Monday, 26 March 2018
Communications Legislation Amendment (Online Content Services and Other Measures) Bill 2017; In Committee
I have some questions for the minister. Could the minister outline which sports events would be shown on commercial television post 8.30 so that we are absolutely all aware about which sporting events can still be ruined and infected by gambling ads that would fall outside this set of rules. I find it extraordinary that, despite all of the passion that we saw from the Prime Minister some 12 months ago that he would introduce and oversee legislation to stop gambling ads during live sport that impact on children and families, we now find out that it's only for those sporting events prior to 8.30 pm. Could the minister give us a comprehensive rundown of which sports he believes children will not be watching after 8.30, because I think every parent would want to know whether their children will still be bombarded with gambling ads.
Then there is also the issue of the different time zones across the country. There are three, sometimes four, different time zones across Australia, particularly during daylight savings. There's a time zone in Queensland that is different to New South Wales and Victoria; then there is South Australia and then WA. I would just like the minister to explain how the 5.00 am to 8.30 pm time slot impacts on the different time zones.
In terms of which sporting events will be shown after 8.30 pm and which ones won't, scheduling is ultimately a matter for the sporting codes and the broadcasters. I don't have with me the NRL and AFL fixtures; I don't have with me the programming and the broadcast guides that will be in the newspapers closer to the events. We would be here for quite some time if I had the AFL and the NRL fixtures and the broadcast schedules with me. So I will leave it to the broadcasters and the sporting codes to release their broadcast schedules.
In terms of how the code rules will apply across time zones, on commercial free-to-air television and radio services, the relevant time zone will generally be that of the viewer or listener. On subscription services, the general rule is that where the broadcast is a national signal, the Australian eastern standard or daylight time zone will apply, regardless of where the actual sporting event is taking place. Whereas the commercial free-to-airs can split their signals, in effect, that's not the case with subscription services. However, the new ASTRA code does provide that the restrictions will apply in different time zones in the event that a subscription broadcaster can have multiple signals going to different viewers. For example, if a subscription channel broadcasts different content in different geographical areas, the applicable time zone for each of those would apply. The ACMA, in registering the relevant code for subscription TV, has recognised that there are technical issues which need to be addressed and are reflected in the code.
I'd like to know whether the minister accepts the argument that, for sporting events that run later than 8.30 pm, children will be subjected to gambling ads as a result of the lax nature of these rules. This pretence, per se, that somehow 8.30 pm is the magic time that all of our children are in bed or that the television is switched off strikes me as fanciful, frankly. I take the minister's point that he doesn't want to give us an entire list of all the fixtures of various different sporting codes. The question was about the absurdity of suggesting that, at 8.25 pm, it's wrong to play gambling ads, but, at 8.35 pm, it's somehow okay to play gambling ads. If you think it is wrong, if you think that we shouldn't be ramming these adverts down the throats of our children and young people, then stop them. Stop them if you think that gambling ads are insidious and ruin the spirit of what watching sport in Australia is for and what is appealing about the nature of being a sporting nation. We all rally behind our team or the Australian players, if it's an international fixture. If it's an individual sport like tennis, then we're all rallying behind Sam Stosur or somebody like that. Why are we saying that it depends on the time zone—the time that that show is on—as to whether gambling ads should be able to be shown?
Furthermore, I'd like to understand why the minister has allowed the loophole based on audience numbers for certain channels on Foxtel, where it's okay for ads to be played because of a smaller audience number. Again, I appeal to you. I'm asking what the rationale is for the government to say: 'On one hand, gambling ads are bad. On the other hand, they're only so bad that they shouldn't be shown before 8.30 pm or they shouldn't be shown anywhere but on these smaller channels on Foxtel.' It's a mixed message, Minister. I wonder why you would go to all of this effort to put in place these changes, these regulations—to try and clean up what is an insidious and life-destroying industry, to take on those gambling barons, to say you're going to cut down on this—and then not actually do it properly. It's as if this legislation has been born out of simply wanting the kudos without actually having the teeth to make sure it happens. You can't be half pregnant. You either have to follow through and make sure these rules are in place or you accept that you haven't really dealt with the issue at hand.
