Tuesday, 27 March 2018
Communications Legislation Amendment (Online Content Services and Other Measures) Bill 2017; In Committee
The committee is considering the Communications Legislation Amendment (Online Content Services and Other Measures) Bill 2017 and amendments (1) to (4) on sheet 8395, moved by Senator Griff. The question is that the amendments as moved by Senator Griff be agreed to.
Minister, last night, just as we were coming to the end of this committee stage, I asked you a series of questions around Lottoland, including whether you could explain when you expected the ban to come into effect and the corresponding advertising ban to become effective. Last night, you gave us the indication that you had an opinion about this, but you didn't indicate any legislation or a timetable with regard to legislation. I have to wonder: who's got more information about what's going on, the Senate or The Australian newspaper? Would you be able to give us some indications? Does the government actually have a plan to bring a ban into effect, and what will the advertising ban with regard to Lottoland be?
I do admit to being slightly Delphic last night, but that was on account of never wanting to presume the determinations of our party room. We had a party room meeting this morning. As I indicated last night, the Senate had offered an opinion as to what should happen in this matter, and I said the government would be cognisant of that. The government has been cognisant of that, so I can advise colleagues that the Turnbull government will introduce legislation tomorrow into the House of Representatives to ban betting on lotteries and keno games.
The government has formed the view that permitting betting on these services, also known as synthetic lotteries, does undermine the longstanding community acceptance of official lottery and keno products. These products enjoy community support, as they generate an income stream for small retail businesses and make a significant contribution, through licence fees and taxation, to the provision of public services and infrastructure by state and territory governments. Traditional lotteries and keno games are popular and longstanding recreational gambling products that form an important income stream for thousands of small businesses across Australia, including newsagents, pharmacies, pubs and community clubs. They also generate significant taxation revenue for territory and state governments, helping to fund schools, hospitals, public transport and roads.
Online services offering products that involve betting on lottery outcomes are relatively new and have generated considerable community concern. Since these concerns were first raised last year, the government has listened carefully to a range of groups that have views on the undesirability of permitting betting on these products.
Many Australians enjoy lotteries and keno as a recreational activity, and the government is committed to ensuring that gambling takes place under a robust legislative framework with strong consumer protections and within the boundaries of community standards. The legislation will commence operation six months after its passage through the parliament to ensure that those businesses currently offering online betting on lotteries and keno have an appropriate transition period within which to cease their activity.
I might just cast back a little bit. A number of colleagues in this place last year—Liberal colleagues, Nationals colleagues and Pauline Hanson's One Nation, who have been very active in this area—raised the issue of the synthetic lotteries and the fact that they were causing considerable concern at that stage, particularly to newsagents. As a result, I wrote to the Northern Territory gaming minister to raise these concerns, as Lottoland is registered in the Northern Territory. Subsequent to that, it was announced by the Northern Territory that betting on lotteries in Australia would not be permitted under that licence. But there was, however, still the capacity for bets to be placed on the outcomes of overseas lotteries, and also there was the emergence of betting on the outcome of keno. This is something that was of concern to pubs and clubs, and representative bodies such as the Australian Hotels Association, so that's something that we looked at very seriously. As I say, it's something that numbers of colleagues, including Senator Hanson, raised with the government. We have taken a look at it, and, as I indicated, it is the decision of the government to introduce legislation tomorrow into the House of Representatives to ban betting on lotteries and keno games.
Thank you for that response. It is a little clearer than the oracle last night! Could I just get you to step through that time line quite clearly for us—the legislation in tomorrow, and six months after it becomes law, you indicate, the ban is going to come into effect. Perhaps I missed it, but I'm just wondering what your advertising ban time line is with regard to that. When does that become effective?
The advertising ban we will have on gambling comes into effect at the end of the month, and that applies to synthetic lotteries, as it does to other gambling products during live sport—obviously, that will come into effect and it will apply to the synthetic lotteries. Six months from the passage of this legislation, which will ban betting on lotteries and keno games, they will no longer occur.
I would like to move two lots of Greens amendments on sheet 8367. Senator Hinch last night requested that they be moved separately, and I'm happy to do that. I will be moving amendments (1) to (6) and then moving amendments (9) and (16).
These amendments relate to issues I've spoken about—as did Senator Whish-Wilson in his speech, and as was in much of the debate last night—in relation to the exemption given in this current legislation that still allows Foxtel subscription services to show gambling ads on their channels, based on audience numbers. We find this ridiculous. If we agree that gambling ads should not be shown during live sporting events, they shouldn't, full stop. That's it. It should be the end of the story. There should be no exemptions just because some of those shows or some of those events are shown on a pay TV subscription channel.
The other part of the amendments deals with the issue of the cut-off time. This legislation provides for gambling ads not to be shown for five minutes before and after play starts. We believe that that is not sufficient to ensure that we protect children and minimise the harm done by these insidious gambling adverts which push gambling down the throats of children, the desire of the disgusting gambling barons being to breed an entirely new generation of gambling addicts. That's what these companies want to do. They want to rip money out of the pockets of families, rip money off the community, for their own profits—making profits from people's misery. They don't give two hoots about whether it's done to children or adults, but they like children because they like having the influence that can create a lifetime of gambling addiction. That's the business model of these big gambling corporations—people who make profits out of other people's gambling addiction, which, of course, we know is an illness and a sickness. They like to get the kids, because they think they have victims for life. That's how these disgusting corporations and companies think.
So, in order to deal with that, we think that at the very least gambling ads should not be played within the period 30 minutes before the start of the actual match. That captures the pre-match programming, whether it's entertainment or commentary, as the kids are gathering around the television and families are getting together in the lounge room or wherever it is they're watching and getting ready for the game to start. Children should be protected from these gambling ads once and for all. Of course, I've said over and over again that the Greens would prefer there to be no gambling ads on television. We think there is no need for it. We think it is a revolting industry; it is a parasite sucking on people who are vulnerable. People could be much better protected if this legislation actually banned gambling advertising outright, but it doesn't. So what we're trying to do is strengthen what is a pretty weak piece of legislation and ensure there aren't loopholes to play with the time zones and loopholes in relation to audience numbers on channels. I will take advice from the chair as to how we vote on those amendments separately, but that is what I would like to move.
