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Friday, 29 November 1985
Page: 2557


Senator GRIMES (Minister for Community Services)(9.10) —I move:

That the Bill be now read a second time.

I seek leave to incorporate the second reading speech in Hansard.

Leave granted.

The speech read as follows-

The purpose of this Bill is to implement Government decisions regarding:

The power of the Australian Broadcasting Tribunal to make program standards; and

The inquiry procedures of the Tribunal.

The proposed amendments can be summarised as follows: In relation to the power of the Tribunal to make standards, the Bill provides for the preclassification of children's programs by the Tribunal and the inclusion of quantitative elements in standards. The provisions relating to the enforcement of standards are based on recommendations of the Administrative Review Council (ARC) in its 1981 report on the inquiry procedures of the Tribunal. The Council recommended that the Act be amended to confer upon the Tribunal a wider range of powers to respond to breaches of broadcasting standards.

Honourable senators will recall that amendments to the Broadcasting and Television Act were passed last year to streamline the Tribunal's inquiry procedures by the automatic extension of licence periods pending completion of a licence renewal inquiry, and the formation of divisions of the Tribunal. In the autumn sittings of Parliament this year further amendments were passed which provide the framework of uniform procedures for Tribunal inquiries. They empower the Tribunal to dispense with a public hearing where no substantive issues of public concern are raised. The Bill will enable regulations to be made to allow the Tribunal to apply the new uniform inquiry procedures to inquiries which would otherwise be required to be dealt with under old, less efficient procedures.

Amendments relating to the enforcement of program standards were also originally scheduled for inclusion in the Broadcasting and Television Amendment Act 1985 passed by Parliament in the Autumn sittings. Following the High Court's decision in Herald-Sun TV Pty Ltd v Australian Broadcasting Tribunal, the amendments were withdrawn to allow for further consideration and consultation with representatives of industry and public interest groups.

The amendments contained in the Bill will not alter the costs or revenues of the Commonwealth. The purpose of the legislation is to give the Tribunal the power to make and enforce certain standards. I should point out that, until recently challenged, the Tribunal had already exercised this power in the belief that it was within its authority under the Broadcasting and Television Act. The machinery, that is the personnel and facilities, is therefore in place and the amendments will not necessitate an increase in the resources of the Tribunal.

The Bill provides for the amendment of two Acts, the Broadcasting and Television Act 1942 and the Broadcasting and Television Amendment Act 1985. In general terms, the amendments will commence on 1 January 1986. The form of the Bill is complicated, however, as a result of the commencement of the Broadcasting and Television Amendment Act 1985 on that date. That Act preserves the application of the previous Act in some circumstances. The result is that some amendments made in the Bill are in duplicate form.

I now turn to the detail of the proposed amendments.

STANDARDS-MAKING POWERS

There is a history of doubt about the standards-making powers of the Australian Broadcasting Tribunal and its predecessor the Australian Broadcasting Control Board. As long ago as 1963 the Senate Select Committee on the Encouragement of Australian Production for Television expressed the opinion that the program standards-making power of the Broadcasting Control Board was confined by legislation to a qualitative determination and did not extend to determinations as to content, type, variety or country of origin of programs. Its concern was, that unless the regulating authority had the power to set legally enforceable standards it would not be able to ensure that adequate and comprehensive programs were provided by commercial broadcasters. The committee recommended amendment of the Act but no such legislation eventuated.

In 1978, when the Senate Standing Committee on Education and the Arts inquired into children's television, it commented on the fact that the questions raised by the Senate Select Committee in 1963 had never been resolved. It said:

``over the whole matter of industry regulation, there still hangs the question of the Tribunal's powers to regulate effectively''.

It recommended that if it were considered by the Attorney-General's Department that the Act was in any way inadequate for effective regulation, that it be amended to remove any inadequacies, ambiguities or inconsistencies. Still the Act was not amended. A number of recent court decisions against the Tribunal has now, once more, highlighted the need to amend the Act to affirm the standards-making powers of the Tribunal. The decisions have actually invalidated a number of the Tribunal's standards.