We all know that there are some live sporting events that start prior to 8.30 pm, but many run much later. Some of them don't even start until 8.30 pm. There are live sporting events that are on the subscription television services that children do watch, and yet you have these bizarre exemptions. There's one for Foxtel, and another for the time frames for the broadcasters. It just doesn't make any sense. Can the minister please outline what is his rationale?
Senator Smith talked about needing to draw the line somewhere. It seems to me that the line has been drawn based on what suits the commercial interests of the broadcasters and the commercial interests of the gambling industry. We know what happens when there is a live sporting event on: the later it gets in the game, the more exciting it gets and the tension rises. That's when those insidious ads tell people to start betting, and that's when those ads really are at their most powerful. That is what addiction is all about: grabbing people at their most vulnerable. And when children are watching these games—these games are getting tighter and tighter, it's getting later and later and there's an opportunity to see whether it's going to get turned around in the last quarter—that's when these insidious ads drag vulnerable people into spending their money to place a bet.
We watch sport because of the enjoyment of the game. As parents, we sit down with our kids to watch a game of football because it's something to enjoy as a family, to enjoy with your community and to celebrate your team—and, if you're watching an international sport, to celebrate the country. And yet that all gets ruined the moment the game gets taken over by gambling ads saying, 'Don't worry about the spirit of the sport, or the spirit or the talent of the sportsperson; just put your hand in your pocket or on your phone, click away, spend your money and bet.' That's not what sport is about. That's not what backing the Australian soccer team or the Australian cricket team should be about—and it's not as if the cricketers have had a very good last 24 or 48 hours.
What kind of message are we sending to our kids? 'If you wait up past 8.30 pm you can still put your bets on.' It's either wrong and it needs to be stopped, or you're simply allowing those who have a commercial interest in this to draw the line. Can the minister please explain why events that go past 8.30 pm are able to have gambling ads and why, despite appeals, you have allowed the ACMA regulations that are currently in place to have an exemption for those channels that have smaller audiences, in particular in relation to Foxtel? Why have you drawn the line there? Frankly, if you care about cutting down on this insidious industry, if you care about the integrity of sport, then you would have rules that govern that, but currently where you have drawn the line on the board—it doesn't fit. It seems like it is far more in the interests of commercial operators, of the gambling industry and of the big broadcasters than it is anything to do with children or anything to do with cracking down on gambling as a genuine health issue in the community. So I'd like to know from the minister: where is the evidence that audience numbers for channels either do or don't make a difference, and why is 8.30 pm the cut-off time?
You have raised a number of issues, which I'll endeavour to deal with in turn. Whenever you are looking at an issue such as the restriction of gambling advertising, it is always about seeking to balance community safeguards, seeking to balance how and when legal products should and shouldn't be able to be advertised and also, in the case of subscription TV, taking into account that there are different technical and logistical arrangements in terms of those particular broadcast services. I make those general comments by way of context. In terms of having 8.30 pm as the point after which there can be some gambling advertising during live sporting events, 8.30 pm is recognised, and has been recognised in other codes, as the point at which there is a greater capacity for certain products to be advertised. Alcohol is one such example. There are fewer restrictions on alcohol advertising after 8.30 pm. So 8.30 pm is already recognised as a relevant time zone.
The purpose of having 5 am until 8.30 pm as the period where there are restrictions on gambling advertising during live sport is to create a clearly identifiable safe zone so that parents will know that after 8.30 pm they may be in a position where they need to exercise greater parental supervision. This recognises what is already a time zone at 8.30 pm, as in the case of alcohol products. It makes it clear to parents and families when there may need to be closer supervision.
I should also point out—and this is something that Senator O'Neill touched on before—that the Gillard government put in place some restrictions. Those restrictions will remain in place after 8.30 pm. Appendix 3 of the Commercial Television Industry Code of Practice already restricts when betting advertisements or promotion of odds is permitted. For example, during a live sporting event, gambling advertisements may not be shown at designated times such as before or after play and during scheduled and unscheduled breaks in play. In addition, the promotion of odds is not permitted during play or in scheduled breaks or unscheduled breaks during a live sporting event. That situation remains unaltered.
