SENATOR BIRMINGHAM: (South Australia) (11:07): I rise to speak on the Broadcasting Services Amendment (Improved Access to Television Services) Bill 2012. At the outset of my remarks, let me reflect on what we just saw in the chamber. I am not referring to the division we just saw, although the division was of course like groundhog day in this place at present, where day after day, session after session, we face this situation of guillotines being applied to bills, quite unnecessarily. This bill falls into that category. But, immediately before we commenced this debate on this legislation, we saw the government whip in the Senate table a committee report into this piece of legislation. That is an unusual thing. It is unusual to have a committee report tabled just before the second reading debate commences, because usually these things are done in a proper process. The committee report would usually be tabled at the time of day for committee reports to be tabled.

But there has been nothing about this legislation that seems to involve proper process. It was introduced into this chamber only last Thursday, on 21 June. It was then shunted off for a rapid-fire committee inquiry. No witnesses were heard from and there were no public hearings. There were just a couple of submissions from those who were able to get them in quickly. There was nothing that would reflect decent or extensive consultation. Here we are, on Monday, with just one working day in between, and the committee has reported. The legislation is now here for debate and it will be voted on today, because it is subject to the guillotine. A bill introduced last Thursday will be guillotined by this government and their partners, the Greens, today. Is this bill a budget measure that has really special and particular budget considerations to it? No, it is not. Is there something that is terribly urgent about this bill that must see it pass soon, for very quick reasons? No, there is not. It is an important bill and it deals with important issues, but there is no particular reason why this bill should be subject to the type of processes we are seeing in this chamber at present and why there is the abuse of process we are seeing in that regard.

This bill is important. It seeks to amend the Broadcasting Services Act 1992 to increase the level of captioning available on free-to-air and subscription television services. It also introduces new obligations on broadcasters to transmit emergency warnings in the form of text and speech, and captions, where reasonably practicable. There are obviously a number of interested stakeholders in this. There are of course the free-to-air television broadcasters and the subscription television broadcasters. There are obviously those who are hearing impaired, and those in the disability sector in particular, who have a direct interest in the captioning services. There are also the emergency service providers, who have an interest in the transmission of emergency warnings. All of these stakeholders deserved to have a proper hearing about this legislation, yet all of them have effectively been denied the opportunity to have a proper hearing because of the processes being applied in this chamber.

Ultimately, the aim of this bill is to achieve 100 per cent captioning of a commercial broadcaster’s core or primary channel during the viewing hours of 6 am to midnight. This is achieved over a number of years. The bill also seeks to increase the captioning of subscription television services. The aims of this bill have wide support both in the community and across the parties in this place. My beef, such as I have one when I rise to speak on this legislation, is not with the aim or intent of this bill; it is purely with some elements of the detail and some elements of the detail that could have been properly thrashed out had this bill be subjected to the usual process of Senate scrutiny. But the government appears to have decided to throw the rule book out when it comes to everything, so instead there is no proper scrutiny and no opportunity to thrash through the detail of the bill and reach a point at which the parties and stakeholders can agree as to how it could be improved with some technical changes to it that would ensure a bill with good intentions also ends up being a bill with good outcomes.