The CHAIR: Senator Hanson-Young, the suggestion from the chair is that you seek leave to move all the amendments together and then we separate them out as you've requested. I just want to confirm that you are seeking to particularly separate (9) and (16). So, if we're putting two questions, the first question will be on amendments (1) to (8) and (10) to (15).
The CHAIR: You have leave to move them all together and we will separate them as described.
by leave—I move Greens amendments (1) to (16) on sheet 8367 together:
(1) Schedule 1, item 7, page 4 (line 16), at the end of subsection 4(3AB), add:
and; (e) does not take into account the number of end-users of online content services.
(2) Schedule 1, item 7, page 4 (after line 16), after subsection 4(3AB), insert:
(3AC) Despite subsection (1), the Parliament also intends that gambling promotional content provided in conjunction with live coverage of sporting events on broadcasting services, datacasting services, internet services or online content services be regulated in a manner that is consistent across the range of those services.
(3) Schedule 1, item 8, page 4 (before line 19), before the definition of gambling promotional content, insert:
coverage has the same meaning as in Schedule 8.
(4) Schedule 1, item 8, page 4 (before line 21), before the definition of online content service, insert:
in conjunction with, when used in relation tolive coverage of a sporting event, has the same meaning as in Schedule 8.
live, in relation to coverage of a sporting event, has the same meaning as in Schedule 8.
(5) Schedule 1, item 8, page 4 (after line 23), after the definition of online content service provider, insert:
sporting event has the same meaning as in Schedule 8.
(6) Schedule 1, page 5 (after line 7), after item 12, insert:
12A After subsection 123(4)
(4A) Despite subsection (4), if:
(a) a group representing a particular section of the broadcasting industry develops a code of practice to be observed in the conduct of the broadcasting operations of that section of the industry; and
(b) the code covers the provision of gambling promotional content by that section of the industry;
the ACMA must not include the code in the Register of codes of practice unless the ACMA is satisfied that the code is consistent with the objects of this Act and the regulatory policy set out in section 4.
(a) a group representing a particular section of the broadcasting industry amends a code of practice to be observed in the conduct of the broadcasting operations of that section of the industry; and
(b) the amendments relate to the provision of gambling promotional content by that section of the industry; and
(c) the ACMA is not satisfied that the amendments are consistent with the objects of this Act and the regulatory policy set out in section 4;
the ACMA may remove the code from the Register of codes of practice.
(7) Schedule 1, item 13, page 5 (after line 21), after subsection 125A(3), insert:
(3A) Despite anything in section 44 of the Legislation Act 2003, section 42 of that Act (disallowance of legislative instruments) applies to a direction under subsection (1) of this section.
(8) Schedule 1, item 13, page 8 (line 21), omit "5 minutes", substitute "30 minutes".
(9) Schedule 1, item 13, page 8 (line 23), omit "5 minutes", substitute "30 minutes".
(10) Schedule 1, item 13, page 9 (after line 3), after subsection 125A(14), insert:
Audience share not relevant
(14A) A gambling promotion program standard must not make provision for or in relation to a matter by reference to the size of the audience of a broadcast.
(11) Schedule 1, item 22, page 23 (after line 5), after subclause 13(4), insert:
Number of end -users not relevant
(4A) The online content service provider rules must not make provision for or in relation to a matter by reference to the number of end-users of an online content service provider.
(12) Schedule 1, item 22, page 24 (lines 12 and 13), omit paragraph 15(5) (a).
(13) Schedule 1, item 22, page 24 (lines 25 and 26), omit paragraph 15(6) (a).
(14) Schedule 1, item 22, page 25 (lines 1 to 18), omit subclauses 15(7) to (10).
(15) Schedule 1, item 22, page 29 (line 3), omit "5 minutes", substitute "30 minutes".
(16) Schedule 1, item 22, page 29 (line 5), omit "5 minutes", substitute "30 minutes".
I'm mindful of many young people being here in the chamber with us this morning. Often the gap between what happens in parliament and what happens in people's lives is an enormous one, or it certainly feels like that to many people outside the parliament. I just want to put on the record, particularly while the young people are here, that Labor certainly understands the community's call for safety for young people watching television.
In my contribution yesterday evening I spoke about an ABC news story written by Damian McIver which referred to two high-profile AFL players. One of them was a Geelong defender, Harry Taylor, who spoke about his children. He has three children, and he was concerned about the fact that his eldest children can name a lot of the ads on TV about gambling and online betting. That's a concern to him as a football player. There were other people who spoke out, including another AFL football player, Easton Wood from the Western Bulldogs. He was really concerned that this issue was getting out of control. He's not on his own. Research undertaken by Deakin University—and I am sure the young people in the chamber can bear witness to this—found that over 90 per cent of children can recall having ever seen an ad for sports betting and about three-quarters of children aged eight to 16 can recall the name of at least one sports bet brand. A quarter of the children in the sample were actually able to recall four brands or more, which is very, very concerning. Seventy-five per cent of children in the sample thought that gambling was a normal or common part of sport. Parents were really very concerned about this, and they conveyed that they thought that there was just too much gambling advertising on television.
So Labor understands that Australians don't want children to associate betting and gambling as being a core part of sport. Today we're debating what to do about it. We have to be careful about the legislation that we enact in this place. There are amendments being moved, but the thoughts that Labor have about the issue are that there is industry and community desire for consistency on the restriction of gambling promotions during sport being broadcast live, including on online platforms, and there's a lot of community concern about the level of gambling promotions before, during and after live coverage of sporting events. However, while Labor understands the sentiment behind these amendments, we will not be supporting them, for the following reasons.
