P 14272 SENATE Monday, 19 June 2000

BROADCASTING SERVICES AMENDMENT (DIGITAL TELEVISION AND DATACASTING) BILL 2000

DATACASTING CHARGE (IMPOSITION) AMENDMENT BILL 2000

First Reading

Bills received from the House of Representatives.

Motion (by Senator Ian Macdonald) agreed to: That these bills may proceed without formalities, may be taken together and be now read a first time.

Bills read a first time.

Second Reading Senator IAN MACDONALD (Queensland— Minister for Regional Services, Territories and Local Government) (3.54 p.m.)—I move: That these bills be now read a second time.

I seek leave to have the second reading speeches incorporated in Hansard.

Leave granted.

The speeches read as follows— BROADCASTING SERVICES AMENDMENT (DIGITAL TELEVISION AND DATACASTING) BILL 2000 The introduction of digital television and datacasting services in Australia from 1 January 2001 is a very significant development in the history of television.

Consumers will be able to view clearer, sharper pictures, and choose between different types of television viewing such as wide screen movie quality programs, or multiple camera angles for sporting programs.

They will also, through their television set, be able to have access to new datacasting services which are likely to include a wide variety of information, education, advertising, and shopping services.

In 1998 the foundations were laid for Australia to enter the digital television era when the Parliament passed legislation to establish the basic framework for conversion to digital television.

This legislation sets out the broad framework for converting free to air commercial and national television from analog to digital.

The rules governing the operation of digital television and datacasting services were to be determined following a series of statutory reviews.

The Broadcasting Services Amendment (Digital Television and Datacasting) Bill 2000 sets out the operating rules for digital television and datacasting services following a review process which included extensive consultation with stakeholders and the public about options for appropriate regulatory solutions for the digital conversion process.

Reports of the eight completed reviews are to be tabled in Parliament during the current sitting period.

One review remains to be completed and will be tabled as soon as the Government’s decisions on the spectrum allocation process have been finalised.

The Bill also sets out a framework relating to HDTV standards and levels, the nature of datacasting and program enhancements, and on arrangements relating to captioning, the provision of new services in underserved areas and arrangements for the handback of analog spectrum.

Must carry standard definition television (SDTV) and HDTV Quotas A key feature of the Government’s digital television policy has been to minimise the disruption to consumers during the conversion period and to minimise the costs of conversion.

The Bill requires free to air broadcasters to provide a standard definition digital simulcast of their transmission in analog mode at all times in addition to meeting HDTV quota requirements.

The requirement to provide SDTV provides real choice for consumers.

SDTV receivers will be more affordable and are expected to be more widely available in the initial phase of introduction of digital television.

Consumers will be able to choose whether they want: cinema quality pictures with access to datacasting services through a more expensive HDTV set; access to new services and a higher quality picture through a cheaper SDTV set; access to new services on their existing analog television set through a set top box; or continuing, for the time being, to watch their existing analog programs but without the additional services available via digital transmission through their existing analog set.

Because SDTV receivers will be more affordable, this measure will encourage more rapid takeup of digital television and datacasting.

More rapid takeup may also lead to a more rapid reduction in prices of equipment.

In addition, the faster the conversion to digital, the sooner the Government will be able to turn off analog services and regain valuable analog spectrum for reuse.

Requiring the simulcast transmission of SDTV at all times also means that consumers can buy SDTV equipment and know they will always get a picture.

If this requirement was not included, it would mean that when programs were broadcast only in HDTV, those with SDTV sets would not receive a picture.

SDTV pictures, while they will not have the “cinema” quality clarity of HDTV pictures, will still provide viewers a very high quality picture free of the “ghosting” and “snow” that characterise the reception experienced by some viewers.

As part of the requirement to provide SDTV at all times, the Government expects that broadcasters will provide an audio stream using the MPEG sound standard.

The Government would encourage the industry to reach a common position on this issue, but may be willing to consider regulating a standard, using existing powers in the legislation, if this appears necessary in the interests of consumers.

The Government remains committed to HDTV as a key feature of digital television and is moving to implement the mandatory HDTV requirement as agreed by Parliament.

The spectrum loaned to television broadcasters will provide sufficient spectrum capacity for HDTV.

The Bill puts in place the following requirements for HDTV.

Free to air broadcasters are required to commence HDTV as soon as practicable after the commencement of digital services in a licence area.

Within two years of commencement of digital transmissions, commercial and national broadcasters must provide at least 20 hours per week of HDTV programs.

Commercial broadcasters must meet this target with material originally produced in HDTV.

The HDTV requirements for the national broadcasters (ABC and SBS) are more flexible to take into account their diverse programming sources and may include upconverted SDTV material.

A review will be held in 2003 on HDTV quotas and the provision of HDTV in remote areas.

The provisions contained in the Bill impose a modest target, which will ensure that HDTV programming is made available to those who choose to purchase HDTV sets.

Datacasting The 1998 legislation introduced an interim definition of datacasting.

Following a review of the scope of datacasting services, the Government considers that this definition should be modified.

The legislation needs to be clearer about what kinds of services can be provided and about the distinction between datacasting and broadcasting services.

The Parliament has legislated that no new commercial television licences can be issued until after 2006.

Therefore, the regulatory regime needs to prevent this being cir cumvented by ensuring that datacasters do not become de facto broadcasters.

The Parliament also prohibited multichannelling by broadcasters at least until a scheduled review in 2005.

Therefore, the legislation needs to eliminate the possibility of broadcasters using their datacasting services to provide multiple television broadcasting channels and thus contravening the multichannelling ban.

The regulatory regime for datacasting will be implemented through a new schedule 6 to the Broadcasting Services Act 1992 (the BSA).

The regulatory approach will focus on the kinds, or “genres” of programs and services which datacasters are allowed to provide.

Datacasters will be prevented from providing content in genres regarded as free to air television, for example drama, current affairs, sporting programs and events, music programs, infotainment and lifestyle programs, light entertainment and variety programs, compilation programs, quiz programs and games shows.

The Australian Broadcasting Authority (ABA) may make written determinations concerning whether or not programs fit within a particular genre.

Datacasters will be able to provide short extracts of these television program genres, as long as the extracts are not selfcontained, and are not provided in a way that facilitates their combination to form a television program.

There will be limitations placed on the audio material datacasters can provide.

This is primarily intended to prevent them from operating as radio broadcasters, and will not prevent them from providing a wide range of permitted audio material.

The ability to provide news, financial, market and business information is likely to enhance datacasting services and their attraction to audiences.

Therefore, datacasters will be able to provide short news, business information or weather overview bulletins.

In addition, bulletins may be provided on an individual news item, on a topic of business or financial information and on weather information, if they are made available to a viewer by selecting from a menu on the screen.

Outside the restricted genres, datacasters will be able to provide any services.

These include (but are not restricted to): programs providing information on products, services and a range of activities; educational programs associated with courses of study; foreign language news bulletins; transactions such as home shopping; banking and bill paying; any matter which is in the form of text and still pictures, including Internet web sites; Internet carriage services which provide individual end users with point to point access to the Internet; interactive games; and Parliamentary broadcasts, or broadcasts of the proceedings of a court, Royal Commission or similar body.

Datacasting licensees will be able to provide their customers with individual pointtopoint connections to the Internet.

This will increase the range of business models available to datacasters.

For example, it will allow a datacaster to function as an Internet service provider, providing connections to the Internet rather than just content.

In common with all other means of accessing the Internet, this would allow users of datacasting services to have access to programs such as video clips of news stories, or streamed audio and video services, where they are made available on web sites.

The moratorium in the BSA on new commercial television services applies to services delivered by any technological means including the Internet.

However, there is currently some uncertainty whether services such as streamed audio and video obtainable on the Internet are, legally, broadcasting services.

This is a generic issue relating to the convergence of broadcasting with other services, and it is therefore proposed to refer the matter to the ABA for their detailed consideration over the next twelve months.

Rules applying to datacasting services under this legislation will apply only to services provided in the broadcasting services bands spectrum, and will not affect services delivered by other technical means.

Subject to this limitation, they will apply in respect of all datacasting services, whether by commercial broadcasters, national broadcasters or other datacasters.

The ABA will be provided with strong powers to enforce the distinction between datacasting and broadcasting.

The ABA will issue datacasting content licences and oversee their use.

It will be an offence to provide a datacasting service without a datacasting licence, or in breach of the conditions of a licence.

Licences can be suspended or cancelled.

The ABA will have the power to apply to the Federal Court for an injunction to prevent a datacaster from continuing to provide a datacasting service without a licence or in breach of a licence.

The ABA can also issue remedial directions towards ensuring a datacaster complies with licence conditions.

Datacasters must also, as a group, develop codes of practice dealing with, for example, access to undesirable material, and handling of complaints.

The Bill also prevents national broadcasters or commercial broadcasting licensees or those in a position to control such licenses from controlling a datacasting licence.

These measures give effect to the Government’s policy that free to air broadcasters should not be allowed to purchase or control additional spectrum.

The provisions for the licensing of datacasting content outlined earlier will be separate from provisions for the licensing of datacasting carriage.

The Bill provides for datacasting transmitter licences to be issued.

Until 2007, these licences can only be used to transmit services provided under a datacasting content licence issued by the ABA.

Datacasting transmitter licences will have a term of 10 years with the expectation of a single renewal for 5 years only.

The statutory moratorium on the issue of new commercial television broadcasting licences is scheduled to end in 2006.

From 1 January 2007 therefore, spectrum licensed to datacasters will be able to be used for any other service licensed under the BSA, in addition to licensed datacasting.

The regulatory arrangements applying to the use of this spectrum from 1 January 2007 will be the subject of a statutory review in 2005.

