Senate debates

Monday, 2 March 2015


Broadcasting and Other Legislation Amendment (Deregulation) Bill 2015; Second Reading

9:05 pm

Photo of Stephen ConroyStephen Conroy (Victoria, Australian Labor Party, Deputy Leader of the Opposition in the Senate) Share this | | Hansard source

I rise to speak on the Broadcasting and Other Legislation Amendment (Deregulation) Bill 2015. Labor supports this bill. This bill is part of the government's so-called regulation repeal day. This is another government stunt designed to do little more than simply generate a news headline. The former Labor government repealed 16,974 acts and regulations during its time in office. Let me repeat that: the former Labor government repealed 16,974 acts and regulations during its time in office. We called this 'governing'.

This bill saves industry about $350,000 according to estimates from the Department of Communications. Important—yes. But hardly worth a special day. The last time I spoke in this place on red tape repeal it was to amend the Omnibus Repeal Day (Spring 2014) Bill 2014. The Senate agreed to this amendment which would ensure a proper process for Australia's Future Submarine project. Given what has happened in the recent past on this issue, since this amendment was passed, it shows how vital this amendment was; it languishes in the other place, sitting at the bottom of the Notice Paper.

It is another indication that the Prime Minister is still committed to his captain's pick on Japanese submarines.

On the bill before the Senate now, Labor does not propose any amendments. But I do have to note, particularly as there are some South Australians in the chamber today, that this morning in The Australian the government finally admitted that, yes, they did draw up press releases to announce the Japanese had won the submarine contract and they were going to announce it at G20. So despite all of the fabrications that have taken place over the last six months, there is a little paragraph at the end that said: look we might have done a deal with the Japanese before but trust us we have got a proper process in place now. We have misled the entire population of South Australia about our promise to build 12 submarines in Adelaide but trust us, now we have got a proper process. That was part of the last debate on a regulation repeal day bill.

This bill is straightforward and we agree with it. The purpose of the bill is to amend the Broadcasting Services Act 1992, the Radio Communications Act 1992 and the Australian Communications and Media Authority Act 2005. Firstly, it removes a number of provisions in the Broadcasting Services Act which were associated with the simulcast of analogue and digital TV signals in the transition to digital television. Given the switchover to digital TV roll out is now complete, these changes should be supported. This bill also amends the framework used by the Australian Communications and Media Authority to plan the broadcasting services band spectrum by removing requirements in the Broadcasting Services Act and the Radio Communications Act, which are no longer necessary.

The original bill also made an array of changes to captioning. Here again, Senator Ludlam, is yet another example of the Minister for Communications thinking that he knew best and of him ignoring the concerns of the deaf community. It is a clear sign yet again of this minister's arrogance and his disregard for the views of others. The original bill sought to remove the requirement of the free-to-air broadcasters to report annually on compliance with their obligations to provide captioning of programs to assist vision and hearing impaired consumers with access to electronic media and to replace this obligations with a complaints based assessment process. It changed aspects of captioning targets obligations for subscription television and the assessment of the quality of captioning of live and pre-recorded broadcast for free-to-air and subscription broadcasters and remove the requirement for a statutory review of captioning obligations.

These provisions were put in without any serious consultation with the affected communities. They did not bother to talk to the blind community. When the minister introduced the bill, he claimed that proper consultation had taken place—perhaps he had a chat to himself in the mirror while shaving, who knows? But what we all know is he was wrong. You always have to be careful when the Minister for Communications talks. He says one thing but he often means the opposite—I am sure his colleagues know exactly what I mean at the moment. It reflects poorly on the management and consultation skills of the Minister for Communications.

On an issue as important as proper process and proper access to television for the hearing impaired, I would have expected better from the person who wants to be Prime Minister. Although the minister failed to properly consult, the opposition did do this work. The deaf community in particular raised concerns with the government's original bill. The deaf community actually said: just a minute, we are a bit worried about this, Minister. The shadow minister for communications has done what the minister should have done. He has been the one who was taken the time to sit down with the affected communities and advocacy groups as well with the broadcasting industry to work through their concerns.