Labor regards the approach of government and industry to be a step in the right direction. The broadcast industry and the ACMA have just last week concluded a process of updating codes of practice which involved significant community consultation and consideration by the regulator, including the investment of time and resources by both industry and government. The ACMA has stated that it will closely monitor the operation of additional restrictions in the updated broadcasting codes and after 12 months will consider whether to conduct a formal review of their effectiveness. Labor supports this approach and does not seek to change or disrupt the new arrangements, as proposed by these amendments.
Further, the regulatory policy of the Broadcasting Services Act 1992 provides:
… Parliament intends that different levels of regulatory control be applied 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.
… Parliament also intends that … services be regulated in a manner that …
… enables public interest considerations to be addressed in a way that does not impose unnecessary financial and administrative burdens on providers of broadcasting services—
among other things. Labor appreciate that evidence of community attitudes indicates that stronger protections may well be warranted, but we are also cognisant of the regulatory policy. Labor believes that industry should be afforded the time and the flexibility needed to alter business practices and contractual arrangements to address community concerns, which is how the approach that's been adopted may be regarded at this point. Labor does not seek to permit discrete changes to the standard regulatory policy of the Broadcasting Services Act on an issue-by-issue basis. Furthermore, there are more factors than audience size that may go to considering whether a service is more or less influential. Whether a service is freely available or subscription based may also be determinative, for example. Therefore, the amendments may not even achieve any greater consistency between platforms, as intended. For those reasons, we will not be supporting these amendments.
I just indicate, as I canvassed these issues last night, that the government won't be supporting the amendments.
The CHAIR: The question is that the amendments as moved by Senator Hanson-Young on sheet 8367, amendments (1) to (8) and (10) to (15), be agreed to.
I move Labor amendment (1) on sheet 8380:
(1) Schedule 1, item 22, page 18 (after line 25), after paragraph 3(1) (q), insert:
(qa) a service provided by the Special Broadcasting Service Corporation; or
Labor has circulated sheet 8380, containing an amendment to remove the SBS from the operation of this bill. In our view, this amendment is really no big deal. It doesn't change the substantive outcome to be achieved. It merely changes the way that outcome will be achieved. Labor's amendment goes to the mechanism by which the outcome will be implemented, and it goes to that alone.
What Labor's amendment does is preserve parliament's intent with respect to the SBS being a broadcaster that's independent of the government, and it maintains the status quo, whereby SBS services on television, radio and online are regulated by the SBS Codes of Practice 2014 (revised 2016). It's really very simple. Labor's amendment means that the SBS will be subject to additional restrictions on gambling promotions during live sport, just like everybody else. But, instead of being regulated by ACMA rules under this bill, SBS will be regulated by the SBS Codes of Practice.
Labor's amendment simply corrects the wrong-headed approach in this bill, which would include SBS in a regulatory regime that would, quite improperly, make the regulation of SBS content a matter of discretion for the Australian Communications and Media Authority. With all due respect to the ACMA, that is simply not the intent of parliament when it comes to the SBS.
Let me be clear. Labor intends that SBS be subject to additional restrictions on gambling promotions to the same extent that other services are. There's no way that Labor would move an amendment to exempt SBS from the overarching requirement to restrict gambling promotions in accordance with the intent of government policy. Indeed, it was Labor who called for stronger protections around gambling advertising during live sport last year, well ahead of the government's announcement.
What's more, SBS has made it clear that it will be subject to additional restrictions just like everybody else. SBS is on record as saying that it's committed to implementing appropriate restrictions in accordance with the policy. In its submission to the Senate inquiry into this bill, SBS stated:
… SBS remains committed to working constructively with the Government to implement new rules to restrict gambling advertising during live sporting events on online platforms in accordance with the Government’s May 2017 policy announcement.
SBS will work with Government and industry to ensure that new restrictions in the SBS Codes are consistent with those applying to other providers.
SBS will implement additional restrictions, in accordance with government policy, by 30 March 2018, on both its broadcast and its online platforms. Consistent with past practice and in relation to broadcasting, SBS will incorporate the new gambling advertising restrictions by reference to the Free TV and CRA codes of practice that have been registered and which were announced by the ACMA on Friday, 16 March, this year. In the online space, SBS will implement new restrictions ahead of the rest of the market, and it will do this ahead of the ACMA, which is yet to be empowered under this bill to develop and implement online content service provider rules.
At the heart of this amendment is Labor's commitment to upholding the independence of our national broadcasters. It's unacceptable that this bill permits a level of ACMA intervention over SBS programming, contrary to the independence of the SBS and the co-regulatory framework in the Broadcasting Services Act 1992. The implementation mechanism set out in the bill is inappropriate for application to a public broadcaster such as SBS because it would disturb SBS's editorial independence from government and is inconsistent with provisions of the Special Broadcasting Service Act 1991, the SBS Act, which safeguards this independence. The SBS Act requires the SBS board to maintain the independence of the SBS, and section 11 limits the matters on which SBS can be directed by the minister. In particular, section 11(3A) of the SBS Act provides:
The Minister must not give a direction—
to the SBS board—
in relation to the content to be provided on a digital media service.
A similar provision applies in relation to broadcast services under section 11(3). The policy justification for section 11 is to ensure the independence of public broadcasters.
The BSA also recognises SBS's independence. For example, section 13(5) of the BSA provides:
Except as expressly provided by this Act, the regulatory regime established by this Act does not apply to national broadcasting services.
The effects of this provision include that schemes such as those in part 9 of the BSA—which provides for content rules, program standards and codes of practice applying to other sectors, particularly commercial television broadcasters—do not apply to SBS. This provision recognises the separate regulatory scheme established by the SBS Act. The BSA recognises the independence of SBS and contains distinct processes for code notification, the investigation of complaints and any actions the ACMA may take in relation to the SBS.