DEFINITION OF PROGRAM STANDARDS

The first of these decisions was of the Federal Court in Saatchi and Saatchi Compton (Vic) Pty Limited v Australian Broadcasting Tribunal. The Court ruled that a ``standard'' must relate directly to the quality or nature of the material broadcast. That is, the Tribunal's power does not extend to the regulation of circumstances connected with the production of a program where these circumstances are not intrinsically related to the nature of the end product. The Court found that the requirements of the Tribunal's standards relating to the Australian content of advertisements was in no way related to the quality or nature of the advertisement produced. Therefore, these provisions did not qualify as a standard in respect of the televising of advertisements for the purposes of the Act. Subsequently, the full Federal Court upheld the decision, after an appeal by the Tribunal.

The effect of these decisions is that many of the Tribunal's current program and advertising standards which purport to impose quantitative rules, and this would possibly include time based rules, could well be void. In this category would fall major aspects of advertising time standards, Australian content program standards, children's program and advertising standards. The Bill redefines ``program standard'' to include the concept of ``condition''. This is to avoid the interpretation given by the Federal Court in the Saatchi case that ``standard'' must relate directly to the quality or nature of the material broadcast. The inclusion of ``condition'' will enable the Tribunal to apply standards which regulate the circumstances connected with the production of a program. In particular this will enable the Tribunal to apply standards which relate to Australian content in productions.

PRECLASSIFICATION OF CHILDREN'S PROGRAMS

In May of this year 14 commercial television licensees successfully challenged the Tribunal's power to require children's programs to be pre-classified prior to telecast. The High Court, in the Herald-Sun TV case, decided that the preclassification requirements in the Tribunal's children's television standards were beyond the Tribunal's power under the Act. Since 1979 the Tribunal has required ``children's'' or ``C'' programs to be pre-classified prior to their telecast by commercial television licensees. The assessment of programs is carried out by the Tribunal which has the benefit of the recommendations of the Children's Program Committee. The Tribunal has employed the preclassification approach to ``children's'' programming as a quality control mechanism and to ensure that these programs, which are produced specifically for the needs and interests of children aged 6-13 years, meet the Tribunal's standards. ``children's'' programs are those which:

(a) are designed specifically for children older than 5 years and younger than 14 years;

(b) are designed to entertain children;

(c) are well produced technically and artistically;

(d) can be easily understood and appreciated by children;

(e) fulfil some special need of children;

(f) contribute to the social, emotional or intellectual development of children;

(g) are appropriate for Australian children, not assuming too much of the culture, dialect or environment of some other country; and

(h) are not outdated in content or in technical or artistic production.

The regulatory action of the Tribunal followed numerous inquiries into children's television. As early as 1953 the Royal Commission on Television examined children's television. It received numerous submissions from parents and teachers concerned about the predicted preponderance of American programs on Australian television, the effects on children of television violence, and overt commercialism. The Commission recommended the introduction of special standards regulating the production of television programs; the addition of two members to the Australian Broadcasting Control Board to present the interests of the public; and the establishment of a children's advisory committee to advise the Broadcasting Control Board.

Other inquiries into television which have demonstrated community concern about children's television include a Senate Select Committee inquiry into the encouragement of Australian products for television (1963); a Senate Standing Committee inquiry into ``all aspects of television and broadcasting, including the Australian content of television programmes'' (1971-1975); and the Australian Broadcasting Control Board's standards inquiry 1975.

In 1977 the Senate Standing Committee on Education and the Arts began its inquiry into the impact of television on the development and learning behaviour of children. It concluded that there was genuine widespread public concern about children's television and that given the economics of commercial television, the prospects for improvement were not bright.

This inquiry was conducted concurrently with the Tribunal's self regulation inquiry of 1977. That inquiry was also highly critical of children's programming. It recommended the establishment of a new classification for children's programs, the establishment of the children's program committee, and the introduction of a pre-classification system for children's programs. The pre-classification system was introduced in 1979.

In 1981 the Senate Standing Committee presented its report entitled ``Children's Television Revisited''. This reviewed progress in children's television since its earlier report of 1978. At the time of that review the powers of the Tribunal were under consideration by the Government. The Committee therefore did not pursue the matter in detail. Nevertheless, it placed on record its opposition to any amending legislation that would, in any way, diminish the Tribunal's powers and obligations to regulate in the area of children's television.

