Australian Democrats' report
Broadcasting Services Amendment (Digital Television and Datacasting) Bill 2000
The Chair’s Report presents a thorough and accurate account
of the evidence presented to the Committee during the brief period of the hearings.
Composed under tight time constraints, it is a credit to its authors. While the
Australian Democrats disagree with some of its conclusions, we are in broad
agreement with the thrust of the few recommendations that it makes.
The Australian Democrats are particularly concerned about
the brevity of this inquiry and the haste with which it was forced to be
conducted. The reason given to us is a need to guarantee certainty for the
broadcasting industry by ensuring the completion of the passage of legislation
by the end of the Winter sitting period. The Government presented an outline of
the broad shape of the legislative changes included in this Bill in December
1999. Having generated with their announcement the expectation that the Bill
would become available for scrutiny and an appropriately measured inquiry in
the early months of 2000, the Government then continually delayed its exposure.
The result is that consideration of the Bill has been rushed to a farcical
degree. Individuals and organisations were given ten days to construct submissions
to the Senate inquiry, a ridiculous period for responding to a Bill of this
size and complexity. Hearings were held over two days, a time constraint that
meant that the Committee was forced to cut short questions to a number of witnesses.
The Australian Democrats deplore this rushed timetable. It
is does not reflect a reasonable or responsible approach to legislation that
has complex ramifications for the Australian broadcasting and information
technology industries. The Australian Democrats maintain that haste is no
guarantee of certainty, particularly when dealing with a multifaceted issue of
this kind. We reject the need for a resolution of issues by the beginning of
July 2000, if the price of that resolution is an inadequate opportunity for
proper Parliamentary scrutiny and debate.
As might be expected from a lengthy and detailed piece of
legislation, the inquiry raised a great number of interlinked issues, which we
will consider in turn.
High Definition Television
As the Chair’s Report indicates, the majority of submissions
and witnesses argued that High Definition Television (HDTV) will fail in the
Australian marketplace (para.1.13). It is particularly noteworthy that the
submissions and witnesses most directly attuned to the interests of consumers
all questioned the adoption of HDTV, largely on the grounds that they expect
the relevant hardware to be largely unaffordable.
This evidence was of little surprise to the Australian
Democrats. During the initial debate of the proposed digital regime in 1998, we
questioned the wisdom of pursuing HDTV as a primary driver of the uptake for
digital television. Nonetheless, the Australian Democrats acknowledge that the
will of the Parliament, as communicated in 1998, is for the adoption of HDTV
and have operated on that assumption.
In this light, the Australian Democrats apply to this
legislation the principle that, as HDTV must be done, it must be done properly.
We question the wisdom of a review of HDTV quotas during 2003, when all
positive projections of the adoption of HDTV suggest that it will be at least
five years before any trends are discernible.
In a similar vein, the Australian Democrats believe that all
attempts should be made to ensure that HDTV production be done in Australia and
take seriously the proposal made by the Screen Producers’ Association of
Australia (SPAA) that the HDTV quotas be amended to ensure a minimum level of
The Committee’s conclusion at paragraph 4.33 would
seem to echo our concerns. We note also SPAA’s concerns about the increased
cost to local producers of generating material in acceptable high definition
If this is unlikely to be matched by an increase in the price payed for HDTV
material, it would seem appropriate for the Government to adopt measures to
ensure that local producers engaging in HDTV production are supported.
Datacasting is a concept unique to Australia’s approach to
digital television. It results from the desire, enshrined in the 1998
legislation, to allow the creation of interactive digital information services
that are transmitted via the broadcasting services bands, but which are not
themselves television broadcasts. As datacasting is an entirely new and
untested medium, it is not possible to determine at the outset what datacasting
services will eventually look like, and as much scope as possible should be
permitted within legislation to allow the nascent datacasting industry to
evolve over time into a viable and sustainable segment of the Australian media
and information industries.
The Australian Democrats have long maintained that the rules
governing datacasting should be as flexible as is possible within the
constraint that they not permit datacasting services to provide de facto
television channels. In this light, we are not satisfied with the Government’s
“genre-based” approach, as it regulates datacasting on the basis of its
content, rather than its specificities as a medium. However, we are yet to be
satisfied that any of the specific alternative definitions proposed in
submissions to the inquiry and at its hearings provides a suitable alternative.