While in theory the bill permits the ACMA to exempt SBS from the online content service provider rules, there is no assurance the ACMA would do so, and the ACMA's discretion to do so may be fettered by ministerial direction. In any event, with all due respect to the ACMA, rules around SBS programming should not be a matter of ACMA discretion in the first place; they should remain a matter for the independent SBS board, which has a legislative obligation under the SBS Act to develop codes of practice relating to programming matters.
SBS should not be captured by the regulatory regime set out in this bill. Instead, implementation of new restrictions should be achieved by the SBS Codes of Practice. As such, all Labor's amendment does is change the mechanism by which the SBS will be regulated. It prevents the SBS programming from being subject to rules developed by the government regulator, the ACMA, and maintains the integrity of the regulatory regime currently in place.
The regulatory framework is well established and clear when it comes to the SBS. SBS services are already subject to gambling advertising restrictions during live sport under the current SBS Codes of Practice. Unlike other media sectors, where codes of practice are limited to regulating broadcast platforms, this is not the case for the SBS. The SBS codes already cover both broadcast and online services, and the SBS board has the discretion to include new restrictions on gambling advertising in live sport streamed online by SBS. SBS has a responsibility to ensure its policies keep pace with Australia's converging media landscape. SBS has kept pace with technological change and extended the scope of its codes of practice so that they apply to SBS's online platforms.
The SBS codes are developed by the SBS board under the SBS Act. They're a robust and enforceable set of rules overseen by the independent SBS Ombudsman. In addition to this, the BSA provides that the ACMA may investigate the SBS. If the ACMA is satisfied it should take action to encourage the SBS to comply with the code of practice, the ACMA may, by notice in writing, recommend that the SBS take action to comply, or to broadcast or to otherwise publish an apology. Further, ACMA may give the minister a written report on the matter, which the minister must cause to be laid before each house of parliament. This is just one of a number of accountability mechanisms the SBS is subject to. However, under the current regime the ACMA cannot direct the SBS in relation to its programming, nor does ACMA have any scope to impose a civil penalty on SBS, as is contemplated by this bill. In this way, the BSA recognises and upholds the independence of the SBS.
The government say that they want everyone to be subject to the same regulatory framework, that the same rules ought to apply to everyone. The government will argue that Labor's amendment undermines consistency. Well, there are at least four key arguments that rebut this, that demonstrate that it is, indeed, the government's bill that is the inconsistent oddity.
First: while it might appear to be consistent to have one schedule to regulate all online services for gambling promotions during live sport, in fact it is inconsistent. Having the ACMA regulate SBS content is inconsistent with the SBS Act and the Broadcasting Services Act. Just because the Minister for Communications has a simplistic understanding of how regulation in his own portfolio works and has complete disregard for the independence of public broadcasters, it doesn't mean that the Senate should pass laws that are inconsistent with the existing regulatory framework or inconsistent with parliament's intent with respect to the independence of the SBS.
The Minister for Communications seeks to intervene on all manner of things when it comes to our independent public broadcasters, the ABC and the SBS. Whether it be attempting to force disclosure of salaries, to change the date of the triple j Hottest 100 or meddling in the ABC enterprise agreement—you name it—the current Minister for Communications has shown time and time again that he simply does not respect the independence of our very trusted and valued national broadcasters.
Second: while it might appear to be consistent to have one schedule to regulate all online services for gambling promotions during live sport, in fact it creates inconsistencies for citizens and consumers. Currently, an audience member who wishes to provide feedback or to complain about SBS content has a one-stop shop in the SBS, given the unique nature of SBS as a public media organisation. Audiences expect a single source of content rules, not different rules for different complaints and different compliance processes depending on what platform they're using and what type of sport they're watching.
Third: subjecting the SBS to this bill is inconsistent with the stated policy objective of the government that opportunities for self- and co-regulation should be pursued to a greater, not a lesser, extent. Recent examples of government support for self- and co-regulation include the ACMA's work in Optimal conditions for self- and co-regulatory arrangements. First published in June 2010 and updated in September 2011 and April 2015, this occasional paper notes:
… key international and government organisations have promoted self- and co-regulation as alternatives to direct regulation—
and that the government has encouraged the use of light-handed regulatory options. It continues:
The Australian Government has encouraged the use of self- and co-regulatory mechanisms as part of its best practice regulation agenda.
In 2014, the Department of Communications and the Arts published Regulating harms in the Australian communications sector, a policy background paper which notes:
… the Telecommunications Act 1997 and the Broadcasting Services Act 1992 enunciate a preference for co‐regulation.
It also notes:
… there continues to be an assumption (by industry, consumers and government) that industry‐wide co‐regulation should be a first port‐of‐call when new concerns emerge …
Furthermore, in relation to the broadcasting industry, the paper noted:
It may be timely for industry to ask itself about how it could make greater use of self‐regulation …
More recently, the final report of the Department of Communications and the Arts review of the ACMA noted:
Best practice regulatory design also suggests that in the communications sector, with its fast pace of change and innovation, greater reliance on co-regulatory and self-regulatory models should lead to better outcomes for consumers and industry.
In days gone by, the Liberal government made a great song and dance about deregulation and cutting red tape, yet today, here in the Senate, they wish to force the SBS, which is currently self-regulating effectively, to submit to direct regulation. This is costly, it's duplicative and it's inconsistent of the Turnbull government. As a matter of policy and best practice and in order to alleviate the burden on the Australian taxpayer, the SBS should be encouraged to regulate by codes of practice where possible.
