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Part 1
Bills
introduced
12
– 14 March 2013
Media reform package
The
committee released its comments on the following six bills on 19 March 2013 in
order to give other parliamentary committees the benefit of its comments.[1]
Broadcasting
Legislation Amendment (Convergence Review and Other Measures) Bill 2013
Introduced into the House of
Representatives on 14 March 2013
Portfolio: Broadband, Communications
and the Digital Economy
Summary of committee view
1.1
The committee
considers that the decision not to issue additional commercial broadcasting
licences, but to make available unused spectrum for other purposes such as
community broadcasting and the testing of innovative services, does not appear
to be inconsistent with the right to freedom of expression.
1.2
The committee
considers that the requirement that the Minister have regard to the need to
ensure that at least one of the non-executive Directors of the SBS Board be a
qualified person of Indigenous background does not involve discrimination
inconsistent with the provisions of the human rights treaties.
Overview
1.3
This bill forms
part of a package of measures which represent the government's response to two
reviews conducted in 2011 and 2012 – the Convergence Review and the Independent
Inquiry into the Media and Media Regulation.
1.4
This bill
responds to matters raised in the Convergence Review primarily in relation to
the television broadcasting spectrum, Australian content and public
broadcasting. The bill seeks to make four key amendments:
- it seeks to
amend the Broadcasting Services Act 1992 to ensure that no additional
commercial television broadcasting licences will be made available (so that
there remain only three commercial television broadcasting licences in the same
licence area);
- it seeks to
amend the Broadcasting Services Act 1992 to increase the Australian
content requirements on commercial broadcasters (but gives flexibility to
broadcasters as to which channel (their primary or non-core channel) they
broadcast the content on);
- it seeks to
amend the Australian Broadcasting Corporation Act 1983 and the Special
Broadcasting Service Act 1991 to update the charters of the ABC and SBS to
expressly reflect the range of existing services, including online activities
they provide, and to provide that the ABC has the sole responsibility to
provide international broadcasting services; and
- it seeks to
provide that at least one of the Directors of SBS, appointed after the
commencement of the Act, must be an Indigenous person.
1.5
This bill and
the accompanying five bills which constitute the media reform package were
introduced into the Parliament on 14 March 2013. The Minister indicated his
desire that the Parliament consider these bills and pass them by the end of the
following week.
1.6
The committee
considers that the timetable for the consideration of a complex and important
package of legislation such as this should allow sufficient time for the
Parliament to examine the draft legislation in some detail. Article 25 of the
International Covenant on Civil and Political Rights (ICCPR) guarantees the
right of citizens to participate in government through their elected
representatives. The UN Human Rights Committee has noted that:
The conduct
of public affairs, referred to in paragraph (a), is a broad concept which
relates to the exercise of political power, in particular the exercise of
legislative, executive and administrative powers. It covers all aspects of
public administration, and the formulation and implementation of policy at
international, national, regional and local levels...
Where
citizens participate in the conduct of public affairs through freely chosen
representatives, it is implicit in article 25 that those representatives do in
fact exercise governmental power and that they are accountable through the
electoral process for their exercise of that power.
1.7
The committee
also notes that a fundamental premise of the Human Rights (Parliamentary)
Scrutiny Act 2011 is that the examination of draft legislation for human
rights compatibility is an important component of the Australian Human Rights
Framework, and that the role of the committee is not purely a formal one or
intended to be primarily after-the-event commentary on legislation.
1.8
The committee
expresses its belief that adequate time and opportunity be provided for the
consideration by the Parliament of complex legislative proposals which embody
major policy changes.
Compatibility with human
rights
1.9
The bill is
accompanied by a self-contained statement of compatibility which states that
the bill engages the right to freedom of expression and the rights of equality
and non-discrimination and concludes it is compatible with human rights.
Right
to freedom of expression
1.10
A number of
aspects of the bill engage the guarantee of freedom of expression in article 19
of the ICCPR in both its individual and systemic aspects.
Limitation on the number of
broadcasting licences
1.11
The bill gives
effect to the recommendation of the Convergence Review that a fourth national
commercial television network not be created, by providing that no additional
commercial television broadcasting licences will be made available for this
purpose.
1.12
While the
potential holders of such licences would be corporations and may therefore not
be able to directly invoke the right to freedom of expression under article 19
of the ICCPR, that guarantee also confers the right to receive information and
ideas on the potential audiences of such broadcasters. Accordingly, the
decision not to open up available broadcasting spectrum for this purpose may be
viewed as an encroachment on freedom of expression guaranteed by article 19.
The statement of compatibility notes that:
The measures
that limit the number of terrestrial commercial television services in an area
may limit the rights of natural persons to exercise freedom of expression, as
outlined in Article 19(2) of the ICCPR, by restricting the availability and
delivery of the most popular category of television service.[2]
1.13
The UN Human
Rights Committee has underlined the positive obligations of States parties to
the ICCPR to ensure that there is a diverse range of media and that there is
not excessive media concentration.[3]
Thus, a decision to restrict the number of broadcasting licences also engages
this aspect of Australia’s obligations under article 19 of the ICCPR.
1.14
The statement of
compatibility notes the overall capacity of the spectrum available for
television broadcasting is limited and that ‘existing broadcasting services,
including commercial television broadcasting services, already take up a large
part of the available spectrum’.[4]
It argues that it is important to retain part of the spectrum for other
purposes, with the cap being:
designed to
ensure that the remaining capacity in the television broadcasting services
bands is made available for other types of broadcasting services – including
(but not limited to) community television broadcasting services – as well as
being available to test new broadcasting technologies as they emerge.
