Michael Sukkar (Deakin, Liberal Party, Assistant Minister to the Treasurer) Share this | Link to this | Hansard source

In continuation: the Communications Legislation Amendment (Online Content Services and Other Measures) Bill 2017 amends the Broadcasting Services Act and other legislation to introduce a new regulatory framework to regulate gambling promotions on online content services. The bill will also establish a regulatory mechanism that can be used to apply the new gambling promotion restrictions to broadcasting services, if necessary.

The government has listened to community concern about the scheduling and quantity of gambling promotions shown during live sporting events, particularly in the context of its impact on child audiences.

In response to this, the government's broadcast and content reform package included new community safeguards in the form of additional restrictions on gambling promotions shown or broadcast during live sporting events in children's viewing hours. Importantly, the government determined that these new restrictions should apply across commercial free-to-air television, the Special Broadcasting Service, subscription television, commercial radio and online content services.

The additional restrictions will prohibit all gambling commercials and promotions during live coverage of sporting events from five minutes before the scheduled start of play to five minutes after the conclusion of play. It is intended that under rules made by the Australian Communications and Media Authority (ACMA), the restrictions will apply between the hours of 5 am and 8.30 pm.

The restrictions will apply to all audio and audiovisual live coverage of sports. The types of gambling promotions covered will include advertising, sponsorship announcements and promotional content. The government intends that the new restrictions will be in effect across all platforms by 30 March 2018.

The restrictions will be applied to broadcast services via changes to their industry codes of practice. As no equivalent industry arrangements exist for online content services, this bill will amend the Broadcasting Services Act to establish a flexible, fit-for-purpose regulatory framework that can be used to apply the gambling promotions restrictions to online content services.

The gambling promotions reform will mean that, for the first time, broadcast-like program standards will be applied to online content services.

This bill, once enacted, will add schedule 8 to the Broadcasting Services Act. Schedule 8 is an enabling framework that will allow the ACMA to make service provider rules which regulate gambling promotional content shown on online content services in conjunction with live coverage of a sporting event.

The online content service provider rules will be a legislative instrument for the purposes of the Legislation Act 2003 and subject to parliamentary scrutiny and disallowance.

A key objective of the policy reform is for, to the greatest extent possible, the same restrictions to apply to broadcast, subscription and online providers. It is intended that the online content service provider rules will be similar to existing code based gambling promotions restrictions that apply to broadcast services.

Schedule 8 provides that the ACMA may make rules regulating or prohibiting gambling promotional content provided on online content services in conjunction with live coverage of a sporting event.

Under schedule 8 an 'online content service' is one that delivers or allows the public to access content using the internet, where the service has a geographical link to Australia.

A service will have a geographical link to Australia if an ordinary reasonable person would conclude that the service is targeted at individuals who are physically present in Australia or any of the content provided on the service is likely to appeal to the public or a section of the public in Australia. In addition, for the service to be subject to online content service provider rules, the end user must be physically present in Australia.

Consistent with government policy, under schedule 8, gambling promotional content will be taken to be 'provided in conjunction with live coverage of a sporting event' where it is provided in the period beginning five minutes before the start of play and concluding five minutes after the conclusion of play.

Where the content consists of promotions of betting odds by match commentators or the appearance of representatives of gambling firms at or around sporting venues, these time thresholds are extended to 30 minutes before and after play. This reflects the existing rules in broadcast codes of practice. It will also allow the online content service provider rules to better protect the community from the potential adverse effects of gambling promotions which link sports personalities and gambling products.

Consistent with broadcast codes of practice, 'live' in relation to coverage of a sporting event would include both real time and delayed coverage where the delayed coverage is provided as if it were live and begins no later than the conclusion of the particular sporting event. However, the bill also provides that a program can no longer be considered live for the purposes of the rules once the sporting event itself has concluded.

The term 'sporting event' is defined to include the Olympic Games, Commonwealth Games and other similar games. Given that new kinds of sporting events are constantly emerging, the online content service provider rules may also, for certainty, provide that particular events are or are not sporting events for the purposes of this schedule 8. The term 'sporting event' otherwise has its ordinary everyday meaning.

The government recognises that there are a range of online content services with different business models and technical characteristics and that the online content service provider rules will not need to regulate all online content services. Accordingly, rules made under schedule 8 will not apply to simulcast services—that is, services that do no more than simultaneously stream a broadcast service that is already subject to code-based gambling promotion restrictions. This prevents such content from being subject to two separate regulatory regimes.

Schedule 8 will also empower the ACMA to determine that a specific online content service or online content service provider is exempt from the rules. A refusal to make, as well as a decision to vary or evoke, an individual exemption determination will be subject to merits review by the AAT. In addition, schedule 8 will empower to the ACMA to, through a legislative instrument, determine that online content services or online content service providers included in a specific class are exempt from the online content service provider rules.

In terms of compliance and enforcement, it's anticipated that investigations of potential breaches of the online content service provider rules will, as is the case with the broadcasting codes of practice, be largely complaints driven. The online content service provider rules may also require relevant online content service providers to keep records that will allow the ACMA to ascertain whether they've been complying with those rules or not. Schedule 8, in conjunction with existing provisions in the Broadcasting Services Act, sets out the mechanism that may be used to enforce compliance with the online content service provider rules, including infringement notices, civil penalties and remedial directions. The government doesn't consider that criminal penalties are appropriate sanctions for breaches of online content service provider rules, and I note that breaches of broadcast industry codes of practice do not, of themselves, result in potential criminal penalties.