Captioning is an especially important service for people with a disability, especially for those with hearing difficulties. Television is an important means of communication and entertainment, and I believe it is important to ensure that people with a disability have access to this platform to the greatest extent possible. That is not just my belief but also that of the coalition. The coalition strongly supports these types of reforms to assist those in the disability sector broadly. I believe reforms such as this will be of benefit in enabling people with a disability to more fully engage with the broader Australian community through the broader range of television services that will be forced to provide captioning. I know that both of my colleagues with an interest in this-the shadow communications minister, in the other place, Mr Turnbull, and the shadow minister for disabilities, in this place, Senator Fifield-have had extensive discussions with the disability sector about this and about the need to see this legislation passed. The coalition support it, but in doing so we have explained some of our concerns with the detail, which we believe could be improved, not just for the benefit of the industries that will have to comply with this legislation but also for the benefit of the disability sector. So, while the ambitions of this bill have our support, it is worth considering the detail of the regulations proposed. In looking at that detail the coalition has found that broadcasters have several concerns about the regulatory burden of this bill and concerns about whether it will deliver the best possible outcome for those it is intended to benefit as well. I think it is important that we ask the question: can we achieve the goals set in this bill with less regulatory impact on the broadcasters and with better outcomes for those in the disability sector? As I have indicated, it would have been nice for senators from all parties to have been able to properly consider the details of these proposed regulations and their impacts, but instead we had a shotgun Senate inquiry with no hearings, with submitters being offered just two days to lodge a submission, and a draft report being presented to committee members just a day and a half after those submissions were received. Pretty much all of it happened over the weekend. This is an absurd situation and it is an affront to the proper processes we should have in this place, an affront to the disabilities sector and an affront to the television broadcasters that they are all being treated in this way. It has not been possible to provide the full and proper scrutiny of the issues within this legislation, and I think those opposite when they make their contributions to this debate should reflect about the failings of the legislative process in this regard. But I do take the opportunity to highlight the coalition’s additional comments on the committee’s report on this bill:

While agreeing with the general drive of the Broadcasting Services Amendment (Improved Access to Television) Bill 2012, the Coalition adds additional commentary to the report in order to raise some legitimate concerns with the Bill. Our consultations with industry suggested there were several areas where imprecise drafting or insufficient clarity in the Explanatory Memorandum created a potentially unfair and uncertain situation for broadcasters in relation to reporting requirements, programs finishing after midnight, international pass-through channels, and strict liability for certain breaches.

The Coalition therefore moved amendments in the House to that effect that the Government was nonetheless unwilling to consider. The Coalition is of the belief the Bill could be improved upon without in any way reducing the level of service and assurance that is provided to users of this service. We acknowledge the importance of the provision of the captioning service to people in the hearing impaired community, and recommend the Bill not be opposed.

So, despite our concern at some of the detail, despite our attempts in the other place to try and address some of the detail, we will not oppose this legislation. But I do want to go through some of those concerns, in the hope that those opposite will reflect on them and consider whether this is an appropriate way to get the best possible outcome for all stakeholders.

First, let me say that in all submissions and all the consultations the coalition has had, the broadcasters have made it clear that they respect their role in providing captioning services and understand the importance of captioning for people with a hearing impairment or a disability. They are, however, concerned that in certain respects some of the new obligations are overly burdensome. It is important to note that captioning services cost around $750 per hour to provide. That is very expensive in terms of the cost of provision of this service across the number of channels involved across the number of networks and of course across both free and pay TV. For live broadcasts of programs such as news and sports, that $750 per hour cost is significantly greater still.

Expanding on the points highlighted by coalition senators in our additional comments, I am concerned that there have been several oversights in the drafting of this bill. The bill provides very rigidly for captioning between 6 am and midnight but it is silent on requirements for programs that begin broadcasting before 6 am but finish after 6 am or programs that begin broadcasting before midnight but finish after midnight. As drafted, this bill would likely see, and certainly would only appear to require, the captioning of programs within those rigidly defined hours of 6 am to midnight. There is a possibility that captioning could either stop or start halfway through a television program. While the government may not think that this is not an issue, there are many people, and I have been one, who might stay up late to watch tennis finals or other major sporting events or indeed other significant programs that may well go past the hour of midnight, or they may get up early to look at something that starts before 6 am before they head off to work. Indeed, just this weekend many Australians would have tuned in to watch a live broadcast from Royal Ascot on Saturday night that went well past midnight. It would not have been unrealistic that under this legislation some people would have tuned in, started watching, been able to have captioning services provided for all of the warm-up to Black Caviar’s race but that the captioning would in fact have ended before the race occurred. What a ridiculous situation. The broadcasters have suggested that there could have been a more sensible approach, which would have been to allow some flexibility in the operation of the legislation, where they could count an entire program towards a captioning target so that if a program went beyond midnight and they continued captioning for an hour or so after that they could then, if there was a program likely to have less viewer demand on a different date, have not started the captioning between 11 pm and midnight. This type of sensible flexibility could provide a better outcome not just for the broadcasters but also for those benefiting from the captioning service.