These consultations have resulted in a reasonable compromise, which is why Labor will be supporting this bill. It adopts those compromises that have been worked through with the deaf community and they are now comfortable. Through the work of the shadow minister, this bill will now restore the requirement for free-to-air broadcasters to report annually on their compliance to captioning obligations and restore the statutory review of captioning to occur in 2016. This will allow a comprehensive review of all the issues that concern the deaf community and broadcasters. This is the hard work that the minister for Communications should have done himself. Maybe he is too busy focusing on other matters instead of his own portfolio responsibilities. Who knows? It certainly gave us an insight yet again into the arrogance of the Minister for Communications, who knows better than all of the experts on every issue. It certainly gives us an insight in how the minister operates—something that everyone on the other side of this place should contemplate in the days and months ahead. The bill we are now debating, which Labor supports, gets the minister out of the mess all of his own making.

Before I finish, I also want to say that Labor will not be supporting the amendment raised by Senator Xenophon. It is not a reflection on him. I know how passionately Senator Xenophon takes the issue of ensuring maximum levels of local content in regional areas, particularly in South Australia. This is a passion that Labor senators share. However, there has been no consultation or engagement on this amendment and no time for the opposition to consider its implications. While we appreciate Senator Xenophon's intentions, we are not in a position to support his amendment without being given enough time to consider its broader applications.

For that reason, Labor do not support Senator Xenophon's amendment, but we do support this now heavily amended bill as put by the government. Once again, we just note that, if the arrogant minister had just been prepared to sit down with the deaf community, there would have been no need for some of the angst that the shadow minister has now had to fix.

9:15 pm

Photo of Scott LudlamScott Ludlam (WA, Australian Greens) Share this | | Hansard source

I rise tonight to speak on the Broadcasting and Other Legislation Amendment (Deregulation) Bill 2015. I will leave comments on the issue of captioning, which was addressed briefly by Senator Conroy, to my colleague Senator Rachel Siewert. I am going to confine my remarks to another issue that has been canvassed in this legislation tonight, principally around local content on free-to-air television.

I note on behalf of the Australian Greens the degree of compliance by the television industry with the new eligible drama expenditure scheme, which requires a number of subscription TV licensees, channel providers and part channel providers to spend at least 10 per cent of their total programming expenditure on new Australian or New Zealand drama productions or co-productions. I understand that this system is not without its loopholes and its flaws, and it is occasionally given a degree of critique by the industry. Nonetheless, it is a system that works, and it is one of the underpinnings of a vibrant and lively local screen culture here in Australia. It is our view that insufficient evidence has been presented that would indicate that the removal of auditing requirements for this scheme would not result in a lower level of compliance with the scheme.

The Greens believe that the government and the TV sector must continue to strongly support the development of original Australian content. The industry has long enjoyed a fairly favourable and permissive regulatory environment which has driven strong profitability by a number of companies. In this context, we believe it is entirely fit that, in turn, it supports the broader Australian community by generating content that will highlight Australian culture. We know that the commercial TV sector is under a degree of competitive pressure at the moment and that arguments are being raised to either (a) cut licensing fees or (b) water down local content obligations. We think that these obligations are too important to sacrifice.

I draw the chamber's attention to comments by the Communications Law Centre, at UTS, in Sydney, who argue that, if auditing requirements around the new eligible drama expenditure scheme were removed, 'the ACMA should undertake regular compliance monitoring' and that 'the provision of Australian content on a range of platforms' is strongly in the public interest. We concur with these comments. The CLC states:

Although there has been a high level of compliance with these regulatory requirements to date, this does not necessarily mean that these levels of compliance will be attained in the future in the absence of robust regulation.

This is one example, I guess, where the Australian government have seen a regulation and they have decided, as part of this grand theatre of red-tape removal and deregulation, to knock something over that was actually there for a reason. It was there in the public interest, and it was performing a purpose.

The Greens further note comments from Screen Producers Australia which state that 'further analysis' is needed to ascertain the impact of the removal of these auditing requirements. It might seem simple enough to the government to just start wiping these regulations out with the stroke of a pen. We have to be very careful with the unintended consequences—presumedly not the intended consequences—of degrading the ability of local Australian writers, producers, actors and everybody in the screen industry to get their work broadcast. SPA state in their submission:

The relative costs and benefits have not been clearly communicated and importantly, the degree to which the high-level of compliance has been achieved as a result of the auditing requirement remains unclear.

