Tuesday, 2 September 2008
Families, Housing, Community Services and Indigenous Affairs and Other Legislation Amendment (Emergency Response Consolidation) Bill 2008
Consideration in Detail
Bill—by leave—taken as a whole.
by leave—I move amendments (1) to (7) as circulated in my name.
- Schedule 1, item 3, clause 204 (at the end of the table), page 3, (lines 9-11), omit the item.
- Schedule 1, item 10, clause 12, page 5 (line 7) to page 7, line 20, omit the clause, substitute “12 Condition applicable to certain subscription television narrowcasting services provided in the Northern Territory under class licences
- Schedule 1, item 10, subclause 12(17), page 7, (line 20), after the subclause insert “12A Racial Discrimination Act
(4) Schedule 1, item 13, page 8 (lines 23 to 25), omit the item.
(5) Schedule 1, item 16, page 9 (line 5) to page 12 (line 10), omit the item.
(6) Schedule 2, page 13 (line 2) to page 14 (line 22), omit the Schedule.
(7) Schedule 3, page 15 (line 2) to page 16 (line 7), omit the Schedule.
It is important that these amendments be considered and passed by the House because, unless they are passed by the House, the intervention—which the government quite properly supports—will be rendered somewhat less effective. As I am sure that the minister appreciates, one of the problems in the remote Northern Territory towns is the impact of pay TV porn, which is now readily available. The intervention originally proposed that pay TV porn simply be banned. Under the legislation, as put into the parliament by the government, that pay TV porn ban will be significantly watered down. Under the government’s legislation, there will only be a ban on pay TV porn if the town in question, the community in question, actually asks for it.
If a community is as troubled as many of these communities are, if people are as used to pay TV porn as it seems some are in these places, it is simply unrealistic to expect the communities to ask for this ban. Unless the amendments that I have just moved are passed, pay TV porn will continue to be available and it will continue to have the horrible impact that was pointed out by the Little children are sacred report. So these are important amendments. They do restore the intervention to its original form. They will mean that the pay TV porn ban, as proposed by the Howard government, is maintained. They will also ensure that the permit system, which allowed so many horrors to thrive in secret, is dumped, as originally announced by the Howard government.
I am disappointed that the Rudd government is making these changes, very disappointed, although I applaud the Rudd government’s maintenance of most of the intervention. The changes proposed by this bill in these respects do significantly water it down, and I think the Australian public would be disappointed with the new government if they were more aware of precisely what is happening here. I note that, in a pamphlet which the Prime Minister himself put out to mark the first 100 days of the Rudd government, he boasted that the new government had banned pornography in Northern Territory communities. Well, it has not banned pornography in Northern Territory communities. In fact, it is going to allow pay TV porn to continue to be broadcast in Northern Territory communities. It is rendering the original ban on pay TV porn ineffective.
I do not want people to think that the Prime Minister of this country might be a liar. The only way to make the Prime Minister of this country an honest man in respect of the claim that he made in that pamphlet after 100 days is to pass these amendments. We in the opposition are trying to help the government; we are trying to help the Prime Minister to live up to his claims. We cannot make the Prime Minister a good speaker in question time; we cannot make him a good manager of the economy; but we can, at least in this respect, make him an honest man, and that is why these amendments should be passed.
Mr Deputy Speaker, may I have your indulgence for just a moment before I sit down. As you may know, I have just spent three weeks in Far North Queensland working as a teacher’s aide in the Coen State School. I want to thank the Coen community for making me so welcome. I want to particularly thank the teachers and staff of the Coen State School for their help and encouragement. I certainly hope that a better policy generally emerges as a result of the engagement I have just had. Certainly, I now have an infinitely better appreciation of the vocation of teaching and of the heroism of people who teach for years in challenging and difficult locations. I salute them and I think it is appropriate that their work be noted in the national parliament.
The government will not be supporting the amendments that the member for Warringah has just moved to the Families, Housing, Community Services and Indigenous Affairs and Other Legislation Amendment (Emergency Response Consolidation) Bill 2008. I will outline why. I think it is very important in this very sensitive area that we go through this in a very careful way and that we do not misrepresent what is actually happening. The previous government put in place programs through the original legislation that introduced the intervention that, to some extent, restricted access to pornography. When we were in opposition, we supported those proposals. Then the previous government introduced further legislation in September last year to introduce additional measures. It is very important to recognise that there are two different parts to the control of access to pornography. We are not seeking through this bill to go back on anything that went through the parliament in the original intervention legislation. It is important that the opposition recognise that. The opposition in fact were aware that the measures that they put into a bill in the parliament here in September last year were unworkable. They were also aware that amendments were being developed by officials at the time. So I think it is very important that we take away the rhetoric and actually recognise that we all want to have workable legislation in this area to restrict access to pornography.
