John Watson (Tasmania, Liberal Party) Share this | Link to this | Hansard source

On behalf of the Standing Committee on Regulations and Ordinances, I give notice that 15 sitting days after today I shall move:

No. 1    That the Environment Protection and Biodiversity Conservation Amendment Regulations 2006 (No. 1), as contained in Select Legislative Instrument 2006 No. 131 and made under the Environment Protection and Biodiversity Conservation Act 1999 be disallowed.

No. 2    That the Great Barrier Reef Marine Park Amendment Regulations 2006 (No. 1), as contained in Select Legislative Instrument 2006 No. 132 and made under the Great Barrier Reef Marine Park Act 1975 be disallowed.

I seek leave to incorporate in Hansard a short summary of the matters raised by the committee.

Leave granted.

The summary read as follows—

Environment Protection and Biodiversity Conservation Amendment Regulations 2006 (No. 1), Select Legislative Instrument 2006 No. 131

Great Barrier Reef Marine Park Amendment Regulations 2006 (No. 1), Select Legislative Instrument 2006 No. 132

The Environment Protection Regulations specify revised provisions concerning the regulation of persons, vessels and aircraft within the Australian Whale Sanctuary. The Great Barrier Reef Marine Park Regulations introduce similar provisions to regulate the impact on cetaceans within the Marine Park.

New subregulation 8.04(3) of the Environment Regulations creates a strict liability offence if the person operating a vessel fails to move away from a cetacean at “a constant slow speed”. The same phrase is used in paragraph 8.05(2)(a), which is also a strict liability offence. This imposes an imprecise obligation on a person operating a vessel.

Regulation 8.09A, of these Regulations specifies certain offences concerning swimming with cetaceans. However, there is no provision for a defence, similar to that found in subregulations 8.05(6) and 8.06(4), stating that it is a defence if the cetacean has approached the person.

Similar comments apply to subregulation 117D(3), paragraph 117E(2)(a), and regulation 117J of the Great Barrier Reef Marine Park Regulations.

The Committee has written to the Minister seeking advice on these matters.

Following the receipt of satisfactory responses, on behalf of the Standing Committee on Regulations and Ordinances I give notice that, at the giving of notices on the next day of sitting, I shall withdraw business of the Senate notice of motion No. 1, standing in my name for three sitting days after today, for the disallowance of the Broadcasting Services (Anti-Terrorism Requirements for Subscription Television Narrowcasting Services) Standard 2006; and business of the Senate notice of motion No. 1, standing in my name for six sitting days after today, for the disallowance of the Broadcasting Services (Anti-Terrorism Requirements for Open Narrowcasting Television Services) Standard 2006. I seek leave to incorporate in Hansard the committee’s correspondence concerning these standards.

Leave granted.

The correspondence read as follows—

Broadcasting Services (Anti-Terrorism Requirements for Subscription Television Narrowcasting Services) Standard 2006 and the Broadcasting Services (Anti-Terrorism Requirements for Open Narrowcasting Television Services) Standard 2006.

11 May 2006

Senator the Hon Helen Coonan

Minister for Communications, Information

Technology and the Arts

Suite MG.70

Parliament House

CANBERRA ACT 2600

Dear Minister

I refer to the following Standards made under the Broadcasting Services Act 1992.

Broadcasting Services (Anti-Terrorism Requirements for Open Narrowcasting Television Services) Standard 2006

Broadcasting Services (Anti-Terrorism Requirements for Subscription Television Narrowcasting Television Services) Standard 2006

Sections 6 and 7 in each of these two instruments prohibit a licensee from broadcasting programs that could reasonably be construed either as recruiting people to join terrorist organisations, or as soliciting funds for such organisations. A licensee will be in breach of these standards regardless of whether the licensee knows that the program could reasonably be construed in this way. The Explanatory Statement does not indicate why the element of the licensee’s knowledge has not been included in sections 6 and 7.

Further, notwithstanding sections 6 and 7, section 9 permits a licensee to broadcast a program that “merely gives information about, or promotes the beliefs or opinions of, a terrorist organisation”. If section 9 is intended to operate as a defence against an apparent breach of sections 6 or 7 it is not clear whether the licensee bears the burden of establishing that the program merely gives information or promotes certain beliefs.

