Bills Digest no. 10 2014–15
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WARNING: This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.
Maureen Klar, Law and Bills Digest Section
Philip Hamilton, Politics and Public Administration Section
16 July 2014
Contents
The Bills Digest at a glance
Purpose of the Bill
Structure of the Bill
Background
Committee consideration
Policy position of non-government parties/independents
Position of major interest groups
Financial implications
Statement of Compatibility with Human Rights
Key issues and provisions
Other provisions
Concluding comments
Date introduced: 25 June 2014
House: House of Representatives
Portfolio: Environment
Commencement: On Royal Assent.
Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill’s home page, or through http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation
When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the ComLaw website at http://www.comlaw.gov.au/.
The Bills Digest at a glance
What the Bill does
In the 2013‒14 Budget, the Australian Government announced that advertising would be hosted on the Bureau of Meteorology’s website on a permanent basis. This followed a 12-month trial of advertising announced in the 2012‒13 Budget.
The Meteorology Amendment (Online Advertising) Bill 2014 (the Bill) will amend the Meteorology Act 1955 (the Act)[1] to:
- confirm the powers of the Director of Meteorology (Director) to accept paid advertising on the Bureau of Meteorology’s (Bureau) website
- add to the list of items for which charges may be made, to provide certainty that the Bureau can charge for its service of offering advertising space
- require that the Director develop and publish guidelines on the types of advertising that the Bureau will display, allowing the Director to prohibit advertising that is considered to not be in the Bureau’s or Commonwealth’s interests and
- validate any actions in relation to online advertising that took place prior to the commencement of the Bill.
Technical amendments are proposed in nine places to update existing text to be in line with plain English drafting, to correct syntax, and to update a reference.
Why the Bill has been introduced
Section 7 of the Act enumerates the powers of the Director which does not include any explicit power to authorise the placement of paid advertising in the Bureau’s services. The absence of an explicit power raises the question as to whether the Director does in fact have the power to authorise such advertising. The amendment contained in proposed section 7A, at item 1 of the Bill, puts the matter beyond doubt by expressly giving the Director the power to authorise advertising.
Section 8 of the Act also provides for specific powers: the Director of Meteorology may make charges for:
… forecasts, information, advice, publications and other matter supplied pursuant to this Act or Part 7 of the Water Act 2007.
A narrow interpretation of section 8 would be that the Director may charge fees only for the products listed in the section. The amendments, including the insertion of ‘services’ into section 8, provide certainty and a statutory basis for the Director to accept payment for advertising on, or in connection with, any of the Bureau’s services.
The purpose of the Meteorology Amendment (Online Advertising) Bill 2014 is to amend the Act to:
- confirm the powers of the Director to accept paid advertising on the Bureau of Meteorology’s website
- require that the Director develop and publish guidelines on the types of advertising that the Bureau will display, allowing the Director to prohibit advertising that is not considered to be in the Bureau’s, or the Commonwealth’s, interests
- add to the list of items for which charges may be made, to provide certainty that the Bureau can charge for its services and
- validate any actions in relation to online advertising that took place prior to the commencement of the Bill.
In addition there are more minor, technical amendments proposed in nine places to update existing text to more modern language and to correct syntax.
Part 1 of the Bill’s Schedule lists the three amendments that relate to advertising, while Part 2 lists the nine technical amendments.