People are congratulating the government—this one and the former government—for seeing the industry maintain this degree of compliance, but it may well be that the auditing requirements in the act are precisely what has kept it there. So we recommend that the auditing requirements for the new eligible drama expenditure scheme remain firmly in place.

I want to add some comments as well while we are on the subject of vibrant local screen culture and Australian content. Through you, Madam Acting Deputy President, I respectfully ask the present—at least for the time being—Minister for Communications, Mr Turnbull, to rethink his objection to allowing community broadcasting stations around Australian metropolitan areas spectrum continuity. The idea of knocking these stations over, freeing up the spectrum for purposes that have never actually been made clear to anybody and just having them go and make their way on YouTube and hope that audiences will follow them online I think is incredibly retrograde and quite destructive.

The Australian Greens believe that community TV stations are a really powerful and important part of our cultural mix, particularly in the broadcast space, and that allowing them to just take their chances online is completely unacceptable. If the National Broadband Network had not just had a huge kick in the guts and a massive setback, you might be able to say in four, five or six years that, yes, broadcast is quite clearly moving online and community broadcasters should not only maintain their incumbency but get out there in front of the pack. But the fact is that, if you went in to Channel 7 or any of the big commercial broadcasters tomorrow and said, 'We're pulling your spectrum at the end of 2015; good luck on YouTube,' there would be a riot. I do not understand why this minister thinks it is appropriate to treat community broadcasters that way.

To that end, I would like to now move a second reading amendment. It has only recently been circulated. It is very brief. I move:

At the end of the motion, add:

but the Senate calls on the Australian Government to guarantee continuity of broadcast spectrum to the community television sector; so that community TV stations can continue in their role of training Australian talent and providing much-needed diversity to the Australian media market.

It is not enough to say that, because these broadcasters have small audiences, they should go to the wall. If they have audiences that the communications minister thinks could do with a measure of improvement, let us support the stations. Let us do what we can. Let us find out what they need to increase their reach, because, in an age of incredible concentration of power in the hands of a very small number of corporations and media oligarchs, why on earth would we be taking our precious community TV broadcasters off the air?

I look forward to committing that second reading amendment to a vote. As I indicated at the outset, I will leave the remainder of the comments on behalf of the Australian Greens to my colleague Senator Siewert.

9:22 pm

Photo of Rachel SiewertRachel Siewert (WA, Australian Greens) Share this | | Hansard source

I rise tonight to speak about the Broadcasting and Other Legislation Amendment (Deregulation) Bill 2015. This bill is just another item on the government's deregulation agenda. It is clear from the concerns that were raised on this bill during the Senate inquiry that it was introduced with insufficient consultation and without consideration of its impact on viewers, particularly those who are deaf and hearing impaired. The committee inquiry process generated a number of submissions, particularly from the deaf community, which highlighted how little regard this government had paid to those with a hearing impairment and those who are deaf. Given the range of concerns identified, the Australian Greens were not intending to support this bill without substantial amendments in the areas that deal with captioning. I note that amendments were agreed to in the Lower House which largely resolve the concerns that were identified during the committee inquiry. However, it is not good enough for the government to continue to bring forward bills that are so heavily biased towards industry—in this case, the commercial TV stations and, in other cases, it has been big mining, big banks and coal exporters.

The government has a critical role in ensuring services are made available on an equal basis to all members of our community. This bill, unamended, would have meant that those services were not being delivered equally. This government seems to have forgotten that it has a commitment and a responsibility to those with hearing impairment, those with disability and those who are least able to afford the impact of these types of decisions. One in six Australians have a hearing impairment and, as our population ages, this will increase to one in four, meaning that there is likely to be increased reliance on television captioning into the future. It is clear from the submissions to this inquiry that TV broadcasters and caption suppliers are keen to respond to the increasing demand for captioning. Captioning frequency and quality has improved significantly over the past decade. Commitments to 100 per cent captioning during 6 am to 12 pm on free-to-air broadcasts are welcome.

However, the deregulation agenda of the current government is, again, adversely impacting on those who can least afford it, do not deserve it and are least able to bear the costs. In this case, it would have been the deaf community. Furthermore, the lack of consultation, which is very clear from the inquiry, has meant that this legislation was produced without appropriate consideration of the impact that it would have had on consumers, broadcasters and the suppliers of captions. I will touch on a range of the issues that highlight the problem with the original bill so that it is clear why the Australian Greens do not support the rapid deregulation process. It sometimes has intended consequences and sometimes has unintended consequences. There are also issues in this bill that, despite the amendments, we will need to keep a careful eye on to make sure that they do not have adverse impacts.