The Committee would appreciate your advice on the above matters as soon as possible, but before 16 June 2006, to enable it to finalise its consideration of these Standards. Correspondence should be directed to the Chairman, Senate Standing Committee on Regulations and Ordinances, Room SG49, Parliament House, Canberra.

Yours sincerely

John Watson

Chairman

16 June 2006

Senator John Watson

Chairman

Standing Committee on Regulations and Ordinances

Parliament House

CANBERRA ACT 2600

Dear Senator Watson

Standards made under the Broadcasting Services Act 1992

Thank you for your letter of 11 May 2006 concerning the operation of the Broadcasting Services (Anti-Terrorism Requirements for Open Narrowcasting Television Services) Standard 2006 and the Broadcasting Services (Anti-Terrorism Requirements for Subscription Television Narrowcasting Television Services) Standard 2006.

I note that these Standards address a significant community concern by aiming to prevent the broadcast of programs that directly recruit or solicit donations for terrorist organisations and terrorist activities.

As the Australian Communications and Media Authority (ACMA) has responsibility for the determination of these Standards, I have sought its advice in relation to the matters raised by the Committee.

Sections 6 and 7— knowledge of licensees

ACMA has advised that they intentionally decided against including provisions in the Standards that would require a licensee of a narrowcast television service to knowingly broadcast programs that could reasonably be construed as recruiting people to join terrorist organisations or to solicit funds for such organisations.

The reason for this decision was to provide a clear disincentive to a licensee of a narrowcasting television service to broadcast programs from sources that may carry a risk of breaching the Standards, without first vetting or viewing the programs and making an informed assessment about them. The licensee bears responsibility for the service and as such it is appropriate that it is obliged to be aware of its content. The strict liability approach taken by ACMA is necessary in order to ensure that an effective enforceable obligation is established.

ACMA notes the Committee’s observation that the Explanatory Statement does not indicate why the licensee’s knowledge has not been included. ACMA staff have subsequently undertaken to recommend to the Authority that the Explanatory Statements be amended to include further information about these two sections, explaining the reasons for applying strict liability to licensees that broadcast material in breach of the Standards.

Section 9—exemption for licensees providing information only

ACMA has advised that section 9 of the Standards is not a defence against breaches of sections 6 or 7. Rather, the intention of section 9 is to narrow the scope of the Standards by excluding those broadcasts that are deemed merely informative.

I note the Committee’s query in relation to whether it is the licensee who will bear the burden of establishing that a program merely gives information or promotes certain beliefs. I understand that as ACMA’s investigation process is inquisitorial, the licensee will not bear the burden of proof in any process that might involve consideration of the application of the Standards. Rather, ACMA would determine whether the standard has been breached, having regard to any conduct of a licensee, on the balance of probabilities.

I trust this information addresses the Committee’s queries about the Standards. The contact officer in the Department of Communications, Information Technology and the Arts on these matters is Mr Gordon Neil, General Manager, Licensed Broadcasting. He can be contacted on 62711712.

Yours sincerely

Helen Coonan

Minister for Communications, Information Technology and the Arts

22 June 2006

Senator the Hon Helen Coonan

Minister for Communications, Information

Technology and the Arts

Suite MG.70

Parliament House

CANBERRA ACT 2600

Dear Minister

Thank you for your letter of 16 June 2006 responding to the Committee’s concerns with the Broadcasting Services (Anti-Terrorism Requirements for Open Narrowcasting Television Services) Standard 2006 and the Broadcasting Services (Anti-Terrorism Requirements for Subscription Television Narrowcasting Television Services) Standard 2006.

In your response you advise that the Australian Communications and Media Authority (ACMA) intentionally decided against including provisions in the Standards that would require a licensee of a narrowcast television service to knowingly broadcast programs that could be reasonably construed as either recruiting people to join terrorist organisations or as soliciting funds for such organisations (sections 6 and 7). The Committee notes that these sections are intended to discourage licensees from broadcasting programs without first vetting or viewing their content and making a decision as to whether they breach the Standards.

You also advise that the intention of section 9 is to narrow the scope of the Standards by excluding those broadcasts that are deemed merely informative and that it is not a defence against breaches of sections 6 and 7.