The Bureau of Meteorology’s website is one of the most popular government websites in Australia, with up to 20,000 people viewing the website at any one time.[2] In 2012‒13, the Bureau’s public website experienced 471 million visits, with 47.63 billion hits – a 46 per cent increase from 2011–12.[3]
A 2011 review of the Bureau observed that comparable meteorological agencies carry advertising on their websites, including the UK MetOffice, Canadian Weather Office and New Zealand Metservice. The review recommended that consideration be given to options for a revenue stream from commercial advertising on the Bureau’s website.[4]
Following the review, the Commonwealth Government announced a 12-month trial of advertising in the
2012‒13 Budget.[5] In the 2013‒14 Budget, it was announced that $1.4 million in new funding would be appropriated over four years to facilitate the implementation of advertising on a permanent basis.[6]
Prior to the commencement of advertising, the Bureau published its online advertising policy. In addition to technical specifications (for example, no pop-ups, over the page (OTP), user initiated ad formats, or floating advertisements), the policy sets out content that is not permitted, including ‘advertising of a political nature.’[7]
The Bureau has noted that upgrades undertaken in preparation for advertising have improved users’ experience of the website. Refresh speeds have been made faster, and many pages now operate more effectively on mobile platforms.[8] In order to advertise this upgrade was required - hence the connection between the upgrade and the appearance of advertising. However, these improvements could have been done separately in that they were not directly or technically dependent on the advertising.
Advertising commenced on the website in April 2013, and revenue of $11,000 was reported for 2012‒13 (a period of less than three months).[9] Revenue forecasts have not been made public by the Bureau, but in May 2013 the Bureau anticipated that revenue from advertising will at least meet costs over the forward estimates.[10] These costs presumably incorporate the $1.4 million in implementation funding and can be presumed to be more substantial over time.
The Bureau reports that approximately 700 advertisers are placing advertisements on the site, and that this compares favourably with international benchmarks.[11] The Bill’s Explanatory Memorandum (EM) notes that, to date, all advertisers have been companies rather than individuals, and that ‘there are not expected to be any advertisements placed by individuals in the future.’ No basis for this assertion is cited, but the EM argues that:
… to the extent that the Bill could apply to individuals, any restriction on [freedom of expression] is provided by law and is for the protection of public health, national security, public order or the rights and reputation of others [and] those limitations are reasonable, necessary and proportionate.[12]
The Bureau has reported a high degree of community acceptance of advertising and low levels of complaint.[13]
At the time of writing this Bills Digest, this Bill has only been considered by the Standing Committee for the Scrutiny of Bills but this Committee provided no comment on this Bill.[14]
The non-government parties and independents have not stated their position on the Bill. As the main purpose and effect of the Bill is to provide a statutory underpinning to initiatives commenced under the previous Labor Government, it could be expected that the Bill will have bipartisan support from the major parties.
The Bill, itself, has not been the subject of extensive public attention or debate. Interest groups have not stated their position on the Bill, although it is difficult to identify which specific interest groups may have a stake in these nascent issues – other than groups concerned with online privacy issues or generic tax-payer groupings who may seek to uphold the conventional role of Government as promulgated by the Department of Finance (see below). The Bureau has reported low levels of complaint in terms of online advertising.[15]
There are no financial implications for the Budget. In the 2013‒14 Budget, it was announced that $1.4 million in new funding would be appropriated over four years to facilitate the implementation of advertising on a permanent basis. The Bureau anticipates that revenue from advertising will at least meet costs over the forward estimates.[16]
As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill's compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act.[17] The Government considers that the Bill is compatible.