The bill proposed shifting from an annual reporting compliance scheme, in which broadcasters are required to demonstrate that they meet their captioning obligation, to a consumer complaints mechanism. However, in doing this, the bill did not provide sufficient guarantees that the ACMA will continue to consistently monitor compliance with the captioning quantity and quality requirements or that broadcasters will continue to review and address systemic failures, unless a consumer makes a specific complaint. Effectively, the burden of reporting is shifted from the broadcasters to the individual consumer. A number of consumer representative bodies have argued that this is unacceptable as it makes consumers responsible for policing the broadcasters rather than making broadcasters responsible for demonstrating that they have met their obligations.

The Australian Greens share the perspective of Media Access Australia that reporting is a 'fundamental feature of compliance, consumer protection and efficient market operation, and should be maintained'. An effective consumer complaints mechanism can complement this statutory reporting requirement but should not replace it. Some submissions to the inquiry noted that the current annual reporting process means that there are delays of up to a year in identifying captioning breaches and that in many cases the issues have been resolved by the time the report is submitted. However, they did not demonstrate that a viewer complaints mechanism would result in more timely resolution of systemic failures.

The Australian Greens firmly believe that the responsibility for reporting non-compliance with captioning quality requirements should remain with the broadcaster because, as Media Access Australia noted in their submission, the broadcasters and caption suppliers have the complete records of the programs they have captioned and the technical issues that have occurred. Nevertheless, I do acknowledge that the current reporting regime is overly complex, as demonstrated by Ai-Media in their submission. To ensure that there are still reporting obligations while reducing the regulatory burdens on broadcasters, Ai-Media proposed amending the reporting framework to focus on easier-to-generate yet still verifiable reports, such as 'percentage of captioning target achieved'. This could make reporting simpler for broadcasters and timely and transparent for consumers, without losing the regulatory oversight. Simplified reporting is desirable. A compromise that continues to protect consumers while streamlining the process of reporting could be developed further. Regardless, the burden of reporting should remain on broadcasters, rather than expecting consumers to police the system.

I note that the bill has now been amended to ensure that the statutory review of the legislation is retained. The Australian Greens strongly disagreed with the government's decision to remove this review. The argument—as outlined in the EM—that from December 2013, because a review has been conducted by the department, it is no longer necessary or appropriate to conduct a comprehensive statutory review, is insufficient. Consultation around this bill and the broader reform was inadequate, so there is still clearly a need to review captioning on Australian television against best practise, including the UN Convention on the Rights of Persons with Disabilities. This is particularly important because this bill introduces three amendments that should be monitored and their impact on service quality should be considered during the review phase.

The first of these is the averaging of captioning targets across subscription sports channels. The lack of clarity among submitters to the inquiry about the operation and impact of averaging captioning quotas across subscription sports channels is further evidence of the inadequacy of the consultation undertaken prior to introducing this legislation. The evidence provided to the committee demonstrated that a consumer who subscribes to a sports package on subscription TV will receive all the sports channels and therefore access the same amount of captioning if the averaging of quota requirements is passed. As stated by Fox Sports in the inquiry, the amendments would assist it 'to direct captioning to programming which is of the greatest interest to audiences' and 'would have no impact on the amount of content captioned across subscription television sports channels'.

On balance, the Australian Greens believe that allowing captioning targets to be averaged will not be detrimental to consumers provided there is a commitment from subscription TV providers to produce information that accurately informs consumers about these changes. However, judging from the anxiety of consumers and consumer groups, this change was not widely understood and could have been better explained. It is our expectation that subscription providers, such as Fox Sports, will take note of these confusions and ensure that it is clear to consumers what they are being offered. This should be considered as part of the review process next year.

The second change to the standards that this bill introduces is an exemption due to technical failures. The bill also creates an exemption to captioning quality standard breaches where the breach is due to technical or engineering difficulties which could not reasonably have been foreseen. This would have the effect of addressing situations such as the one described by Free TV Australia. They said:

There have been instances where the ACMA has accepted that a broadcaster has experienced unforseen technical difficulties and excused the breach, but has still gone on to find a breach of the licensee's requirement to comply with the Quality Standard (section 130ZZA).