In the absence of a satisfactory alternative, it seems that
changes to the proposed legislation will be necessary. It is in this light, for
instance, that we would endorse the Committee’s fourth recommendation, which
broadens the scope of video content of an educational nature that is allowed
under the datacasting rules. Likewise, we note the curious inversion that results
in the requirement that datacast video content not be entertaining, even in
circumstances, such as educational and informational programming, where a
certain degree of entertainment value is a necessary part of making the
material suitably engaging to ensure its success.
The Australian Democrats acknowledge the good sense of the
proposal made, by ntl Australia, that the allocation of spectrum for
datacasting should be subject to a “use it or lose” rule similar to the one
governing digital television in the existing legislation as a means of preventing
The extension of the concept of broadcasting by program
enhancements would seem to be a logical step in the evolution of television.
However, careful scrutiny of the limits of such enhancements is clearly
necessary in light of the pay television industry’s robust opposition to them.
Representatives of the pay television stations raised a series of concerns
about the rules for enhanced services proposed in the legislation, arguing that
they extend enhanced services substantially beyond the limits of the Minister’s
Concerns were raised that the definition of Category A
enhancements has been extended from programs closely and directly linked to the
primary program to programs closely and directly linked to the subject
matter of the primary program. The pay television argued that this would
permit de facto multichannelling by broadcasters, as it allows for the
possibility of previous episodes of a program or other similarly related matter
to be broadcast under this provision. While the ABA indicated that they thought
such multichannelling seemed contrary to the intent of the legislation, it is
unclear what improvement the definition proposed in the legislation makes over
the earlier formulation.
If the proposed Category A enhancements caused concern among
members of the pay television industry, Category B enhancements excited
outright anger. The industry argued that such enhancements eat into their
already restricted ability to carry sports programming. The Australian
Democrats have sympathy for their objections.
Finally, there is the question of “overlap
multichannelling,” which is intended to provide broadcasters with the ability
to maintain their programming schedules when live events run unforeseeably over
time. As such, the concept is commendable. However, as pay television
representatives argued, it would appear that there is a potential for de
facto multichannelling if program scheduling is based on a deliberate
underestimation of the duration of live events. While this is by no means the
intention of the legislation and the free-to-air broadcasters maintain that
they intend to use the capacity for overlap multichannelling only as intended,
the pay television industry have nonetheless identified a plausible loophole in
the Bill. Their proposed solution—allowing overlaps to extend only to
news—seems unreasonably genre-based. A better solution may be to rely upon time
limits to constrain program overlaps.
The National Broadcasters
As with so much of the current Government’s policy, this
Bill treats the national broadcasters very poorly. Where a distinct effort has
been made to accommodate the desires and concerns of the rest of the television
industry, no effort has been made to recognise the unique and important
contribution that ABC and SBS make to Australia’s cultural life or to recognise
the specific needs and obligations of these national treasures.
In this light, it is heartening to see the Committee’s
recommendation that the ABC and SBS be permitted to transmit their radio
programs as part of their datacasts. The Australian Democrats wholeheartedly
endorse this recommendation.
Less heartening is the Committee’s refusal to endorse
multichannelling by the national broadcasters (para. 3.19).
The national broadcasters provide complementary services that, among other
things, provide content that commercial television stations will not touch. Multichannelling
offers a means for the national broadcasters to extend the programming that
they are able to offer and thereby to better meet their Charter obligations.
The Australian Democrats reject the conclusion that there is any case for
preventing them from multichannelling. We believe that the ABC and SBS should
be permitted to multichannel and that the only restrictions on their
multichanneling should be their respective Charters, Boards and budgets.
Similarly, the Australian Democrats reject the proposal
contained in the legislation that datacasting services provided by the ABC and
SBS should be subject to the jurisdiction of the ABA and reject the Committee’s
conclusion to that effect (para.2.63). It is
one thing to create datacasting rules and require that the ABC and SBS adhere
to those rules under the guidance of their respective Boards. It is another
thing entirely to risk compromising the national broadcasters’ independence by
making them subject to the determinations of the ABA.