Earlier this year the committee examined children's television standards in its examination of annual reports. Its report recommended that the Broadcasting and Tele- vision Act be amended so that the Tribunal has the clear power to regulate in the field of children's television including the power to pre-assess ``C'' programs.

In 1984, the Tribunal thoroughly reviewed its approach to children's program regulation and decided that the requirement for preclassification should continue on the basis that it had produced a marked improvement in the quality and variety of children's programs since 1979. At that time it also introduced a new requirement for Australian children's drama programs, which was that licensees televise a minimum of 8 hours of first release Australian children's drama each financial year and that this also be submitted to the Tribunal for prior approval.

Mr President, the justification for preclassification of children's ``C'' programs is overwhelming. Independent inquiries have consistently concluded that children's programs need special treatment. There can be no doubt that preclassification of this very small proportion of programs is not only appropriate but necessary at this time.

The Bill will affirm the Tribunal's power to make program standards for ``children's television programs''. The standard may require prior approval for children's programs which are shown during specified hours (referred to as ``C'' time). These are usually 4-5 p.m. on weekdays. They may also provide for the preclassification of children's drama programs.

In addition to the affirmation of these powers the Bill will permit sub-classifications of standards for programs designed for children under the age of 14 years. At present the Tribunal standards for children's programs are for those designed for the 6 to 13 years age group as a whole. It will also enable the tribunal to extend its preclassification standards to programs designed for younger children-that is, children up to 5 years of age. The Bill will provide the tribunal with the power to require preclassification of programs which are to be televised at times other than ``C'' time but which a licensee wishes to present as meeting the tribunal's conditions for ``C'' time programs.

I would like to point out that under the principal Act any revision of standards by the Tribunal can only be undertaken after consultation with broadcasters.

Some concern has been expressed about the application of the preclassification requirements to the production of programs classified as ``children's drama''. Commercial television licensees and the television production industry have expressed the wish that children's drama programs be awarded a full ``C'' classification at script stage prior to actual production of the program. In the past, the Tribunal has awarded a ``provisional C'' classification at script stage with the subsequent award of a full ``C'' classification of the completed program. With these concerns in mind the tribunal is considering the most appropriate form of preclassification arrangement. It will be consulting with representatives of the television and production industries and other interested organisations about the options available.

The Government is not in favour of a general power of preclassification. The Bill, therefore, expressly limits the Tribunal's power to require preclassification to that of children's programs.

Mr Deputy President, I would also like to emphasise that ``preclassification'' is not a form of censorship. Programs which are rejected as unsuitable for a ``C'' classification can be broadcast at other times. It is also important to remember that ``C'' time is normally 4 to 5 p.m. in the afternoon Monday to Friday-that is one hour only, 5 days per week.

ENFORCEMENT PROVISIONS

The Bill provides for a significant change in the enforcement of program standards. A breach of a program standard will no longer attract a criminal penalty. The Bill will, of course, require that licensees supervise the broadcasting of their programs to ensure that the program standards are observed but the enforcement of this provision will be decriminalised.

The Bill will retain, in a slightly modified form, the power to give directions to a licensee for the purpose of ensuring that the program standards are complied with. A failure to comply with such a direction will remain a criminal offence. The giving of such a direction will, however, be the exercise of a ``substantive power'' by the tribunal and thus must result from an ``inquiry'' under the Act which will be subject to the uniform inquiry procedures provided for in the Broadcasting and Television Amendment Act 1985 which was passed during the 1985 Autumn sittings. The Amendment Act also provides, that in matters of urgency, the Tribunal may vary the inquiry procedures or adopt different procedures, as appropriate.

In its 1981 report the Administrative Review Council proposed that the Tribunal be given the power to impose temporary restrictions on advertising by licensees as a penalty for breaches of the act or program conditions. This would however have raised a number of problems with respect to the separation of executive and judicial powers. The Government decided that the current Tribunal's powers to give directions be modified to complement the new scheme of enforcement of program standards as outlined above.

A history of breaches of program standards may also be relevant at licence renewal inquiries as such a pattern of behaviour could amount to a breach of licence conditions and of the undertakings given by a licensee on the grant or renewal of a licence.