As noted earlier, the bill also includes a regulatory mechanism that can be used to apply the new gambling promotions restrictions to broadcasting services should industry codes of practice not be amended in time. The minister can report that broadcast sectors are working closely with the government and the ACMA to ensure that their codes are appropriately amended, and the minister anticipates that the government will have no need to mandate these important restrictions. The minister is grateful for the constructive engagement of the broadcast sectors to date.

In conclusion, this enabling legislation which provides increased powers to the regulator and helps ensure a more consistent approach to regulating gambling promotions content across all platforms will send a clear message to the public that the government is committed to implementation of its policy to enact additional restrictions on gambling promotions. The announced gambling promotions restrictions will establish a clear safe zone during which parents and caregivers may have confidence that their children will not be exposed to gambling promotions by viewing live sporting events and, therefore, I commend the bill to the House.

Michelle Rowland (Greenway, Australian Labor Party, Shadow Minister for Communications) Share this | Link to this | Hansard source

Labor has a strong record on addressing community concerns around gambling promotions during live sport. Debate on this bill in this place comes a year after Labor called for stronger restrictions on gambling advertising during live sport. Labor supports the Communications Legislation Amendment (Online Content Services and Other Measures) Bill 2017 as a step in the right direction because it enhances consumer protections and sets up a platform-neutral approach to regulation in relation to gambling promotions during live sport. We welcome the government's move to extend restrictions to online platforms and minimise regulatory bypass.

Australia is a sport-loving nation, and Australians should be able to enjoy watching live sport without the unwarranted intrusion of betting odds and gambling promotions. In particular, it is in everyone's interest to ensure that children don't associate betting and gambling as a normal part of enjoying sport. Labor's call for stronger protections last year was in response to ongoing community concern about these issues. In March 2017, in the context of debate on the Interactive Gambling Amendment Bill 2016, Labor moved a successful motion in parliament calling for stronger restrictions on gambling promotions during live sport, noting that industry should be given time to adjust to any changes. Despite the introduction of restrictions on live odds and gambling advertising in 2013, a number of reports found concerning trends around an increase in, as well as the impact of, gambling advertising.

One of the reports Labor was cognisant of was research undertaken by Deakin University in relation to children and gambling advertising on television. The research found that over 90 per cent of children can recall having seen an advertisement for sports betting. About three-quarters of children aged eight to 16 can recall the name of at least one sports-betting brand. Approximately a quarter can recall four brands or more. Seventy-five per cent of children think that gambling is a normal or common part of sport, and parents conveyed concerns that gambling advertising is so prevalent it is actually changing the way their children think and talk about sport.

At the time of Labor's call last year, even high-profile sports players were expressing concern. A February 2017 article in The Ageby Jon Pierik, in relation to the Western Bulldogs premiership captain, Easton Wood, states:

Declaring "gambling advertising is out of control and I think it needs to change", Wood says he cannot understand why AFL players are warned about the dangers of gambling yet television broadcasts of men's and women's games are filled with advertising from betting agencies.

Similarly, an ABC news story by Damian McIver quoted Geelong defender Harry Taylor as saying:

I've got three kids at home and when my eldest can name a lot of the ads on TV that is a bit of a worry.

Furthermore, a range of media reports, including from the ABC's Media Watch, presented data pointing to a marked rise in advertising spend. In the year since, concerns have not abated. Indeed, there has been some evolution in the nature of concern.

Even in January this year UNICEF Australia expressed deep concerns about rates of teenage gambling when it made a submission to the Senate inquiry into this bill. UNICEF's actions prompted Associate Professor Samantha Thomas of Deakin University to state:

This is a further indication that this is an incredibly important issue for children in Australia and that legislation is needed urgently to protect them from exposure to these advertisements.

Further, media reports have noted a shift in the behaviour of online betting companies. An article by Nick Toscano in The Sydney Morning Herald earlier this year reported:

… concerns over sports-betting advertising swelled again on Thursday after tennis player Nick Kyrgios's brother, Christos, wore a bright blue t-shirt printed with a gambling company's logo to a prime-time match and was shown on camera several times during the broadcast.

Stephen Stockwell's piece for Triple j's Hack stated:

The shirts are clearly an advertising ploy by the bookie to get its name on TV during the tournament … because cameras will often swing round to the player's family.

When you look at these findings, you can understand why parents and the community in general are worried about their children being subjected to gambling advertising during live sporting events, and it is clear why both Labor and the government have acted on this issue.

Turning to the bill at hand, the announcement the government went on to make, in May 2017, responded to Labor's call and was the only consumer oriented measure they announced in the raft of industry deals that were done to push their media law changes through the parliament last year. Unfortunately, it took the government another seven months before they introduced this bill into parliament in December 2017. Meanwhile, as I have noted, concerns about children's level of exposure to gambling ads, especially during live sporting events, continued.

This delay means that new restrictions for online platforms contemplated by this bill are unlikely to commence at the same time as the new restrictions for broadcast platforms, given the time the ACMA will need to develop new online content service provider rules. Furthermore—and despite the length of time this government has taken to address community concerns—there is a high level of uncertainty amongst industry and consumers about what exemptions will be permitted by the ACMA under the new online content service provider rules. While addressing this issue has not been enough of a priority for this government, and a host of issues are yet to be worked through, Labor does support this bill.

