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AUSTRALIAN BROADCASTING CORPORATION BILL 1983

Order of the Day read for the adjourned debate on the motion of the Minister for Veterans' Affairs (Senator Gietzelt)-That this Bill be now read second time-And on the amendment moved thereto by Senator Baume, viz:-At end of motion, add '', but the Senate is of the opinion that the Bill should not be proceeded with until- (a) the legal action against the Australian Broadcasting Commission instituted by the Premier of New South Wales is concluded; and

(b) an assurance is given by the Government: (i) that no action will be taken to alter the existing membership of the Commission until the Bill is again before the Parliament at the conclusion of those legal proceedings, and

(ii) that there will be no Government interference with the independence of the Australian Broadcasting Commission in its programming policy''.

Debate resumed.

Question-That the words proposed to be added be added-put.

The Senate divided

AYES, 26

Senators- Baume Bjelke-Petersen Boswell Carrick, Sir John Chaney Collard Crichton-Browne Durack Guilfoyle, Dame Margaret Hamer Harradine Hill Jessop Kilgariff (Teller) Lewis MacGibbon Martin Messner Rae, Peter Reid Scott Teague Townley Walters Watson Withers

NOES, 33

Senators- Bolkus Button Childs Chipp Coates Coleman Colston Cook Crowley Elstob Evans, Gareth Evans, Jack Foreman Georges Gietzelt Giles Grimes Haines Hearn McClelland McIntosh Macklin Maguire Mason Primmer Ray, Robert Reynolds Richardson Robertson (Teller) Ryan

Tate

Walsh

Zakharov

Amendment negatived accordingly.

Question-That this Bill be now read a second time-put and passed.

Bill read a second time.

The Senate, according to Order, resolved itself into Committee for the consideration of the Bill.

In the Committee

Clauses 1 to 10, by leave, taken together and agreed to.

Clause 11 read- The Leader of the Australian Democrats (Senator Chipp), by leave , moved the following amendments together: Page 7, sub-clause (3), lines 12 to 15, leave out the sub-clause, insert the following sub-clause: ''(3) The functions of the Australian Broadcasting Corporation Advisory Council are- (a) either on its own initiative or at the request of the Board, to furnish advice to the Board on matters relating to broadcasting programs and television programs of the Corporation; and

(b) either on its own initiative or at the request of the Managing Director, to make recommendations to the Managing Director in accordance with sub-section 82 (3).''.

Page 7, sub-clause (4), lines 16 to 21, leave out the sub-clause, insert the following sub-clause: ''(4) The functions of an Advisory Council established under sub-section (2) are- (a) in the case of an Advisory Council established in relation to a State, Territory or region-either on its own initiative or at the request of the Australian Broadcasting Corporation Advisory Council, to furnish advice to the Australian Broadcasting Corporation Advisory Council on matters relating to broadcasting programs and television programs of the Corporation in that State, Territory or region, as the case may be; and

(b) in the case of an Advisory Council established in relation to a State or Territory-either on its own initiative or at the request of the Managing Director, to make recommendations to the Managing Director with respect to the appointment of Community Affairs Officers in relation to that State or Territory .''.

Debate ensued.

Question-That the amendments be agreed to-put and passed.

Clause 11, as amended, agreed to.

Clause 12 debated and agreed to.

Clauses 13 to 26, by leave, taken together, debated and agreed to.

Clause 27 read- Senator Chipp moved an amendment, viz: Page 16, before sub- clause (1), insert the following new sub-clause: ''(1A) The Corporation shall develop and maintain an independent service for the broadcasting and televising of news and information by the Corporation pursuant to this section.''.

Debate ensued.

Question-That the words proposed to be inserted be inserted-put and passed.

Clause 27, as amended, agreed to.

Clauses 28 to 45, by leave, taken together and debated.

And it being 10.30 p.m.: The Chairman of Committees (Senator Hamer), under Sessional Order, put the Question-That he do leave the Chair and report to the Senate.

Which Question was negatived.

Clauses 28 to 45 further debated and agreed to.

Senator Baume moved an amendment, viz: Page 28, after clause 45, insert the following new clauses:

''Division 2A-Failure to work as directed

No work as directed-no pay

''45A. (1) Where an officer or temporary employee refuses or fails to comply with a direction given by a person having authority to give the direction, being a lawful direction with respect to work that he is performing or is to perform, the Managing Director may declare that the officer or employee is not to be paid salary.