The review will also examine what charges and other financial arrangements (if any) should apply to this spectrum.

Program enhancements The ability to provide enhanced services will make digital television more attractive to consumers.

The Bill provides that free to air broadcasters will be allowed to provide digital enhancements to their main simulcast programs.

These enhancements may be in any form (such as text, audio or video) provided that: the sole purpose of the transmission is to enhance a television program; there is a direct and close linkage between the enhancement and the primary program; and enhancements are transmitted simultaneously with the primary programs to which they are linked.

The Bill will also allow enhanced programming in the form of live coverage of a different sporting event to that being broadcast as a primary program, provided the event is being played at the same venue, is in the same sport and overlaps in time with the primary program.

This will allow, for example, broadcasters to enhance a program providing live coverage of a tennis match by also providing different camera angles; each players’ results in past matches; video highlights from these past matches and each player’s ranking and career highlights.

They will also be allowed to provide coverage of another tennis match taking place at the same time in the same venue.

Broadcasters will also be able to use the flexibility provided by digital technology to deal with problems created by program ‘overlaps’.

The Bill will allow free to air broadcasters to use their additional channel capacity in dealing with ‘overlaps’ where the end of a sporting match, or the telecast of other significant events (designated by the ABA) runs over time due to circumstances outside the control of the broadcaster, and as a result clashes with another program which commences at its scheduled time.

This means that viewers will have the choice whether to switch to the other program or watch the end of the event.

National Broadcasters The Government recognises the important role of the ABC and SBS in providing digital television services to viewers.

With the start up of digital television, the ABC and SBS will be obliged to simulcast their analog programs in digital mode and to meet HDTV format and captioning requirements.

Under the provisions in this Bill, the national broadcasters will be able to televise enhancements of their analog programming.

They will also have the flexibility to provide innovative datacasting services.

This will ensure that the national broadcasters are able to use digital technology to enhance their Charter functions, that they are placed on the same footing as the commercial television broadcasters in terms of the permitted range of digital television programming and that there is a common regulatory regime for all datacasting services.

It is not proposed, however, to amend the Broadcasting Services Act to lift the current statutory prohibition on national broadcasters providing “multichannel” television programming.

There is a legitimate concern that free to air multichannel television programming would unfairly compete with the developing pay TV sector.

It would also be inequitable to lift the ban on ABC / SBS multichannel programming while maintaining the current prohibition on commercial free to air multichanneling.

This issue is best addressed as part of the statutory review of multichannelling that is to be conducted in 2005, in the light of experience with the introduction of digital technology and further developments in the pay TV industry.

Captioning Free to air television plays a major role in providing entertainment, education and information to audiences throughout Australia.

The advent of digital television provides the opportunity to significantly improve access by the deaf and hearing impaired to television services.

The BSA requires that standards must be determined that, as far as practicable, require broadcasters to caption programs transmitted during prime viewing hours and all news and current affairs transmitted at any time.

The Government has carefully considered the advice from broadcasters, the deaf and hearing impaired community and other stakeholders on the effect of this requirement and whether it should be amended.

As a result of these considerations, the Government has decided to limit exemptions only to programs or parts of programs in a language other than English, programs or parts of programs providing music without English words, and incidental or background music.

These requirements will bring Australia closer into line with developments in countries such as the USA, Canada and the UK.

Underserved Areas In regional Australia there are currently a number of areas which have fewer than three commercial television services.

There are currently four “solus” markets – markets which have only one commercial channel.

There are ten other markets which have only two commercial services available.

The Government wishes to encourage the provision in these underserved regional licence areas of up to the same number of commercial television broadcasting services as are provided in most metropolitan areas.

The Government is mindful of the particular economics of underserved markets, with small widely dispersed populations requiring extensive transmission infrastructure, and a low advertising revenue base.

Therefore, the most effective way to introduce new services in these markets within a reasonable timeframe is to allow existing broadcasters to provide such services.

This is also consistent with the moratorium on new commercial licences in other areas.

Additional services would be supplied in regional solus markets principally through the existing legislative provisions which allow the granting of a second licence to the incumbent in a solus market if spectrum for a second analog service is available.

Incumbents granted a second licence in these markets will be allowed, under the Bill, to multichannel the digital transmission of the existing and new services in SDTV format.

This will allow these broadcasters, if they wish, to minimise their conversion costs by using the same infrastructure to transmit both digital services.

These multichannelled services will be exempt from the HDTV requirements, subject to review in 2005.

Digital transmission of the original and second analog service is required to commence by 1 January 2004.

In the case of two station markets, the Bill will provide for a third digitalonly service to be provided either by one of the existing incumbents or by a joint venture by the two incumbents.

If only one of the incumbents provides the new service they can elect to do so by multichannelling in SDTV format – with exemption from HDTV requirements (subject to review in 2005).

The new service is required to commence by 1 January 2004, or any earlier time notified by the ABA.

These changes will provide the opportunity for incumbent broadcasters in solus and twoservice markets to provide new digital services with lower rollout costs, and provide the potential for new services for consumers in these regions.

Spectrum Planning Free to air television broadcasters are to be loaned sufficient additional spectrum, free of charge, to enable them to simulcast their existing service in analog and digital format for at least 8 years.

At the end of this period they will be required to hand back the spectrum no longer required for analog transmission.

It is important that at this time the ABA has the maximum capacity to plan future spectrum efficiently.

The current legislative provisions could limit the ABA’s flexibility and restrict its ability to take advantage of the spectrum efficiencies arising from digital technologies.

The Bill will amend the legislation to ensure that the ABA has the power to allot the channels that will be used by the broadcasters for digital services after the end of the simulcast period having regard to the most efficient use of spectrum.

Conclusion This Bill represents a significant step forward in the process of implementing digital television in Australia.

It puts in place all the major requirements for digital television conversion and for the establishment of datacasting and provides a comprehensive framework under which broadcasters can embark on the provision of the new and exciting digital services.

It also provides broadcasters and datacasters the maximum certainty through legislation.

There will, of course, be a need for some review of progress given that we are entering a new environment in which technology is constantly changing and developing.

The Bill provides for such reviews, which will facilitate adjustments of the framework in the light of experience and the takeup of digital television.

DATACASTING CHARGE (IMPOSITION) AMENDMENT BILL 2000 The Datacasting Charge (Imposition) Amendment Bill 2000 amends the Datacasting Charge (Imposition) Act 1998 to reflect the new approach to defining datacasting services in the Broadcasting Services Act, and to clarify that the datacasting charge will not be imposed on a transmitter licence for current teletext services as long as they remain substantially the same as the services currently provided.

Some broadcasters currently provide teletext services which provide a number of textbased information services to the viewing public.

It is not appropriate to impose a new charge on these existing services, which have been in place for a number of years in their analog form.

Debate (on motion by Senator O’Brien) adjourned.

June 20, 2000
No debate

June 21, 2000

Debate resumed from 19 June, on motion by Senator Ian Macdonald: That these bills be now read a second time.

Senator MARK BISHOP (Western Australia) (5.32 p.m.)—In the last few years, there has been considerable discussion concerning the role and future of technology in our society and our community.

Information technology, communications industries and the convergence of various technologies readily combine in the bills which are under discussion today and are undergoing the second reading.

These bills have been the subject of some urgency.

They were introduced into the House in early May and referred to the relevant Senate committee on 10 May, and public hearings were heard for two full days on 31 May and 1 June, with a report date of 8 June.

We heard from 55 or 60odd witnesses and received many complex and detailed submissions.

Detailed investigation of these bills has been constrained by the government’s timetable and the government’s desire for passage of the bills either this week or prior to Thursday next week.

That short time frame has restricted the ability of many industries and firms to adequately formulate detailed responses to the many issues raised by the bills.

Labor senators have gone out of their way to cooperate with the government’s timetable but have been forced to concentrate their attention on the major issues that we have identified that are contained in the bills.

These bills raise a significant number of issues: the utility of the 1998 framework legislation for the future of digital TV; the future of the longstanding broadcasting industry and its move to protect itself from the forces of competition; the growth and vibrancy of emerging industries like datacasting; the ability of institutions or national icons like the ABC and SBS to grow, change, adapt and be relevant in the face of trenchant opposition from the current government; the need for consumer preferences to be catered for in the face of significant producer or industry opposition; the useful role of regulatory agencies like the ABA in acting as arbiter of industry disputes going to content or the programming of content; the critical need for parliament to review new technologies and emerging delivery mechanisms in an age of ready and easy convergence; and the value of public assets and their disposal, temporary or permanent, to various industry players and whether sufficient value has been realised in that disposal process.

Labor senators were required to consider, analyse, conclude and make recommendations on all of those policy matters in the sevenday period between 1 June and 8 June, when the Senate report was tabled.

In considering these issues, Labor senators needed to consider a number of interests within the framework of the 1998 digital legislation: undertakings given to freetoair broadcasters in the period of conversion from analog to digital; the obvious need to maintain a viable broadcasting industry whilst preventing improper or inappropriate developments that might permit backdoor broadcasting in the form of datacasting; and the need for datacasting industries to develop, having regard to consumer preferences and market signals without inappropriate restrictions which might stifle those emerging industries.

Labor senators had regard to: the stated desire of the national broadcasters to multichannel without opposition, except that of the government and of the pay TV industry protecting their own patch of turf; the future of enhanced programming and the proper regard of parliament to adhere to government policy pronouncements in areas of critical interest to the future of the digital TV industry; the need, in the view of the opposition, for reviews of this legislation to be timely, relevant, statutory and—most importantly— open to public scrutiny; and the need for relevant definitions, particularly in respect of datacasting, to be relevant to all sectors of the industry.

