Additional statement
The Opposition members of the Committee agree with the
report of the Committee in so far as it goes. There was only one issue that
the Opposition members could not agree with the other members of the
Committee. That issue was the role of the Minister for Foreign Affairs.
Role of Minister for Foreign Affairs
Under the proposed amendments to the BSA, it is the Minister
for Foreign Affairs who decides whether a particular international broadcasting
service or an application for an international broadcasting service is contrary
to the national interest in respect of international relations. The Minister
may order the ABA to refuse an application for an international broadcasting
service licence, suspend or cancel a licence or issue a warning to a licensee.
HCJB Australia submitted that:
The Minister for Communications IT and the Arts has the
portfolio responsibility for broadcasting. It is obviously sound policy for
him to consider international impacts of broadcasting and an equally obvious
source of good advice is the Minister for Foreign Affairs. However the final
decision on licensing should rest with the Minister for Communications.
The intent of the national interest sections (proposed new
Sections 121F, 121FA to 121FE of the Broadcasting Services Act 1992) could
equally be achieved by providing these powers to the Minister for
Communications. To meet the policy intent of the current legislation,
provisions that “the Minister for Communications may consult the Minister for
Foreign Affairs” would provide an authority for the consultation between
Ministers without fettering the discretion of the Minister for Communications.
In practice any substantial disagreement between Ministers would
be discussed within Cabinet, regardless of the precise legislative wording.
This matter was raised with the Department of
Communications, Information Technology and the Arts in the hearings. Ms Megan
Morris commented:
There is no other situation in which the Minister for
Communications makes any national interest sort of assessment ... I think it is
slightly confusing content regulation as content regulation and the national
interest provision, which is what this legislation is about. It is not
regulating or monitoring what is broadcast from Australia; it enables an
assessment to be made of a broadcaster before a licence is given and it also
enables the Minister for Foreign Affairs to take action if there is a complaint
from another government about stuff being broadcast from Australia. So I think
they are slightly different issues and there is no precedent for our portfolio
minister to form a decision about national interest.
Although it may form a precedent for the Minister for
Communications, Information Technology and the Arts, other Ministers have the
responsibility for making decisions in the national interest, such as the
Treasurer under the Foreign Acquisitions and Takeovers Act 1975.
At some time or another, foreign governments might make
strong representations to the Minister for Foreign Affairs for action to be
taken against particular international broadcasts from Australia, which they
consider to be offensive or objectionable. Those governments might exploit the
fact the Minister is the statutory decision-maker under this legislation, thus putting
the Minister under additional pressure. In some cases, it would be a straight
forward matter for the Minister to make a decision in the national interest
that would at the same time satisfy foreign concerns. However, there may be
sensitive cases where the national interest is served by the Minister making a
decision that does not necessarily satisfy a foreign government. If decisions
in respect of the national interest under the BSA were the responsibility of
the Minister for Communications, Information Technology and the Arts, it would
place the Minister for Foreign Affairs in a better position to handle pressure
which may be applied by foreign governments. Although the Minister for Foreign
Affairs would obviously advise the Minister for Communications, Information
Technology and the Arts on the matter, he or she would not be responsible for
the decision. Any lingering resentment on the part of the foreign government
would most likely be more diffused at being directed at the Australian Government
rather than being focussed on the Minister for Foreign Affairs. This would
clearly be in the interests of Australia’s international relations.
If the Minister for Foreign Affairs were concerned about a
particular international broadcast, he or she could take the initiative and
advise the Minister for Communications, Information Technology and the Arts to
take appropriate action under the BSA.
The Bill would also have to be amended to enable the
Minister for Foreign Affairs to obtain records and reports from the ABA, and
submissions from licensees which have been given notice of termination of
licence, through the Minister for Communications, Information Technology and
the Arts.
Recommendations
We therefore recommend that the Bill be amended to
make the Minister for Communications, Information Technology and the Arts and
not the Minister for Foreign Affairs responsible for deciding on whether an
application for an international broadcasting licence or whether an
international broadcasting service is contrary to the national interest.
We further recommend that the Bill be amended to
provide for the Minister for Foreign Affairs to advise the Minister for
Communications, Information Technology and the Arts on whether an application
for an international broadcasting licence or whether an international
broadcasting service is contrary to the national interest.
These two recommendations obviously have ramifications for
the comments and recommendations contained in the report of the Committee.
They are meant to override anything contained in the report. So, for example,
the recommendation in Chapter 3 providing for the Minister for Foreign Affairs
to make a statement to the Parliament, that should now be read as the Minister
for Communications, Information Technology and the Arts making the statement to
the Parliament.
John Hogg Chris
Schacht
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