Senate debates

Tuesday, 27 March 2018


Communications Legislation Amendment (Online Content Services and Other Measures) Bill 2017; In Committee

12:37 pm

Photo of Deborah O'NeillDeborah O'Neill (NSW, Australian Labor Party, Shadow Assistant Minister for Innovation) Share this | Hansard source

I move Labor amendment (1) on sheet 8380:

(1) Schedule 1, item 22, page 18 (after line 25), after paragraph 3(1)(q), insert:

(qa) a service provided by the Special Broadcasting Service Corporation; or

Labor has circulated sheet 8380, containing an amendment to remove the SBS from the operation of this bill. In our view, this amendment is really no big deal. It doesn't change the substantive outcome to be achieved. It merely changes the way that outcome will be achieved. Labor's amendment goes to the mechanism by which the outcome will be implemented, and it goes to that alone.

What Labor's amendment does is preserve parliament's intent with respect to the SBS being a broadcaster that's independent of the government, and it maintains the status quo, whereby SBS services on television, radio and online are regulated by the SBS Codes of Practice 2014 (revised 2016). It's really very simple. Labor's amendment means that the SBS will be subject to additional restrictions on gambling promotions during live sport, just like everybody else. But, instead of being regulated by ACMA rules under this bill, SBS will be regulated by the SBS Codes of Practice.

Labor's amendment simply corrects the wrong-headed approach in this bill, which would include SBS in a regulatory regime that would, quite improperly, make the regulation of SBS content a matter of discretion for the Australian Communications and Media Authority. With all due respect to the ACMA, that is simply not the intent of parliament when it comes to the SBS.

Let me be clear. Labor intends that SBS be subject to additional restrictions on gambling promotions to the same extent that other services are. There's no way that Labor would move an amendment to exempt SBS from the overarching requirement to restrict gambling promotions in accordance with the intent of government policy. Indeed, it was Labor who called for stronger protections around gambling advertising during live sport last year, well ahead of the government's announcement.

What's more, SBS has made it clear that it will be subject to additional restrictions just like everybody else. SBS is on record as saying that it's committed to implementing appropriate restrictions in accordance with the policy. In its submission to the Senate inquiry into this bill, SBS stated:

… SBS remains committed to working constructively with the Government to implement new rules to restrict gambling advertising during live sporting events on online platforms in accordance with the Government’s May 2017 policy announcement.

SBS will work with Government and industry to ensure that new restrictions in the SBS Codes are consistent with those applying to other providers.

SBS will implement additional restrictions, in accordance with government policy, by 30 March 2018, on both its broadcast and its online platforms. Consistent with past practice and in relation to broadcasting, SBS will incorporate the new gambling advertising restrictions by reference to the Free TV and CRA codes of practice that have been registered and which were announced by the ACMA on Friday, 16 March, this year. In the online space, SBS will implement new restrictions ahead of the rest of the market, and it will do this ahead of the ACMA, which is yet to be empowered under this bill to develop and implement online content service provider rules.

At the heart of this amendment is Labor's commitment to upholding the independence of our national broadcasters. It's unacceptable that this bill permits a level of ACMA intervention over SBS programming, contrary to the independence of the SBS and the co-regulatory framework in the Broadcasting Services Act 1992. The implementation mechanism set out in the bill is inappropriate for application to a public broadcaster such as SBS because it would disturb SBS's editorial independence from government and is inconsistent with provisions of the Special Broadcasting Service Act 1991, the SBS Act, which safeguards this independence. The SBS Act requires the SBS board to maintain the independence of the SBS, and section 11 limits the matters on which SBS can be directed by the minister. In particular, section 11(3A) of the SBS Act provides:

The Minister must not give a direction—

to the SBS board—

in relation to the content to be provided on a digital media service.

A similar provision applies in relation to broadcast services under section 11(3). The policy justification for section 11 is to ensure the independence of public broadcasters.

The BSA also recognises SBS's independence. For example, section 13(5) of the BSA provides:

Except as expressly provided by this Act, the regulatory regime established by this Act does not apply to national broadcasting services.

The effects of this provision include that schemes such as those in part 9 of the BSA—which provides for content rules, program standards and codes of practice applying to other sectors, particularly commercial television broadcasters—do not apply to SBS. This provision recognises the separate regulatory scheme established by the SBS Act. The BSA 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.

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 the ACMA's discretion to do so may be fettered by ministerial direction. In any event, with all due respect to the ACMA, rules around SBS programming should not be a matter of ACMA discretion in the first place; they should remain a matter for the independent SBS board, which has a legislative obligation under the SBS Act to develop codes of practice relating to programming matters.

SBS should not be captured by the regulatory regime set out in this bill. Instead, implementation of new restrictions should be achieved by the SBS Codes of Practice. As such, all Labor's amendment does is change the mechanism by which the SBS will be regulated. It prevents the SBS programming from being subject to rules developed by the government regulator, the ACMA, and maintains the integrity of the regulatory regime currently in place.

The regulatory framework is well established and clear when it comes to the SBS. SBS services are already subject to gambling advertising restrictions during live sport under the current SBS Codes of Practice. Unlike other media sectors, where codes of practice are limited to regulating broadcast platforms, this is not the case for the SBS. The SBS codes already cover both broadcast and online services, and the SBS board has the discretion to include new restrictions on gambling advertising in live sport streamed online by SBS. SBS has a responsibility to ensure its policies keep pace with Australia's converging media landscape. SBS has kept pace with technological change and extended the scope of its codes of practice so that they apply to SBS's online platforms.

