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Wednesday, 16 March 2005
Page: 42

Senator COONAN (Minister for Communications, Information Technology and the Arts) (12:11 PM) —The government does not support these amendments, and I think it is important to say why. The first seeks to amend the bill to require that, where the member has an obligation to disclose interests before deciding a particular matter, the interests and disclosure be recorded in the minutes of the ACMA and any public notification of the decision must also notify any disclosure of interest relating to the matter. The interest and disclosure must also be notified in the annual report.

Dealing firstly with amendment (1), the opposition’s amendment is unnecessary and also raises a number of policy issues. With regard to proposed paragraph (5)(a) of the amendment, the ACMA is required to keep minutes and disclosures made at meetings of the ACMA would be included in the minutes as a matter of course. Where a disclosure is not made at a meeting of the ACMA, it would be unusual to then record that disclosure in the unrelated minutes of a meeting of the members. However, the formal records of disclosures would be a matter for the ACMA to determine.

Paragraphs (5)(b) and (c), however, raise policy matters. For instance, it is not clear—and Senator Conroy might be able to enlighten us—what is meant by public notification of the decision. This could include a requirement that a legal instrument resulting from a decision include a notification of a conflict, which is obviously not appropriate and I do not know whether that is what is intended. It could also have the effect that, for example, any comment by the minister or the chair on a matter decided by the ACMA must include a notification of a conflict, which is clearly not practicable. The requirement for public disclosure of all conflicts of interest is simply unsound in principle for this reason. It is certainly not normal practice for government bodies, or businesses for that matter, to disclose conflicts of interest publicly. There may be privacy and other confidentiality issues involved. The current requirement of disclosure to the minister of the day, I believe, is certainly sufficient for accountability purposes.

With respect to the second amendment, the purpose, as I understand it, is to amend the bill to require the ACMA to report on the number and types of complaints concerning the alleged breaches of the Broadcasting Services Act 1992, alleged breaches of codes of practice or standards, as well as investigations and enforcement actions. It is very broad ranging. I am advised that there will be significant practical problems for the ABA if they are required to report on actions taken on complaints raised in response to codes of practice. For example, many of these complaints involve telephone calls or emails which are referred to broadcasters for resolution. The proposed requirements to report on investigations, the results of investigations and enforcement actions in proposed paragraphs 57(da)(iii) and (iv) are inconsistent with the current provisions in the Broadcasting Services Act 1992. Section 179 of the Broadcasting Services Act provides the ABA with discretion over the publication of a complaint. The ABA is not required to disclose the report of an investigation if the disclosure discloses a confidential matter or prejudices the fair trial of a person, which is yet another policy reason that we really should think very carefully about before we go down this path.

Section 180 of the Broadcasting Services Act also provides that a person who is adversely affected by a report must be given a reasonable opportunity to comment. So for all of those reasons, whilst I can appreciate the enthusiasm with which these two amendments have been pursued, they raise a significant number of matters that relate to the issues I have raised in these comments. There are some very sound policy reasons why the amendments should not be supported and why they should be completely rethought.