In terms of the particular situation of subscription television and the decision of ACMA to cast and register the codes as they have, ACMA is already required to act in a way that is consistent with the objects of the regulatory policies set out in the Broadcasting Services Act. In particular, before registering a new or amended broadcasting industry code, under part 9 of the Broadcasting Services Act the ACMA must be satisfied that the code provides the appropriate community safeguards. ACMA is an experienced regulator and does take into account the technical circumstances of particular broadcasters alongside the objective of enhancing community protection in this area.
Minister, can you please explain what consultations you or your department had in relation to the drafting of the code? Who did you speak to? Which stakeholders did you consult with? What were the relevant issues that were discussed? I'm speaking, of course, in relation to the code that came into effect through ACMA as of Friday a week ago. I want to know what involvement your office and the department had, what consultations were undertaken and to which stakeholders you spoke.
The government outlined the broad parameters of the gambling advertising restrictions when we announced the media reform package just before the May budget. So those parameters were outlined and clear. The nature of the ACMA code process is that the relevant organisations—in this case the broadcasters—prepare a draft code. That code is provided to ACMA. There's a period of public consultation before the code is provided to ACMA and then ACMA need to be satisfied that the code is in accordance with the act and also that the organisations concerned have undertaken appropriate public consultation.
Minister, that didn't answer my question. I asked which stakeholders your office or your department spoke to in relation to the drafting of the now code. You have obviously had conversations about it. It has been in the works for a number of months now, since the announcement that you made some 12 months ago that this was going to occur. Submissions were put in by various stakeholders. We know that Foxtel put in a submission asking for an exemption. That has now been taken up in the code that has been put forward and is in force as of Friday a week ago. Which organisations and stakeholders have your office and your department spoken to about the development and the draft of the code?
In terms of the code, I, from recollection, wrote to each of the three peaks, ASTRA, Commercial Radio Australia and Free TV, and SBS indicating views on a number of subjects, some of which were in accord with what those particular industry associations thought and some which were contrary to what those particular industry associations thought.
In terms of the consultation process for the bill that is before us, my department consulted with ACMA, Free TV, SBS, ASTRA, Commercial Radio Australia, the Digital Industry Group Incorporated, the Coalition of Major Professional and Participation Sports, Responsible Wagering Australia, William Hill, Tabcorp, Optus Sport and the Advertising Standards Board on the proposed approach.
Minister, did you consult with any of the online gambling companies in relation to the code since the announcement last year that you were going to introduce this legislation? Have you met with or had conversations with any online gambling companies in the last six months? For example, have you spoken to, met with or had representations from and correspondence with Sportsbet?
I have a regular schedule of meetings with stakeholders, which would include a number of sports betting organisations. I think you asked particularly in relation to Sportsbet. I'm almost certain that I would have met with Sportsbet, who I understand are supportive of these gambling advertisement restrictions.
I'd have to check whether I personally met with Foxtel, but no doubt my office spoke to Foxtel during that process. They may have met with them. I almost certainly would have written to Foxtel over that period.
Has the minister met with any of the free-to-air broadcasters—Nine Network, Seven Network or Network Ten—or had representations from Free TV in relation to their concerns that Foxtel are getting exemptions above and beyond public expectations that are being put on the free-to-air broadcasters? Has the minister heard those representations? Has he spoken to any of them about that? Is there anything that the minister has taken on board to alleviate those concerns?
I don't think I met specifically with any of the free-to-air broadcasters on those particular issues. My office did. I'm aware that Foxtel don't always agree with the policy propositions of free-to-air TV, and free-to-air TV doesn't always agree with the policy propositions of Foxtel.
I think SBS have expressed views in meetings with my office and also in writing. They are of a view, which you'll no doubt be articulating—or it might be the Australian Labor Party who have an amendment in this area to do with whether legislation should apply to their online activities or whether they should have code based arrangements applying to those.
What is the minister's response to the argument that including SBS in this particular legislation—it is to be caught under this same code administered by ACMA—interferes with the independence of SBS? Has the minister had representations or communication from SBS in relation to their commitment to the spirit and intention of said code?
Yes, SBS have made clear their support for the spirit and intention of the new advertising restrictions for gambling. I don't believe that this legislation would be a dagger to the heart of SBS independence; it would simply be the consistent application of law to all online platforms. Independence for the public broadcasters means that they have legislated protection from the government of the day seeking to direct their editorial and programming decisions. This legislation doesn't seek to do that. Public broadcasters always have to operate within the parameters that the parliament determines. This is not something that would impinge on their independence.
