1.1
On 13 May 2021, the Senate referred the provisions of the Broadcasting Legislation Amendment (2021 Measures No. 1) Bill 2021 (the bill) to the Senate Environment and Communications Legislation Committee for inquiry and report by 17 June 2021. The reporting date was subsequently extended to 18 June 2021.
1.2
The referral followed a recommendation of the Senate Standing Committee for the Selection of Bills which reasoned that the bill should be referred to the committee to allow for the investigation of the impact of legislation on the screen industry.
Conduct of the inquiry
1.3
In accordance with its usual practice, the committee advertised the inquiry on its website and wrote to relevant individuals and organisations inviting submissions by 28 May 2021.
1.4
The committee received 53 submissions which are listed at Appendix 1 of this report. All submissions are available at: www.aph.gov.au/senate_ec.
1.5
The committee also held a public hearing on 7 June 2021 in Canberra. A list of witnesses who gave evidence at the hearing appears at Appendix 2.
1.6
The committee thanks all submitters and witnesses for their participation in the inquiry.
Scope of the report
1.7
This report outlines the purpose and provisions of the bill and provides a brief background to the introduction of the bill. This report also examines the principal issues raised by stakeholders and concludes with the committee's view and recommendations.
Background to the bill
1.8
The Broadcasting Services Act 1992 (Broadcasting Services Act) and the Radiocommunications Act 1992 were passed 'to promote the role of broadcasting services in developing and reflecting a sense of Australian identity, character and cultural diversity'.
1.9
A previous parliamentary inquiry report titled the Report on the inquiry into the Australian film and television industry acknowledged that Australian content needs regulation as without it, content would be 'under-produced' as such content is expensive to produce and the audience market is limited. Therefore, legislation and its subsequent regulations require 'free to air commercial television broadcasters to transmit a set amount of Australian content…and require licensed subscription television broadcasters to meet minimum spend requirements for Australian drama'.
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Consecutive governments have provided access to Australian content 'through a framework of regulatory intervention and funding support'; this has included 'funding of national broadcasters, broadcast quotes, expenditure obligations, direct funding and platform-specific tax rebates'.
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According to the explanatory memorandum, 'the effectiveness of this framework…has been declining in recent years', primarily due to the shift of Australians to view programs through online services:
...audiences are shifting to watch programs on online services which have no obligation to make or source Australian content. In contrast, commercial and subscription broadcasters are facing declining audience numbers and subscribers, and have to comply with content obligations which do not apply to their online competitors.
1.12
The explanatory memorandum reiterates the importance of Australian screen content that can 'enhance understanding and experience of our national culture'. It also notes that free-to-air television remains the 'primary source of screen content for many Australians', particularly for older Australians, lower income families and Australians in regional and remote areas.
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As such, continued regulation is required to ensure 'public policy outcomes and public expectations' are met, however, current regulations 'are no longer fit for purpose'.
Purpose of the bill
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The bill was introduced into the House of Representatives on 25 March 2021 by the Minister for Communications, Urban Infrastructure, Cities and the Arts, the Hon Paul Fletcher MP.
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In his second reading speech, the minister explained that the purpose of the bill is to:
…reduce regulatory burden, reform outdated regulations that are no longer fit for purpose and enable Australia's media industry to continue to provide services and content valued by audiences across the country.
1.16
The bill contains five schedules:
Schedule 1 would amend the Broadcasting Services Act 1992 to 'reduce regulatory burden on subscription television broadcasting licensee' by reducing the 'annual expenditure requirement for Australian drama programming from 10 per cent to 5 per cent'.
Schedule 2 would repeal a number of existing definitions and move 'subscription television caption rules from the [Broadcasting Services Act] into a disallowable ministerial instrument'.
Schedule 3 would 'repeal a redundant provision from the digital radio framework in the Radiocommunications Act 1992 to reflect that there is now only one spectrum band for digital radio'.
Schedule 4 would extend the 'grandfathering arrangements for new population determinations made by the Australian Communications and Media Authority (ACMA)'.
Schedule 5 would 'extend the timeframe' for the ACMA 'to implement grants under the Regional and Small Publishers Innovation Fund beyond 30 June 2021'.
Consideration by other parliamentary committees
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The bill was considered by the Senate Standing Committee for the Scrutiny of Bills (the scrutiny committee) and is included in Scrutiny Digests 6 and 7 of 2021.
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The scrutiny committee raised the following concerns:
The bill contains 'significant matters' that 'should be included in primary legislation unless a sound justification' is provided. The committee noted that the explanatory memorandum did not contain any justification for including these matters in delegated legislation.
The bill enables the minister to 'prescribe the subscription television captioning scheme' though a legislative instrument, thus providing the minister with a 'broad power' to resolve how and to what extent 'subscription television providers must provide captioning of their programs'. The scrutiny committee noted that as a legislative instrument, these rules would not be 'subject to the full range of parliamentary scrutiny'.
The incorporation of external materials existing from time to time into the rules contained in the scheme. The scrutiny committee noted that there was no explanation as to 'what type of instruments or documents' may be incorporated into the rules, apart from one example in the explanatory memorandum. The scrutiny committee also noted that this created 'uncertainty' surrounding the law as it may be altered in the absence of scrutiny of parliament.
1.19
The scrutiny committee requested a response from the minister. The minister provided a response on 5 May 2021 and its contents were included in Scrutiny Digest 7 of 2021. In the response, the minister noted the committee's concerns in relation to the inclusion of significant matters in delegated legislation and stated that the bill's intention is to maximise 'flexibility, simplicity and transparency, while aiming to ensure that the most popular programming attracts the most captioning':
The power to make a legislative instrument for the STV [subscription television] captioning scheme allows flexibility to consult on and respond in a timely and efficient way to new and emerging issues associated with, or changes affecting, subscription TV and the needs and interests of viewers who rely on captions.
Prescription of the scheme though primary legislation could not provide the same level of flexibility and may result in captioning requirements no longer remaining fit for purpose or becoming out of date as time progresses. The delegated legislation approach adopted in the Bill is consistent with good regulatory practice as it will help ensure the scheme remains proportionate to the STV industry's role and remains adaptable to the needs of captioning users.
1.20
The minister acknowledged the committee's concerns with regard to parliamentary scrutiny, however, noted that the 'scheme would be a legislative instrument for the purposes of the Legislation Act 2003', and is therefore subject to both parliamentary scrutiny and the disallowance regime. As such, the minister did not deem it necessary to amend the bill.
1.21
In addressing the scrutiny committee's concern of external material being incorporated into the rules, the minister advised that this would 'allow the scheme to include references to certain technical and industry specific matters that may change from time to time'. The minister noted that he would explore mechanisms to ensure that materials adopted would be 'publicly and freely available'.
1.22
The committee noted the minister's explanation for leaving significant matters to delegated legislation. The committee stated, however, that it has 'generally not accepted a desire for administrative flexibility' as an acceptable justification. The committee also noted the minister's advice with regard to external information and reiterated its position that, 'as a matter of general principle', any member of the public should be able to freely and readily access the terms of the law.
1.23
The scrutiny committee requested that a supplementary explanatory memorandum be tabled as soon as possible which contains information regarding the subscription television captioning scheme and the incorporation of external materials to aid understanding and interpretation of the law.
Note on references
1.24
In this report, references to Committee Hansard are to proof transcripts. Page numbers may vary between proof and official transcripts.