The Australian Democrats accept the arguments of the
national broadcasters that, as non-commercial entities funded through
Parliamentary appropriation, they should be exempted from the datacasting
Community and other broadcasting sectors
Evidence presented by the Community Broadcasting Association
of Australia (CBAA) indicated that the community broadcasting sector has been
poorly treated in the development of this legislation. Whether by design or
oversight, the Government has failed to follow through on its promise to ensure
that community broadcasters will be provided with spectrum to allow them to
broadcast in digital mode.
Further, community broadcasters continue to labour under one year licences that
undermine their ability to ensure a secure financial footing.
The Australian Democrats strongly suggest that the
legislation be amended both to provide community broadcasters with certain
access to digital spectrum and to ensure that their licences extend for a more
substantial duration than one year.
The Australian Democrats also note the Productivity
Commission’s comments, both in evidence before the Committee and in their Broadcasting
Report, on the possibility of creating a new category of broadcasting
licence for indigenous broadcasters.
The Australian Democrats believe that this is an excellent suggestion that
should be pursued vigorously. While the need is perhaps not immediate, digital
spectrum should be set aside in anticipation of the creation of indigenous
Access to spectrum
The Australian Democrats acknowledge the need for spectrum
to be rationalised to maximise the number of channels available for
datacasting, especially in the Sydney metropolitan area, which is recognised as
a particularly significant market. In this light, we would submit that the
Committee’s second recommendation, which relates to channel clearance by the
ABA, does not go far enough. It should be strengthened so that the ABA are not
only empowered, but also directed to rationalise and clear spectrum,
particularly for the creation of datacasting channels.
Reviews and timing of the transition to digital television
Much was made during the hearings of the type and timing of
various proposed reviews of digital broadcasting regime. In particular, there
was discussion of whether these reviews should be conducted by Departmental
officers under the Minister’s direction or as public, statutory reviews. Given
that Departmental reviews will essentially be conducted for the benefit of the
Minister, rather than to allow the Parliament scrutiny of the progress of
digital television, the Australian Democrats’ preference would be for public
reviews. In the interests of employing the expertise collected within the
Department, it might be wisest if these reviews were to be built around reports
by Departmental officers.
Discussion of the timing of reviews tended to focus on
questions of certainty for aspirant datacasters. Numerous witnesses called for
reviews to be conducted sooner, rather than later. However, the most compelling
argument made was that the need for certainty is best served by settling the
details of licences before there is a call for applicants. The Australian Democrats
do not believe that the spectre of modifications to licence conditions after
datacasting licences have been granted provides any particular certainty to
While it is not a subject of the Bill at hand, the
Australian Democrats believe that any inquiry into whether streamed audio and
video content constitutes a broadcast should be conducted publicly.
Electronic Program Guides
A number of witnesses presented compelling arguments in
favour of the introduction of formal rules dealing with electronic program
guides (EPGs). The Australian Democrats believe that the legislation should
include rules governing EPGs such that programming information is passed freely
between broadcasters in a standardised format, and that in cases where
broadcasters provide programming information for a service other than their
own, they are obliged to provide the same information about all other
corresponding services. A strong priority in formulating the EPG rules should
be ensuring that they guarantee fair and equal presentation of the content of
all services represented within a given EPG.
The issue of ensuring interoperability of digital television
hardware was raised by a number of witnesses. In particular, the argument was
made that it would be better to avoid the “pizza box” effect, where numerous
incompatible set-top boxes are stacked atop or beside television sets to
provide access to different services. This phenomenon began with video
recorders and pay television receiver boxes, and seems set to be exacerbated by
the advent of digital television receiver boxes. The Western Australian
Government is one of the few bodies in the country with any real experience of the
difficulties of interoperable digital equipment. Their submission makes clear
the inconveniences and costs associated with incompatible hardware.
A similar argument was made that the datacasting industry
requires a single middleware standard upon which datacasting content can be
built. Such a platform will provide a stable platform for datacasting content
development. Ideally, the industry should agree upon a standard, which should
be based on open standards, if not open source code. However, overseas experience
with digital interoperability standards suggests that if the industry is unable
to quickly agree upon a standard, government intervention may prove necessary.
The Australian Democrats endorse the need for standards to
ensure device interoperability and standardised middleware.
The Australian Democrats endorse the captioning requirements
proposed in the Bill. While evidence was received from regional broadcasters
about potential difficulties of providing closed captioning of live content, we
do not find it sufficiently compelling to reduce the public benefits that
closed captioning will bring to the Australian community.
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