''(2) A declaration under sub-section (1) in relation to the refusal or failure of an officer or temporary employee to comply with a direction- (a) shall specify the time (which may be a time before the declaration is made but not earlier than the time when the officer or employee refused or failed, or first refused or first failed, to comply with the direction) from which the declaration is to have effect, or is to be deemed to have had effect; and

(b) has effect and shall be deemed to have had effect, according to its tenor, from the time so specified until it is revoked in accordance with this section.

''(3) An officer or temporary employee is not entitled to be paid salary in respect of any period in respect of which a declaration under sub-section (1) has effect, or is to be deemed to have had effect, in relation to him.

''(4) The Managing Director- (a) may, at any time, vary or revoke a declaration in force under sub-section (1) either wholly or in relation to a specified officer or temporary employee; and

(b) shall, upon becoming satisfied that an officer or temporary employee in respect of whom a declaration under sub-section (1) is in force has been complying, or will comply, from a particular time, with all relevant directions with respect to the work that he is performing, or is to perform, given by persons having authority to give those directions, revoke, as from that time, that declaration, or that declaration in its application to that officer or employee, as the case requires.

''(5) A declaration made under sub-section (1) in respect of a refusal or failure of an officer or temporary employee to comply with a particular direction, or with particular directions, has effect in accordance with sub- section (2) notwithstanding that, at any time while it is in force, the officer or employee- (a) attends for duty and performs work other than work to which that direction, or any of those directions, as the case requires, relates; or

(b) attends for duty and, in the performance of his work, complies with that direction, or with some or all of those directions, as the case requires, in part only.

''(6) A declaration under sub-section (1), and a variation or revocation of such a declaration- (a) shall be made in writing; and

(b) shall be signed- (i) by the Managing Director; or

(ii) by a person to whom the Managing Director has delegated his powers under this section.

''(7) Subject to sub-sections (8) and (9), the powers conferred on the Managing Director by this section are in addition to, and not in substitution for, any other powers conferred by or under this Act on the Corporation, on the Board, on the Managing Director or on any other person in relation to an officer or temporary employee.

''(8) While a declaration under sub-section (1) is in force in respect of the refusal or failure of an officer or temporary employee to comply with a direction, or with 2 or more directions, proceedings shall not be taken against the officer or employee under section 64 in respect of any refusal or failure of the officer or employee in respect of which that declaration was made.

''(9) Where proceedings are taken against an officer or temporary employee under section 64 in respect of any refusal or failure of the officer or employee to comply with a direction, or with directions, of the kind referred to in sub- section (1), a declaration shall not be made under sub-section (1) in respect of any refusal or failure of the officer or employee in respect of which those proceedings have been taken unless those proceedings have been finally determined or otherwise terminated.

''(10) Where a declaration is made under sub-section (1) in respect of an officer or temporary employee, or such a declaration is varied or revoked, the Managing Director shall cause such notice as he deems appropriate to be given of the making of the declaration or of the variation or revocation of the declaration, as the case may be.

''(11) The period during which a declaration under sub-section (1) has effect in respect of an officer or employee forms part of his period of service or employment under this Act for the purposes of the Superannuation Act 1976 but does not, unless the Managing Director otherwise determines, form part of his period of service or employment under this Act for any purpose of this Act or of any other Act.

''(12) In this section, unless the contrary intention appears- 'direction' includes an order and an instruction;

'salary' includes wages or other remuneration and any allowances that are declared by the rules to be included in salary for the purposes of this definition.

Declarations to prevail over awards ''45B. (1) Section 45A has full force and effect, and declarations in force under sub-section 45A (1) have full force and effect according to their tenor, notwithstanding any inconsistency- (a) with any other provision of this Act;

(b) with any other law of the Commonwealth enacted before the commencing day; or

(c) with any award made before, on or after the commencing day.

''(2) Section 45A shall be deemed to be a prescribed provision of the Australian Broadcasting Corporation Act 1983 for the purposes of- (a) sub-section 22 (2) of the Public Service Arbitration Act 1920; and

(b) sub-section 41A (1) of the Conciliation and Arbitration Act 1904.

''(3) Except as provided in sub-section (1), nothing in a declaration in force under sub-section 45A (1) shall be taken as affecting- (a) the application of any law, or of any award, to or in relation to an officer or temporary employee; or

(b) the terms and conditions of employment of an officer or temporary employee.' '.

Debate ensued.

Question-That the proposed new clauses be inserted in the Bill-put.