New and
innovative content services and communications services that are attractive to
consumers require testing and trialling before their introduction. The capacity
to do this would be severely limited if no broadcasting services bands spectrum
remained available.[5]
1.15
The UN Human
Rights Committee has recognised the challenges posed by restricted capacity and
underlined the need for a fair allocation of the available resources among
competing uses:
Licensing
regimes for broadcasting via media with limited capacity, such as audiovisual
terrestrial and satellite services should provide for an equitable allocation
of access and frequencies between public, commercial and community
broadcasters.[6]
1.16
The approach
adopted by the bill is consistent with that recommended by the Convergence
Review, which is referred to in the explanatory memorandum and the statement of
compatibility. The Final Report of the Convergence Review gives some details of
the types of use that might be made of the spectrum if it were not made
available for use under additional commercial broadcasting licences.[7]
1.17
The
committee considers that the decision not to issue additional commercial
broadcasting licences, but to make available unused spectrum for other purposes
such as community broadcasting and the testing of innovative services, does not
appear to be inconsistent with article 19 of the ICCPR.
Australian
content requirements: freedom of expression and right to participate in
cultural life
1.18
The bill
proposes a number of amendments to the Broadcasting Services Act 1992
which will impose Australian content transmission conditions on commercial
broadcasting licensees. While a description of the nature and effect of these
amendments appears in the explanatory memorandum,[8]
no analysis of their human rights compatibility is provided.
1.19
Imposing a
condition that a broadcaster include specific content in programs would appear
to limit the broadcaster's right to freedom of expression and also arguably of
the right of the audience to receive information and ideas. Such a limitation
should be justified as being a necessary and proportionate means of pursuing
one of the legitimate objectives set out set out in article 19(3) of the ICCPR.
No justification is provided for in the statement of compatibility.
1.20
Stipulating
Australian content standards may also be seen as a promotion of the right of
everyone to take part in cultural life as guaranteed by article 15(1)(a) of the
International Covenant on Economic, Social and Cultural Rights (ICESCR).[9]
1.21
The
committee intends to write to the Minister to seek clarification as to the
human rights compatibility of the proposed Australian content standards and
licence conditions, in particular their consistency with freedom of expression
(article 19 of the ICCPR) and the right of everyone to participate in cultural
life (article 15(1)(a) of the ICESCR).
Equality
and non-discrimination
1.22
The bill
proposes amending section 17 of the Special Broadcasting Service Act 1991,
which provides for the appointment of the non-executive Directors of the SBS
Board. Subsection 17(2) provides that before a person is appointed as a
non-executive Director, the Minister must have regard to a number of matters
relating to the qualifications of individual members of the Board and to the
overall composition of the Board. The bill seeks to require the Minister to
have regard to an additional matter, namely that ‘at least one of the Directors
is an Indigenous person.’[10]
1.23
The statement of
compatibility notes that the stipulation that the Minister take into account a
potential director’s Indigenous background as a criterion for appointment to
the Board, engages the right to equality and non-discrimination as guaranteed
by various provisions of the ICCPR, the ICESCR and the International Convention
on the Elimination of All Forms of Racial Discrimination (ICERD). The right not
to be discriminated against in appointment to public offices such as the SBS
Board engages, among other provisions, articles 2(1), 25 and 26 of the ICCPR and
a number of provisions of the ICERD.
1.24
The statement of
compatibility notes that not all differential treatment on the basis of race
will be discriminatory if the criterion for such differentiation are reasonable
and objective and are rationally related to the achievement of a legitimate
purpose.
1.25
The statement of
compatibility notes that:
The purpose
of the creation of a reserved Indigenous position (which would still be filled
on the basis of merit) is to ensure that the SBS Board includes a person with
the necessary skills and experience to ensure the successful delivery of an
Indigenous television service. These measures complement the recent integration
of the National Indigenous Television Service (NITV) into SBS.
1.26
It is not clear
whether the implication is that being Indigenous is a necessary requirement (in
addition to relevant industry knowledge and other skills) in order to ensure
the successful delivery of an Indigenous television service by SBS, or whether
some other function (such as representation) is being pursued, or both.
1.27
At present the Special
Broadcasting Service Act 1991 requires the Minister, in making
recommendations on the appointment of non-executive Directors, to have regard
to the need to ensure:
(a) that the
Directors collectively possess an appropriate balance of expertise in the areas
required to govern the SBS effectively, including an understanding of
Australia’s multicultural society and the needs and interests of the SBS’s
culturally diverse audience; and
(b) that the
Directors collectively comprise persons with a diversity of cultural
perspectives...[11]
1.28
The inclusion on
the SBS Board of a person of Indigenous background would clearly be justifiable
in ensuring that the Board reflects the diversity of Australian society – such
a use of race or ethnicity as one of the factors to be taken into account when
selecting from among a group of otherwise qualified people could be seen as a
legitimate distinction pursuing a legitimate goal. Under the current version of
section 17 of the Special Broadcasting Service Act 1991 it would be
permissible to take a person’s Indigenous background into account if that
contributed to the goal of assembling a Board with diverse cultural
perspectives. That would be so, whether or not SBS was delivering an Indigenous
television service or whether that person brought specific experience and
skills relating to such a service.
1.29
On such an
analysis, the proposed amendment appears to be a justifiable differential
treatment based on race, and would not need to be justified as a (temporary)
special measure.
1.30
The
committee considers that the requirement that the Minister have regard to the
need to ensure that at least one of the non-executive Directors of the SBS
Board is a qualified person of Indigenous background does not involve
discrimination inconsistent with the provisions of the ICCPR, the ICESCR or the
ICERD.
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