The Committee would appreciate further advice on how sections 6, 7 and 9 are intended to interact. In particular, how may a person distinguish between a broadcast that merely promotes the beliefs or opinions of a terrorist organisation, and a broadcast that could reasonably be construed as recruiting people to join a terrorist organisation? In such instances, who would determine what is reasonable and whether a program breaches sections 6 or 7?

The Committee would appreciate your advice on the above matters as soon as possible, but before 28 July 2006, to enable it to finalise its consideration of these Standards. In the meantime, as a precautionary measure, the Committee has given a notice of motion to disallow the Broadcasting Services (Anti-Terrorism Requirements for Subscription Television Narrowcasting Television Services) Standard 2006. The Committee has agreed that it will give a further notice of disallowance on the remaining Standard in August if more time is needed to resolve its concerns with these Standards.

Correspondence should be directed to the Chairman, Senate Standing Committee on Regulations and Ordinances, Room SG49, Parliament House, Canberra.

Yours sincerely

John Watson

Chairman

9 August 2006

Senator John Watson

Chairman

Standing Committee on Regulations and Ordinances

PARLIAMENT HOUSE

CANBERRA ACT 2600

Dear Senator Watson

Standards made under the Broadcasting Services Act 1992

Thank you for your letter of 22 June 2006 regarding your request for clarification in regard to sections 6, 7 and 9 of the Broadcasting Services (Anti-terrorism Requirements for Subscription Television Narrowcasting Services) Standard 2006 and the Broadcasting Services (Anti-terrorism Requirement for Open Narrowcasting Television Services) Standard 2006.

As the Australian Communications and Media Authority (ACMA) has responsibility for the determination of these Standards, I have sought its advice in relation to the matters raised by the Committee.

In regard to your query regarding the interaction between sections 6, 7 and 9 of the Standards, ACMA has advised that the Revised Explanatory Statements registered on the Federal Register of Legislative Instruments on 6 July 2006 provide further clarification around the operation of these sections.

Sections 6 and 7 of the Standards do not prohibit a program that merely promotes the beliefs or opinions of a terrorist organisation and may inadvertently encourage people to join or otherwise financially support the organisation. This exception is contained in section 9 of the Standards and ensures that freedom of expression is not unduly restricted. Section 9 does not operate as a defence; rather it limits the application of the prohibition in the first place.

In regard to your query concerning the means by which a person may distinguish between a broadcast that ‘merely promotes the beliefs or opinions of a terrorist organisation’ and a broadcast that ‘could reasonably be construed as recruiting people to join a terrorist organisation’; ACMA has advised that only programs that “directly” encourage people to join the organisation or become involved in its activities (for example, by calling for new members and giving contact information) or solicit or collect funds (for example, by giving information about where funds may be sent) are prohibited by sections 6 and 7 of the Standards. For example, as indicated in section 7(2), a program that called for viewers to make donations to a terrorist organization named in the Criminal Code and provided bank account details or other means of making payment to the organisation, could not be broadcast.

The licensee will only breach the standard if the program can ‘reasonably be construed’ as:

• directly recruiting a person to join, or participate in, the activities of a terrorist organisation; or
• soliciting or assisting in the collection or provision of funds for a terrorist organisation.

What is reasonable involves an objective assessment of what a reasonable viewer, with knowledge of the meaning of ‘terrorist organisation’ in the Criminal Code and these standards, would draw from the program. It is a question of fact to be decided in the circumstances of each case.

As advised in my letter to the Committee of 16 June 2006, ACMA’s investigation process is inquisitorial; the licensee does not bear the burden of proof in any process that might involve consideration of the application of the standard. Rather, ACMA would determine whether the standard has been breached, having regard to all relevant matters including the submissions of a licensee, on the balance of probabilities.

I trust this information is of assistance and addresses the Committee’s further queries about the Standards. The contact officer in the Department of Communications, Information Technology and the Arts on these matters is Mr Simon Cordina, General Manager, Digital Content Branch. He can be contacted on (02) 6271 1858.