As I mentioned, Labor has a strong record in this area. And this bill builds upon the leadership of the Gillard Labor government in 2013, which took steps to address public concerns and bring in rules to restrict gambling advertising in live sports broadcasting and the promoting of betting odds in particular. The then Prime Minister Gillard and Communications Minister Conroy issued a joint media release on these issues on 26 May 2013. They stated:

The Gillard Government has demanded that Australia's broadcasters amend their broadcasting codes in the following ways to ensure a reduction in the promotion and advertising of gambling during sport:

They noted:

All generic gambling broadcast advertisements will be banned during play. Advertisements of this sort would only be allowed before or after a game; or during a scheduled break in play, such as quarter-time and half-time.

Most importantly for our purposes today, they stated:

The Government will monitor the intensity of generic gambling advertisements within the allowed periods. If it is found to go beyond reasonable levels, the Government will impose a total advertising ban.

In response, the broadcast television industry developed rules to restrict gambling advertising in live sports broadcasting and the promotion of betting odds. The updated codes of practice were then registered by the ACMA in July 2013, almost five years ago now, satisfied they contained the appropriate community safeguards.

While the provisions in these new codes of practice served to limit the promotion of live odds and in particular to restrict gambling ads during play, they continued to allow promotion of betting odds half an hour before play and in the half hour after play by clearly identified gambling representatives and commercials relating to betting or gambling before play has commenced, during scheduled breaks, during unscheduled breaks and after play has concluded. That is to say, the codes of practice allowed significant windows of opportunity for gambling advertising around live sports broadcasts. It is notable that in the background of its media release announcing the code registration the ACMA stated:

… the codes do not cover the field of community concerns around gambling advertising and general sports programming. For example, ACMA research also indicates just over 60 per cent of the community find unacceptable the presentation of odds and general gambling advertisements during sports-related programs.

Back in 2013 both the Labor government and the ACMA noted that further action in this area might be necessary in future once the effectiveness of measures to address community concerns at the time could be examined. In 2017, and in view of ongoing community concern about the level of gambling advertising, Labor called for stronger protections, and the government went on to bring this bill before the parliament.

The aim of the government's approach is 'to create a clear and practical safe zone where parents can be confident children can watch live sport without experiencing messages that normalise gambling as part of sport.' While the government's approach is intended to cause a reduction in gambling promotions during live sports, it remains to be seen whether this clear and safe zone will satisfy the Australian public in practice, given it cuts out at 8.30 pm, a time when high-profile sports programming is often in play. According to research commissioned by the ACMA, the majority of Australians—61 per cent—do not want gambling advertising during live sports broadcasts no matter what time of the day. However, the Turnbull government has acted to restrict gambling advertising during live sport between the hours of 5.00 am and 8.30 pm as well, as provide for a host of exemptions from the online scheme when the majority of Australians don't want gambling promotions during live sport at all.

While selecting the hours of 5.00 am to 8.30 pm does address the time that children are most likely to be consuming media, it does not address the timing of sports programming so neatly. Even the explanatory memorandum to the bill acknowledges this. It states:

… many sports events commence between 7pm and 8pm or take place on weekend afternoons when there are significant child audiences. Children are thus exposed to significant levels of gambling advertising on television which risks increasing adolescents' desire to experiment with gambling. Increased exposure to gambling advertisements has also been associated with more positive youth gambling attitudes and intentions towards gambling.

It further states:

… the Department has received and continues to receive a significant amount of correspondence from the community, expressing concern about the impact of gambling advertising on child audiences. In a recent campaign the Department received over 1150 emails calling for gambling advertising in association with live sport to be banned.

Here I would like to make some brief comments on the broadcast industry codes of practice that have recently been updated to reflect government policy in this area. Labor welcomes additional restrictions on gambling advertisements during the broadcast of live sports between 5.00 am and 8.30 pm on commercial TV, pay TV and commercial radio as a step in the right direction. I note that questions remain about inconsistencies in the approach taken under these codes.

The broadcast codes of practice, which have been registered with the ACMA and which were announced on Friday 16 March, permit exemptions for low-audience share channels on subscription television and, for technical reasons, treat time zones differently as between platforms. While these differences may be justifiable under the regulatory policy of the Broadcasting Services Act, the simple fact is the broadcasting platforms have not been treated in the same way under the government's approach when both industry and consumers actually want consistency. The regulatory policy provides that the parliament intends that different levels of regulatory control apply across the range of services, including broadcasting and online content services according to the degree of influence that different types of services are able to exert in shaping community views in Australia. Further, it provides that services be regulated in a manner that enables public interest considerations to be addressed in a way that does not impose unnecessary financial or administrative burden on providers of broadcast and online content services amongst other things.

Overall, Labor is mindful of the regulatory policy and is pleased that the ACMA has stated that it will closely monitor the operation of the additional restrictions in the updated broadcasting codes and, after 12 months, will consider whether to conduct a formal review of their effectiveness.

I turn now to the platform-neutral approach. In the name of consistency, Labor welcomes the move to extend restrictions to online services. The bill seeks to introduce a platform-neutral approach to the restriction of gambling promotions during live sports coverage across broadcast, subscription and online platforms to achieve a level playing field and consistency in consumer protection. However, the bill to restrict gambling promotions during live sport on online platforms permits all manner of exemptions, the detail of which is yet to be worked through after the legislation has passed parliament. Under this government's approach, neither industry nor consumers enjoy clarity or consistency around the application of the additional restrictions.