In this respect, it is no secret that the opposition believes the definition of datacasting to be overly restrictive and complicated, and that goes beyond restricting datacasting services that do not constitute broadcasting.

Accordingly, the opposition is, and has been, of the view that digital broadcasting represents an opportunity to encourage the development of new and innovative uses of broadcast technology.

That is why the Australian Labor Party has consistently called for a more general definition of datacasting, preferring a broad, general approach which, while not allowing broadcasting, does not stifle new, creative opportunities for prospective datacasters.

The potential for datacasting to deliver new services, particularly to rural and regional Australia, is an opportunity that should be grasped with both hands.

Having made those introductory remarks and having attempted to explain to the chamber some of the issues that have been raised in deliberation upon the bills—and our views having been put at length in the Senate in the minority dissenting report that Labor senators attached to the bills inquiry report—I point out that there has been, since that time, extensive discussion in the press.

The issues are well known to those who choose to participate in this debate, and there is little sense at this stage in repeating ad nauseam the content and conclusions that are contained in the Labor senators’ report.

Our position is public, has been put out on the airwaves and is well known to those who are interested in this debate.

Accordingly, having put out our position and identified what we believe to be shortcomings and deficiencies in the approach of the government, as contained in the bills, we have prepared a number of amendments that we will move when we go into the committee stage.

Those amendments go to datacasting, multichannelling by the ABC and the SBS, enhanced services, the regulatory arrangements and technical standards that need to apply—particularly the role of the ABA and the like—and, finally, but of considerable importance, the review provisions that need to be built into the bills and eventually into the act that are going to take account of new technologies, new players, new entries and new and different interests in the next five or six years.

So our amendments in the committee stage will go to those five specific areas, and I am advised that the amendments are still being drafted and checked at this stage.

Labor will propose an alternative framework for datacasting, consisting of a general definition of datacasting services and based on the attributes of datacasting and broadcasting, not on program or content based distinctions.

It is now out there in the public domain that we are not of the view that the genre based approach of the government is correct or appropriate, and we will move a significant amendment to have a different approach to datacasting—one based on the physical attributes of datacasting and broadcasting, not on program or content based distinctions.

As well, the opposition will propose amendments to the government’s proposed framework to seek to ameliorate its worst effects should the parliament not adopt Labor’s alternative framework.

So we move down two paths.

We will move an alternative datacasting definition based on the physical attributes of datacasting, and if that finds favour in this chamber, so be it, and that will be the end of it.

If that approach is rejected by the combination of the government and the Australian Democrats, we will have a fall back position, which has also been put out in the public domain, where we seek to ameliorate what we believe to be the worst effects of the government’s proposal.

The second issue we will address by moving amendments goes to multichannelling by the ABC and the SBS.

Labor have consistently supported, and will move to allow, multichannelling by the national broadcasters—the ABC and the SBS—because of the public benefits arising from extending the role of the national broadcasters, particularly for rural and regional Australia.

We will develop that more when we go to the committee stage, but we do note in passing, and put on the record at this stage, that the only objections that have come forward to allowing the national broadcasters to multichannel are from: (1) the government—continuing its position of trenchant opposition to any growth, development or change within the ABC; and (2) the pay TV industry.

I suppose they are protecting their financial interests, and one cannot be critical of them for that.

But they are the only two players in this debate who object to the national broadcasters being able to adapt to changing circumstances and to multichannel: our government and the pay TV industry.

The opposition is of the belief that the capacity for broadcasters to offer viewers enhanced services needs to reflect the framework enacted in the 1998 digital broadcasting framework legislation and in the government’s policy announcement of December 1999.

We believe the bills as they currently stand in this place do not accurately reflect the minister’s announcement of 20 December 1999.

Indeed, they go significantly further than that: they move perilously close to allowing the commercial networks to be able to multichannel.

So our position in the debate on enhanced services in the committee stage will be to seek to amend the bills so that they accurately and exactly reflect the minister’s announcement of late December last year.

Fourthly, in terms of regulatory arrangements and technical standards, Labor will propose a range of amendments to develop a more appropriate regulatory framework, including enhancing the Australian Broadcasting Authority’s power to rationalise and clear spectrum for datacasting; subjecting datacasting determinations by the Australian Broadcasting Authority to existing appeal and review arrangements; incorporating a ‘use it or lose it’ provision for datacasting transmission licences; ensuring the interoperability of technical standards for audio and video formats; and making electronic program guides operate similarly to the United Kingdom model where broadcasters have three options: show no electronic program guide, show only their own programs or show other broadcasters’ programs using common standards.

They are the amendments we will move in the committee stage in terms of regulatory arrangements.

I suppose the pertinent point to note is the strengthened and ongoing role that the opposition proposes for the ABA as an arbiter of disputes in the area where there might possibly be a difference or distinction between broadcasting and datacasting.

We will lay down a set of principles for the ABA to have regard to in carrying out that function.

In terms of the review provisions, the opposition is of the view that the reviews should be statutory and conducted earlier than proposed by the government.

As well, the Labor Party will seek to incorporate a new general review of the operation of schedule 4, digital television, and the proposed schedule 6, datacasting, of the Broadcasting Services Act to occur not before 1 January 2003, the report no later than 1 January 2004 and a review of the conditions to apply to commercial broadcasting licences at the expiration of the moratorium period.

In brief, there is, as I said at the outset, significant technological convergence.

There are proposals for a series of reviews scattered through the bill.

The opposition believe that those reviews should go ahead.

We believe they should be done sooner rather than later.

We believe they should be open, and we believe they should report to the parliament.

This is a most critical aspect as far as we are concerned.

Amendments and more detailed provisions giving effect to those five broad headings have been circulated in the confines of the parliament for the last two or three days and have been readily accessible.

Finally, at this stage, two further points need to be put on record by the opposition: firstly, the issue of walled gardens through the Internet and, secondly, the right of parties in administrative appeals.

The opposition are alive to the potential problem of a broadcaster seeking to offer a suite of programs via the Internet via datacast spectrum.

For example, a series of news programs or other programs could be aggregated into one site—that is, you might be able to get telstra.com, nbc.com and cnn.com aggregated into one site.

It is not a dissimilar process to bookmarking on the computer in the home or office.

The opposition are of the view that such an activity, if it did occur, clearly falls foul of the general proposition that the act does not permit backdoor broadcasting.

In reality, it is a backdoor mischief by walled garden Internet services.

However, we are of the belief that you cannot solve that problem by content based distinctions.

We know from last year’s broadcasting bill of the millions of sites that are out there and are not appropriate to be regulated by a content approach.

So on that issue, I repeat: the opposition are aware and are taking on board concerns that have been expressed to us by industry about the threat of this development.

We would welcome and look seriously at any suggestions on that point.

In terms of the rights of appeal in the regulatory regime, the ALP intend to conform with longstanding and wellestablished principles as to rights of private property and the right to appeal mechanisms.

Parties to determinations by the ABA should have rights of appeal, and those rights should not be taken away or negatived prior to the conclusion of appeal proceedings.

ABA determinations should be subject to appeal.

The opposition understand that a party could flagrantly, in breach of an ABA determination, put up broadcasting material on a datacasting site.

We would not welcome such a proposition; in fact, we would be strongly opposed to any development that goes down that path.

We are prepared on this issue to look at alternative mechanisms but, in saying that, we do not think it is appropriate to reverse longstanding principles and practices in the area of administrative law and administrative regulation and to overturn appeal rights that parties may have and would be able to exercise in any other forum or jurisdiction to protect their rights or their legitimate interests.

In conclusion, the opposition’s position is clear: we are of the view that the 1998 framework legislation has to be respected and that digital industry datacasting in particular needs to be developed; however, datacasting cannot be backdoor broadcasting.

We are of the view that the government’s content based approach is inappropriate and will restrict, harm and retard the development of this issue.

Hence, we have circulated for consideration amendments to the effect of a different approach not based on content but based on the inherent features of the datacasting industry.

The other matters that I have referred to are on the public record.

I presume we will proceed with the committee debate in due course.

My remarks set out the opposition’s position.

We will be moving amendments under each of those five headings when we move to the committee stage.

Senator BOURNE (New South Wales) (5.52 p.m.)—At the end of Joseph Heller’s Catch22, we find that one of the crew members is wounded by antiaircraft fire.

The central figure finds a hole in this man’s chest, carefully patches it and reassures the man all the while that everything is going to be all right.

Then he discovers that the man’s life is spilling out through another larger hole in his back.

We cannot help feeling that that may be what we are looking at with this legislation.

As the minister has pointed out, the Broadcasting Services Amendment (Digital Television and Datacasting) Bill 2000 builds on the framework put in place by the digital television legislation of 1998.

That legislation was rushed through the Senate and the Democrats commented at the time that it raised more questions than it answered.

We were marginally reassured when the ALP negotiated a compromise arrangement with the government to ensure that the proposed regime would be subject to further scrutiny and to analysis.

The understanding at the time was that the 1998 legislation could therefore be treated more or less as an exposure draft.

Since then, however, it has become abundantly clear that the government had little intention of letting anything like scrutiny get in the way of their preferred model.

The government was required to conduct reviews, which it did.

But by the time the reviews were tabled, the government had already laid down the framework for the legislation that we now have in front of us and the reviews, contrary findings and all, simply vanished off everybody’s radar.

Then the government delayed tabling the legislation until budget week, while insisting that it has to be passed before the winter recess.

That means that the Senate inquiry into the bill, a large and complicated document, was forced into a ridiculously short timetable.

Respondents had 10 days to make submissions and the whole inquiry was shoehorned into two days with tight time constraints.

Unsurprisingly, the inquiry’s findings were few.