Our bill—without the amendments moved by the opposition—will actually implement practical measures to extend the ban on X-rated, 18+ and unrated material in prescribed areas to include pay TV channels with a substantial R18+ content. The problem seems to be that the opposition do not want consultation or involvement to take place, with some suggestion that consultation in some way can rule out—
No, this is a very important issue. This is critical, I would say to the member for Warringah. If, after consultation, it is my view as the minister that these restrictions should be in place, it is not the case that I cannot implement them, no matter the view that is held in the community. If it is my view, following consultation, that it is in the interests of the community that this ban go ahead, then it will. I think it is critical that this is properly understood and that we do not have any misrepresentation of what is being proposed, because I think we are all trying to find a solution to a very difficult issue.
This was not raised by the member for Warringah, but I gather that in the earlier debate on the bill it was suggested that we should consider issues other than just pay TV. That may be so, and it may be useful for the parliament to further consider access to pornography that is delivered by DVD or some other method, but I do think that it should be recognised that this bill is going to further restrict access to R18+ programs through pay television, which was a concern raised, especially by women, during the Little children are sacred consultations. Even though the bill does not deal with every way in which pornography currently may be accessed in these communities, it is another step in the right direction. It is just not correct to say that it is going back on legislated items that the previous government introduced.
The member for Warringah also did not mention that opposition amendment (6) deals with the question of transport of prohibited X-rated and 18+ material. (Extension of time granted) I am not clear on why the opposition opposes this measure, because the way in which it has been constructed in fact mirrors the legislation that the previous government put in place for the transport of alcohol through the main highways of the Northern Territory, where those highways might have to go through prescribed areas. I remind members that if alcohol or, in this case, pornographic material were taken into prescribed communities it plainly would be against the law. The purpose of the amendment we want to make with our bill is just to enable this material to be transported along the highway in the same way that alcohol is under similar rules made by the previous government. It is no more and no less than the legislation which applies for alcohol.
On opposition amendment (7), access to Aboriginal land, we do not agree with the amendment as proposed by the opposition. They would be aware that their position is not supported by those who have the responsibility to make sure that the law is enforced in prescribed Aboriginal communities in the Northern Territory. Once again, I draw the attention of the House, and particularly the attention of the member for Warringah, to the submission made by the Northern Territory Police Association and the Police Federation of Australia to the Senate inquiry into the Northern Territory National Emergency Response Bill 2007. I quote from the letter from Mark Burgess, the Chief Executive Officer of the Police Federation of Australia, to the secretary of the Senate Standing Committee on Legal and Constitutional Affairs. He said:
Operational police on the ground in the Northern Territory believe that the permit system is a useful tool in policing the communities, particularly in policing alcohol and drug-related crime.
He went on to say:
It would be most unfortunate if by opening up the permit system in the larger public townships and the connecting road corridors as the Government intends—
that is, the previous government—
law enforcement efforts to address the ‘rivers of grog’—
as described in the Little children are sacred report—
the distribution of pornography—
critical to the bill that we are talking about—
and the drug running and petrol sniffing were made more difficult.
I think it would be wise for the opposition to take notice of the police. The police are the people who are actually responsible for dealing with unauthorised access to pornography, alcohol and other drugs, and the police take the view that the permit system can help in dealing with these very difficult issues by keeping the grog runners and other criminals out. They say it is a useful tool, and I think, as with all of the measures in this area, it is critical that we not be ideological; rather, that we take the advice of those who have responsibility for dealing with these very substantial social problems.
I do not wish to long detain the House on this matter and I am not going to do what some members did in the recent MPI debate and impugn the motives of people on the other side of the parliament. I accept that the minister is doing her best. She is in a difficult position. That is why you are a minister, I suppose—to deal with difficult issues. But I do wish to make some further observations in response to her contribution.
Sure, the Howard government’s legislation on this matter did not fully proceed through the parliament. That is absolutely right. But the Howard government’s legislation on this matter was to implement the announced intention of the intervention—expressed very forcefully by the then government and supported, we thought, by the then opposition, now the government—to totally ban pornography in these communities. To make that ban real and effective, we proposed the legislation and put it to the parliament; the election intervened and it did not go through. But let’s not have word games here. The intervention is about a full and complete ban on pornography in these remote Northern Territory towns, and that is what the amendments that I moved seek to do.
If I may just briefly respond to the minister: how can it be in the interests of these remote communities to continue to have access to pay TV porn? What remote beneficial purpose does it serve these communities ravaged by domestic violence and, tragically, child abuse to continue to have access to sexually explicit, degrading material? It can serve no conceivable beneficial interest of these communities to continue to have access to this material. What circumstances might the minister come across that could possibly justify the continued access of people in these places to this material? She says that, in the end, it is her decision, but she is going to find that either it is acceptable or it is not. I challenge her to say when it might be acceptable to continue to have access to pay TV porn in these places. And if she does not think it is ever going to be acceptable to have access to pay TV porn in these places, surely the consultation exercise is just a charade. I think an honest government would simply ban the stuff, if that were its intention. It would not go through a sham consultation exercise, which is what I suspect the minister is hinting at.