Could the minister give the reasons why the government wrote a $30 million cheque to Foxtel while, over the last four years, seeing a $60 million cut to SBS? This is giving taxpayers' money to a for-profit private subscription service versus cuts to the public broadcaster. Has the minister considered ensuring that SBS has some of its funding restored as a result of these changes?
Just to put the grant to Fox Sports into context, SBS receives in excess of $270-odd million a year. The ABC does a little bit better; it gets in excess of $1 billion a year. Both organisations have really good capacity to further support the broadcast of women's sport and other under-represented sports through the funding that they receive. In terms of SBS's funding, you'd be aware that we fund on a triennium basis, and decisions about funding for the public broadcasters are taken in the context of the budget.
Could the minister explain why giving $30 million to Foxtel—public money given to a private for-profit subscription service—is a good use of public money when that is not available to all Australians? Foxtel is not available to the public—you can't watch women's sport, or any of the other programs, on Foxtel unless you pay to access it. We have here taxpayers' money being spent on a service that is only accessible to those who can then also pay, in addition. Could the minister explain the justification as to why that is in the public interest, and why it is deemed by this government to be a good use of taxpayers' funds? Are there any other examples, Minister, where that extraordinary amount of money, $30 million, is given to a company that Australians by and large cannot have access to?
Fox Sports broadcasts the largest amount of women's sport in Australia, so they're very well placed to do more. I'm pleased to let colleagues know that Fox Sports will provide enhanced coverage of sports from 13 codes in 2017-18. For the year, it's expected that Fox Sports will broadcast over 1,300 hours of live coverage, and just under 4,000 hours of coverage in total, of women's niche and emerging sports. This represents an 18 per cent increase in the amount of live coverage of these sports in 2017-18, compared with 2016-17, and an 11 per cent increase overall. I think that's good news. The government, in the context of the last budget, decided that this would be an appropriate way to support under-represented sports and their broadcasts. As I've already mentioned, the ABC could do something with the $1 billion plus a year that they receive and SBS could do something with the $270 million a year that they receive, so this particular funding grant is fairly modest in comparison.
Minister, you haven't addressed the core issue, and that is that the programs and events shown on Foxtel's various channels, including Fox Sports, are not accessible to the public. They are simply inaccessible. You've said there's an increase in hours of women's sport being broadcast on Foxtel. Well, good, except that most Australians can't view it. Most Australians don't have access to Foxtel. In fact, I must say that, with the growing living costs across the country, most Australians can't afford to pay upwards of $60, $70 or $80 a month subscription. You're willing to give $30 million to this company so that women's sport can be shown on Foxtel and hardly anybody can watch it. Your government sits here, day in and day out, trying to say that we need to have funding cuts to schools, funding cuts to the ABC and funding cuts to SBS—'We don't have enough money to fund this, that and the other'—but it's well and truly okay to hand over a cheque of $30 million to Foxtel for shows that people can't watch because most people can't afford it. That's how out of touch this government is.
If you really cared about women's sports, you'd make sure it was on free-to-air television, through the public broadcasters, and we know that SBS and the ABC do a fantastic job. It would be through the free-to-air commercial stations. Why on earth would you lock up these shows on a subscription television service that most Australians can't watch? You love women's sport, but you don't want anybody watching it, and you're more than happy to justify a $30 million cheque. It just beggars belief and it doesn't pass the sniff test.
Let's be absolutely honest with what's happened here, Minister. You needed some way of justifying some rule change to gambling advertising. Your mates at Foxtel weren't happy, so you handed them $30 million in the hope they'd go away and shut up. But, of course they didn't. They came crawling back only six months later and said, 'The $30 million isn't enough. We also need exemptions because not only do we charge people to watch our stations but not enough people are prepared to do that. It's too expensive.' Now they don't have to have the gambling restrictions on their stations, because not enough people watch the bloody shows in the first place. It is a rort—a $30 million rort paid for by the taxpayer and handed over by you to your mates at Foxtel at the expense of what could have been funded by our public broadcasters or, even beyond that, our free-to-air broadcasters. You're ripping off taxpayers, you're ripping off women's sport and you're just looking after your mates. I put it to you, Minister, that you have no idea how much this stinks.