Turning to the issue of exemptions: while Labor acknowledges the aim of the measures in this bill is to reduce gambling promotions online, the wide range of exemptions permitted under this bill and the lack of policy guidance on those exemptions cause many to wonder what this bill will actually end up achieving in practice. For a sport-loving nation like Australia, the new online provisions are cast very broadly indeed. Schedule 8 covers the internet well. It applies to any service that delivers or allows users to access content using an internet carriage service to the public and has a geographical link to Australia, if the service is targeted at individuals physically present in Australia or any of the content is likely to appeal to the public or a section of the public in Australia. In recognition of the wide variety of online content services with different business models and technical characteristics, the explanatory memorandum to the bill states that 'the online content service provider rules will not need to regulate all online content services', and the bill provides for a very broad range of exemptions. The exemptions to the online content service provider rules will be considered by the ACMA, as I said, once the legislation has passed the parliament.

I would like to note some industry concerns around some of these matters and, in particular, highlight the concerns of the Digital Industry Group, DIGI, about inconsistent regulation. DIGI submits:

There has been limited consultation with the digital industry about the implementation of these restrictions and the proposed introduction of a new Schedule 8 to the Broadcasting Services Act 1992. DIGI has a number of overarching concerns with the proposed amendments—

including that the legislative regime is to be enforced by the regulator, as opposed to industry codes of conduct as for traditional broadcasters. It states:

This significant discrepancy could lead to inconsistent regulation of the broadcasting industry versus the digital industry, and subsequently an uneven playing field.

It is concerned that the approach taken by the government may:

… undermine the ability of online content service providers to manage the services they deliver and place undue and unnecessary burden on content providers by providing a shifting and uncertain legal landscape in which to provide their services to consumers.

There is a degree of complexity in the business models for online content that the terms in the bill may not address. DIGI contends further:

The use of the term "online content service provider" presumes that it will always be one entity that delivers the content, the service on which the content appears and any advertising, or gambling promotional content, that appears alongside content. This is a misguided presumption as an online service provider can deliver content that is not produced or created by the online service provider. In some cases, the online service provider may not even be aware of the exact content that is being delivered.

Furthermore, advertising appearing alongside or within online content can be sold, programmed and served by a third party who is also separate from the online service provider. Ultimately, an online service provider can be a separate entity to the online content creator …

This separation of roles and functions in the digital context is rather different to the broadcasting context where the broadcaster typically has direct control over the content being delivered over its spectrum and the advertising that appears alongside that content.

On the definition of a geographic link to Australia, DIGI submitted:

This Clause is vague and creates an incredibly wide link to Australia—potentially all content online may be of interest to Australians.

In the context of sport, this means that broadcasts of sporting events originating from outside Australia that appeal to Australians such as American football or basketball would potentially fall within the scope of these restrictions.

On the matter of time based restrictions to online content, DIGI submitted:

It may not be possible to place time-based restrictions on the delivery of all online content especially considering the increasing preference by users to consume video content on demand. Furthermore, ad insertion technologies have wide ranging functionalities and are likely to differ from service to service.

By way of background, ad serving technology companies provide software to Web sites and advertisers to serve ads, count them, choose the ads that will make the Web site or advertiser the most money, and monitor progress of different advertising campaigns.

These technologies are highly customisable and enable the serving of ads to users to be based on a number of criteria that can be determined by the ad serving company, an online service provider, an advertiser or the online content provider.

Further, I note the reasoned concerns of Responsible Wagering Australia, who submitted to the inquiry into this bill that the government's approach to enacting a framework bill that leaves the detail of the actual rules to be made to the ACMA creates a high level of uncertainty. RWA stated:

From industry’s perspective, this results in a disjointed process under which the entity responsible for the legislation (the Department) cannot speak to nor provide assurances around which exemptions will apply—despite this being a pivotal issue for industry. Similarly, the proposed entity responsible for the consideration of exemptions (the ACMA) is awaiting finalisation of the legislation before it will discuss possible exemptions in any great detail.

Then they stated:

The Bill takes an expansive view of what constitutes an 'online content service' for the purposes of the legislation, with the legislation providing a mechanism for exemptions to be made by the ACMA. In our view, this approach provides no certainty to industry.

As I mentioned earlier, while the Turnbull government made its policy announcement back in May 2017, the legislation was not available publicly until the bill was introduced in the final sitting week in December 2017. And even now a raft of question marks still hang over this bill, a number of which were canvassed during the inquiry into it and will continue to play out.

Moving now to the proposed regulation of the Special Broadcasting Service by this bill: Labor moved an amendment to remove the operation of the SBS from this bill in the Senate which was negatived by only one vote. Clearly Labor is not alone in thinking that the Turnbull government should not be able to pick and choose when the SBS has independence. Let's start with the facts. SBS content is regulated by the SBS Codes of Practice, codes which apply to the SBS's radio, television and online services. Unlike the commercial broadcasters, whose codes of practice apply only to TV and radio services, SBS's online services are regulated by the SBS Codes of Practice. The SBS is committed to implementing appropriate restrictions on gambling promotions during live sporting events in accordance with government's policy by 30 March 2018 on both its broadcast and online platforms. Consistent with past practice, SBS will incorporate the new gambling advertising restrictions by reference to the free TV and CRA codes of practice that have been registered, so there will be consistency between services. In the online space, SBS will be ahead of the rest of the market by implementing restrictions to its online platforms this month. This is likely to happen ahead of the making of any rules by the ACMA, which is yet to be empowered under this bill, to develop and implement online content service provider rules.