However, I must also acknowledge the concerns of Deaf Australia, who fear that this amendment will give too much scope to broadcasters to shift the responsibility for breaches of captioning standards onto the captioning service provider and avoid penalties even if the technical and engineering failures are clearly systemic. The Australian Greens have not sought to amend the bill at this stage because of this, however the way in which ACMA henceforth treats failures when considering whether a licensee or broadcaster has failed to comply with the captioning standards should form part of the statutory review that is now scheduled to take place next year.

Finally, the application of the live-captioning standards contained in this bill should also be monitored as part of the review process. The Australian Greens support the move to clearly articulate different standard expectations for live versus prerecorded captioning and recognise that the quality of live captioning will always be lower than prerecorded captioning. Regardless of this distinction, the most appropriate captioning method should still be used by broadcasters and in particular higher quality prerecorded captioning for shows that are not broadcast live. We need to ensure with this amendment that standards do not slip.

Clearly this bill had a number of significant problems which may have had a detrimental effect on deaf and hearing impaired consumers of free-to-air and subscription TV services. The Australian Greens are not opposed to updating and simplifying the regulatory framework that governs TV captioning in Australia provided this leads to better outcomes for consumers rather than just broadcasters. The lack of consultation and the original intention to repeal the statutory review both point to an unwillingness to consider how the bill will impact those who are reliant on captions.

In 2015, with our rapidly improving technology, people with a hearing impairment should have no technical barriers to accessing the news and entertainment that other Australians take for granted. Yet without amendment this bill would have primarily served to erode the quality of Australia's TV captioning and contributed to the discrimination that deaf people and those with a hearing impairment face in accessing basic everyday services.

This government should take a hard look at its rush to deregulation in light of the problems with this bill. It should not be up to the hearing impaired community to lobby the parliament at the last minute when they see these issues come up. It should not have got that far. The Greens commend the work of broadcasters who work in this space and particularly the hearing impaired community for pointing out the significant problems that were originally contained in this bill.

9:34 pm

Photo of Nick XenophonNick Xenophon (SA, Independent) Share this | | Hansard source

I wish to make a brief contribution on the Broadcasting and Other Legislation Amendment (Deregulation) Bill 2015. I am in substantial agreement with what Senator Siewert indicated. She is right: it should not be up to the hearing impaired community to raise these serious concerns so at the last minute they are fixed. Senator Conroy made that point. I perhaps would not have made it in exactly those terms, but I am pleased the amendments have gone some considerable way in dealing with the concerns for the hearing impaired community. I think that is unambiguously a good thing.

I indicate my strong support for Senator Ludlam's second reading amendment in respect of community television. Community television is a critical part of community infrastructure. I am concerned they are being left behind. They are in a sense being almost defunded. Not being able to have access to the spectrum is going to destroy community TV. If you look at the history of community TV, you will see all sorts of talent that got an opportunity to develop their skills. It is a very cost-effective training ground for creative talent. I think Rove McManus and many others started on community TV. I think Hamish and Andy did—and I will stand corrected if that is not the case. It is not just the creative on-air talent; it is also the technicians—those who learn how to do camera work and the technical aspects. It is an incredibly valuable training ground.

Because community TV is often run largely by volunteers it is a very cost-effective way of having community engagement and having people learn skills. I think the government has made a mistake. For the cost of keeping community TV alive and prospering, which is next to nothing in terms of the money required, we will end up seeing the dismantling of a very valuable community asset.

I will be moving amendments in respect of this bill. It relates to the Broadcasting Services Amendment (Material of Local Significance) Bill 2013 that I put up. I know that Senator Conroy said that not enough time was provided. In a sense, this bill was subject to a report of the Senate Standing Committees on Environment and Communications, and it is fair to say that both the government and the opposition did not support this bill. If there has been a change of heart on the part of the opposition, I would be pleased to discuss that further with the opposition in respect of this.

The thrust of the amendment as contained in my bill, which I will be moving in the course of the committee stage, is to insert a new paragraph (h) into section 43A(2):

The effect of this is to include Regional South Australia in the areas to which regional aggregated commercial television broadcasting licences apply.