Finally, don't be misled that the government's approach to regulation of gambling promotions during live sport is consistent with or analogous to the Commonwealth's regulation of tobacco advertising. It's not. The Tobacco Advertising Prohibition Act 1992 is a law of general application in Australia, and it's administered by the Department of Health with referral mechanisms to the Commonwealth Director of Public Prosecutions or the Australian Government Solicitor. Contrast this bill to regulate gambling promotions during live sport online, which is a platform-specific and program-specific set of rules in a schedule that is to be tacked onto the Broadcasting Service Act 1992, an act that is administered by the ACMA. As a schedule to the BSA, this bill inherits the regulatory framework that pertains to the SBS under the BSA and the SBS Act, which, as I've already described, mandates the independence of the SBS.
In essence, what this bill highlights is the ongoing failure of the Liberal government to adapt to the regulatory framework for media and communications in the 21st century. The bill proposes to regulate online platforms by tacking yet another schedule onto the outdated, pre-internet Broadcasting Services Act 1992, now over 25 years old. If the Turnbull government wants to regulate both broadcast and online platforms coherently or alter the regulatory framework in the BSA as it relates to the SBS, it should conduct comprehensive and long overdue reform of the BSA. The Turnbull government should be exploring ways to encourage the commercial television, commercial radio and subscription television industries to utilise self- and co-regulatory approaches in relation to online content provided by those sectors.
In closing, for the government to threaten that it will pull this bill if Labor's amendment gets up is pure nonsense and bluff. Both the government and Labor are committed to implementing online restrictions, but SBS should not be directly subject to the regulatory regime set out in this bill. Labor's amendment fixes this error and is 100 per cent consistent with government policy on the restriction of gambling promotions, on the independence of the SBS and in relation to best practice regulation. Overall, including restrictions on gambling advertising during live sporting events on online platforms in the SBS codes would be clearer for audiences, would enable more efficient handling of complaints by both SBS and the ACMA and would appropriately preserve the SBS's editorial independence from the government. Labor's amendment does not mean that the SBS will not be regulated or will be exempt from regulation. It will simply keep the mechanism for the regulation of the SBS the same as it is now—regulation by codes of practice. I seek your support for this amendment.
If someone were tuned in listening to Senator O'Neill's contribution, they could have been forgiven for believing that the SBS and the ABC are sovereign states. They're not. They are creations of this parliament and operate within the laws that this parliament determines. And the parliament determines different laws from time to time.
In moving this amendment, the opposition is signalling that its policy is that weaker gambling advertising restrictions should apply to SBS than would apply to all other online content service providers. Legislating an exemption for SBS would distort competitive neutrality, as SBS would be able to self-regulate and all other online content service providers would be subject to direct regulation of gambling promotions during live coverage of sporting events.
A key objective of the government's policy is for the same or similar restrictions to apply across all broadcast, subscription and online platforms on which gambling promotions are provided in conjunction with live coverage of sporting events to ensure consistency for viewers and ensure that no content provider is at a competitive or regulatory disadvantage or advantage as a result of the restrictions. The government acknowledges the importance of independence for public broadcasters. However, this does not mean that rules that limit social harm arising from exposure to gambling promotions should not apply to the SBS. As I referred to before, SBS has independence within the parameters set by the parliament. This does not mean, and it has never meant, that SBS is free to do whatever it likes. In no way, shape or form can this legislation be seen to be attacking the editorial independence of the SBS. The SBS is already subject to other legislation aimed at preventing social harm from advertising, such as the ban on tobacco advertising. It's also subject to election advertising regulation, so seeking to apply these restrictions to SBS is an appropriate measure for which there is precedent.
The ACMA will be given power to grant individual or class exceptions for online content service providers or particular online content services, and SBS may apply for such an exemption, so a legislative exemption for SBS is unnecessary. The government can't support a proposition that SBS not be subject to the same rules that will apply to all other online content service providers.
I note in conclusion that Save Our SBS, which is, I guess, the analogous organisation to the Friends of the ABC, does not support the Australian Labor Party's amendment and does support the government's proposition in this regard.
I rise to say that the Greens will be supporting this amendment put forward by the opposition. We do so for one main reason—that is, we are extremely concerned at the attitude and rise of antagonism of this government and certain members in this place towards our public broadcasters. We know that there are some people—even some on the crossbench, also known as One Nation and Senator Pauline Hanson—who believe that our public broadcasters shouldn't exist and that they don't deserve funding, let alone the independence to make their own editorial decisions or indeed managerial decisions. They would prefer, of course, that our public broadcasters were punished for the stories that they write and broadcast in relation to things that perhaps One Nation and Senator Pauline Hanson do—glass jaws, I would put to you, Chair, from the leader of One Nation in relation to particularly the ABC but also the SBS.
We've heard from the SBS managing director and the board, very clearly, that they have the full intention of abiding by the will of the parliament in relation to banning gambling ads during live sport. In fact the SBS have taken many other principled positions on not showing advertising—for example, alcohol advertising on NITV. They've made a decision that that is not in the interests of their audience and it's not within public and community expectations. They are a broadcaster that are already going above and beyond what is expected and what is required of them.
We know that, as a matter of principle, there has been attack after attack after attack from some within the government, particularly the likes of the former Prime Minister, Mr Tony Abbott, who just can't stand the ABC and just can't stand SBS. Every opportunity that that bloke gets to attack our public broadcasters, he takes. And of course he's still wielding great power and influence within the benches of the government, despite the fact that he hasn't been Prime Minister for a number of years. He still wields power in that party because of the right-wing rump that are left on the coalition benches. They can't stand our public broadcasters. They hate them with a passion. Why? Because they're trusted. Their news reporting is trusted. They're loved by the Australian people. It is public money well spent—that is what the Australian voters and public think, over and over again. When you look at the public perception of SBS and ABC at a time when media reporting, politics and business are all on the nose, which institutions overwhelmingly get the biggest tick of approval for truth and integrity? Well, I'll tell you: over and over and over again, it comes down to the ABC and SBS, our public broadcasters. We should be finding more ways to support them, as opposed to cut after cut after cut.