The Committee divided-

AYES, 26

Senators- Baume Bjelke-Petersen Boswell Carrick, Sir John Chaney Collard Crichton-Browne Durack Guilfoyle, Dame Margaret Hamer Hill Jessop Kilgariff Lajovic Lewis MacGibbon Martin Messner Rae, Peter Reid (Teller) Scott Teague Townley Walters Watson Withers

NOES, 34

Senators- Bolkus Button Childs Chipp Coates Coleman Cook Crowley Elstob Evans, Gareth Evans, Jack Foreman Georges Gietzelt Giles Grimes Haines Harradine Hearn McClelland McIntosh Macklin Maguire Mason Primmer Ray, Robert Reynolds Richardson Robertson (Teller) Ryan

Sibraa

Tate

Walsh

Zakharov

Amendment negatived accordingly.

Clauses 46 to 77, by leave, taken together, debated and agreed to.

Senator Baume moved an amendment, viz: Page 49, after clause 77, insert the following new clauses: ''PART VIIA-COMPLAINTS ABOUT PROGRAMS

''Division 1-Preliminary

Interpretation ''77A. In this Part, unless the contrary intention appears- ' Commission' means the Australian Broadcasting Corporation Complaints Commission;

'Commissioner' means a member of the Commission;

'complaint', in relation to a program, means a complaint as to any one or more of the following matters: (a) that the program was unjust or unfair;

(b) that an unwarranted intrusion into the privacy of a person took place in the course of obtaining matter for inclusion in the program;

(c) that the program constituted an unwarranted intrusion into the privacy of a person;

'person affected', in relation to a complaint, means the person by whom, or on whose behalf, as the case may be, the complaint is made;

'program' means a broadcasting or television program of the Corporation broadcast or televised, as the case may be, after the commencement of this Part.

''Division 2-Establishment, Functions and Powers of Australian Broadcasting Corporation Complaints Commission

Establishment of Commission ''77B. For the purposes of this Act there shall be an Australian Broadcasting Corporation Complaints Commission.

Functions of Commission ''77C. The functions of the Commission are to consider and adjudicate upon complaints with respect to programs.

Making of complaints ''77D. (1) A complaint made to the Commission shall be in writing and shall identify the person affected.

''(2) Subject to sub-section (3), a complaint shall not be entertained by the Commission unless made by the person affected or by a person authorized by him to make the complaint.

''(3) Where the person affected is a deceased person or is a natural person who for any reason is both unable to make a complaint himself and unable to authorize another person to do so for him, a complaint may be made by the personal representative of the person affected, or by a member of his family, or by some other person or body closely connected with him.

Entertainment of complaints ''77E. (1) The Commission is not required to entertain a complaint if, in the opinion of the Commission- (a) the complaint is with respect to the broadcasting or televising of the relevant program on an occasion more than 5 years after the death of the person affected;

(b) the subject matter of the complaint is the subject of proceedings in any court;

(c) the subject matter of the complaint is a matter in respect of which the person affected has a remedy by way of proceedings in any court, and in the particular circumstances it is not appropriate for the Commission to consider the complaint;

(d) the complaint is frivolous or vexatious, or was not made in good faith;

(e) the person affected does not have a sufficient interest in the subject matter of the complaint;

(f) in the case of a complaint made under sub-section 77D (3) by a person other than the person affected or a person authorized by him-the complainant's connection with the person affected is not sufficiently close; or

(g) the complaint has not been made within a reasonable time.

''(2) Where the Commission does not, for any of the reasons specified in sub- section (1), entertain a complaint, it shall, as soon as practicable and in such manner as it thinks fit, inform the complainant and the Corporation of the Commission's decision and of the reasons for the decision.

''(3) Where the Commission does not entertain a matter that is the subject of several complaints, sub-section (2) does not require it to notify each of the complainants if the Commission is of the opinion that, having regard to the number of complainants, it would be unduly burdensome to do so.

Consideration of complaints ''77F. (1) Subject to section 77E before proceeding to consider a complaint, the Commission shall send a copy of the complaint to the Corporation.

''(2) A complaint may be considered by the Commission at a hearing or without a hearing, as the Commission thinks fit, and, at a hearing, the Commission is not bound by the rules of evidence and may inform itself on any matter in such manner as it thinks fit.

