the qualification ‘fair’ in relation to comment could have been either accidental and the intention in drafting the Guidelines was to reproduce the effect of the Code or that it may have been a conscious decision to create a different rule for the Guidelines with an eye to the promotion of free speech ie. provided it is clear that what is being broadcast is a comment, fairness is not an issue. This is in contrast to the intent of subclause 2.2(3)(a) of the Guidelines where it is important that a report of ‘an event or matter of public interest’ is fair.

I trust this information addresses the Committee’s queries about the Guidelines. The contact officer in the Department of Communications, Information Technology and the Arts on these matters is Gordon Neil, General Manager, Licensed Broadcasting. He can be contacted on 02 6271 1712.

Yours sincerely

Helen Coonan

Minister for Communications, Information Technology and the Arts

2 March 2006

Senator the Hon Helen Coonan

Minister for Communications, Information

Technology and the Arts

Suite MG.70

Parliament House

CANBERRA ACT 2600

Dear Minister

Thank you for your letter of 26 February 2006 responding to the Committee’s concerns in relation to the Broadcasting Services (International Broadcasting) Guidelines 2005.

In your letter you point out that the Australian Communications and Media Authority (ACMA) advised that it is not aware of the Australian Broadcasting Authority’s intention regarding the original drafting of the Guidelines in 2000 and that the omission of ‘fair’ in relation to comment was either accidental or deliberate. If it is accidental, then the Committee is not sure if your argument is that it produced a result that is desirable or simply that no-one is certain why this term has been used. In light of this advice, the Committee seeks clarification of the position of clause 2.2. Is it your intention to maintain a different rule for the Guidelines or will the clause be amended to bring it into conformity with the Commercial Television Industry Code of Practice?

The Committee would appreciate your clarification on the standing of this clause as soon as possible, but before 24 March 2006, to enable it to finalise its consideration of these Guidelines. Correspondence should be directed to the Chairman, Senate Standing Committee on Regulations and Ordinances, Room SG49, Parliament House, Canberra.

Yours sincerely

John Watson

Chairman

20 May 2006

Senator John Watson

Chairman

Standing Committee on Regulations and Ordinances

PARLIAMENT HOUSE

CANBERRA ACT 2600

Dear Senator Watson

International Broadcasting Guidelines

Thank you for your letter of 2 March 2006, requesting further clarification to address the concerns of the Standing Committee on Regulations and Ordinances in relation to the drafting of the Broadcasting Services (International Broadcasting) Guidelines 2005 (the Guidelines).

In my earlier letter dated 26 February 2006, I noted that I had received advice from the Australian Communications and Media Authority (ACMA) in relation to the omission of the term ‘fair’ from clause 2.2 of the Guidelines dealing with matters causing offence or hatred. As you are aware, this clause paraphrases the wording of clauses 1.8 and 1.9 of the Commercial Television Industry Code of Practice (the Code). ACMA advised that this omission could have been either accidental and the intention in drafting the Guidelines was to reproduce the effect of the Code, or that it may have been a conscious decision to create a different rule for the Guidelines with an eye to the promotion of free speech.

After further consultation, I have been advised that ACMA proposes to retain the wording in the instrument at present. ACMA notes that following reforms to Australian defamation law by the Commonwealth, States and Territories on 1 January 2006, the defence of ‘fair comment’ is now redundant and has been replaced with a defence of ‘honest opinion’. Whilst defamation law is not directly relevant to broadcasting standards, it remains an important consideration when developing industry codes of practice as a means of ensuring consistency and certainty in defining the appropriate balance between freedom of speech and unacceptable content.

I note that the Commercial Television Industry Code of Practice will be subject to a full review in 2007, which will include consideration of the ‘fair comment’ defence to the broadcasting of proscribed material. Changes to defamation law will be considered in the context of this review process, and ACMA intends to reconsider the wording of clause 2.2 of the International Broadcasting Guidelines in light of this review next year.

I trust this information addresses the concerns of the Committee.

Yours sincerely

Helen Coonan

Minister for Communications, Information Technology and the Arts