While the Government claims that the Bill is compatible with human rights and freedoms, the Government’s human rights analysis has only focused on the right of freedom of expression.[18] Another human right which is impacted by the operation of online advertising on the Bureau’s website will be the right to privacy contained in Article 17 of the International Covenant on Civil and Political Rights (ICCPR).[19] In particular, the users of the Bureau’s website may be subject to ‘behavioural advertising’ as it is specifically permitted in paragraph 5 of the current Bureau of Meteorology Online Advertising Policy.[20] ‘Behavioural advertising’ refers to a range of techniques used by online website publishers and advertisers aimed at increasing the effectiveness of advertising by referring to the user’s web-browsing behavioural patterns (for example, the webpages that they have visited or the searches they have conducted to select which advertisements to display to that particular website user).[21]
It should be noted that the Bureau’s Online Advertising Policy[22] allows ‘behavioural advertising’ from advertisers who are ‘signatories to the Australian Digital Advertising Alliance’ (ADDA).[23] (However, the relevant paragraph 5 of the Bureau’s Policy could be more tightly drafted so that it provides the Bureau will ONLY permit ‘behavioural advertising’ from such advertisers.) If an advertiser is a signatory to the ADDA there is a suggestion that they will voluntarily comply with the Australian Best Practice Guideline for Online Behavioural Advertising (ADDA Guidelines). However, the ADDA website itself only provides that by becoming a signatory to the ADDA the participant has ‘confirmed their support for the ADDA Guidelines and that they are working quickly towards complying with the obligations that it imposes.’[24] In other words, the ADDA Guidelines are voluntary at best and being a signatory to the ADDA is not confirmation that the relevant corporate advertiser is complying with the ADDA Guidelines. In any event given the voluntary nature of the ADDA Guidelines, if the corporate advertiser fails to comply with these Guidelines, there is no recourse against such a corporate advertiser from a web-user of the Bureau’s website and there is no repercussion for that corporate advertiser who through the use of ‘Behavioural advertising’ can easily breach the privacy of a web-user of the Bureau’s website.
The Parliamentary Joint Committee on Human Rights is yet to provide its commentary on the Bill’s provisions.
The key provision in the Bill is new section 7A, which empowers the Bureau to include advertising on its popular website. There has been advertising on the website since April 2013. This raises the question as to whether, given there has been online advertising already taking place, it is necessary to amend the Act. The argument for the Bill to amend the Act is based on section 7 of the Act, which sets out the powers of the Director of Meteorology. Since section 7 does not expressly allow the Director to authorise online advertising this omission of a ‘power to advertise’ in section 7 may impliedly mean that the Director is not empowered to authorise online advertising.[25] The new section 7A puts beyond doubt that online advertising can be undertaken by the Bureau.
It should be noted that new subsection 7A(1) is not limited to ‘online’ advertising as is suggested by the title of the Bill. New section 7A allows the Bureau to undertake all types of advertising. The only proviso is that the advertising must be in, or in connection with, any ‘services’ provided by the Bureau.[26]
Proposed subsection 7A(2) requires that the Director develop and publish guidelines relating to its advertising. The Bureau already has Online Advertising Policy Guidelines[27] published on its website, which the Explanatory Memorandum and second reading speech indicate will form the basis for the ‘published guidelines’ required under proposed subsection 7A(2) of the Act. [28] Essentially these Online Advertising Policy Guidelines prescribe that any advertising must be lawful and not compromise the Bureau’s brand or the reputation of the Commonwealth Government. Paragraph 1 of the Online Advertising Policy Guidelines requires that all advertisers on the Bureau’s website ‘must comply with all applicable Commonwealth, State and territory laws and regulations…’ and then goes on to refer to specific areas of law. However, these Guidelines make no express mention of copyright or anti-discrimination laws which are common concerns in advertising and can easily be breached when publishing online by virtue of the international reach of the internet and the fact that such a website is subject to the laws of all countries.[29]
While Guidelines are required to be developed and published by the Director, this is no corresponding obligation on the Director to follow those guidelines in making a decision as to whether a particular advertising campaign will be allowed or not. This may be an oversight in the drafting of new section 7A.
Furthermore, paragraph 7A(3) of the Bill makes it clear that any Guidelines that are developed are not a legislative instrument. This means that there is no opportunity for the Parliament to disallow any Guidelines which presumably, but which has not been expressly stated, will be the basis for decision-making by the Director in relation to the advertising by the Bureau. To allow Parliamentary scrutiny of the Bureau’s decision-making in relation to its advertising, such Guidelines would need to be prescribed as a ‘legislative instrument’.