''(3) A hearing under this section shall be held in private, and each of the following persons shall be given the opportunity to attend and be heard: (a) the complainant;

(b) the Managing Director or an officer of the Corporation authorized by him in writing for the purpose;

(c) any other person who, in the opinion of the Commission, is responsible for the making or provision of the program concerned.

''(4) Where the Corporation receives from the Commission a copy of a complaint, the Managing Director shall, if so required by the Commission- (a) make suitable arrangements for enabling the complainant and any Commissioner or member of the staff referred to in sub-section 77K (1) to view or hear the relevant program, or any specified part of it, if and so far as the Corporation has in its possession a visual or sound record of it;

(b) provide the Commission and the complainant with a transcript of so much of the relevant program, or of any specified part of it, as consisted of speech, if and so far as the Corporation is able to do so;

(c) provide the Commission and the complainant with copies of any documents in the possession of the Corporation, being the originals or copies of any correspondence between the Corporation and the person affected or the complainant in connection with the complaint; and

(d) furnish to the Commission and the complainant a written statement in answer to the complaint.

''(5) Where the Commission proposes to consider a complaint, the Corporation shall, if so required by the Commission, arrange for one or more of the Directors, officers or employees of the Corporation to attend and assist the Commission in its consideration of the complaint.

Reports by Commission ''77G. (1) Where the Commission has considered and adjudicated upon a complaint, the Commission shall furnish a report on the complaint to- (a) the complainant or, if there is more than one complainant, each of the complainants; and

(b) the Corporation.

''(2) Where the Commission has considered and adjudicated upon a matter that is the subject of several complaints, sub-section (1) does not require it to notify each of the complainants if the Commission is of the opinion that, having regard to the number of complainants, it would be unduly burdensome to do so.

''(3) Where the Commission furnishes a report to the Corporation under sub- section (1), it may require the Corporation to publish, in a manner specified by the Commission, a summary of, and of its findings on, the subject matter of the complaint and may, if it thinks fit, require the summary to be in a form prepared or approved by the Commission.

''(4) The Corporation shall comply with any requirements made of it by the Commission under sub-section (3).

Duty to publicize Commission and its functions ''77H. The Corporation shall make (by means of broadcasting or television or otherwise) regular announcements publicizing the Commission and its functions of considering and adjudicating upon complaints.

RNMENT:[NM by Commission ''77J. (1) The Commission may, by resolution, either generally or as otherwise provided by the resolution, delegate to a Commissioner or to a member of the staff referred to in sub-section 77K (1) all or any of its powers under this Part (other than this power of delegation and its powers to consider and adjudicate upon complaints and to furnish reports upon complaints).

''(2) A power so delegated, when exercised by the delegate, shall, for the purposes of this Part, be deemed to have been exercised by the Commission.

''(3) A delegation of a power under this section- (a) may be revoked by resolution of the Commission (whether or not constituted by the persons constituting the Commission at the time the power was delegated);

(b) does not prevent the exercise of the power by the Commission; and

(c) continues in force notwithstanding a change in the membership of the Commission.

''(4) Section 34A of the Acts Interpretation Act 1901 applies in relation to a delegation under this section as if the Commission were a person.

''(5) A certificate purporting to bear the signature, or a facsimile of the signature, of the Chairman and stating any matter with respect to a delegation of a power under this section is, upon mere production, prima facie evidence of that matter.

Staff ''77K. (1) The staff required for the purposes of this Part shall be persons appointed or employed under the Public Service Act 1922.

''(2) The Chairman has all the powers of, or exercisable by, a Permanent Head under the Public Service Act 1922 so far as those powers relate to the branch of the Public Service comprising the staff referred to in sub-section (1) as if that branch were a separate Department of the Public Service.

''(3) For the purposes of sub-sections 25 (5) and (6) of the Public Service Act 1922, the Chairman shall be deemed to be a Permanent Head.

''Division 3-Constitution and Meetings of Australian Broadcasting Corporation Complaints Commission

Membership of Commission ''77L. (1) The Commission shall consist of not less than 3 nor more than 5 Commissioners.

''(2) A Commissioner shall be appointed by the Governor-General on a part-time basis for such period, not exceeding 5 years, as is specified in the instrument of his appointment, but is eligible for re-appointment.

''(3) The Governor-General shall appoint one Commissioner to be the Chairman of the Commission and another to be the Deputy Chairman of the Commission.

''(4) The performance of the functions or the exercise of the powers of the Commission is not affected by reason that there is no Chairman or Deputy Chairman or by reason of the number of Commissioners falling below 3 for not longer than 6 months.