The SBS codes are developed by the SBS board under the SBS Act. They're a robust and enforceable set of rules overseen by the independent SBS Ombudsman. In addition to this, the BSA provides that the ACMA may investigate the SBS. If the ACMA is satisfied it should take action to encourage the SBS to comply with the code of practice, the ACMA may, by notice in writing, recommend that the SBS take action to comply, or to broadcast or to otherwise publish an apology. Further, ACMA may give the minister a written report on the matter, which the minister must cause to be laid before each house of parliament. This is just one of a number of accountability mechanisms the SBS is subject to. However, under the current regime the ACMA cannot direct the SBS in relation to its programming, nor does ACMA have any scope to impose a civil penalty on SBS, as is contemplated by this bill. In this way, the BSA recognises and upholds the independence of the SBS.

The government say that they want everyone to be subject to the same regulatory framework, that the same rules ought to apply to everyone. The government will argue that Labor's amendment undermines consistency. Well, there are at least four key arguments that rebut this, that demonstrate that it is, indeed, the government's bill that is the inconsistent oddity.

First: while it might appear to be consistent to have one schedule to regulate all online services for gambling promotions during live sport, in fact it is inconsistent. Having the ACMA regulate SBS content is inconsistent with the SBS Act and the Broadcasting Services Act. Just because the Minister for Communications has a simplistic understanding of how regulation in his own portfolio works and has complete disregard for the independence of public broadcasters, it doesn't mean that the Senate should pass laws that are inconsistent with the existing regulatory framework or inconsistent with parliament's intent with respect to the independence of the SBS.

The Minister for Communications seeks to intervene on all manner of things when it comes to our independent public broadcasters, the ABC and the SBS. Whether it be attempting to force disclosure of salaries, to change the date of the Triple J Hottest 100 or meddling in the ABC enterprise agreement—you name it—the current Minister for Communications has shown time and time again that he simply does not respect the independence of our very trusted and valued national broadcasters.

Second: while it might appear to be consistent to have one schedule to regulate all online services for gambling promotions during live sport, in fact it creates inconsistencies for citizens and consumers. Currently, an audience member who wishes to provide feedback or to complain about SBS content has a one-stop shop in the SBS, given the unique nature of SBS as a public media organisation. Audiences expect a single source of content rules, not different rules for different complaints and different compliance processes depending on what platform they're using and what type of sport they're watching.

Third: subjecting the SBS to this bill is inconsistent with the stated policy objective of the government that opportunities for self- and co-regulation should be pursued to a greater, not a lesser, extent. Recent examples of government support for self- and co-regulation include the ACMA's work in 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:

… key international and government organisations have promoted self- and co-regulation as alternatives to direct regulation—

and that the government has encouraged the use of light-handed regulatory options. It continues:

The Australian Government has encouraged the use of 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:

… the Telecommunications Act 1997 and the Broadcasting Services Act 1992 enunciate a preference for co‐regulation.

It also notes:

… there continues to be an assumption (by industry, consumers and government) that industry‐wide co‐regulation should be a 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, the final report of the Department of Communications and the Arts review of the ACMA noted:

Best practice regulatory design also 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, here in the Senate, they wish to force the SBS, which is currently self-regulating effectively, to submit to direct regulation. This is costly, it's duplicative and it's inconsistent of the Turnbull government. As a matter of policy and best practice and in order to alleviate the burden on the Australian taxpayer, the SBS should be encouraged to regulate by codes of practice where possible.

Finally, don't be misled that the government's approach to regulation of gambling promotions during live sport is consistent with or analogous to the Commonwealth's regulation of tobacco advertising. It's not. The Tobacco Advertising Prohibition Act 1992 is a law of general application in Australia, and it's administered by the Department of Health with referral mechanisms to the Commonwealth Director of Public Prosecutions or the Australian Government Solicitor. In contrast, this bill to regulate gambling promotions during live sport online is a platform-specific and program-specific set of rules in a schedule that is to be tacked onto the Broadcasting Services Act 1992, an act that is administered by the ACMA. As a schedule to the BSA, this bill inherits the regulatory framework that pertains to the SBS under the BSA and the SBS Act, which, as I've already described, mandates the independence of the SBS.

In essence, what this bill highlights is the ongoing failure of the Liberal government to adapt to the regulatory framework for media and communications in the 21st century. The bill proposes to regulate online platforms by tacking yet another schedule onto the outdated, pre-internet Broadcasting Services Act 1992, now over 25 years old. If the Turnbull government wants to regulate both broadcast and online platforms coherently or alter the regulatory framework in the BSA as it relates to the SBS, it should conduct comprehensive and long overdue reform of the BSA. The Turnbull government should be exploring ways to encourage the commercial television, commercial radio and subscription television industries to utilise self- and co-regulatory approaches in relation to online content provided by those sectors.

In closing, for the government to threaten that it will pull this bill if Labor's amendment gets up is pure nonsense and bluff. Both the government and Labor are committed to implementing online restrictions, but SBS should not be directly subject to the regulatory regime set out in this bill. Labor's amendment fixes this error and is 100 per cent consistent with government policy on the restriction of gambling promotions, on the independence of the SBS and in relation to best practice regulation. Overall, including restrictions on gambling advertising during live sporting events on online platforms in the SBS codes would be clearer for audiences, would enable more efficient handling of complaints by both SBS and the ACMA and would appropriately preserve the SBS's editorial independence from the government. Labor's amendment does not mean that the SBS will not be regulated or will be exempt from regulation. It will simply keep the mechanism for the regulation of the SBS the same as it is now—regulation by codes of practice. I seek your support for this amendment.


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