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Monday, 26 March 2018
Page: 2151


Senator O'NEILL (New South Wales) (17:29): I rise after some anticipation, having thought we were going to get to this legislation last week, but here we are, one week later, and we have the piece of legislation before us: the Communications Legislation Amendment (Online Content Services and Other Measures) Bill 2017. Labor has a very strong record on addressing community concerns around gambling promotions during live sport. We know that Australia's a sport-loving nation, and the engagement over the last 48 hours with matters cricket gives us an indication of the depth of Australians' feelings about sport in this nation. We believe that Australians should be able to enjoy watching live sport without the unwarranted intrusion of betting odds and gambling promotions. In particular, it's in everyone's interest to ensure that children don't associate betting and gambling as a normal part of enjoying sport. Labor supports the Communications Legislation Amendment (Online Content Services and Other Measures) Bill 2017 as a step in the right direction because it enhances consumer protections and sets up a platform-neutral approach to regulation in relation to gambling promotions during live sport. We welcome the government's move to extend restrictions to online platforms and avoid regulatory bypass.

This bill builds upon the leadership of the Gillard Labor government in 2013, which took the step of demanding that Australia's broadcasters amend their industry codes of practice to ensure a reduction in the promotion and advertising of gambling during live sport. Following Labor's intervention, the broadcast television industry responded by developing rules to restrict gambling advertising in live sports broadcasting and the promotion of betting odds. The updated codes of practice were then registered by the Australia Communications and Media Authority. At the time, both the Labor government and the ACMA noted that further action in this area might be necessary in future.

More recently, and in response to ongoing and significant community concerns, Labor formally called for stronger protections, noting that the industry should be given time to adjust to any changes. In March 2017, in the context of debate on the Interactive Gambling Amendment Bill 2016, Labor moved a successful motion here in the parliament calling for stronger restrictions on gambling promotions during live sport. The announcement the government went on to make in May 2017 responded to Labor's call and was the only consumer oriented measure they announced in the raft of industry deals that were done to push their media law changes through the parliament last year. Unfortunately, it took the government another seven months before it introduced this bill into parliament in December 2017. Meanwhile, a range of people—parents and gambling experts included—continued to worry about children's level of exposure to gambling ads, especially during live sporting events. This delay means that new restrictions for online platforms contemplated by this bill are unlikely to commence at the same time as the new restrictions for broadcast platforms, given the time the ACMA will need to develop new online content service provider rules. Furthermore, and despite the length of time the government has taken to address community concerns, a host of issues are yet to be worked through under this bill. There's a high level of uncertainty amongst the industry and consumers about the exemptions that will be permitted by the ACMA under the new online content service provider rules. Addressing this issue has not been enough of a priority of the Turnbull government. However, we do support this bill, as I said, as a step in the right direction.

The aim of the government's approach is to create 'a clear and safe zone where parents can be confident children can watch live sport without experiencing messages that normalise gambling as a part of that sport', as I quote from the government's legislation. While the government's approach is intended to cause a reduction in gambling promotion during live sport, it remains to be seen whether the clear and safe zone that they declare will satisfy the Australian public in practice, given it cuts out at 8.30 pm. This is a time when high-profile sports programs are often still in play.

According to research commissioned by the Australian Communications and Media Authority, the majority of Australians—that is, 61 per cent—do not want gambling advertising during live sport broadcasts, no matter the time of day. However, the Turnbull government has acted to restrict gambling advertising during live sport between the hours of 5 am and 8:30 pm, as well as providing for a host of exemptions from the online scheme, when the majority of Australians don't want gambling promotions during live sport at all. While selecting the hours of 5 am to 8.30 pm does address the time that children are most likely to consume media, they do not address the timing of sports programming so neatly. Even the explanatory memorandum to the bill acknowledges this. It states:

… many sports events commence between 7pm and 8pm or take place on weekend afternoons when there are significant child audiences. Children are thus exposed to significant levels of gambling advertising on television which risks increasing adolescents' desire to experiment with gambling. Increased exposure to gambling advertisements has also been associated with more positive youth gambling attitudes and intentions towards gambling.

It also states:

… the Department has received and continues to receive a significant amount of correspondence from the community, expressing concern about the impact of gambling advertising on child audiences. In a recent campaign the Department received over 1150 emails calling for gambling advertising in association with live sport to be banned.