You sincerely

Helen Coonan

Minister for Communications, Information Technology and the Arts

10 August 2006

Senator the Hon Helen Coonan

Minister for Communications, Information

Technology and the Arts

Suite MG.70

Parliament House

CANBERRA ACT 2600

Dear Minister

Thank you for your letter of 9 August 2006 providing clarification on the interaction of sections 6, 7 and 9 of the Broadcasting Services (Anti-Terrorism Requirements for Subscription Television Narrowcasting Services) Standard 2006 and the Broadcasting Services (Anti-Terrorism Requirement for Open Narrowcasting Television Services) Standard 2006.

The Committee has found your advice on the interaction of these sections, and the revised explanatory material, very helpful. However, the Committee still remains concerned about the level of uncertainty that may arise out of the operation of these Standards. While you indicate that an objective assessment will be made as to whether a program has breached the Standards, broadcasters are faced with having to make a subjective decision about the content of that program before (or as) it goes to air.

For example, how will a broadcaster determine the point at which a program becomes one that seeks funds for or promotes terrorism if it is not immediately apparent? For instance, if a program seeks funds to aid a refugee charity which is later found to be linked to a terrorist organisation, will it still be caught by this prohibition even though the funds were only for humanitarian aid? It appears that broadcasters are being asked to make subjective judgements about programs and hope that they do not contravene the Standards. The Committee understands that broadcasters have themselves raised this uncertainty with ACMA. Given these uncertainties, will any further guidance be provided to broadcasters to assist them in determining whether the content of a program breaches the Standards beyond the ‘reasonable person’ test?

The process for assessing whether a program breaches the Standards also raises some concerns. In your response you advise that the Standard imposes an objective test—“what is reasonable involves an objective assessment of what a reasonable viewer, with knowledge of the meaning of ‘terrorist organisation’ in the Criminal Code and these standards, would draw from the program”. The Committee notes that the definition in the Criminal Code provides that a terrorist organisation is directly or indirectly engaged in or planning a terrorist act, or is one that is specified by the regulations. A terrorist organisation may often be known by a variety of names which either change from time to time, requiring changes to the regulations, or which may not be specified in the regulations at the time a program is broadcast. It may therefore be difficult for a broadcaster, or a reasonable viewer, to have sufficient knowledge of the relevant law to determine whether a program has breached the Standards at the time it is televised.

Given these concerns, the Committee also seeks your advice as to what consequences, if any, are faced by a broadcaster if a program is subsequently found to be in breach of the Standards, and what rights of review or appeal are available where ACMA makes an adverse finding?

The Committee would appreciate your advice on the above matters as soon as possible, but before 1 September 2006, to enable it to finalise its consideration of these Standards. In the meantime, as advised in its letter of 22 June 2006, the Committee has also given a notice of motion to disallow the Broadcasting Services (Anti-Terrorism Requirements for Open Narrowcasting Television Services) Standard 2006 today to give it more time to resolve its concerns with these Standards.

Correspondence should be directed to the Chairman, Senate Standing Committee on Regulations and Ordinances, Room SG49, Parliament House, Canberra.

Yours sincerely

John Watson

Chairman

5 September 2006

Senator John Watson

Senator for Tasmania and Chairman

Standing Committee on Regulations and Ordinances

PARLIAMENT HOUSE

CANBERRA ACT 2600

Dear Senator Watson

Anti-Terror Standards made under the Broadcasting Services Act 1992

Thank you for your letter of l0 August 2006 seeking further clarification on the operation of the Broadcasting Services (Anti-Terrorism Requirements for Subscription Narrowcasting Services) Standard 2006 and the Broadcasting Services (Anti-Terrorism Requirement for Open Narrowcasting Television Services) Standard 2006 (the Standards).

As you are aware the Australian Communications and Media Authority (ACMA) has responsibility for the determination of these Standards and I have sought advice from ACMA on the additional matters the Committee has raised.

ACMA has noted the Committee’s concerns about the nature of judgements a broadcaster may need to make to comply with the Standards as currently drafted, and considers this could be best addressed by amending the Standards to provide greater certainty in determining which individuals or organisations are deemed to be terrorist entities.