Could the minister please explain: where did the $30 million figure come from? Was that something the government put on the table? Was it asked for by Foxtel? Why was $30 million the figure that was agreed to?
As I've said already, what was announced shortly before the budget is what was agreed to and determined by the government in the context of the budget preparation. So I can't further interrogate any number that has come out of the budget process because what comes out of the budget is what is decided in the budget process. I will have to leave that there.
In answer to Senator Hanson-Young's question about whether it was inappropriate that people who want to watch subscription TV need to be subscribers, I would point out to Senator Hanson-Young that Screen Australia, for instance, supports productions such as Secret City which was on Foxtel. You can't watch Secret City unless you have a Foxtel subscription. Secret City was supported by taxpayer dollars. That's not a bad analogy because it demonstrates that taxpayer dollars are put towards good purposes in broadcast—be it women's sport or be it Secret City. I haven't heard anyone say, 'Well, Screen Australia shouldn't give money to Secret City because you've got to subscribe to pay TV.' We also have Screen Australia funding and a number of taxpayer-funded incentives that go to produce major Australian feature films. To watch one of those major Australian feature films, you have to go to a cinema and probably pay $18—that's $18 for just one screening. But I haven't heard anyone say, 'Well, that's outrageous that I've got to pay $18 to go and see a film that taxpayers' money has gone towards.'
If the proposition here is that enhanced women's sport isn't appropriate, then it wouldn't be appropriate that Screen Australia money went to Secret City because you'd have to be a subscriber to Foxtel to see that; and it wouldn't be right that taxpayer money went to support major feature films because you'd have to buy a ticket to go and see that. Obviously, I think it's appropriate that Screen Australia supports Secret City; it's appropriate that we have taxpayer support for major Australian feature films; and what we are doing in relation to women's sport is also appropriate.
Senator, you've made a decision this evening to acknowledge matters around Lottoland. You certainly acknowledged that Labor has been consulting very widely with stakeholders and, in fact, very widely with the industry on this issue. We noted that the individual states are enacting laws. Minister, could you please explain to me when the minister expects the ban to come into effect? When will the corresponding advertising ban become effective?
You supported a second reading amendment, by saying the government should prohibit betting on the outcome of a lottery. When do you expect that ban is going to come into effect?
I still haven't got a sense of the timing of this. You've just passed something here. What timing should the sector expect for this ban that you've agreed to this evening? When will it come into effect?
The Senate has not agreed to do anything at this point. The second reading amendment was to have the Senate state an opinion, and I think the Senate has stated an opinion, which the government will be cognisant of.
I will have to consider that one in terms of the opinion. Senator Griff might be interested in your answer too. When does the minister expect that the corresponding advertising ban will become effective?
You haven't really addressed the question. It's a pretty straightforward question. Is it the government's intention to ban synthetic lotteries and the advertising of those lotteries or are you just having an opinion about it?
by leave—I now move amendments (1) to (4) on sheet 8395 together:
(1) Schedule 1, item 13, page 6 (after line 14), after subsection 125A(5), insert:
Prohibition of gambling promotional content between 5.00 am and 8.30 pm
(5A) A gambling promotion program standard must prohibit the broadcast by a broadcasting service of gambling promotional content between 5.00 am and 8.30 pm:
(a) during a broadcast by the service of a sporting event (whether or not the broadcast is live); and
(b) during a broadcast by the service of a program classified as "G".
(2) Schedule 1, item 13, page 8 (line 23), omit paragraph 125A(11) (b), substitute:
(i) if the sporting event starts between 5.00 am and 8.30 pm—30 minutes after the conclusion of the sporting event; or
(ii) otherwise—5 minutes after the conclusion of the sporting event.
(3) Schedule 1, item 22, page 22 (after line 3), after subclause 13(1) of Schedule 8, insert:
Prohibition of gambling promotional content between 5.00 am and 8.30 pm
(1A) The online content service provider rules must prohibit the provision of gambling promotional content by an online content service provider between 5.00 am and 8.30 pm:
(a) during coverage provided by the online content service provider of a sporting event (whether live or not); and
(b) during the provision by the online content service provider of content classified as "G".