Here it's worth noting that consistency in application of the restrictions is guided by the regulatory policy of the Broadcasting Services Act 1992, which already applies in relation to broadcast platforms and which the bill extends to online content services. The regulatory policy provides that the parliament intends that different levels of regulatory control apply across the range of services, including broadcasting and online content services, according to the degree of influence that different types of those services are able to exert in shaping community views in Australia. Further, it provides that services be regulated in a manner that enables public interest considerations to be addressed in a way that does not impose unnecessary financial or administrative burden on providers of broadcast and online content services, among other things. Labor is cognisant of the regulatory policy and believes that industry should be afforded the time and the flexibility needed to alter business practices and contractual arrangements to address community concerns.

Here I would like to make some brief comments on the broadcast industry codes of practice that have recently been updated to reflect government policy in this area. Labor welcomes additional restrictions on gambling advertisements during the broadcasting of live sports between 5 am and 8.30 pm on commercial TV, pay TV and commercial radio as a step in the right direction. I note that questions remain about inconsistencies in the approach taken under these codes. The broadcast codes of practice, which have been registered by the Australian Communications and Media Authority and were announced on Friday, 16 March 2018, permit exemptions for low audience share channels on subscription television and, for technical reasons, treat time zones differently, as between platforms. While these differences may be justifiable under the regulatory policy of the Broadcasting Services Act, the simple fact is that the broadcasting platforms have not been treated the same way under the government's approach when both industry and consumers want consistency.

It's good to see that the ACMA has stated that it will closely monitor the operation of the additional restrictions in the updated broadcasting codes and, after 12 months, will consider whether to conduct a formal review of their effectiveness. In the name of consistency, Labor welcomes the move to extend restrictions to online services. Online platforms were included in the government's announcement, at the urging of the broadcast sector, over concerns about regulatory bypass and the need for a level playing field in a lucrative sports rights and gambling promotions market.

The bill seeks to introduce a platform-neutral approach to the restriction of gambling promotions during live sports coverage across broadcast, subscription and online platforms to achieve a level playing field and consistency in consumer protection. However, the bill to restrict gambling promotions during live sport on online platforms permits all manner of exemptions, the detail of which is yet to be worked through—after the legislation has passed the parliament. Under the Turnbull government's approach, neither industry nor consumers enjoy clarity or consistency around the application of the additional restrictions. While Labor acknowledges that the aim of the measures in this bill is to reduce gambling promotion online, the wide range of exemptions permitted under the bill, and the lack of policy guidance on those exemptions, causes many to wonder what this bill will actually end up achieving in practice.

For a sport-loving nation like Australia, the new online provisions are cast very broadly indeed. Schedule 8 covers the internet—pretty well! It applies to:

… any service that delivers or allows users to access content using an internet carriage service to the public and has a geographical link to Australia (if the service is targeted at individuals physically present in Australia or any of the content is likely to appeal to the public, or a section of the public, in Australia).

In recognition of the wide variety of online content services with different business models and technical characteristics, the explanatory memorandum to the bill states that 'the online content service provider rules will not need to regulate all online content services and the bill provides for a very broad range of exemptions'. The exemptions to the online content service provider rules will be considered by the ACMA once the legislation has passed this parliament. I note the concerns of the Digital Industry Group about inconsistent regulation. It will be interesting to see how the ACMA balances evidentiary and policy considerations as it considers specific and class exemptions, as permitted under the bill.

Further, I note the concerns of Responsible Wagering Australia, who submitted to the inquiry into this bill the following statement:

From industry's perspective, this [approach] results in a disjointed process under which the entity responsible for the legislation (the Department) cannot speak to nor provide assurances around which exemptions will apply—despite this being a pivotal issue for industry. Similarly the proposed entity responsible for the consideration of exemptions (the ACMA) is awaiting finalisation of the legislation before it will discuss possible exemptions in any great detail.

   …   …   …

The Bill takes an expansive view of what constitutes an 'online content service' for the purposes of the legislation, with the legislation providing a mechanism for exemptions to be made by the ACMA. In our view, this approach provides no certainty to industry.

As I mentioned earlier, while the Turnbull government made its policy announcement back in May 2017, the legislation was not available publicly until this bill was introduced in the final sitting week of December 2017. And even now, in March, a raft of question marks still hang over this bill—a number of which were canvassed during the inquiry into this bill and will continue to play out.