In this regard, ACMA has indicated that it intends to seek public comment on a proposal to amend the Standards to replace the expression ‘terrorist organisation’ wherever it appears in each Standard with ‘listed terrorist’. This will confine the operation of the Standard to those organisations listed in the Criminal Code Regulations 2002, as amended from time to time, or in the consolidated list of proscribed persons and entities kept by the Department of Foreign Affairs and Trade under the Charter of the United Nations (Terrorism and Dealings with Assets) Regulations 2002 (‘the DFAT consolidated list’).

The DFAT consolidated list includes a more extensive list of specified individuals and organisations, in addition to those referred to as ‘listed terrorist organisation[s]’ in the Criminal Code. This approach will provide narrowcast broadcasters with greater certainty as they will be able to determine whether any particular person or organisation is a listed terrorist at any particular time by consulting the list in the Criminal Code Regulations 2002 and the DFAT consolidated list. Subject to consideration of any public comments on the proposal, ACMA intends to amend the Standards to give effect to this proposal.

Where ACMA determines that the Standards apply (i.e. the material is not exempt under sections 8 or 9) and the program can be reasonably construed as directly recruiting or soliciting funds for a listed terrorist, ACMA may use its powers to enforce compliance with the Standards. Section 5(2)of the Broadcasting Services Act 1992 requires ACMA to use its powers in a manner commensurate with the seriousness of the breach concerned. ACMA’s current enforcement options in the event of a breach of the Standards include:

• acceptance of voluntary undertakings in appropriate circumstances;
• issuing a notice directing the broadcaster to take action to ensure that the service is provided in such a way as to comply with the requirements of the licence. It is an offence not to comply with a notice;
• referral of the matter of non-compliance with the Standard to the Director of Public Prosecutions (DPP); and
• application to the Federal Court for an order that the person providing the service cease providing that service.

The Broadcasting Services Act 1992 does not provide for internal or merits review of these enforcement mechanisms, however an action may be available under the Administrative Decisions (Judicial Review) Act 1977 in respect of the issuing of the notice to comply and each of the more serious forms of enforcement are imposed through a court.

ACMA has also advised that it will determine guidelines to assist licensees in applying the Standards. It is proposed that these guidelines will particularly focus on:

• how to determine whether a person or an organisation is a ‘listed terrorist’;
• “recruiting for a terrorist” at section 6 of the Standard and “financing terrorism” at section 7 of the Standard; and
• reminding narrowcast broadcasters that complying with the Standards does not abrogate the need to comply with other relevant laws such as the provisions of the Criminal Code.

I trust this information is of assistance and that ACMA’s proposal to amend the Standards will address the Committee’s concerns about providing greater certainty for narrowcasters in complying with their requirements. The contact officer in the Department of Communications, Information Technology and the Arts in relation to this matter is Mr Simon Cordina, General Manager, Digital Content Branch. He can be contacted on 02 6217 1858.

Yours sincerely

Helen Coonan

Minister for Communications, Information Technology and the Arts

Senator Bob Brown to move on the next day of sitting:

That the Senate—

(a)

notes that:

(i)

a report of the United States of America Republican-led Senate Select Committee on Intelligence found that there is no evidence of any relationship between the Iraqi regime of Saddam Hussein and al-Qaeda, and

(ii)

the Government is yet to state whether it now believes that any such link ever existed; and

(b)

calls on the Government to outline when it first became aware of concerns that there was no link between the regime of Saddam Hussein and al-Qaeda.

Senator Milne to move on the next day of sitting:

That the Senate—

(a)

notes that:

(i)

various global oil depletion protocols have recently been proposed, and that the basic principle underpinning each is that oil importing nations agree to reduce their imports by an agreed yearly percentage (the world oil depletion rate), while producing countries would agree to reduce their rate of exports by their national depletion rate,

(ii)

such protocols seek to prevent profiteering from shortage, avoid destabilising financial flows arising from excessive oil prices, encourage the avoidance of waste and stimulate investment in alternative energies, and

(iii)

the next meeting of the Group of Twenty (G-20) Finance Ministers and Central Bank Governors will take place in Melbourne in November 2006 and that the issues listed for discussion include energy security; and

(b)

calls on the Government to include consideration of an oil depletion protocol on the agenda of the 2006 G-20 meeting.