Bernie Ripoll (Oxley, Australian Labor Party, Shadow Parliamentary Secretary for Industry, Infrastructure and Industrial Relations) Share 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.

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