(4) Schedule 1, item 22, page 29 (line 5), omit paragraph 21(1) (b) of Schedule 8, substitute:
(i) if the sporting event starts between 5.00 am and 8.30 pm—30 minutes after the conclusion of the sporting event; or
(ii) otherwise—5 minutes after the conclusion of the sporting event.
These amendments fit within the regulatory framework proposed by the government in the bill and have the effect of a prohibition on all gambling ads during the hours of 5 am to 8.30 pm during G-rated programs and any live sporting events across platforms, regardless of whether the event is live or not. In instances where a sporting event has started but not finished before 8.30 pm, the NXT amendments will also extend the prohibition of gambling ads to 30 minutes after the conclusion of the sporting event. I urge the chamber to support these amendments. Children and adolescents should not be subjected to harmful gambling ads during live sporting events which continue past 8.30 pm as they continue to watch their sporting heroes to the end of the game.
Labor understands the sentiments behind these amendments, but believes they create inconsistencies that undermine the coherence of the current framework, limit flexibility around rule making and may even be counterproductive when it comes to consumer protection. Firstly, in relation to the amendments to the ministerial direction to ACMA to determine a gambling promotion program standard for the broadcast industry, in general Labor does not wish to fetter the discretion of the minister in relation to the program standard in this way. We do not wish to limit any future standard to the parameters as set out in the amendments. While removing gambling promotional content from sports programs and programs classified as G between the hours of 5 am and 8.30 pm might be an option to consider in the future, we would not want to constrain any future standard making in this way. As drafted, the amendments could limit rather than create a minimum floor in any future standard. Also, mandating the extension of a prohibition to all sporting events, whether or not the broadcast is live, in a future broadcast standard may see broadcast regulation fall out of step with online regulation that applies to live coverage of sporting events, and we are concerned that that could lead to regulatory bypass.
Secondly, in relation to the amendments to the online content service provider rules, mandating a higher standard for online services by applying the prohibition to all sporting events, whether live or not, puts online services at a relative disadvantage to broadcast platforms. Doing so may not be consistent with the regulatory policy of the Broadcasting Services Act, which provides that parliament intends that different levels of regulatory control apply across the range of services according to the degree of influence that different types of services are able to exert in shaping community views in Australia and that services be regulated in a manner that enables public interest considerations to be assessed in a way that does not impose unnecessary financial or administrative burden on the providers of broadcast services, among other things.
The online environment is regulated differently to the broadcast environment, and applying the concept of G-classified content in the online environment is not straightforward either for the regulator or the industry to administer. Given the global nature of the Internet, the application of the time frame of between 5.00 pm and 8.30 pm may involve the imposition of unnecessary financial or administrative burden on the provider of services at this point in time. The ACMA will bring its expertise in media and communications regulation to bear in developing the online content service provider rules, and we are satisfied that this process will enhance consumer protection in this area.
Labor understands the sentiment behind these amendments but is not inclined to support them this evening, for the very specific reasons stated in my response.
The Greens will be supporting these amendments. We think they go a significant way to fixing the incredible weaknesses in this bill. The whole point of this legislation was to ban gambling ads during live television. The minister and the Prime Minister said that this is what they were going to do and this is what they had agreement to do. Then, once we had the legislation and once we had the code developed and adopted by ACMA, we found out that that is not what is occurring. What is occurring is that some gambling ads will be banned, but not all and not during some of the most popular and watched periods and not for some of the most popular sporting events—whether that be the Big Bash, Friday night football or the tennis. These are all things that are shown beyond 8.30 pm.
The evidence and the health experts tell us, and the Prime Minister has acknowledged, that these insidious gambling ads are dangerous and terrible and should not be rammed down the throats of our children, that they undermine the spirit of watching sport and that they ruin that experience for many parents sitting there with their kids. That's all undermined by the fact that the way these rules are written means that, post 8.30 pm, you can go rip—the ads can be played. It's extraordinary that, on the one hand, we're hearing the government saying that we need this legislation to put in place these laws because these ads are terrible but, on the other hand, during some of the most popular periods of these sporting events, these big, online gambling companies can continue to play their ads. Just like my colleague Senator Whish-Wilson mentioned, all of the evidence from various Senate committees that have looked at this issue in the past has said that the later in the evening these events go the more intense the ads for betting become.