Another area of concern is the provisions requiring the captioning of international pass-through services. What are these? They are the types of services particularly dominant on pay TV, where we see CNN, BBC or Al Jazeera broadcast as part of a Foxtel package. Under the provisions of this bill, these types of international news services could fall under the captioning requirements, whereas before they might not have because they would not have been regarded as Australian services.

The Australian Subscription Television and Radio Association stated in its submission to the farcical inquiry on this bill that captioning quotas for pass-through television channels would be:

… an expensive process and will significantly add to the cost of delivering these services into Australia. This is then likely to mean that it will become unviable to offer those services in Australia, resulting in a loss of differentiation.

I and the coalition are greatly concerned about the threat of imposing the expense of captioning on these services. Going from no requirement to full requirement would be a significant expense. These are live broadcast services-rolling news channels. So the live broadcast services would come with the very high expense of a captioning service. The risk is that we may see some of these services become unviable and, as a result, subscription television providers will simply cease to offer them. This would be a terrible outcome for viewers. At a time when particularly those opposite are railing against a perceived concern about increased consolidation of voices in news, it seems remarkable that they would risk passing legislation that could further reduce competition and diversity in the news media. It would be a blow particularly to those multicultural communities who may rely on services like Al Jazeera or the BBC to keep in touch with news from home, and it would also be a blow to the diversity of news media voices in Australia.

I would encourage the minister, as the coalition has done before, to revisit this issue before this bill passes and to return to the previous arrangements, which were agreed by the subscription television industry and the Human Rights Commission. The cost imposition here is clearly unreasonable. While I am informed that the government has indicated that it would be willing to negotiate for a reduced target which would be financially achievable, I understand this would have to be a negotiation done and enacted each and every year for each and every channel. This seems like a bureaucratic and administrative approach. Common sense-and I know there is not a lot of it on the other side-would surely suggest that it would be better to have the service actually operate and be guaranteed its continual operation without full captioning requirements than to have it not operate at all and be inaccessible to all Australians.

The government claims that technology will make captioning cheaper in the future and so service providers should not worry. This is a fine argument to make, but of course logic again would suggest that the time to bring legislation like this back to this place and to say that international channels, these international pass-through services and indeed all others should all require captioning is when captioning becomes cheap enough. I hope we do see a time when captioning service provision, because of technological advances, can be done in such a cost-effective way that it is made available 24/7 across the networks. That would be the ideal outcome. But, of course, it will only be achievable when it becomes cost-effective to do so. In the meantime, it is a matter of getting that balance right between cost, regulation and administration and the importance of providing these key services to the communities who need them.

Broadcasters are also concerned about clause 130ZUB, which will find them to be in breach of their requirements if, for some reason beyond their control, captioning is unable to be provided. For instance, if a third-party source contracted to provide captioning fails in some way, even temporarily, to provide the contracted service, it could be the broadcaster at fault and facing penalty. By contracting for experts to provide captioning services, broadcasters are acting honestly and in good faith. It would not be unreasonable to think that there might at least be some recognition that there could occasionally be faults in the captioning process which are not necessarily of their own making.

My final concern is about new and onerous requirements which will drastically increase the reporting requirements for broadcasters. This bill requires excessive new detail, which, quite frankly, has not been shown to be necessary and will impose additional new costs for broadcasters. Free TV Australia stated in its submission to the shotgun inquiry on this bill:

This provision could result in a broadcaster having to keep a running audit of captioned programs. This would require a broadcaster to review every single captioned program (over 6500 hours per year for each broadcaster) and make subjective assessments about matters such as comprehensibility. This would have significant resourcing implications.

Even SBS highlighted the absurdity here, saying that it:

… considers that it would be a particularly onerous burden to require broadcasters to report on their compliance with captioning standards when there are currently no standard industry measures.

The coalition did put forward amendments to this legislation in the House. I regret that they were rejected. I urge the government to reconsider those amendments and to reconsider them in light of the shotgun approach we have had to the legislation before us. But, ultimately, the coalition will not be opposing this legislation and we welcome the benefits it provides to communities.