SBS, of course, has been under the knife from this coalition government from day dot. Sixty million dollars has effectively been cut from its budgets in the last few years. Yet of course, as we know, the minister and his government are willing to hand out public money—$30 million—to Murdoch's Foxtel, while our public broadcasters get cut over and over again.
This amendment is at least one way of ensuring that we in this place, in the Senate, are going to stand strong for our public broadcasters and for the Australian people who believe in the importance and the public interest of our public broadcasters and in the need for our media institutions to have the shining light of integrity that our public broadcasters carry and continue to carry, at a time when other media outfits right across the country and the world are looking shabbier and shabbier day by day. This amendment goes some way to say: 'You know what? The Senate actually cares about the independence of our public broadcasters and their ability to get on with their jobs.'
SBS have been very clear. They don't want to run gambling ads on live sport. They're not interested. They don't want to do it. But they want to be able to ensure that this isn't just another cut to their independence and an attack on their integrity, which we know the government are incredibly obsessed with because of the right-wing rump on their benches and, of course, because of the deals that they have to keep finding themselves in with One Nation and Senator Pauline Hanson, who is most upset with our public broadcasters because they report on things that she says and then doesn't deliver on, or they report on things that she has said she didn't do but has done. The ABC and the SBS report on stories which she doesn't like. Well, we're all politicians in this place, and sometimes the media write stories that we don't like. That doesn't mean you turn around when you're at the negotiating table with the government and say: 'Hey, let's shut up those journalists at the ABC or SBS. That's what I want. You want our vote for tax cuts? Well, shut up the ABC and SBS.' That is the type of negotiation that is going on here between this Turnbull government and One Nation and their leader, Senator Pauline Hanson. They hate the ABC because the ABC speaks the truth. They hate the SBS because the SBS reports on real news, not the fake crap that's spread all over Senator Pauline Hanson's Facebook page.
That's what this amendment is about: standing up for our public broadcasters and ensuring that they have their independence confirmed and they have the ability to do their job without the fear and intimidation of budget cuts and slurs that come from government members on the other side. Of course, we know Senator Eric Abetz, one of the biggest haters of our public broadcasters, sits in this chamber. He would like nothing more than the independence of the ABC being slashed, and he doesn't mind whether that happens in one blow or step by step by step. Senator Abetz has made it a mission to destroy Australia's well-loved, trusted public broadcasters. He wants to throw them under the bus, and this government, step by step by step, is allowing that narrative and that agenda to continue.
So this amendment is important. It's an important principle for us as a Senate to say: 'No, we're not going to put up with that biased agenda. We're not going to put up with this attack on our public broadcasters. We are going to stand up for the independence of our public broadcasters and the belief of the Australian people that their money is being spent on news and broadcasters that are the shining light of journalism in this country.' They are the most trusted, the highest rating when it comes to integrity of institutions. This government can't stand it. One Nation can't stand it. It's important that the Senate vote for this amendment to send the message that we are not going to stand by and let our public broadcasters be a punching bag for this government, Mr Tony Abbott and Senator Abetz. And we're definitely not going to sit by and let the ABC and SBS be a punching bag for Senator Pauline Hanson and those lunatics in her One Nation party.
In light of the minister's comments in response to my words around our amendment, I'm sure the minister's aware of and has read deeply and carefully the recent final report of the ACMA review, which has been accepted by government—at least I thought it was. It was recommended in that review that co- and self-regulation be pursued to a greater, not a lesser, extent. My question to you, Minister, is: have you changed your mind on this already?
No, the government hasn't. What we are seeking to do is to legislate a consistent regime for online activities and, when it comes to gambling advertising during live sporting events on online platforms, to ensure we have the same legislative regime apply across the board. I did say in my earlier comments that to rely on a code for SBS in terms of its online activities would be weaker because there would not be the legislative penalties for SBS online activities that there are for other online operators. We want a consistent regime, and we want a strong regime.
I don't think there's any doubt that we seek a strong regime, but I made a number of points about the argument for consistency, which I think the minister's words are quite disingenuous about. You asserted just then, once again, that code regulation permits weaker regulation, and we have to say that that's complete nonsense from our point of view. Minister, if code regulation permits weaker regulation, why use code regulation for the broadcast platform?
There are two different sorts of codes. There are the codes that apply to commercial broadcasters, for which there are penalties, and there are the codes that apply to the public broadcasters, for which there are not penalties. If you apply a code based regime to SBS online activities, that would mean there would be a category of online activity that would not be subject to any penalty. That is a weaker regime, whichever way you look at it.
ACMA does not have a role in editorial decisions at the moment or into the future. The whole idea of legislated independence for public broadcasters is that they are not subject to direction in editorial matters or news content by the government of the day. And the government of the day will not, under this regime, have the capacity to do that, and ACMA will not have the capacity to do that. Independence does not mean that the public broadcasters are in their own parallel universe, completely immune to the legislation passed by this parliament. They are subject to the legislation passed by this parliament, and they have legislated independence in editorial matters, and they will continue to have legislated independence in editorial matters, operational matters and news matters.
Minister, none of your comments can persuade me to think that you are absolutely supportive of the codes as they need to exist. Do you concede that this bill is inconsistent with the regulatory framework?
Minister, you say that you want a consistent regime, despite the need for different treatments for different parts of the sector, yet this bill permits all manner of exemptions for the ACMA to decide upon. Do you have a view about giving that much power to ACMA?
The bill permits some services to be unregulated; no penalties will apply to them. So why not permit the SBS to act as a self-regulator, in alignment with the final report recommendations from the ACMA review—or has the Turnbull government abandoned its commitment to industry self-regulation?
The ACMA may well decide to grant some sort of exemption, but that's a matter for the ACMA.
The CHAIR: The question is that amendment (1) on sheet 8380, as moved by Senator O'Neill, be agreed to.
Chair, Senator Steele-John was outside the chamber. He was unable to make it here in time, so I'm asking that the vote be recommitted.