Finally, as a third mechanism of scrutiny, the 1998 bill contained a provision that the portion of the bill permitting the minister to determine standards that will govern digital television would only come into effect after both houses of parliament had passed a motion to make this possible.

The intention of this provision was to provide one final point of scrutiny before digital television went to air in Australia.

Now we find that the government wants that excised from this bill.

The Australian Democrats have consistently maintained that getting the legislation right is more important than getting it through the Senate by a fixed date.

In 1998, we had an exposure draft and the expectation that the whole digital regime would receive serious reconsideration.

We have now arrived at a rushed bill that we are told must be dealt with by the end of next week, at the latest.

Small wonder that we think we might be patching the wrong hole.

The bill is complex, as is to be expected when it introduces such potentially significant changes to Australian television.

It provides for the simulcasting of standard definition and high definition television and imposes quotas on HDTV requiring television stations to broadcast 20 hours of HDTV per week within the first two years.

It provides a new set of rules for datacasting and for program enhancements.

There are mechanisms to increase the diversity of digital programming in solus and duallicence licence areas and the clarifications of the captioning standards relating to digital television.

The bill sets out the timetables for further reviews of the progress of the conversion from analog to digital.

At the same time, however, we should pay attention to the things which are clearly missing from this bill.

In spite of expectations, there is no mention of enabling the national broadcasters to provide multichannelling services within their charters, as we have just heard.

The bill provides no evidence that the government intends to follow through on its March 1998 promise to give community television broadcasters free access to an SDTV channel.

It leaves alone questions of device interoperability and provides no rules for the equitable provision of program information via electronic program guides.

In spite of the fact that the bill is attempting to create a new datacasting industry, its spectrum planning provisions make no attempt to guarantee the rationalisation of spectrum and to ensure that there will be sufficient spectrum available to ensure a diversity of datacasting services in the more congested licence areas such as Sydney.

Let me begin with high definition television which is, in many ways, the cornerstone of the digital television regime that we are considering here.

The Australian system is predicated on the idea that consumers will be attracted to the sounds and lights of cinema quality HDTV and that to provide this the broadcasters require seven megahertz of spectrum.

This has been widely questioned since the digital regime was first proposed, particularly by those most directly attuned to the interests of consumers, who expect HDTV equipment to be largely unaffordable in the short to medium term.

It is interesting to note that the minister appears to have had some kind of conversion of his own since then as the bill requires broadcasters operating in digital mode to transmit their programming in standard definition television.

HDTV thus becomes an optional extra for those who can afford the television sets.

The Australian Democrats acknowledge that it is the will of this parliament that HDTV will go ahead and maintain that, as this is so, we must do it properly.

There has been much speculation—indeed, I have speculated much myself—that HDTV will give way to multichannelling before the transition to digital television is complete.

While the Australian Democrats would not necessarily be adverse to that transition, it would be to undermine the basis of the spectrum allocations to freetoair broadcasters.

We take it as a principle that if freetoair broadcasters move from high definition services requiring seven megahertz of spectrum, there should be an a reassessment of their spectrum allocation.

Likewise, we acknowledge that if HDTV is going to succeed in Australia, it will not succeed overnight.

Even the most positive assessments of its prospects show the technology not achieving any significant market penetration for four or five years.

In this light, we regard proposals to review its uptake in a shorter period as ill considered.

One of the great uncertainties of the 1998 legislation was the scope of datacasting.

To clarify this, the government is introducing a new set of rules based on traditional television genres—we all know about genres.

In the news genre, datacasters will be permitted to provide a 10minute headline bulletin of continuous video.

There will be no time limit on unlinked video items in this genre that are accessed from an onscreen menu.

For all other genres associated with traditional television programs, datacasters are only permitted to transmit short extracts as part of previews or reviews.

Excluded genres include drama, current affairs, sport, documentaries, reality TV, lifestyle shows, children’s television and games shows.

Datacasters may freely transmit video content outside of these categories, specifically including educational and information only content.

They are free to offer interactive information services, such as email or home banking.

The legislation also allows datacasters to create a point to point network using a combination of the airwaves and modems in viewers’ digital television sets.

If they do so, the service created will be treated as an Internet service and subject to Internet regulations rather than to datacasting regulations.

However, that is not really the point.

The problem, as datacasters finally began admitting last week, is that it is not possible to provide a viable point to point service of this kind in any area with a significant population as the spectrum has to be subdivided far too finely.

Datacasting is not and will not be the Internet on TV under the current regime.

What it holds is the possibility of a Netlike service extending into the homes of the 70 per cent of Australians without home Internet access.

The issue of the carriage of Internet content cuts to the heart of the problems surrounding this whole area.

The distribution of Internet type material via the broadcasting service bands marks one of the first meaningful examples of the problems of convergence that this parliament has had to confront.

On the one hand, we have broadcasting regulation which proceeds by conditions attached to licences.

On the other hand, we have the point to point regulation that governs the Internet.

Datacasting sits somewhere in between.

The challenge confronting us is to find a system that provides these benefits without creating the backdoor broadcasting.

As we indicated in our minority report to the Senate inquiry, we see the government’s genre approach to be flawed as it is based on the content of the medium rather than the nature of the medium.

However, any alternative definition must be subject to the overriding condition that it does not breach the agreement that no new commercial broadcasting licence be issued until 2007, when digital conversion is substantially under way.

It must not provide a means for datacasting to become broadcasting by other means.

If we do end up operating within the framework of the government’s genre system, there are other issues that will have to be considered, such as the definitions of information only and of education programming.

The other particularly contentious issue, at least within the television industry, has been enhanced programming.

The bill provides for three types of digital enhancements to broadcasts.

The first, category A enhancements, includes multiple camera angles and additional onscreen information relating to a program, provided that they are contemporaneous with the main program and they are linked to its subject matter.

Category B enhancements allow broadcasters to multichannel sports to show two sporting events at the same time and venue where the sport played is the same sport.

Finally, overlap multichannelling permits broadcasters to multichannel when live programs, such as sporting events, run over time and overlap with the next item in their programming schedule.

The pay TV industry has expressed strong concerns that all three forms have been broadened in a way that violates the limitations on commercial broadcaster multichanneling that were agreed upon in 1998 and that potentially threaten their business.

The Democrats acknowledge these concerns and we will seek amendments to reduce the impact of enhanced services on the pay TV industry.

Perhaps the issue of greatest concern for the Australian Democrats is the treatment of the national broadcasters under this legislation.

The Democrats have consistently maintained that the ABC and SBS should be permitted to provide multiple channels of programming, as this will better enable them to fulfil their charter obligations.

The ABC has talked about providing region specific programming and educational material on their second channel amongst other things, while the SBS has indicated an intent to show more foreign news.

We have also maintained that the ABC and SBS, not being commercial broadcasters, should not be subject to the datacasting charge and that they should be able to transmit their radio programming as part of their datacasting services to ensure that it reaches the greatest possible number of Australians.

Further, their programming decisions should not be subject to the jurisdiction of the ABA and oversight of their capacities to datacast should be removed within their respective acts.

We are heartened by indications from the ALP that they will be moving or supporting amendments along these sorts of lines.

The Australian Democrats are firmly of the opinion that digital television and datacasting should be based on an open platform.

Just as digital television broadcasting will be conducted in accordance with the DVB standard and MPEG2 compression, there should be a single agreed middleware standard that allows content providers to deliver content to any settop box.

We do not want to see settop boxes that can only interpret the signals from one single datacaster.

More importantly, we would like the platform to be open.

We would not want to see a proprietary standard dominating settop boxes the way that Microsoft dominates personal computer operating systems.

The solution is a uniform middleware standard.

Ideally, it should be a standard agreed upon by the industry.

However, bearing in mind overseas experience with interoperability and knowing this industry, I think we can safely say that there should be a mechanism for the minister to intervene if the industry cannot make up its mind on this.

In a similar vein, the Democrats would like to see an open and equitable system for electronic program guides.

The bill mentions EPGs but provides no direction to ensure that all service providers are treated fairly and equally.

We believe that the legislation should include the rules governing EPGs, such that program information is passed freely between service providers in a standardised format and that, in cases where service providers include EPG information for a service other than their own, they are obliged to provide the same information about all corresponding services.

A strong priority in formulating the EPG rules should be to ensure that they guarantee fair and equal representation of the content of all services represented within a given EPG.

As the Community Broadcasting Association of Australia indicated to the recent Senate inquiry, the community television broadcasting sector have been treated very poorly in the development of this legislation.

In March 1998, the government promised to provide them with access to sufficient spectrum for one channel of SDTV.

Whether by design or by oversight, the government has failed to follow through on this promise.

The concern is that if a decision is not taken now, no spectrum will be available until the switchoff of analog in eight or more years time.

Further, community television broadcasters continue to labour under oneyear licences that undermine their ability to secure a financial footing.

While we are told that the minister has issued instructions to extend the community broadcasters’ licences, those instructions have apparently not been received as yet by the ABA.

No attempt is being made to extend the duration of these licences so nothing is being done to ameliorate that uncertainty.

The 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 Democrats believe that this is an excellent suggestion that should be pursued vigorously.

While the evidence we received suggested that the immediate priority of the indigenous media sector lies with radio, digital spectrum should be set aside in anticipation of the creation of indigenous television broadcasting licences.

One of the things that has always concerned the Democrats about the Australian media sector is its remarkable concentration.

A great number of media resources are held in very few hands, and we have long been of the opinion that it is highly desirable to seek greater diversity of both ownership and content.

In this light, we would want to see the emergence of the greatest possible number of new datacasting services.

We are concerned to see that very little spectrum is available in the Sydney area for datacasters.