I will now move to the proposed regulation of the Special Broadcasting Service by this bill. Let's start with the facts. SBS content is regulated by the SBS codes of practice—codes which apply to the SBS's radio, television and online services. Unlike the commercial broadcasters, whose codes of practice apply only to TV and radio services, SBS's online services are regulated by the SBS codes of practice. The SBS is committed to implementing appropriate restrictions on gambling promotions during live sport, in accordance with government policy, by 30 March 2018—this week—on both its broadcast and online platforms. Consistent with past practice, SBS will incorporate the new gambling advertising restrictions by reference to the FreeTV and CRA codes of practice that have been registered, so there will be consistency between services. In the online space, SBS will be ahead of the rest of the market by implementing restrictions to its online platforms this month. This is likely to happen ahead of the making of any rules by the ACMA, which is yet to be empowered under this bill to develop and implement online content service provider rules.

However, despite all this, this bill proposes to regulate SBS programming with rules developed by the ACMA. This implementation mechanism is inappropriate for application to a public broadcaster such as SBS. It permits a level of ACMA intervention over SBS programming that is inconsistent with SBS's independence and the co-regulatory framework in the Broadcasting Services Act. The SBS Act requires the SBS board to maintain the independence of the SBS and limits the matters on which SBS can be directed by the minister. In turn, the Broadcasting Services Act 1992, which this bill seeks to amend, 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. These actions are quite distinct from the actions the ACMA may take in relation to commercial and subscription broadcasters. It is really very simple: SBS should not be captured by the regulatory regime set out in the bill. Instead, implementation of new restrictions for the SBS should be achieved by establishing one set of rules in the SBS codes that cover both the broadcasting and the online platforms.

While in theory the bill permits the ACMA to exempt the SBS from online content service provider rules, there is no assurance the ACMA would do so. In any event, and with respect to the ACMA, rules around SBS programming should not be a matter of ACMA discretion. Furthermore, subjecting the SBS to this bill is contrary to the stated policy objective of the government to pursue opportunities for self-regulation and co-regulation to a greater, not a lesser, extent. As a matter of regulatory policy and practice in order to alleviate the burden on the Australian taxpayer, the SBS should be encouraged to self-regulate, which it is already doing. If the Turnbull government wants to regulate both broadcast and online platforms coherently, or alter the co-regulatory framework in the BSA vis-a-vis the SBS, it should conduct full and overdue reform of the BSA.

In essence, the bill highlights the ongoing failure of the Liberal government to adapt the regulatory framework for media and communications in the 21st century. The bill proposes to regulate online platforms by tacking yet another schedule for online services onto the outdated, pre-internet Broadcasting Services Act 1992, which is now over 25 years old. It clumsily draws the SBS into this regime. Overall for the SBS, including restrictions on gambling advertising during live sporting events on online platforms in the SBS codes would be clearer for audiences as it provides one port of call for complaints about SBS content. It enables a more efficient handling of complaints by the SBS and the ACMA, and it would appropriately preserve SBS's editorial independence from government.

Finally, in closing I wish to return to some evidence that promoted Labor's call this time last year for stronger restrictions. An ABC News story last year by Damian McIver mentioned concerns two high-profile AFL players had about the prevalence of gambling advertisements. Geelong defender Harry Taylor was quoted as saying:

I've got three kids at home and when my eldest can name a lot of the ads on TV, that is a bit of a worry …

Taylor's comments followed comments by Western Bulldogs defender Easton Wood, who posted his views on Twitter last year. He said:

Gambling advertising is out of control and I think it needs to change …

Wood said:

The obvious issue here is the effect this advertising has on children every time they watch us pull on our boots.

Research undertaken by Deakin University points out a number of very concerning issues with regard to children and gambling advertising on television. The research found that more than 90 per cent of children—90 per cent!—can recall having seen an advertisement for sports betting. About three-quarters of children aged between eight and 16 can recall the name of at least one sports betting brand. Approximately one-quarter can recall four brands or more. Seventy-five per cent of children think that gambling is a normal or common part of sport. Parents conveyed concerns that gambling advertising is so prevalent that it's changing the way kids think and talk about sport. When you look at these findings, you can understand why parents and the community in general are worried about our kids being subjected to gambling advertising, especially during live sporting events. Labor understands that Australians don't want children to associate betting and gambling with normal parts of enjoying sport. For these reasons, and with the reservations I've articulated, Labor supports this bill.