Under the Act, broadcasters holding these licences must meet specific conditions set out by ACMA regarding local content and 'material of local significance'. This will ensure that regional South Australians continue to benefit from news and programming that is relevant to their communities.

The areas currently listed under subsection 43A(2) (excluding Tasmania, which was added in 2008) were originally set out in the Act in the late 1980s. Consideration of the markets in South Australia, Western Australia and the Northern Territory was intended to take place following this, but never occurred .

Given the vast differences in today's broadcasting environment, I believe it is vital that regional markets have equal and adequate protection in South Australia, Western Australia and the Northern Territory.

When I move the amendment, I will make some additional comments in respect of this but that is the thrust of it. In all, I support this bill. I support the Greens' second reading amendment in terms of community television. I think there has been an opportunity lost in respect of this bill; the government could have used this bill as a vehicle to do something about community TV and, indeed, about local regional content.

9:39 pm

Photo of Mitch FifieldMitch Fifield (Victoria, Liberal Party, Assistant Minister for Social Services) Share this | | Hansard source

I am assuming there are no other colleagues wishing to make a contribution at this point so I thank all colleagues for their contribution.

As you know, this bill seeks to make amendments to three pieces of legislation to remove unnecessary provisions and reduce the regulatory burden on the broadcasting industry. The bill does form part of the communications portfolios commitment of the Australia government's deregulation agenda and seeks to implement a number of measures identified in the portfolio, in the Deregulation Roadmap 2014, and addresses issues that have been raised through consultation with the broadcasting industry.

The bill repeals the redundant licensing and planning provisions that regulated the digital switch-over and restack processes; amends the ACMA's planning powers to implement a more streamlined process when planning broadcasting spectrum; improves administrative arrangements and provides greater flexibility for the free-to-air and subscription broadcasters in relation to their captioning obligations; extends the time frame for the existing statutory review of captioning requirements by one year, to 31 December 2016; removes the auditing requirements of the annual returns on program expenditure that subscription broadcasters and channel providers lodge with the ACMA and the new eligible drama expenditure scheme; it also addresses anomalies and the provisions relating to overlapping licence areas for media-diversity voices and commercial radio-licence areas and in the grandfathering arrangement relating to licence area population determinations; removes redundant obligations with the ACMA to review classification and time-zone safeguards; and makes consequential amendments to schedule 4 of the Broadcasting Services Act as a result of the Acts and Instruments (Framework Reform) Bill 2014.

The government does acknowledge the Senate committee's support for removing captioning annual reporting requirements on free-to-air broadcasters and remains committed to moving over time to a compliance model that does not require unnecessary reports. There has indeed been significant consultation undertaken on the proposed captioning amendments, including with Media Access Australia, the Australian Communications Consumer Action Network, the Human Rights Commission, Deafness Forum of Australia, Deaf Australia and the Australian Federation of Disability Organisations. Clearly, the government has taken the feedback from those discussions into account and will consult further on the compliance framework, noting that all sides agree that the existing captioning reporting arrangements are overly complex and onerous.

I also note that the 18th report of the Parliamentary Joint Committee on Human Rights suggests that the proposed automatic exemption from captioning obligations, for new subscription television channels, may be incompatible with the right to equality and nondiscrimination. The government does take its international obligations very seriously. However, with respect to the committee's conclusion, we do not agree that what had been proposed is inconsistent with Australia's human rights obligations.

I think it is important for me to state in unambiguous terms that in no way, shape or form does this legislation alter, diminish or affect in any way the services provided for Australians with hearing impairments. There was, we know, some concern expressed in some quarters. The government did accept amendments in the other place. That was done very much in good faith. We did not believe, and still do not believe, that if our previous proposition had been progressed that it would have affected the services for people with hearing impairment. There is a review, and that review will be undertaken and there will be extensive consultation. But it is very important to underline that there is no diminution, and there was never any intention for diminution, for people who are hearing impaired.

I guess there are about six minutes before we conclude this particular piece of business. While there are things that I am tempted to say in relation to Senator Xenophon's amendment which he shall move, I might leave that and give the chamber the opportunity to conclude this piece of legislation tonight.

Photo of John WilliamsJohn Williams (NSW, National Party) Share this | | Hansard source

The question is:

That the amendment moved by Senator Ludlam be agreed to.