The Bureau’s Online Advertising Policy Guidelines are necessarily broad in their nature and do not capture all scenarios of advertising that may not be appropriate or prudent. One example would be if manufacturers of umbrellas and raincoats sought to advertise on the Bureau’s website. Such advertising would not fall foul of the Online Advertising Policy Guidelines but may not be appropriate given that it may suggest some endorsement of the ‘weather-related’ products by the Bureau and/ or the Commonwealth Government. This may be the impression left with the web-user upon reading the advertisement despite the Bureau’s Online Advertising Policy Guidelines paragraph 4 clarifying that: ‘the appearance of advertising on this Bureau’s website does not imply endorsement of the advertising company.’ Another more controversial example would be if a pro or a sceptic climate change group sought to include an advertisement for a pro or anti climate change scientific lecture series on the Bureau’s website. Again, unless such advertising is classified as ‘political’, which would not normally fit with the advertisement of scientific lectures, they may not fall foul of the Bureau’s Online Advertising Policy Guidelines. But would they be appropriate, given that the web-user could be given the impression that the Bureau – with its expertise in meteorological forecasting - supported the pro or anti climate change policy thrust underlying the hypothetical lecture series? Furthermore an aggrieved customer who had their paid advertisement regarding a lecture series refused on the grounds that it was ‘political’ might feel their human right to freedom of expression had been impaired.
Both of these scenarios provide examples of why the Commonwealth Government, as a general rule, does not sell advertising space or host commercial advertising on Government websites. In fact, ‘no advertising on government websites’ is government policy as set out in the Department of Finance Guidance[30] to agencies about their websites. This Department of Finance guidance conveniently sets out the reasoning behind this policy of ‘no advertising on government websites’ as follows:
Such advertising may:
- compete with or detract from the effectiveness, integrity and appearance of the Australian Government Branding requirements for websites
- involve the risk of contradiction between government messages and those of advertisers
- introduce intrusions into the privacy of users by using information about user behaviour to sell advertising space and by collecting and disclosing information about user interaction with the website to the advertiser
- create the impression of Government endorsement of the advertised products or services and
- annoy users, who expect the Australian Government web estate to be non-commercial in nature and free from the intrusive distractions typical of web-based advertising.[31]
It should be noted that the Department of Finance’s website[32] makes specific reference to the Bureau’s website advertising as an exception to the policy of no advertising on government websites. Nevertheless, this list of reasons (set out above) against advertising on government websites is highly relevant in deciding the propriety of this Bill.
The amendment to section 8 of the Act, at item 2 of the Bill, makes it clear that the Director ‘may’ make charges payable for any ‘services’. The term ‘services’ is not given any definition in the interpretation section of the Act (section 3). Presumably the allowance of an advertisement on the Bureau’s website would amount to a ‘service’ within the natural meaning of this word. Hence, by virtue of the proposed amendment to section 8 of the Act, the Bureau will have the statutory authority to charge fees for such advertising.
As the word ’may’ is used in section 8 of the Act, the Director will ultimately have a discretion as to whether or not to charge a fee for a particular advertisement.[33]
Item 3 of the Bill refers to ‘Validation’. The purpose of this new provision is to cover the online advertising which has taken place since April 2013 and to ensure that the Bureau’s actions - in allowing online advertising - have a statutory basis. This would defeat any legal claim that may be brought alleging that the actions of the Bureau - in allowing online advertising - were unlawful prior to this Bill being passed. This validation provision has, by virtue of its nature, a retrospective effect. The general presumption is that an Act should not be retrospective in operation as it may lead to an unjust result.[34] However, given that this Bill could be described as a ‘Validating Act’[35] (which is an Act intended to make legal that which was illegal prior to its commencement) then such an Act must clearly operate retrospectively. A Validating Act by its nature overturns the presumption against retrospectivity.[36]
Part 2 of the Schedule includes technical amendments to the Act which have no substantive effect. They update the language used in provisions so that the drafting of the Act is more in line with plain English drafting and correct syntax.
The Bill is likely to be relatively uncontroversial. It is essentially providing a statutory basis for the Bureau to allow advertising, including online advertising on its website, which it has been doing without much controversy since April 2013. However its long term implementation may raise some issues, particularly with respect to the terms of the Bureau’s Online Advertising Policy Guidelines, which may form the basis for decision-making by the Director as to what advertisements will and will not be allowed.