Sydney is the largest market in the country, and it is accepted wisdom that datacasting services that are unable to air in Sydney will be less viable elsewhere.

We are heartened by the news that the ABA are considering the adoption of some species of single frequency networks, which will allow a greater number of channels to become available.

However, we were somewhat stunned by evidence from the ABA at the recent Senate inquiry that they were both unable and unprepared to rationalise spectrum and find channels in Sydney if the datacasting licences have not been issued, except of course that datacasting licences cannot be issued if the spectrum is not there for datacasting services to be transmitted on.

I began with Catch22 and it appears that, through the good works of the ABA, I can finish with it.

Needless to say, the Democrats would like to see the ABA both empowered and directed to rationalise spectrum to allow for a greater number of datacasting services.

Let me finish by saying that this issue has been and still is very complex and difficult, as is the legislation.

I would like to thank a few people: primarily David Sutton on my staff for his very good work in this area and his great understanding.

I would also like to thank—and this may sound a bit strange—the minister and his staff, Mr Smith in the other House and his staff, Senator Bishop and his staff, and, finally, all the stakeholders and those experts in the community who have given us the benefit of their expertise in this area.

The lobbying on this bill has been reasonably intense, I think you could say, and Senator Bishop would probably agree with me, and I am sure the minister would.

But everybody has been, at least to me and my staff, very reasonable, very pleasant and at all times very polite.

That could be because everyone wants their own way and they are not sure what is happening, but I do not think so; I think it is because this has been one of the better bills to negotiate that I have been involved with.

Senator HUTCHINS (New South Wales) (6.09 p.m.)—I would agree with Senator Bourne that the Broadcasting Services Amendment (Digital Television and Datacasting) Bill 2000 is very complex.

I think people with a background in engineering or communications might be a bit more au fait with it.

But tonight I want to speak about the fact that with this bill we have a chance to deliver an accessible, affordable and highly appealing new entertainment and information service that would be accessible to every home in Australia.

In my speech I want to explore the government’s position and how it arrived at this legislation.

I also want to explain why, if the Democrats decide to jump in bed with Senator Alston, they will be suffocating emerging industries and robbing all Australians of the latest wave of the technological revolution that is being appreciated around the globe.

I also want to canvass the opposition’s proposed amendments and elaborate on how amending the legislation will provide a regulatory framework that is fair and equitable to all current and future broadcasters, producers and consumers.

Anybody who reads the government’s legislation could only come to the conclusion that the government is severely compromised when it comes to its dealings with the existing freetoair commercial broadcasters.

This government, led by the Prime Minister, and the Minister for Communications, Information Technology and the Arts, Senator Alston, has effectively given the freetoair commercial broadcasters everything they wanted when it has come to digital television and datacasting.

The legislation that we have before us today is evidence that the government’s motivation on this issue does not coincide with the broader public interest.

Instead, the government has chosen to pursue a narrow, big business agenda that delivers everything to the existing owners of freetoair broadcast licences and provides little for consumers or potential new broadcasters.

There is no other way you can interpret this legislation, particularly when you consider the consequences of its allocation of digital spectrum, the protection of freetoair commercial broadcasters from competition and its attempt at stifling datacasting industries.

Looking at digital television first, the government announced in December last year that after digital broadcasting commenced on 1 January 2001 it would be mandatory for freetoair stations to broadcast analog transmissions as well as standard and high digital definition signals for seven years, at which time analog transmissions would cease.

The government claimed that such triplecast arrangements would provide a launching pad for the takeup of digital television in Australia.

Further, it would enable consumers to gain an appreciation for digital television and the technologies and services they may wish to use before analog broadcasts were phased out.

Since this announcement was made, there has been a range of criticisms levelled at the government from numerous industry sources.

Their complaints have, on the whole, been founded on the government’s inconsistent approach to competition for the industry and preparedness to mandate HDTV without question beyond the foreseeable future.

In terms of competition, it has been said that the government effectively granted the freetoairs the entire available spectrum until 2007.

By making it a legislative requirement to broadcast in the three bands, there is now no space available on the broadcast spectrum for any new players to enter the market.

What is even more puzzling is that the government decided to provide the digital spectrum for free.

It seems quite bizarre that in this year’s budget the government announced that it would reap several billion dollars from the auction of the latest mobile phone spectrum but when it comes to the television spectrum it decides to give it away for free.

In other words, no other media company, no matter how well financed or stocked with quality programs, will be able to get access to the broadcasting spectrum until 2007.

When that date does arrive, they will be forced to enter an auction and bid for space on the digital spectrum against other broadcasters who have already created their niche markets.

These allowances for the existing freetoair stations go well beyond the parliament’s approach to the issue that was laid out in previous years and gave sufficient encouragement and support to all existing and potential industry participants.

These decisions have laid the platform for the excessive protection of freetoairs from any competition for the best part of a decade.

It has secured their oligarchy over the broadcasting of programs to the Australian public and secured their advertising revenue for seven years.

It is no secret that many media companies have expressed an interest in obtaining a licence so that they would be able to commence freetoair broadcasting in Australia.

Many public commentators would argue that, in the interest of diversity and competition, any company which can demonstrate it has the requisite capital and programming expertise should be allowed to broadcast in Australia in accordance with reasonable legislative requirements.

The decision to protect the freetoair stations from any form of competition stands in complete contrast to the government’s mantra on competition.

This government has consumed itself on procompetition jargon, but there is no consistency in its policies when it comes to digital television, datacasting and the freetoair commercial television stations.

It is simply inexplicable that the government seeks to impose competition on battling dairy farmers but then wants to protect billion dollar media moguls from competition.

The Labor Party believes that this approach to the provision of spectrum is untenable.

It believes that criticism of the government that has come from the television industry is well founded and that the proposed arrangements for mandating HDTV are questionable.

As such, the Labor Party will be supporting moves to require an early review of this situation to determine whether it is viable for the continued mandating of HDTV broadcasting.

It will also be moving amendments to increase the power of the Australian Broadcasting Authority to rationalise and clear spectrum for use by other service providers.

The Minister’s sop to the commercial freetoair television stations on these matters does not end with digital television.

In his announcement last year, the minister also stated that the government would allow freetoair broadcasters to datacast on the portion of their allocated digital spectrum that was not required for their standard or high definition digital broadcasts.

At face value this may appear a legitimate use of the digital spectrum, but when it is considered that freetoair broadcasters are to receive free spectrum allocations and that no additional broadcast licences will be allocated for several years, analysts will realise that the decision was again taken for the sole benefit of the commercial freetoair broadcasters.

The point to be made here is that, by being allowed to datacast, companies who have freetoair broadcast licences will also be able to datacast electronic forms of newspapers.

But by virtue of the restrictive definitions of datacasting, which I will elaborate on in a moment, and the moratorium on broadcast licences, newspaper companies will not be allowed to enter the broadcasting market.

This ruling by the government will obviously support those media companies that now have freetoair broadcasting licences and will soon be able to move into the domain of electronic newspapers.

It will certainly be interesting to see over coming years what the effect of this government decision will be on their share prices and profitability.

In his statement of late last year, the minister also announced that the government would be taking a genre approach to defining datacasting.

This would mean that the staple items of freetoair broadcasting, such as news and current affairs, drama, comedy and other forms of entertainment, would remain within the almost exclusive domain of freetoair stations.

The only type of programming that could be provided on datacasting would be small extracts of the abovementioned programs and information and educational services that would be available by selecting from the datacaster’s link.

At the Senate committee’s public hearing on this bill, members of the committee read in the submissions, and heard from numerous witnesses, that this approach to datacasting was overtly restrictive.

It was advised that much of the potential of the Australian film and television industry would not be realised if this definition was not relaxed.

You could well say in a dramatic sense that, if the government’s approach was implemented, datacasting in Australia could well be killed off before it was born.

The Labor Party is not of the opinion that datacasting should be a means of delivering backdoor broadcasting services, but it does believe that, for the benefit of the local film and television industry, and for other reasons, the government’s genre definition of datacasting is too restrictive.

As such, the Labor Party will be moving amendments that, if agreed to by the Senate, will provide substantially more opportunities for local producers and significantly enhance services to consumers.

The opposition will be proposing a framework for datacasting that consists of a general definition of datacasting services that are based on the attributes of datacasting and broadcasting, not on a program or content based distinction.

In other words, the opposition’s approach to defining datacasting will differ from the government’s genre approach in that it will be based on criteria that will require datacasting to be noncontemporaneous, nonlinear and interactive and will require frequent user defined choices and frequent use of static graphic interfaces.

The opposition believes that this definition of datacasting will provide greater opportunities to potential datacasters but will not facilitate the delivery of backdoor broadcasting.

It will also allow for the provision of a much wider range of services to consumers that will not be possible under the government’s current definition.

The government’s preparedness to bend over backwards to freetoair commercial broadcasters has also led to a curtailing of the contribution the national broadcasters—the ABC and SBS—can make to the digital television industry and, as such, the broader Australian community.

The ABC has been leading the way in the development of digital television in Australia.

It has been feverishly researching and experimenting away in its studios around the country, spending its minimal research dollars on endeavouring to find the best possible delivery of digital television services to Australians.

Perhaps its most important discovery to date has been its development of technology that would enable the ABC to multichannel, that is, simultaneously broadcast more than one program at any given time.

Given that the charters of the ABC and SBS require them to provide programming that is diverse and of high value and quality to the Australian community, the opposition believes it is in the best public interest that the national broadcasters be able to multichannel.

As such, the Labor Party will be moving amendments to allow the national broadcasters to multichannel.

The government’s approach to enhanced programming as outlined in this bill is also overtly restrictive and departs considerably from the more appropriate intentions of the government that were outlined in Senate Alston’s statement of December last year.

