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Thursday, 14 September 2006
Page: 12

Mrs DE-ANNE KELLY (Parliamentary SecretaryTrade) (9:43 AM) —I move:

That this bill be now read a second time.

As Australia’s broadcasting and communications regulator, the Australian Communications and Media Authority (ACMA) plays a critical role in ensuring that the media sector complies with its legislative obligations and audience expectations.

For some time, ACMA and its predecessor, the Australian Broadcasting Authority (ABA), has been concerned about the polarised nature of its broadcasting regulatory powers, under which only the draconian sanctions of criminal penalties and licence suspension or cancellation were available even for mid-range breaches of the act. To address this, the bill will provide ACMA with a greater range of enforcement options, enabling it to respond more flexibly to breaches of the regulatory framework and, where appropriate, to work with industry to achieve greater levels of compliance.

The bill also will also ensure that ACMA can undertake the critical regulatory functions required of it in the new media regulatory framework that will be established by the government’s media reform package. In particular, ACMA will have a key role in ensuring that diversity of media ownership and content are protected under changes to the regulation of media ownership. More effective enforcement powers mean that the media industry and audiences can be confident that ACMA will ensure that the obligations placed on industry by the Broadcasting Services Act 1992 (the BSA) and other elements of the media regulatory framework will be met fully.

I turn now to the substance of the bill.

The bill will establish civil penalties for a range of offences under the BSA that are currently only punishable by criminal penalties. Civil penalties provide a number of advantages: they do not require a referral to the Director of Public Prosecutions, who must prove an offence to the criminal standard of proof—beyond reasonable doubt—and, in this case where a ‘strict liability’ approach has been adopted, there is no requirement to prove intent. Further, criminal penalties may be an inappropriate and draconian sanction for the nature of offences covered by the BSA.

To ensure consistency of treatment, the bill will add civil penalty contraventions to those matters that ACMA, under the BSA, will take into account in assessing licensee suitability, along with criminal offences, which are currently considered.

The bill will enable ACMA to seek injunctions to prevent the operation of unlicensed broadcasting services. The provision of unlicensed commercial broadcasting services—usually by broadcasters in other licence categories, such as narrowcasting—is potentially highly damaging to the commercial viability of licensed commercial broadcasters.

The bill will enable ACMA to accept enforceable undertakings in relation to its broadcasting, datacasting and internet content regulatory functions. ACMA may currently accept enforceable undertakings in relation to its telecommunications regulatory functions, and may also do so under the Spam Act 2003, but unlike the Australian Competition and Consumer Commission or the Australian Securities and Investments Commission, it cannot enforce any undertakings it has accepted in relation to its regulation of broadcasting, datacasting or internet content. Enforceable undertakings have proven to be an effective regulatory tool in other sectors, and are regarded by industry as providing a worthwhile alternative to sanctions. While undertakings will remain voluntary, enabling ACMA to enforce undertakings made to it by industry will bring the authority into line with its regulatory peers.

Finally, the bill will permit ACMA to address breaches of reporting and notification requirements in the BSA via infringement notices, rather than via the costly process of criminal sanctions. While these are relatively minor offences, there has been an ongoing issue of noncompliance with such requirements in recent years. A greater capacity to address non-compliance will be particularly beneficial in relation to requirements relating to notification of changes in control, which are important to the effective protection of diversity of media ownership under the government’s proposed changes to the media ownership regulatory framework.

The bill marks a major updating of ACMA’s broadcasting regulatory powers which were developed in the regulatory framework, and media landscape, of the early 1990s. Since that time, regulatory options have evolved and enforcement tools such as civil penalties and enforceable undertakings are now widely used by other regulators. In moving ACMA towards regulatory best practice, the bill will provide industry with the effective regulatory framework it needs and which audiences demand.

Debate (on motion by Mr Bevis) adjourned.