Remuneration and allowances ''77M. (1) A Commissioner shall be paid such remuneration as is determined by the Remuneration Tribunal but, if no determination of that remuneration by the Tribunal is in operation, he shall be paid such remuneration as is prescribed by the regulations.

''(2) A Commissioner shall be paid such allowances as are prescribed by the regulations.

''(3) This section has effect subject to the Remuneration Tribunals Act 1973.

Leave of absence ''77N. (1) The Minister may grant leave to the Chairman to be absent from a meeting of the Commission upon such conditions as to remuneration or otherwise as the Minister thinks fit.

''(2) The Chairman may grant leave to any other Commissioner to be absent from a meeting of the Commission upon such conditions as to remuneration or otherwise as the Chairman thinks fit.

''(3) References in sub-sections (1) and (2) to the Chairman shall, if a Commissioner is acting as Chairman, be construed as references to the Commissioner so acting.

Resignation of Commissioners ''77O. A Commissioner may resign his office by writing signed by him delivered to the Governor-General.

Disclosure of interests ''77P. (1) Where a Commissioner has or acquires any interest, pecuniary or otherwise, that could conflict with the proper performance of his functions in relation to a complaint made to the Commission- (a) he shall disclose the interest to the parties; and

(b) except with the consent of the parties, he shall not take part in any deliberation or decision of the Commission with respect to the complaint.

''(2) Where the Chairman becomes aware that a Commissioner has, in relation to a complaint, such an interest as is mentioned in sub-section (1)- (a) if the Chairman considers that the Commissioner should not take part, or continue to take part, in any deliberation or decision of the Commission with respect to the complaint-he shall give a direction accordingly; or

(b) in any other case-he shall cause the interest to be disclosed to the parties .

''(3) In this section, 'party' in relation to a complaint, means the complainant or the Corporation.

''(4) References in this section to a Commissioner shall, if a person is acting as a Commissioner, be construed as including references to the person so acting.

Termination of appointment of Commissioners ''77Q. The Governor-General may terminate the appointment of a Commissioner for misbehaviour or physical or mental incapacity.''.

Debate ensued.

Senator Harradine, by leave, moved the following amendments to Senator Baume's proposed amendment together: Proposed new clause 77A, definition of ''complaint' ', paragraph (a), leave out ''unjust or unfair'', insert ''inaccurate, unfair or biased''.

Proposed new clause 77A, definition of ''complaint'', paragraph (b), at end of paragraph, add ''(whether or not the matter so obtained was included in the program)''.

Proposed new clause 77A, definition of ''complaint'', at end of definition, add the following new paragraph: ''(d) that the program was otherwise offensive''.

Proposed new clause 77A, definition of ''person affected'', leave out the definition.

Proposed new clause 77D, sub-clause (1), leave out ''affected'', insert ''making the complaint''.

Proposed new clause 77D, sub-clauses (2) and (3), leave out the sub-clauses, insert the following new sub-clause: ''(2) The complaint may be made by an individual, or by a body of persons, whether incorporated or not.''.

Proposed new clause 77E, leave out the proposed clause.

Proposed new clause 77F, sub-clause (1), leave out ''Subject to section 77E,''.

Proposed new clause 77F, paragraph (4) (c), leave out ''the person affected or'' .

Debate ensued.

Senator Harradine moved-That the Chairman do report progress and ask leave to sit again.

Question-put.

The Committee divided-

AYES, 32

Senators- Baume Bjelke-Petersen Boswell Carrick, Sir John Chaney Chipp Collard Crichton-Browne Durack Evans, Jack Guilfoyle, Dame Margaret Haines Hamer Harradine Hill Jessop Kilgariff Lajovic Lewis MacGibbon Macklin Martin Mason Messner Rae, Peter Reid (Teller) Scott Teague Townley Walters Watson Withers

NOES, 28

Senators- Bolkus Button Childs Coates Coleman Cook Crowley Elstob Evans, Gareth Foreman Georges Gietzelt Giles Grimes Hearn McClelland McIntosh (Teller) Maguire

Primmer

Ray, Robert

Reynolds

Richardson

Robertson

Ryan

Sibraa

Tate

Walsh

Zakharov

And so it was resolved in the affirmative.

The President resumed the Chair; and Senator Hamer reported that the Committee had considered the Bill and had made progress, and asked leave to sit again.

Ordered-That the Committee have leave to sit again on the next day of sitting.