The bill in its current form appears to indicate that enhanced services would include multibroadcasts of distinct substance and, as such, would be a means of providing de facto multichannelling.

This goes beyond the minister’s indication of last year that the enhanced services would only be permissible if there was a direct link between the enhancement and the main program material.

In this instance the Labor Party is of the opinion that the legislation should more closely reflect the minister’s original position on enhanced programming.

The only extension to this principle should be the allowance of overlap broadcasting in the event that one program coincides with the scheduled start time of a news bulletin.

The captioning requirement for digital television that is contained in this legislation is certainly welcome, even though the full implementation date is some way off.

I note with thanks the representations I have received as recently as this week from Mr Nicholas Tayeh, a captioning campaign organiser from Wentworthville in New South Wales, and His Grace Bishop Kevin Manning from the Diocese of Parramatta in Sydney.

They have certainly brought home to me the importance of captioning to the hearing impaired amongst our community and the need for them to have access to the services that we take for granted every day.

It would certainly be preferable for this date to be brought forward.

However, it does need to be brought to mind that captioning does impart a disproportionate burden on rural and regional television stations.

Perhaps it may be possible for one of the reviews of the digital television industry in the near future to look at the issue with a view to bringing the compulsory captioning requirements forward.

The end result of the government’s acquiescence to the freetoair networks is that if the legislation is passed unamended all consumers will be financially punished and deprived of the entertainment and information services that are now readily available in Europe, North America and many other parts of the world.

The mandating of high definition television will mean that if consumers want to watch digital television in the highest quality provided by broadcasters they will have to pay $15,000 to $20,000 for a digital television set.

It is ridiculous that a consumer should even consider having to pay this much for a television set, but that is the option that is being supported by the government.

However, by mandating the compulsory broadcast of HDTV by all digital television broadcasters, the government is generating a market at an exceedingly high premium price.

If this option was not available, medium price buyers would be spending their money on the cheaper SDTV and settop box and thus helping to drive the price of accessing digital television down for all consumers.

In conclusion, I would like to say that the secrecy that has surrounded the government’s arrival at this legislation is obviously not a process that is welcomed by the opposition.

On matters of extreme national importance any deliberations on policy directions should be as open and publicly accessible as possible.

That is why the opposition will be moving that all reviews of the digital and datacasting industries should be statutory and, as such, accountable to the parliament.

Only that way will the public be assured that this acquiescence to a particular element of the television industry will not occur again and that any policy decisions arrived at by the government of the day will be in the best interests of the public.

That concludes the comments that I have to make on this bill.

As I said at the start of my remarks, this bill provides an opportunity for the parliament to deliver an exciting and dynamic form of information and entertainment to Australia.

I regret to advise the chamber that, in its current bastardised form, this intent will not be achieved.

However, I am sure if the Democrats decide to support our amendments or if the government has a change of heart that leads to it holding the interests of the public above all other priorities, the framework for an accessible and efficient digital television and datacasting service will be put in place by the parliament this day.

Senator LUNDY (Australian Capital Territory) (6.27 p.m.)—Datacasting.

Its definition was always going to be the next watershed for the coalition’s digital television legislation.

It is a word that will, from now on, epitomise the sycophantic relationship between the coalition and the incumbent broadcasters in Australia.

After all, this bill, the Broadcasting Services Amendment (Digital Television and Datacasting) Bill 2000, was constructed with the aim of protecting the interests of incumbent broadcasters.

Once all the rhetoric has been stripped away this bill is little more than an elaborate barrier to entry for potential new digital content producers.

I would like to look at the evidence of this.

This bill is the second tranche of legislation designed to put the datacasting flesh on the spectrum bones of a flawed piece of legislation passed back in 1998 for which the espoused vision—and that vision is supported by Labor—is very distant from the model we have before us in this chamber.

The digital television act was passed with some amendments forced upon the government by Labor when we very quickly came to understand the deep implications of the collaboration between the freetoair broadcasters and the government.

The original sin lay in the presentation of this massive spectrum deal which saw freetoairs handed a gift of seven megahertz of digital spectrum.

This was presented as a means to encourage the ubiquitous takeup of HDTV by Australians by enabling the broadcasters to upgrade their technology.

This, we were told, was a good thing.

A good thing according to whom? The proponents of the deal, of course—the Federation of Australian Commercial Broadcasters.

Labor’s early interest in this proposal soon became jaded as it became clear that the assumptions that the coalition had relied upon to justify the deal were false and, in some cases, completely indefensible.

For example, the merits of high definition television were quickly challenged.

Other jurisdictions which had attempted to legislate the mandatory introduction of new technology like HDTV had failed.

The consumer interest was not only not there but demonstrably absent.

High definition TV sets cost a lot of money.

Who would be able to buy one, even if anyone wanted to? By the time the issue of standard definition digital TV was circulating it was patently clear to those with even just a casual interest in media policy that the fix was on.

This legislation had been constructed with one primary purpose in mind, and one only: to create a barrier for potential competitors to prevent them entering into competition with the incumbent media interests in existing and future digital content markets.

The freetoairs got what they wanted: they secured their subsidy for digital conversion in the free spectrum and got enough of it so there would not be much left for anybody else.

But this spectrum lockup was only the first element in creating a barrier to entry for potential competitors.

Destroying the viability of independent datacasting offerings was the second element.

This barrier has been built by the coalition by pursuing a datacasting definition so tight that creating a viable business model became really difficult for new entrants.

I almost forgot: another potential competitor is the ABC.

It is as though the freetoairs had to think long and hard about dealing with them.

The ABC and SBS were already in the market, so a barrier was no good.

The alternative was to pretend the ABC’s potential ability to compete was an unfair advantage—a spurious argument with which Minister Alston concurred; hence the ability for public broadcasters to multichannel has now been removed from the government bill.

This was a bit of a moot point anyway, as the ABC have been consistently attacked by the coalition, and their ability to serve the content demands of a meaningful multichannel service required resources in the form of funding, which was not likely to be forthcoming from a coalition budget.

Even so, it would be no good for the freetoairs for the ABC or SBS to excel and push the quality bar up another notch.

So a bit of a management reshuffle was called for, leading to significant restructuring and loss of expertise from within the organisation—all executed efficiently by Senator Alston and his mates on the ABC board.

All of these points demonstrate that this bill is little more than an elaborate barrier to entry for potential new digital content producers.

What are the citizens of Australia, as consumers of the media, going to miss out on if the coalition get their way and the Labor amendments fail? Who is being locked out? Who is being barred from entering this market space? Why is it so important? These are all critical questions that need to be answered.

They are questions the coalition have deliberately ignored.

To even attempt to answer them would expose their disregard for the public interest with respect to media policy, cultural policy and industry policy, just to name a few.

The public policy motivation behind crossmedia laws is to promote quality diverse content.

Because the digital TV legislation and datacasting bill creates barriers to entry for potential new entrants, by definition this bill is in conflict with the public policy aspiration that underpins existing media laws.

Concern expressed by the various incumbent interests that a further concentration of media ownership would result from an open definition of datacasting rings hollow, especially when no party, including the government, has gone so far as to suggest that datacasting itself take a place in the matrix of crossmedia restrictions.

Regardless of the merit of this proposition, this is further evidence that public policy motivations behind the coalition bill have little to do with what is best for Australia.

The coalition is seen to be merely dancing to the tune whistled by the freetoairs.

The cultural implications are significant too.

The ability for Australia to produce homegrown digital content is critical to how we reflect upon ourselves as a society.

For the same reasons there is merit in maintaining certain percentages of Australian produced content in the traditional media, it is critical that we enhance our ability as a nation to produce quality content.

In fact, the policy imperative to create an industry environment conducive to producing the best digital content we can is even stronger than for the traditional media.

Why? Because we cannot legislate minimum Australian quotas on the Internet.

We cannot do that any more than we can legislate to restrict content or censor content on the Internet.

With datacasting services deliverable across the Internet and Internet content producers holding strong aspirations to be datacasters across spectrum, the innovators and entrepreneurs who will drive the production of Australian digital content are watching their future unravel as this debate proceeds.

Will there be a future in Australia for them? Will there be opportunities worthy of investment? Only if we develop the alternative framework that Labor is suggesting through our amendments.

Only if we reject the government’s model for datacasting.

This bill restricts the opportunity for the growth of quality diverse content in Australia.

The Internet Industry Association has stated that they have grave concerns that the coalition policy of artificially constraining datacasting by narrowing the range of content datacasters can deliver will undermine the business case for investment in both content development and delivery by potential competitors to freetoair broadcasters.

The IIA is correct in its assessment that this bill will suffocate the nascent industry in digital content production and delivery over spectrum.

With Australia already demonstrating a high level of expertise in digital content production, the opportunity exists to continue to develop this critical industry sector.

Recently, however, it was estimated by Morgan and Banks that Australia was losing about 1,000 people per month in the IT&T sector alone.

I cannot help but wonder how many more of our innovators, enthusiasts and experts aspiring for a career in digital content industries will turn their backs on Australia in disgust at this latest attempt by the coalition to cut their dreams to shreds.

In the midst of this damning reality we continue to hear empty rhetoric emanating from Minister Alston, who espouses the virtues of investment in information and communication technologies.

We see a coalition happy to launch, amidst often great fanfare, their Building IT Strengths program, much of which has been geared towards encouraging the very entrepreneurs that are positioned to grow their businesses around digital or Internet content.

It is these innovators who will see their futures limited by the passage of this bill.

There is no consistency from this government.

There is no understanding of the digital economy, the information society.