The minister made the point in her contribution a moment ago that the Police Association wants the permit system to stay. I would take the Police Association more seriously on this matter if the Northern Territory police had done a better job in keeping the booze, the pornography and the violence out of these places. I know individual police have done the best they could under difficult circumstances, but there has been a complete, utter and total failure of policing in these places for years. One of the reasons it has gone on for years is that it has not been written about. It has been hidden from the Australian public by these permits. That is why the permits should go—not because we want all sorts of undesirable people to be flooding into these places but because if they do flood in we want to know about it. And the only way we are going to know about it is if we can visit and if journalists have complete access to these places, as they properly do to everywhere else in a liberal, free and open society. I commend these amendments to the House and, having heard the debate, I think we had better divide on it.
I do have to correct the member for Warringah again, because the legislation that the previous government had in place was not about a complete ban on pornography. He may have wished it to be, but it was not. It was about pay television; it was not about DVDs. I think he should hold back a little bit on the rhetoric. I would also say to him that one thing is for sure, particularly in Indigenous affairs: talking helps. I do think that the majority of people around Australia, no matter what their walk of life, would recognise that if you sit down and talk with people then you generally get a better result.
On the issue of the failure of policing in the Northern Territory, I think that is an extraordinary statement on the part of the member for Warringah. The police in the Northern Territory do an extraordinary job in very difficult circumstances and, of course, have access to communities. I would say that the biggest problem in the Northern Territory has been the lack of police in many communities. I think one of the very positive results from the intervention has been the increased number of police, from the states and also from the AFP. If there is one area that I think we probably agree on very strongly, it is the need to continue to increase the number of police in communities that very much need it. The police take the view that the permit system is helpful. We do need to increase the number of police. They do not have problems with access, and I think it is critical in this area of pornography that we actually make it plain that we are attempting to extend the legislation that was previously agreed to by the last parliament to further deal with pornography in communities. It would be helpful if we could get the support of the opposition.
That the amendments (Mr Abbott’s) be agreed to.
by leave—I present a supplementary memorandum and move government amendments (1) to (25):
(1) Schedule 1, item 3, page 3 (after the table item relating to a declaration that a subscription television narrowcasting service is a declared subscription television narrowcasting service), insert:
Refusal to approve the making of a declaration that a subscription television narrowcasting service is a declared subscription television narrowcasting service
Subclause 12(6A) of Schedule 2
The person who provides the service under a class licence
(2) Schedule 1, item 3, page 3 (after the table item relating to a refusal to revoke a declaration that a subscription television narrowcasting service is a declared subscription television narrowcasting service), insert:
Refusal to approve an electronic format, or a publication, in relation to a subscription television narrowcasting service
Subclause 12(16A) of Schedule 2
The person who provides the service under a class licence
Revocation of the approval of an electronic format, or a publication, in relation to a subscription television narrowcasting service
Subclause 12(16A) of Schedule 2
The person who provides the service under a class licence
(3) Schedule 1, item 5, page 3 (line 20), before “prescribed area”, insert “declared”.
(4) Schedule 1, item 5, page 4 (line 2), at the end of paragraph 5(3A)(c), add “and”.
(5) Schedule 1, item 5, page 4 (after line 2), after paragraph 5(3A)(c), insert:
(ca) the service is not exempt from this subclause;
(6) Schedule 1, item 5, page 4 (line 9), after “Note”, insert “1”.
(7) Schedule 1, item 5, page 4 (line 9), before “prescribed area”, insert “declared”.
(8) Schedule 1, item 5, page 4 (after line 9), at the end of subclause 5(3A) (after the note), add:
Note 2: See also subclauses 12(16A) to (16C).
(9) Schedule 1, item 5, page 4 (lines 10 to 18), omit subclause 5(3B), substitute:
(a) a broadcaster provides a subscription television narrowcasting service under a class licence; and
(b) a declaration under subclause 12(6A) is in force in relation to the service;
then, unless the ACMA otherwise determines, the service is exempt from subclause (3A) of this clause.
(3BA) The Minister may give the ACMA a written direction in relation to the ACMA’s powers under subclause (3B).
(3BB) The ACMA must comply with a direction under subclause (3BA).
(3BC) A direction under subclause (3BA) is a legislative instrument.
Note 1: Section 42 (disallowance) of the Legislative Instruments Act 2003 does not apply to the direction—see section 44 of that Act.