The Bill also includes a new defence provision which applies where the failure of the licensee to adequately supervise broadcasts was due to:

a reasonable mistake;

reasonable reliance on information supplied by another person; or

the act or default of another person or any accident or other cause beyond the licensee's control and the licensee took reasonable precautions and exercised due diligence to avoid the breach.

This defence is based upon a similar provision in the Trade Practices Act 1974.

The Bill also adopts a specific recommendation of the ARC to empower the Tribunal to reprimand or admonish a licensee for a breach of program conditions and most importantly, to direct the licensee to broadcast the reprimand or admonishment in such form and manner as is specified by the Tribunal in its direction. This will be a ``substantive power'' of the Tribunal and thus subject to the uniform inquiry procedures provided for under the Act.

In addition the Bill extends the circumstances in which the Tribunal may issue directions and give orders under section 119 of the Act. This section currently permits the Tribunal to place restrictions on individuals broadcasting material or rendering or selecting material for broadcast where they have been either convicted of broadcasting or selecting blasphemous, indecent or obscene matter or where the Tribunal has reason to believe a person has rendered or selected for broadcast an item which has, or may, cause offence to a section of the public.

The Bill will amend these provisions to enable the Tribunal to call upon an individual who has presented in live broadcast, or who has selected material which has been broadcast, in breach of the program standards, to show cause why a direction should not be issued.

Such a direction may prohibit or impose restrictions on a person from presenting live broadcasts or from passing or selecting programs for a broadcast. A direction may only be given where the person fails to show cause in accordance with the Act. Further, the issue of such a direction will be the exercise of a ``substantive power'' of the Tribunal and thus must result from an inquiry under the Tribunal's new uniform inquiry procedures.

The objective of this clause is to give the Tribunal a means of enforcing program standards against individuals who may otherwise be able to infringe the standard in circumstances where licensees have limited, practical, supervisory powers. The classic example is where live broadcasts are involved. In fact the Tribunal will not be empowered under this provision to censor material. A licensee may pre-record any such material and subsequently broadcast it. In these circumstances it would, however, be the licensee who would be clearly responsible. Although not specifically stated in the Bill directions made by the Tribunal in relation to the above mentioned provisions must be reasonable having regard to the breach involved. An ``unreasonable'' direction given by the Tribunal would be subject to review under the Administrative Decisions (Judicial Review) Act 1977.

TRANSITIONAL AMENDMENTS

The Bill will amend the Broadcasting and Television Amendment Act 1985 to provide that regulations may be made to extend the application of the new, streamlined, uniform inquiry procedures. These procedures will come into operation on 1 January 1986.

As the Act currently stands the new procedures could not be used for Tribunal inquiries involving old system licences. The Bill amends the transitional provisions of the 1985 Amendment Act to empower the making of regulations to apply the new procedures to old system licences.

The effect of this will be to enable all inquiries conducted pursuant to notices issued after 1 January 1986 to be conducted under the same procedures, that is, the new procedures. The Tribunal inquiries and new arrangement will streamline the Tribunal's inquiries and will overcome the administrative difficulty of having two inquiry procedures operating concurrently.

It is proposed to make regulations under this power to apply new procedures to:

(i) inquiries into the grant of licences under s.82 of the amended Act where the return date for applications for licences to the Tribunal (that is the specified date under s.82 (1) (b) (i) ) is later than 1 January 1986.

This will, however, result in the grant of an old system licence which will need to be subsequently converted to a new system licence pursuant to s.99 of the 1985 Act;

(ii) new inquiries on applications for supplementary licences referred by the Minister to the Tribunal after 1 January 1986, that is, where the date of referral under s.82A (4) (a) of the amended Act is after 1 January 1986. Licences issued following applications made prior to 1 January 1986 but not referred until after 1 January 1986 would result in old system licences granted pursuant to a Tribunal inquiry conducted in accordance with the new uniform inquiry procedures. Conversion of old to new system licences would then subsequently occur;

(iii) other applications to the Tribunal made after 1 January 1986 for the exercise of any of its substantive powers (as specified in s.17A (2) of the Amendment Act) in relation to old system licences;

(iv) inquiries into the exercise of the Tribunal's sunstantive powers into old system licences which are initiated by the Tribunal of its own volition, after 1 January 1986.

I commend the Bill to the House.

Debate (on motion by Senator Kilgariff) adjourned.