However, despite all this, this bill proposes to regulate SBS programming with rules developed by the ACMA. This implementation mechanism is inappropriate for application to a public broadcaster such as SBS. It permits a level of ACMA intervention over SBS programming that is actually inconsistent with SBS's independence and the co-regulatory framework set out in the Broadcasting Services Act. The Special Broadcasting Service Act requires the SBS board to maintain the independence of SBS and limits the matters on which SBS can be directed by the minister. In turn, the Broadcasting Services Act, which this bill seeks to amend, recognises the independence of SBS and contains distinct processes for code notification, the investigation of complaints and any actions the ACMA may take in relation to the SBS. These actions are quite distinct from the actions the ACMA may take in relation to the commercial and subscription broadcasters.

It is straightforward. Labor's view is that the SBS should not be captured by the regulatory regime set out in the bill. Instead, implementation of new restrictions for the SBS should be achieved by establishing one set of rules in the SBS codes that cover both broadcast and online platforms. While in theory the bill permits the ACMA to exempt SBS from the online content service provider rules, there is no assurance the ACMA would do so and, in any event, with all respect to the ACMA, rules around SBS programming should not be a matter of ACMA discretion. Furthermore, subjecting SBS to this bill is contrary to the stated policy objective of the government to pursue opportunities for self- and co-regulation to a greater, and not a lesser, extent.

Recent examples of government support for self- and co-regulation, which are being ignored in this bill, include the ACMA's work on optimal conditions for self- and co-regulatory arrangements. First published in June 2010 and updated in September 2011 and April 2015, this occasional paper notes:

Self- and co-regulation are promoted by key international and government organisations as alternatives to direct regulation. The Australian Government encourages the use of light-handed regulatory options, such as self- and co-regulatory mechanisms, as part of its best-practice regulation agenda.

In 2014, the Department of Communications published Regulating harms in the Australian communications sector, a policy background paper which notes that the telecommunications and broadcasting legislative frameworks both enunciate a preference for co-regulation and that there is an industry-wide assumption that co-regulation 'should be the first port of call when new concerns emerge'. Furthermore, in relation to the broadcasting industry, the paper noted:

It may be timely for industry to ask itself about how it could make greater use of self‐regulation …

More recently, in the final report of the Department of Communications and the Arts review of the ACMA, it is noted:

Best practice regulatory design … suggests that in the communications sector, with its fast pace of change and innovation, greater reliance on co-regulatory and self-regulatory models should lead to better outcomes for consumers and industry.

In days gone by, the Liberal government made a great song and dance about deregulation and cutting red tape. Yet today they wish to force the SBS, which is currently self-regulating effectively, to submit to direct regulation. This is costly, duplicative and inconsistent of the Turnbull government. As a matter of law and government policy, and in order to alleviate the burden on taxpayers, the SBS should in fact be encouraged to regulate by codes of practice where possible, which it is already doing.

In closing, in essence this bill highlights the ongoing failure of this government and this minister to adapt the regulatory framework for media and communications in the 21st century. The bill proposes to regulate online platforms by tacking yet another schedule for online services onto the outdated, pre-internet Broadcasting Services Act, now over 25 years old, and clumsily draws the SBS into the regime. This government hasn't done the intellectual hard yards to address the many broken or strained concepts in the regulatory regime; nor has it worked out how to restrict gambling promotions during live sport online, having handballed the problem to the ACMA. If the Turnbull government wants to regulate both broadcast and online platforms coherently, or alter the co-regulatory framework in the Broadcasting Services Act vis-a-vis the SBS, it should conduct full and overdue reform of the Broadcasting Services Act. Clearly, Labor's concerns about the inclusion of the SBS and the concerns of the DiGi group and others in relation to the capacity of online services to self-regulate would indicate there is further work to be done to update the regulatory framework and think through the implications of the government's policy intent that self- and co-regulation be pursued.

In the meantime, in the absence of this government having done those hard yards in the past nearly five years, and on the issue of consumer protection in relation to gambling advertisements during live sport, Labor regards this bill as a step in the right direction. It is in everyone's interest to ensure that children don't associate betting and gambling as a normal part of enjoying sport.

Brian Mitchell (Lyons, Australian Labor Party) Share this | Link to this | Hansard source

Labor knows there is a deep community concern about the level of gambling promotion during live sport. We have a strong record on this side of the House of seeking to address these concerns. Indeed, more than a year ago, Labor called for stronger restrictions on gambling promotion during coverage of live sport. The government did make a policy announcement a little after we went public—I think at around the time of last year's budget—but it took them till December to bring a bill before the parliament. And a number of question marks do remain about the Communications Legislation Amendment (Online Content Services and Other Measures) Bill 2017, but, as the shadow minister has said, it is at least a step in the right direction.

On this side of the House, we remain concerned that, despite the restrictions, the gambling lobby will still be able to broadcast gambling ads during live sport events when many children will still be watching. Australians—adults and children—should be able to watch live sport without the intrusion of gambling ads. Australian parents deserve the confidence of knowing that their children can watch sports without being subjected to a barrage of betting odds. This legislation goes some way to providing that with the so-called safe zone, but, as we all know, kids do stay up a bit later than we otherwise might like. Children should not be rattling off the odds of their team and how much money can be made by beating their opponents. That should not be the talk of the playground. Kids' brains are sponges. If anybody thinks gambling ads and betting odds are not worming their way into children's brains and affecting the way they think about gambling then they need to think again. Australians do not want gambling ads aired during live sport—full stop. And if we want a lesson on how seriously Australians take their sport, we only have to reflect on the past few days of the test in South Africa, and that's about all that needs to be said on that subject!