Note 2: Part 6 (sunsetting) of the Legislative Instruments Act 2003 does not apply to the direction—see section 54 of that Act.
(10) Schedule 1, item 5, page 4 (line 23), after “(3B)”, insert “, (3BA), (3BB), (3BC)”.
(11) Schedule 1, item 9, page 5 (lines 2 and 3), omit the definition of prescribed area in subclause 5(10).
(12) Schedule 1, item 9, page 5 (before line 4), before the definition of R 18+ program in subclause 5(10), insert:
declared prescribed area has the same meaning as in the Northern Territory National Emergency Response Act 2007.
(13) Schedule 1, item 10, page 6 (after line 7), after subclause 12(6), insert:
(6A) If a person provides a subscription television narrowcasting service under a class licence, the person may, with the written approval of the Minister, declare that the service is a declared subscription television narrowcasting service for the purposes of this clause.
(6B) A declaration under subclause (6A) can only be revoked under subclause (9).
(14) Schedule 1, item 10, page 6 (line 8), after “(4)”, insert “or (6A)”.
(15) Schedule 1, item 10, page 6 (after line 8), after subclause 12(7), insert:
(7A) An approval under subclause (6A) is not a legislative instrument.
(16) Schedule 1, item 10, page 6 (line 9), after “(4)”, insert “or (6A)”.
(17) Schedule 1, item 10, page 6 (line 11), after “(4)”, insert “or (6A)”.
(18) Schedule 1, item 10, page 6 (line 15), after “(4)”, insert “or (6A)”.
(19) Schedule 1, item 10, page 6 (line 30) to page 7 (line 4), omit subclause 12(14).
(20) Schedule 1, item 10, page 7 (after line 10), after subclause 12(16), insert:
(16A) For the purposes of this clause and subclause 5(3A), if, before a particular day, a schedule of the programs to be broadcast by a subscription television narrowcasting service on that day is:
(a) made available in an electronic format approved, in writing, by the ACMA in relation to the service; or
(b) made available in a publication approved, in writing, by the ACMA in relation to the service;
those programs are taken to have been broadcast by the service on that day in accordance with that schedule.
(16B) For the purposes of this clause and subclause 5(3A), if an item of incidental material is broadcast during a break in a substantive program, the item of incidental material is taken to be a part of the substantive program.
(16C) For the purposes of this clause and subclause 5(3A), if one or more items of incidental material are broadcast during the period:
(a) beginning at the end of a particular substantive program (the first substantive program) broadcast on a subscription television narrowcasting service; and
(b) ending immediately before the start of the next substantive program to be broadcast on the service;
each of those items of incidental material are taken to be a part of the first substantive program.
(21) Schedule 1, item 10, page 7 (after line 14), after the definition of declared prescribed area in subclause 12(17), insert:
incidental material means:
(a) advertising or sponsorship material (whether or not of a commercial kind); or
(b) a promotion for a television program or a subscription television narrowcasting service; or
(c) community information material or community promotional material; or
(d) a news break or weather bulletin; or
(e) any other similar material.
(22) Schedule 1, item 10, page 7 (after line 20), after the definition of R 18+ program in subclause 12(17), insert:
substantive program means a program other than incidental material.
(23) Schedule 3, page 15 (before line 5), before item 1, insert:
1A Paragraph 70(2A)(d)
Omit “or as a member of the Legislative Assembly of the Northern Territory”, substitute “, as a member of the Legislative Assembly of the Northern Territory or as a member of a local government body in the Northern Territory”.
(24) Schedule 3, item 1, page 15 (line 10), after “land”, insert “, other than a sacred site”.
(25) Schedule 3, item 1, page 15 (line 11), after “land)”, insert “, other than a sacred site”.
I will make a few brief remarks about the amendments. Amendments (1) to (22) make minor workability improvements to the bill relating to R18+ programs and will amend the Broadcasting Services Act 1992. Three areas of amendment were recommended by the industry, Austar, and raised by the Senate Standing Committee on Community Affairs. Firstly, there will be provision for a subscription television narrowcaster to self-declare a service. Such a service would become a declared subscription television narrowcasting service, which would be subject to the new licence condition prohibiting the provision of the service to a declared prescribed area. Secondly, the record-keeping rules will be refined to provide that the rules do not apply until a prescribed area has been declared and also to provide that records are not required for services that are self-declared. Thirdly, amendments will allow pre-broadcast data, including data in electronic form, to satisfy the record-keeping requirements.
Amendments (1) and (2) and (10) to (18) relate to self-declaring services under the Broadcasting Services Act. I do not think there is any need to go through these in more detail. They are aimed at making the legislation work more effectively. Unless the opposition have more that they want to question us about, I will leave it at that.
Question agreed to.
Bill, as amended, agreed to.