The CHAIR: Senator Siewert, you need to seek leave.
I seek leave to have the vote recommitted so that it would reflect the views of the chamber, given that Senator Steele-John was unable to get into the chamber in time. He's literally just outside the door.
The CHAIR: Senator Siewert, it is really up to Senator Steele-John to provide an explanation as to why he was not in the chamber.
by leave—I move amendments (1) to (3) on sheet 8406 revised, together:
(1) Clause 3, page 2 (after line 11), at the end of the clause, add:
Note: The provisions of the Legislation (Exemptions and Other Matters) Regulation 2015 amended or
inserted by this Act, and any other provisions of those regulations, may be amended or repealed by regulations made
under section 62 of the Legislation Act 2003 (see subsection 13(5) of that Act).
(2) Schedule 1, page 5 (after line 7), after item 12, insert:
12A Subsection 122(7) (note)
Repeal the note.
(3) Page 34 (after line 26), at the end of the Bill, add:
Schedule 2—Program standards
Legislation (Exemptions and Other Matters) Regulation 2015
1 Section 10 (table item 8)
Repeal the item, substitute:
8 An amendment made under section 128 of the Broadcasting Services Act 1992 to a standard under
Part 9 of that Act
This amendment deals with the issue that I spoke of in my speech in the second reading debate last night. We know that in 2015 the government, without any consultation and with very little attention from the parliament, moved to give themselves the right to change codes and standards in the communications act to allow the minister to make changes without parliamentary oversight. Normally, of course, regulations and other various changes and directions could be disallowed or debated in the parliament. In 2015 this government, without any consultation, changed those rules, to give the minister the power to willy-nilly change or give directions in relation to standards and codes.
Today we've been debating the standards and codes in relation to gambling advertising. But there is a big fight looming, and it is in relation to the requirements for our broadcasters as to what level of Australian-made content they have to show and what level of Australian-made children's content they must broadcast. We know that the big broadcasters, the commercial free-to-air broadcasters, don't want to have these restrictions upon them. They prefer to buy cheap crap made in the US or elsewhere, and to play it here in Australia, and to not have to invest in our local content, and our local film and screen industry. We also know that the big commercial free-to-air broadcasters don't believe that they should have to invest in Australian-made children's content.
At a time when broadcasters are diversifying from television screens into online platforms, mobiles, iPads and other streaming services; and our children are, in fact, engaged more than ever in watching and consuming created content, we should be thinking more as policymakers about the quality of that content that's made for children and that is available to our young audiences. And it's important in today's age that Australian kids are able to access good-quality, Australian-made content. They deserve the right to have their stories told. They deserve the right to have the stories of their community and their country reflected back at them. We all have those memories of being kids and watching Skippy, Roundthe Twist, Play School or Bananas in Pyjamasor of our own children accessing good-quality, Australian-made kids' content. All of that is going to become harder and harder unless we protect the requirements for our broadcasters to invest in and show Australian-made kids' content. And, of course, this goes beyond just kids' TV. This is also in relation to Australian-made drama.
We have an amazing industry of talented creators here in Australia who are very fearful that jobs are about to be shed and they will have to go offshore, because the investment in Australian-made content, in Australian stories, just won't be here if these changes to content requirements are made at the stroke of a pen by the minister. The exemptions—and this is where the rubber hits the road—under the standards and codes section of the act, allow the minister to simply write a direction. There is no parliamentary oversight for this. There is no opportunity for the Senate to debate whether that's a good thing or a bad thing or whether there needs to be a compromise. It will simply be at the will of the minister—of course, being begged by the big broadcasters. Not only do they have free licences, because they don't have to pay fees any more—taxpayers gave them a big free ticket last year at the whim and the request of the minister—but also they don't want to have these requirements to invest in Australian-made stories or for Australian kids to be able to access stories about their communities being reflected back at them.
All this amendment does is reinstate parliamentary oversight. It doesn't say what quota is right or wrong. It's got nothing to do with that. It simply says that the parliament has a right to act as a check and a balance on the decisions and directions being made by the minister. I think that is absolutely fair. We're all senators in this place and we're passionate about being able to review legislation, to improve legislation and to ensure that the will of the Australian people is being reflected in the laws that pass this place. Let's make sure that, in relation to this issue, the parliament still has a role—because, to date, it doesn't. The minister can simply make these changes, which will fundamentally change the look, the feel and the face of Australian television, the look, the feel and the face of Australian-made stories and the look, the feel and the face of kids' TV, whether that's on the big screens at home or, indeed, the little screens in their hands.
Australian kids deserve to have Australian stories. They deserve to be able to learn about their communities through storytelling, through questioning and through being able to quiz what are norms and whether something is right or wrong, to help them make sense of the world. If we get rid of these requirements, if we allow the minister to do this without even a check or balance from the parliament, that's all going to go out the window—because we know these peak broadcasters don't care about what our Australian kids are consuming. All they care about is their bottom dollar. All they care about is the bottom line on their budget sheets. They don't care about Australian-made content. They don't care about the industry jobs that are going to be lost offshore, because they'll just buy crap from the US to fill our screens or, worse than that, in between, we'll be bombarded even more with terrible reality television. That's what the broadcasters tell us.
I will withdraw the word 'crap' and replace it with 'rubbish'. All these broadcasters care about is their bottom line. All they care about is getting cheap, rubbish shows from the United States and putting them on our televisions and then pumping whatever change they may have left over into reality television. And they say to Australian families, 'This is good family viewing.' Well, I tell you what, I don't think Married at First Sight is the best show for our kids to have to sit down to watch. I don't think that's particularly educational.
But this is the type of move and push that is going to happen. The big broadcasters are clamouring for it. All you need to do is read their submissions to the government's content review. They don't want these quotas in place, they don't want requirements, and for every inch you give them they will take a mile. They begged the government for free licence fees only a year ago. The government gave it to them but got nothing. This minister is not a very good negotiator, because he got absolutely nothing in return. He gave them free licence fees, and now they're saying, 'And now we don't want to have to have restrictions on the type of content that we show and broadcast.'