The coalition— with their minister for IT at the helm of this sinking ship, this backward looking vehicle that they have— are taking Australia backwards.

It is interesting to have watched the conduct of Fairfax throughout this debate, too.

Early dissidents, over time they have come to see themselves as having their own incumbent interests and have changed their conduct from time to time.

Their recent withdrawal from the datacasting trials tells me that they have been too clever by half.

Fairfax appeared to have the strongest business case and they were intending to invest in a comprehensive datacast offering.

Why did they go silent in the midst of the debate? If there was some sort of deal or promise it must are been reneged upon.

Whatever the motivation, the chief executive, Fred Hilmer, has chosen to cite the reason now as follows: The bill as it stands today will not permit us to proceed with a viable datacasting service on a commercial basis.

With OzEmail having pulled out a while ago, Telstra announcing their withdrawal at the eleventh hour and News Ltd not even looking interested, a very clear message is being sent to the coalition.

As if this was not enough of a debacle, there was another major shock to the industry to come.

In his second reading speech the minister implied that there was a possibility that Internet services, such as streamed video, would be defined as a broadcasting service under the law.

The mechanism to determine this, so the minister said, is a review over the next 12 months by the ABA.

What concerns me is that the minister has form on this, as does the ABA.

The industry is absolutely correct in slamming the concept of this proposal.

It reeks of yet another barrier to entry being built—only this time why just bury the local opposition, why not take on the world? Internet content—if it is a streamed content—regardless of whether it is delivered across a PC or through a settop box to a TV, will be assessed as to whether it is subject to the provisions of the Broadcasting Services Act.

It is as though someone showed someone else higher up in a media organisation a video downloaded from the web over some fat piece of pipe.

I can see it now: they said, ‘We cannot have that.

It could be more interesting than Who Wants to be a Millionaire.

Let’s kill it.

What options are available? ’ This is of course utterly ludicrous, but so was censoring the Internet.

As I said, the ABA has form on this, under the instruction of the coalition.

If this were to proceed—and I am not surprised that the industry is concerned, given the way that the minister has conducted himself on matters relating to Internet content in the past—Australia will once again be seen as the Luddite in a changing world.

Already this country is perceived as the global village idiot as a result of ignorant attempts by the coalition to censor a global medium: the Internet.

Surely there is one person in the coalition prepared to stand up and acknowledge how damaging it is to even imply that the Australian government would consider defining streamed Internet content as a broadcast service for the purposes of applying regulatory restrictions— surely there is at least one person.

The network’s aim is set firmly on making sure that the only digital content to reach Australian homes is their content.

Is Australia to be the only nation whose Internet experience is the corralled content prepared by Channel 9? Are we to be a nation where the Internet is subject to content restriction by virtue of the dumb terminal approach? Is the Internet experience of the future to be governed by the few to the detriment of the many? As we already suffer an appalling reputation, as I said, for many this bill would be seen as the last straw.

One other point: the blatancy of the government’s collaboration with the incumbent interests was demonstrated, I believe, unequivocally in a change that appeared only in the latest draft of the bill before us today.

The expansion of the enhancements that the freetoair broadcasters are allowed to offer was the final twist that showed greed was truly behind those incumbent interests, interests that were not just satisfied with creating barriers to entry but, having succeeded in closing them through this bill, sought to open a few more of their own doors.

It is almost as though the incumbent broadcasters realised just in time that they had been so successful—if this bill is successful—in their collaboration with the coalition to restrict the definition of ‘datacasting’ that they were left with little opportunity to make something of the new digital service offerings themselves.

Indeed they are suggesting now that they could actually boost their program appeal through the enhanced services and hopefully up their ratings, improve their profits and gain all the other benefits that go with having market domination.

I cannot help reflecting, however, how different this debate would be if the media incumbents had just a little vision.

What if they had determined years ago, as converging technologies leapt ahead in their development, that it was in their best interest to build a business case for their entry into the converging digital world? The presence of traditional media corporations leading with their technological aspirations would have meant that market pressures could indeed have been the factors to push up the standard and quality of diverse content in Australia.

I know there are some who hold such a vision and I also know that most of those people have been marginalised in this debate.

In other markets, media companies are fighting to be involved in digital delivery, not just across the Internet but across the range of devices available now and available soon in the marketplace.

Whereas other jurisdictions are experiencing intense competition as traditional media grasp the significance of digital convergence and reengineer their businesses accordingly, the local incumbents put their binoculars down, lean back in their chairs, whistle the minister over and say, ‘Can you fix it for me, mate?’ The responsibility for the damage inflicted upon Australia lies with the coalition government.

The winners are those who already have wealth, power and influence and the losers are just about everybody else.

The citizens of Australia expect more than they are getting from a coalition government that is prepared to trade on culture, dignity and fairness—and for what? Who knows? Unfortunately I think we will all know soon enough.

I would like to close with some comments about standards.

Among many other amendments that you have heard articulated by my colleagues tonight where Labor will be moving to try and rectify some of the damage that this bill in its current form will wreak upon Australia’s future opportunities, Labor will also be moving an amendment to make the regulation of the settop box standards a disallowable instrument to allow a level of parliamentary scrutiny.

This will be necessary because there lies in the determination of this standard another potential barrier to entry that could prevent new entrants to the digital content market.

The legislative determination of technologies is always treacherous ground, and the stakes will be high.

Just as my colleagues have foreshadowed, the next part of the debate will no doubt be the next level or the next watershed in the sorry saga of this legislation.

And what about the demand for HDTV that I referred to earlier? The recent Senate committee heard acknowledged, in an astounding admission from the freetoair representative, Mr Brannigan, how flimsy the case for high definition television was.

He acknowledged that it may take a long time for high definition television to catch on in Australia.

With the US situation showing less than 10,000 high definition television sets having been purchased since their introduction a year ago, the signs are all bad.

For consumers, it is not just a question of finding an estimated $12,000 or, as we have heard tonight, perhaps up to $15,000 or $20,000 to purchase the set, but also what incentive there will be to purchase such a set.

Mr Brannigan stated that five years was a likely time frame for HDTV to catch on.

This means that, even if you did buy one of these expensive sets, you would not have much content produced in high definition format in order to reap the full benefit anyway.

The inclusion of standard definition TV gives an out to the freetoairs from having to invest in the early production of high definition product.

Whilst giving some flexibility to consumers, in the wake of Mr Brannigan's comments, SDTV is as good as it is likely to get.

The only reasonable interpretation is that even Mr Brannigan is finding it difficult to conceal the agenda behind this bill.

It is, as I have contended throughout my contribution this evening, about creating barriers to entry.

The UK have discovered the hard way that consumers want multichannelling and have little interest in high definition TV.

This is consistent with the pattern emerging in the US.

For example, recently a Chicago based network announced it was abandoning HDTV in favour of multichannelling.

With the lessons of others in mind, it is my call that Australia will not see HDTV as a meaningful or affordable service available to consumers.

Instead, we will see the freetoairs attempt to blame consumers for failing to demand the service and collapsing their business case for HDTV.

Wouldn’t that be a big surprise—not! This will give rise to a call from the freetoairs to the government of the day to allow multichannelling so that their massive investment, both public and private, in digital conversion was not all in vain.

I often wonder if the coalition ministers were just dense.

I wonder whether they were so out of touch and so ignorant of the implications of the future of digital content production in Australia that it did not cross their minds that they might be killing off one of our greatest global export offerings.

Worse still, and sadly, this is probably the level of analysis: that is, the cabinet saw not an opportunity for global expansion and hope and decent aspiration but the opportunity for a friendly beer with Kerry—not to mention many a good news story—and they just went for it.

Senator COONEY (Victoria) (6.47 p.m.)—I want to add to what has been so brilliantly said by Senator Lundy.

I heard previously Senator Bishop introducing this address and setting out the great issues that are involved in the Broadcasting Services Amendment (Digital Television and Datacasting) Bill 2000, and they are great issues—including the issue of freedom of speech and of there being an ability, for everybody who wants to, to express himself or herself.

The bill is seen as the result of a struggle between the great media people of this land; and, to a large extent, that may be so.

But, just as every small person should be entitled, if he or she wants to, to express himself or herself, so should the media corporations be; and one media corporation should not be given an advantage over another.

It is just as much a denial of free speech for the great to be denied a say as it is for somebody not so grand to be denied a say.

The idea of freedom of expression, which is tied up with freedom of the press, which is tied up with freedom of the media, has been a great theme that has resounded through the decades.

In that context, I want to talk about a great friend of mine who is not so well these days: Vic Little, who used to be a member of the Printing and Kindred Industries Union and is now part of the AMWU.

Debate adjourned.

June 22, 2000

Debate resumed from 21 June, on motion by Senator Ian Macdonald: That these bills be now read a second time.

Senator COONEY (Victoria) (10.06 a.m.)—I was talking last night about the effect that this legislation will have upon the ability of various people to communicate the message that they want to communicate to the outside world.

I was pointing out that, while this legislation may be seen as giving advantage to one giant in a battle of two, nevertheless an issue of liberty remains, the right to express oneself as he or she would want.

I was talking about the development of technology and the part that the Printing and Kindred Industries Union played in the history of media and print, in particular, in Australia.

I mentioned the part that Mr Vic Little played in this area.

He has been a very outstanding contributor to the community.

He and his wife, Vida Little, are getting on in years now, and, unfortunately, Vic is a little unwell.

He epitomises the ability that people have, if they try, to express themselves and to get matters up and going.

The part he played in the Printing and Kindred Industries Union was great.

He still publishes.

He perhaps epitomises what we used to believe to be freedom of the press— that is, people using small presses to publish what they want.

That has passed.

He still gets his material together for May Day marches and other things as well.