Labor will not stand in the way of this bill progressing through the parliament. It's not as good as it should be, but it's as good as the government will give. A ban on ads between 5 am and 8.30 pm is at least a start. The Australian Communications and Media Authority commissioned research that showed 61 per cent of Australians do not want gambling advertised during live sports broadcasts, regardless of the time of day. The restrictions that the government has placed on broadcasting during the live events do not go far enough and, indeed, even the government's own explanatory memorandum to the bill states:

… many sports events commence between 7pm and 8pm or take place on weekend afternoons when there are significant child audiences. Children are thus exposed to significant levels of gambling advertising on television which risks increasing adolescents' desire to experiment with gambling. Increased exposure to gambling advertisements has also been associated with more positive youth gambling attitudes and intentions towards gambling.

It also states:

Further, the Department has received and continues to receive a significant amount of correspondence from the community, expressing concern about the impact of gambling advertising on child audiences. In a recent campaign the Department received over 1150 emails calling for gambling advertising in association with live sport to be banned.

As the explanatory memorandum says, many events start at 7 or 8 pm. So this bill will restrict advertising for the first quarter or first half of a match, but I don't know many sports fans who will be switching off before the end of the game, and I don't know many parents who would risk telling their young ones that it's bedtime, when their team is still on telly. From 8.30 pm those banners and those flashy ads will appear, telling viewers the odds and encouraging them to place a bet.

Having a punt is part of Australian culture. Whether it's goldminers and Anzacs chucking coins into the air, the nation stopping work at 3 pm on the first Tuesday in November or millions of us in the draw for the Lotto each week, we enjoy risking a few bucks in the hope that we'll rake in a lot more. Gambling, like drinking, has a legitimate place as a pleasurable pursuit, in moderation. But like drinking it can also be a curse for individuals caught in the grip of addiction and a scourge on the community having to deal with the impacts.

The people who own the casinos and the pokies make a lot of money from the rest of us, and good luck to them. They know that for every dollar they pay out on a jackpot they are collecting $10 or $100 more from folk who lose a lot more than they win. The thing about people who make easy money is that they want to keep making it and not be told by governments that the community interest is best served by limiting their ability to continue to make such big profits. Earlier this month there was a state election in Tasmania. On the Labor side, we have never seen its like before and I hope for the good of public discourse that we never see it again.

Labor announced months before that election that a Labor government would remove poker machines from pubs and clubs by 2023 and restrict them to the state's two casinos. The five-year gap would allow pubs and clubs with pokies to transition their businesses. Some could apply for transition-assistance funding. We know that pubs don't need pokies to survive or even thrive. There are plenty in Tasmania without them and, of course, over in WA the pub scene, which is entirely pokie-free, is thriving. So getting pokies out of pubs and clubs in Tasmania was the right decision for the community, and it was evidence based, but it was a politically-courageous decision because Labor knew that it would unleash the gambling lobby.

I'm sorry to say that the re-elected state government did the gutless thing and backed in the gambling lobby, despite all the evidence so clearly stating that to do so was not in the best interest of the community. I don't think that anybody foresaw the ferocity, the desperation and the naked power and wealth of the gambling lobby, but it was unleashed and we have never seen anything like it before in Tasmania. Pubs with pokies brandished giant 'Vote Liberal' signs and staff at pokies pubs and clubs were directed—not all of them, but some were absolutely directed—to wear 'Vote Liberal' shirts. Full-page ads were published day after day after day after day in the daily newspapers.

I've heard, anecdotally, that the pokies lobby spent $10 million on that campaign and that they had another $10 million in the war chest in reserve, ready to be spent if necessary. And because of Tasmania's weak electoral financial disclosure laws we may never know the true amount. But that's how desperate the pokies lobby was to stop Labor's plan to put community interests ahead of corporate profit. They stopped at nothing. Blatant lies about the number of jobs affected were told and repeated again and again, despite proof—hard proof—being offered that the true figure was less than one-tenth of what had been implied and claimed. It was a startling illustration of the power of wealth in distorting public discourse and it gives us some insight into the stakes at play.

It is our job in parliament, whether it's this chamber or in a state legislature, to act always in the best interests of the community, not in the narrow interests of one section of the community with skin in the game. The fact is that gambling can be a curse for those caught in the grip of addiction, and a curse for their loved ones. Homes can be lost, marriages fail and children become estranged. There can be a spiral into alcohol and other drug addiction. Gambling used to be something we only got exposed to as adults, but now it's potentially in front of our children whenever they're before a screen, whether it's a smartphone, tablet, laptop, PC or TV. We do struggle as parliamentarians to regulate the online universe, with so many websites hosted overseas, often via opaque accountability, but that doesn't mean we should shrug our shoulders and give up. I'm pleased to see that online gambling is being captured by this legislation, albeit with a raft of exemptions.

It does concern me, as a parent, that my children can be exposed to gambling advertising during sporting events. It normalises the gambling experience for young, inquisitive minds. If they are exposed to it enough, they automatically associate betting and gambling with sport. Like popcorn and movies, one becomes unthinkable without the other.