A more robust Bill might provide that the Director ‘must’ make decisions in relation to online advertising based on the Bureau’s Online Advertising Policy Guidelines or that a departure from the Guidelines should involve a notification to the Minister or some other authority. It also might ensure that these Guidelines would be subject to Parliamentary scrutiny (by a provision making these Guidelines a disallowable instrument).
This is one of the first Commonwealth Government websites that allows for online advertising and given the popularity of this website it is a prime ‘piece of online real estate’ for online advertising to be located. One could expect other popular Commonwealth Government websites might consider the possibility of allowing online advertising in the future. To the extent that there is budgetary pressure for opening up other Commonwealth Government websites to advertising, this Bill sets a precedent for other Commonwealth Government Agencies intent on tapping into this source of funding into the future, although there is not yet a significant amount of data regarding the profitability of this course of action, particularly as compared with the downsides referred to in the Department of Finance’s reasons for rejecting paid advertisements in government websites.
Members, Senators and Parliamentary staff can obtain further information from the Parliamentary Library on (02) 6277 2500.
[17]. The Statement of Compatibility with Human Rights can be found at page 4 of the Explanatory Memorandum to the Bill.
[18]. As set out in Article 19 of the International Covenant on Civil and Political Rights.
[19]. International Covenant on Civil and Political Rights, opened for signature 16 December 1966, ATS [1980] 23, (entered into force for Australia 28 January 1993); Article 17 specifically provides:
“1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.
2. Everyone has the right to the protection of the law against such interference or attacks.”
[20]. Proposed subsection 7A(2) of the Act requires the Bureau to develop and publish guidelines relating to advertising. The Explanatory Memorandum states that it is expected that the required guidelines will be based on the Bureau’s existing Online Advertising Policy. The last sentence of the second reading speech also states that: ‘It is expected that the Director’s guidelines will be based on the Bureau’s existing Online Advertising Policy, which was developed and published during the advertising trial…’.
[23]. The Signatories to the Australian Digital Alliance are: (1) Adconion Media Group; (2) Fairfax Digital; (3) Google, Microsoft; (4) News Digital Media: (5) NineMSN; (6) realestate.com.au; (7) Telstra Advertising Network; (8) Network Ten Digital and Yahoo!7. This list is set out in the Australian Digital Alliance website, accessed 1 July 2014.
[25]. D Gifford, Statutory interpretation, The Law Book Company Limited, 1990, p. 27.
[26]. Subsection 7A(1) of the Bill.
[28]. Proposed subsection 7A(2) of the Act requires the Bureau to develop and publish guidelines relating to advertising. The Explanatory Memorandum states that it is expected that the required guidelines will be based on the Bureau’s existing Online Advertising Policy. The last sentence of the second reading speech also states that: ‘It is expected that the Director’s guidelines will be based on the Bureau’s existing Online Advertising Policy, which was developed and published during the advertising trial…’.
[29]. Larger publishing entities which publish on the internet and through other media regularly have significant resources devoted to ensuring the legal status of material published is appropriate. Breaches of copyright law, defamation law and anti-discrimination law are all common concerns which, when violated, however inadvertently, can result in legal liability of the publisher, even if contractual arrangements in the form of indemnity provisions seek to shift responsibility, particularly in terms of costs, to the originator of the material. Significant cases have demonstrated the risks of internet publishing which can result in cross-jurisdictional case law, as Jones v Toben [2002] FCA 1150, Jones v Scully [2002] FCA 1080 and Dow Jones & Co Inc v Gutnick [2001] VSC 305 all showed. See generally D Rolph, 'The message, not the medium: defamation, publication and the internet in Dow Jones & Co Inc v Gutnick', Before the High Court, Sydney Law Review, 24(263), 2002, accessed 28 June 2014.
[33]. DC Pearce and RS Geddes, Statutory interpretation in Australia, Lexis Nexis, sixth edn, 2006, p. 333.
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