Australian artists, actors, producers, scriptwriters, sound engineers and camera crew are all important jobs, and it's an important industry. It helps tell an Australian story. It helps us reflect our communities back at ourselves and question what's going on in our part of the world and how we interact with the rest of the globe. But there's obviously an economic dividend for our country. These are people's jobs. These are people's livelihoods. But these big broadcasters don't give two hoots about that. All these big broadcasters care about is reducing the amount of money they have to spend here in Australia, and I put it to you that, unless we put a check and balance back in place and unless we allow the parliament to have some oversight, when parliament's over at the end of this week and we all go off on our Easter break, this minister is going to write and give directions that say that these quotas don't need to exist, because that is what these broadcasters want from him; that is what they are lobbying hard for.
If that is not the will of the minister, then be prepared to put parliamentary oversight back in place so that we can have a discussion and a debate about how much we should be investing in and protecting Australian jobs and Australian stories. All this amendment does is reinstate parliamentary oversight. The minister is able to do a lot of things on his own. He shouldn't be able to write away Australian-made stories and junk hundreds of thousands of Australian jobs that depend on making sure Australian stories, and kids' stories in particular, are told here in Australia by Australians.
I should point out to colleagues that this bill makes no changes to any matters regarding Australian or children's content standards, including quotas. The government, as Senator Hanson-Young made reference to, is indeed undertaking an Australian and children's content review to provide advice to government on the most effective mechanisms for supporting Australian and children's screen content. Many of these mechanisms have not been looked at for more than a decade. We want to make sure that the arrangements are fit for purpose. Specifically, mechanisms to support Australian drama, documentary and children's content, including the Australian screen production incentive, are being examined. The work on the review is ongoing.
Contrary to Senator Hanson-Young's, I assume, rhetorical flourish, I don't have my pen ready to write to anyone over the parliamentary break to give directions on these matters. The standards, I should point out, that establish quotas are made by ACMA under section 122(1) of the Broadcasting Services Act. These standards are not disallowable instruments, and I'm advised by my department that this has been the case for some time—since at least 2003 and possibly earlier—and that it's not the case that this is something that came into being in 2015. The exemption from disallowance from these standards that you refer to is contained in the Legislation (Exemptions and Other Matters) Regulation 2015, but my advice is that it is having in regulation what was previously in primary legislation. So that exemption had been there well before. That regulation in 2015 is just the latest incarnation of something that has been in place for some time.
The rationale for this exemption is that section 128 of the Broadcasting Services Act includes the power for parliament to amend standards, which is a more comprehensive power for parliament than media disallowance. In any case, it's not correct to say that I can unilaterally amend or abolish quotas. Let me restate again that the government has made no decisions in relation to the content review, which is ongoing. The quotas are in standards that are made by ACMA, and it is ACMA that would need to make new standards to make any changes. Again, let me reiterate that the government has made no decisions in this regard. No announcements, including regarding quotas, are imminent. So there's not a basis in fact for the commentary around quotas that there has been over recent days.
Last night was the first time that Labor learnt of this amendment which proposes a change to administrative law on a matter that is not related to the restriction of gambling promotions during live sport but, rather, is motivated by concerns about potential changes to the content quotas for Australian and children's content. Labor have had very limited opportunity to obtain advice on this amendment which does not relate to the substantive issue before the Senate under this bill. Obviously we understand and share the concerns about Australian and children's content that this amendment is directed towards. However, we're cautious about making amendments to administrative law on the fly.
Labor note advice of the ACMA provided on notice to a question at Senate estimates last October that program standards made under section 122 of the BSA are not disallowable instruments in the usual sense, having been exempted from the general provision for disallowance under the Legislation (Exemptions and Other Matters) Regulation 2015. That regulation has been made in recognition of section 128 of the BSA, which vests parliament with the specific power to amend a standard determined or a code registered under part 9 of the BSA. We understand that section 128 sets a higher bar than disallowance by one house. But, based on the information to hand, we understand the following. Standards made under section 122 of the Broadcasting Services Act have been exempt from disallowance since 2003. The exemption from disallowance of these standards is not a recent invention. Prior to the Legislation (Exemptions and Other Matters) Regulation 2015, these exemptions were included as a table in the primary legislation. While this amendment would allow standards made under section 122 to be disallowed and may provide the Senate, for example, with an avenue to disallow program standards, it is not believed to be in the public interest. It may create uncertainty, as conceivably a standard that was disallowed could then be remade using the power in section 128 of the Broadcasting Services Act.
Labor calls on the minister to release the report of the content review so that the public can discuss and consider the evidence on the question of how best to support Australian and children's content. The report was supplied to the minister and it should be released. It was informed by the department, by the ACMA and by Screen Australia.
While you were shuffling, Minister, I was making the point that you have received the report of the content review, and I called on you to release that report. We know that it's been supplied to you, and it's the careful work of the department, the ACMA and Screen Australia, and there is considerable interest. And, seeing as this matter has been raised, everyone wants to see this report as soon as possible—certainly before the budget—so that they can participate in the discussion. In addition to the release, I'd be interested in the minister making a comment on how the government has received the report.
I'm very heartened by that, minister. My question is: will you release the report to allow a fuller and more public consultation in the lead-up to the budget before any announcements might be made?
I'm happy to be freed of my assumptions and ask you to be less oracle-like today and give me a straight answer, minister. Will you release the report, and when might you do so?
I'd describe myself as being Delphic rather than 'oracle-like', but that's a professional disposition when it comes to suggestions that something may or may not be related to the consideration of the budget.
When the government has something more to say on the Australian and Children's Content Review, it will do so. But, as I indicated in my earlier contribution, that's not something that is imminent.