Deakin University did some research which points out a number of very concerning issues in regard to children and gambling advertising on television. It found that more than 90 per cent of children can recall having seen an advertisement for sports betting. The research found that three-quarters of children aged eight to 16 can recall the name of at least one sports betting brand, and approximately 25 per cent can recall four brands or more. This is the sort of recall that any teacher would be proud of after months in the classroom. Also, 75 per cent of children think gambling is a normal or common part of sport. Parents conveyed concerns that gambling advertising is so prevalent that it is changing the way their kids think and talk about sport. I know that's what this legislation seeks to address, and we are supporting it. My concern is that it simply does not go far enough.

It also concerns me, as a representative of some of the most vulnerable people in our community, that gambling is promoted so readily. Access to it is absolutely as simple as owning a smartphone. Long gone are the days when you had to head down to the pub or to the local TAB to put a couple of dollars on an event. Regardless of your opinion about gambling, a visit to the pub or the TAB to place a bet is at least a bit of a social event—you talk to your mates and catch up with people, and it gets you out of the house. But now you don't even have to leave your lounge room to bet on a race, a match, the cricket, the footy or even an election. An ad flashes on the screen for a betting company while you're watching a test match or grand final, you reach for your phone, you press the app and you place a bet. It's that easy. I bet, with the algorithms in those apps, the more you bet the more they flash, so there could be a spiral there too. We're not in the business of telling people what to do with their money, but we're also not in the business of being bag men for the gambling lobby. Let them make their money, but let them work that little bit harder for it.

This bill also permits broad exemptions with regards to online advertising and online content providers. It's a bit of a shame that in seeking to draw online content in that these exemptions are there. What exactly those exemptions or their impact will be, we're not quite sure, because the criteria is still to be developed. It will be considered by ACMA once the legislation is passed. We can only hope and pray.

The government announced this policy in May last year, yet there was no legislation forthcoming until the final sitting week of last year, so we still don't know the full effect and impact this bill will have. But there's no doubt that this government has failed to bring its legislative framework into the 21st century. Instead, it's tinkering with outdated, pre-internet law that is no longer relevant, and adding yet another schedule—bolting it on like Frankenstein's monster—for online services onto the Broadcasting Services Act. It's yet another example of this government failing to plan, failing to look ahead to the future and failing to develop policy and legislation that will be as relevant tomorrow and the day after that as it is today. I will just say three letters: NBN. That speaks for itself about what happens when you don't plan for the future.

It shows a complete disregard for the concern of Australians to continue to allow gambling during live sports events and to not properly address the issue of online content. In fact, online platforms were only included by the government at the urging of the broadcast sector, who saw the need for a level playing field. So at least we've come some way. Broadcast services will be regulated by industry codes of practice while online platforms will be regulated directly by ACMA. It's not the best situation, but that's the best we can hope for. As the shadow minister said, we also have concerns about the impact on the independence of the SBS. I'm sure further speakers will address those points.

Stephen Jones (Whitlam, Australian Labor Party, Shadow Minister for Regional Services, Territories and Local Government) Share this | Link to this | Hansard source

In 2012, something occurred in this country which significantly changed the way that we think about the issue of gambling and, particularly, the marketing and advertising of gambling. In mid-2012 a brash young bookmaker from a very famous family blasted his way into just about every living room in the country. You couldn't turn on the TV, let alone watch a sports broadcast, without seeing this particular character's smiling face thrusting through the screen of your television. It was marketing saturation like we had never seen before. Of course, it came after the advent of mobile phone applications, which effectively mobilised the way that gambling can be done and, particularly, placing a bet—having a punt—can be done in this country.

In the gambling days of my youth, you would have to go to an oncourse bookmaker or the TAB or one of the other approved bookmakers to place a bet. But with the advent of mobile phone applications you literally could do it anywhere, at any time, on just about any code that a bookmaker was willing to take a bet on. What we had was the ubiquity, or mobilisation, of punting with the absolute saturation of advertising around a particular bookmaking service.

Other bookmakers responded in kind. They couldn't be left behind in what was becoming a very competitive market. It would be very easy for us to just point the finger at the bookmakers and say, 'There is where the fault lies.' It's a legal business. I have a punt occasionally myself. I didn't particularly like the way they were going about their advertising but, you know, you can't really blame that person—that's the way the rules allowed it to occur.

I do have a slightly different view, I have to say, about the codes themselves and the broadcasters, because if they have concerns about the provisions that are in the Communications Legislation Amendment (Online Content Services and Other Measures) Bill 2017, and the provisions that were in the 2013 measures, they need look no further than themselves and their own behaviour. They were greedy, they saw a new stream of money coming in the door and they thought, 'This is fantastic.' For the codes, it enabled them to pump up the rights or the costs that they were demanding of the broadcasters for their games. For the broadcasters, they saw this as a new stream of revenue to either supplement their income to pay for the increased broadcasting rights or to fill the gap where other sources of advertising income had fallen over.

We saw a combination—you had the bookmaking integrated into absolutely every aspect of a sports broadcast. It was to a point where you could not tell the difference between commentary and spruiking the odds. In fact, there was a deliberate attempt to blur the lines between the commentary and the gambling promotion and advertising. It was the complete gamblification of sporting—particularly elite sport—broadcasts. There was an overwhelming public reaction. I don't care whether you're a member of the Labor caucus, a member of the Liberal or National caucus or an Independent. You would have received a wall of complaints from sports fans around the country. You could not take your kid to the match without having gambling advertising thrust down their throat. It sent a very clear message not only to the adults in the stadium or in the living room but also to the kids who were there with them: if you aren't having a punt on this game, on this fixture, you aren't really a fan. If you're not gambling as a way of watching and engaging in your particular sporting code then you're not really a fan.

