Paul Neville (Hinkler, National Party) Share 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.

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