The reaction from families and citizens around the country was overwhelming. I was a junior backbencher in this place at the time and I prepared a private member's bill to address the issue. I was active within my caucus. I worked with the then Prime Minister, Julia Gillard, and the then communications minister, Steven Conroy, to come up with a solution. Otherwise, I thought, a private member's bill was the answer to the problem that all MPs in this place were confronting: a public backlash. I was very pleased that a solution was brokered, and that solution persists to this day. In part, it is a solution which limited the times and the places in which TV advertising for bookmaking, for the gambling within a sport, could be conducted.

At that time, all generic gambling broadcast advertisements were banned during play, and advertisements of this sort could only be allowed before and after the game or during scheduled breaks in play, such as at quarter-time and half-time. The machinery for implementing this ban was an Australian Communications and Media Authority regulated—or authorised, or approved—code. So there was a co-regulation measure, the same sort of measure that is being used to enliven the provisions anticipated in this bill before the House today. A good example of co-regulation would be getting the broadcasters and the codes in the room, knocking some heads together and saying: 'What you are doing today is out of step with community expectations. Change has to occur. It will either occur with you, it will occur by you or it will occur to you.' That is the choice that has to be made. I think parliament acted very, very responsibly. Across the divide, we were unified on this particular issue.

In July 2013 the Australian Communications and Media Authority registered the new codes. They were satisfied that they contained the appropriate community standards, the expectations that government had put to the industry. It is notable that a media release that accompanied the code registration from the authority stated:

… the codes do not cover the field of community concerns around gambling advertising and general sports programming. For example, ACMA research also indicates just over 60 per cent of the community find unacceptable the presentation of odds and general gambling advertisements during sports-related programs.

So at that the point in time there was a signalling that there would in all likelihood be a second step. So the broadcasters and the codes themselves have seen this coming. This is another step, a good step, in the process of ensuring the regulation and the practices in these sports and in the broadcast of these sports is in step with community expectations.

We have to be very clear with the community. If, like me, you believe that some of our most popular codes should be available on free-to-air broadcasting—they should be available for anybody to watch, whether they have a pay TV subscription or not—then the corollary of that is that there has to be advertising, because you have to pay for broadcasting rights. You have to pay for the right to be a broadcaster and to broadcast. That money has to come from somewhere, and in free-to-air television the business model is that money comes from advertising revenue. So what this measure is saying, and what the previous measures have said, to the industry and to the codes is: 'You've got to get the balance right. We do not think it is within community norms that within the hours of 5 am and 8.30 pm these advertisements are appropriate during sports broadcasts. Outside of those hours, the 2013 code provisions still apply.'

So we think the measure is right. We think we have got a good balance in these measures. It may not be the last word on the matter, because I think this is an issue where the community is clearly saying to the politicians, to the members of parliament and to the government, 'We want to ensure that the regulation matches our expectations'. I support the provisions—Labor supports the provisions—within the bill. They will, as I said, ensure or propose to restrict gambling advertising during live sport between the hours of 5 am and 8.30 pm.

It provides for a corollary set of regulations for online broadcast. This is important. The regulation in this area needs to be platform neutral, because, increasingly, people are watching their sports broadcast on a mobile phone. One of the large telecommunications carriers famously has the ability and provides the package to broadcast certain sporting fixtures over mobile phone devices. People will watch it on the beach on an iPad, so we have to have a platform-neutral way of regulating these provisions. I support the fact that there are provisions within the scheme for regulating online broadcasting as well. It provides for some exemptions. Time will tell whether these exemptions are going to work properly or not. We agree with the government, there may be an argument for some exemptions to occur in relation to some very niche and very small provisions, but we'll want to watch and see how these operate. We clearly foreshadow that there may be an issue for further reform in the future.

The new online provisions are cast very broadly. Schedule 8 covers the internet. It says that any service that delivers or allows users to access content using an internet carriage service to the public and has a geographical link to Australia and if:

… the service is targeted at individuals physically present in Australia or any of the content on the service is likely to appeal to the public, or a section of the public, in Australia.

It is very broadly cast. The explanatory memorandum to the bill states that the online content service provider rules will not need to regulate all online content services, and the bill provides for a very broad range of exemptions, as I have already identified. The exemptions may be appropriate because we recognise there is a wide variety of online content services with different business models and different technical characteristics. Exemptions to the online content service provider rules will be considered by the ACMA and an exemption must be in writing for it to be valid; otherwise the general rules will provide.

There has been some discussion within this debate and alternative mechanisms proposed in relation to the SBS, the Special Broadcasting Service. Of course, unlike the ABC, the SBS, under its charter, has a limited provision to attract paid advertising to help its government supplementation. It is not conceivable that we would put in place a scheme such as this and not anticipate that the SBS would also be covered by it. However, the SBS does present itself as a slightly different category of broadcasting entity because of its own charter, and we simply say that our changes are directed at ensuring that the SBS has the same restrictions placed upon it and is able to comply with those restrictions. However, we need to do that through a different mechanism to ensure that the integrity and the independence of the SBS, vis-a-vis the parliament and the government of the day and the ACMA, is respected. The intent is the same. How we get there, and how the Labor opposition proposes we get there, are slightly different.

With those comments in mind, Labor thinks that this is an important piece of legislation and regulation. It has a long history—a history that I have been integrally involved in. We want to see this work. We want to see the commercial model for free-to-air broadcasting of sports fixtures continue. We want to see that available on free-to-air television, but we want community expectations to be respected as well.

Debate adjourned.