The Printing and Kindred Industries Union is very interesting.

They do not have branches, they have chapels.

‘Chapel’ gives the right impression in these circumstances.

Publishing and the setting out of ideas has more than just a material quality about it.

True enough, this bill deals with people who may get lots of money.

That is the economic dimension of the bill.

The bill also deals with that matter of the heart and soul, the freedom of expression.

That is well summed up in the title that the PKIU uses for its branches— that is, chapels.

When the Printing and Kindred Industries Union became part of the Australian Manufacturing Workers Union, the then secretary allowed that union to keep the name ‘chapel’.

The secretary then was Mr George Campbell, now Senator George Campbell.

We may think of Senator Campbell as a tough, intellectual leader of working men and women, but, in addition, he has a heart of gold and a sense of tradition.

Senator Hutchins interjecting— Senator COONEY—Senator Hutchins was similarly equipped with a heart when he so nobly led the Transport Workers Union.

He would know that Senator Campbell allowed them to keep this title which expresses the spiritual quality that is contained in those connected with publishing and, in this case, in the PKIU.

It has some great members and exmembers such as Kevin Davis, Ernie Jackson and Brian Smiddy.

Senator Collins would know them.

They have contributed mightily to the Victorian community not only in terms of the conditions and wages they were able to achieve for their members but also in terms of matters of the heart and soul.

It is interesting to look at publishing.

In 1455, Johannes Gutenberg got the first press going.

The first book he published was the Bible.

We know of the Gutenberg Bible.

Senator McGauran would know of the Bible.

I do not know whether he knows of the Gutenberg Bible, but he would certainly know of the Bible.

To a certain extent, I think that reflects the idea of publishing.

It was a great leap forward.

Great ideas could be sent or broadcast, to use modern parlance, abroad.

That broadcasting was a freeing quality.

It allowed people to think and read on wider plains.

It is very interesting to note what happened after the Gutenberg press came into being and its use spread throughout Europe and England.

Mr Deputy President Hogg, you will remember that we learnt about Caxton at school—or at least I did in my time; perhaps history was not part of your curriculum because you are some years younger than me.

Caxton brought the press to England.

When this new technology developed, the government reacted and brought in laws to restrict the use of the press.

They said, ‘Even though this new technology has been developed, we have to restrict it.’ They seem to have restricted it for two reasons, which I spoke about earlier.

The matters of the heart, as I call them, had to be restricted.

In other words, there was censorship so that people could not read what they would otherwise be able to read.

People were frightened of new ideas so they restricted its use.

It was also restricted to ensure that one lot of people got the economic benefit of the press while others did not.

So you had monopolies set up under the Tudors.

They said that only certain people should have the benefit of the press.

So under regulations which were established by the Star Chamber in Queen Mary’s reign, printing was restricted to people who were members of the Stationers’ Company.

That sort of thing led to this fight—or ‘struggle’ might be a better word to use—for freedom of the press.

There is a book I often read which has a fairly grand title of English Constitutional History: From the Teutonic Conquest to the Present Time, written by a man with a fairly grand name of Thomas Pitt TaswellLangmead.

The ‘present time’ he was talking about was the start of the last century.

He had this to say, and I think it is worth reading in this context: Of the political privileges of the people acquired or enlarged since the Revolution— and he is talking of the revolution led by Oliver Cromwell— we have still to consider the liberty of the Press—“the guardian and guide of all other liberties”—and the last to be recognised by the State.

So the liberty of the press was the last to be accepted by the state.

He goes on to talk about the various acts and laws which were passed to suppress the press.

It is the sort of thing where when everybody is feeling in the mood and wants to stand up for rights and liberties they talk about the freedom of the press.

It was not until quite late into the 19th century that freedom of the press had got to the point we would find acceptable.

It is interesting that the last area to be freed up was the reporting of parliamentary debates.

That has an interesting history.

Now of course we have freedom of the press.

We have people in parliament reporting—reporting very well at times and not so well other times.

There are some great figures we can all think about who presently report here—people like Alan Ramsay, whose daughter, Tosca, has every reason to be proud of her father and her mother, Laura Tingle.

It is just nice to see that we have some good people doing good things here.

Senator Hutchins—Do you see what he writes about the New South Wales right wing Labor politicians? Senator COONEY—Senator Hutchins has just interjected and asked whether I have seen what he writes about the right wing Labor politicians in New South Wales.

I note that it is very well led by Senator Hutchins.

Senator George Campbell—He doesn’t discriminate.

He writes some rough stuff about the Left too.

Senator COONEY—Just to balance it up, I will refer to Senator George Campbell’s comment.

He said that he writes some pretty rough stuff about the Left as well.

I might return to the subject of the bill.

In any event, this issue has come a long way since the press that Johannes Gutenberg got going.

I think the principle is the same.

The questions that we face here, and which have been asked by those who have given speeches before me, are the same.

What do you do with new technology? Who is going to benefit from it in terms of who is going to be able to have access to what is published by the new technology and who is going to be able to use the new technology? Choices have to be made.

But the present situation is like it was after the Gutenberg Press was established in Germany and after Caxton took it up in England.

It is the same in the sense that the law is going to come in and say that some people will get the benefit of this particular technology and other people will not.

Although it is very much an economic contest, it is not simply an economic contest.

It is also a contest of how we treat ideas and how wide ideas should be able to flow and who should put them forward and who should have control over them.

That is the situation here.

So the debate has flowed around the following questions: how can we hold the technology back? Can’t datacasting be used to distribute more news than is presently the situation? Why do we limit datacasting? If we are going to limit datacasting, to what degree should it be limited? Those are all fundamental questions that have been around since the printing press was invented.

We on this side of the chamber say that if this technology is here it should be used as widely as possible.

For me to say that you cannot hold back technology is to mouth a platitude that has been mouthed again and again before me, and it is a platitude because it is true.

You certainly have to have some regulations so that the material is put across properly.

You have to have some sort of censorship so that there is a limit on what can be put across.

They are questions that should be looked at in terms of what technology is available and in terms of ensuring that we do not hold back for whatever reasons— for economic reasons, moral reasons or ethical reasons—what we should not hold back.

That is the test and that is the balance that has to be struck.

The government has not achieved that balance in this case.

The amendments which are being put forward on this side will achieve that balance.

Debating this bill is like debating tax bills in some ways because we are talking about money and where it will go.

But this talk about how matters can be published and dispersed goes to the issue of our rights and of our dignity as human beings.

Publishing, writing and journalism all have an element that people always feel goes beyond the economic; often the duty they have towards the public is not discharged as well as it may be, but nevertheless it is there and I think they are noble professions.

We are talking here about how we are going to limit what could otherwise be expressed.

If we do that for simply economic reasons, I think we will be betraying our trust as an institution that has to look beyond the hip pocket and start to look towards the sky and the faraway hills.

Senator GEORGE CAMPBELL (New South Wales) (10.24 a.m.)—I thank my colleague Senator Cooney for those very kind words in his contribution.

The Broadcasting Services Amendment (Digital Television and Datacasting) Bill 2000 seeks to amend both the Broadcasting Services Act 1992 and the Radiocommunications Act 1992.

It is acknowledged that the former establishes the ownership conditions for broadcasting licences, while the latter regulates the usage of the spectrum, including the licensing of transmitting devices.

This bill is focused primarily on regulating digital television technology in an environment where the scope of this technology is still relatively unknown, both here and overseas.

The question needs to be asked, ‘Why is the government in such a rush to push this bill through?’ The length of the Senate inquiry, which was meant to enable interested parties to voice their opinion on the bill, was limited, and therefore it did not allow adequate preparation time for parties to assemble detailed responses to this bill.

The Labor Party recognises the complexity of the Australian broadcasting system.

I am particularly concerned to ensure the continuing special role of the two public broadcasters: the Australian Broadcasting Corporation, better known as the ABC, and the Special Broadcasting Service, better known as SBS.

The role of these public entities needs to be enhanced, with particular reference to maintaining their independence, along with a sustainable funding structure that allows the ABC and SBS to operate effectively in a rapidly changing technological environment.

There are three main tenets to this bill: datacasting, multichannelling and the use of enhanced services.

This bill has many deficiencies, specifically the overly restrictive content based definition of datacasting, as well as the requirement for the ABC and SBS to pay a datacasting licence fee.

The restrictions on the ABC and SBS to multichannel will also have a specific impact on rural and regional Australia, which currently have only limited access to the analog network anyway.

This bill will only serve to impede the emerging digital industry in Australia.

The provision of datacasting within this technology has the means to be one of the most popular aspects of the new digital environment.

However, the definition as it stands is far too restrictive, particularly as it is content based.

The definition as it stands will stifle this emergent industry.

The Productivity Commission in its recent report on broadcasting noted that the government’s policy relating to datacasting stifles competition and innovation and is at odds with major tenets of mainstream broadcasting policy.

The entry of datacasters into Australia’s media landscape not only can lead to greater diversity within Australia’s media industry but can bring major benefits to the economy more broadly.

This proposed bill will stifle the emergent industry through unwarranted regulation.

The impact of this bill will be negative if emergent players are restricted in adequately pursuing technological advancement, and any consequent improvements in customer service, employment and economic opportunities for the industry will be limited.

These would be available and accessible if this bill was adequately altered to take into account the role that the emergent digital industry could fulfil in Australia’s media landscape and the wider economy.

Consider what some of these potential datacasters had to say about the unwarranted restrictions placed on them through definitional constraints and access to the types of programs that have been allowed under this bill.

Optus gave evidence to the committee, stating that they would be unable to transmit a full variety of programming if the legislation stayed in its current form.

Telstra—and I quote from the committee’s report: ...

have maintained that datacasting should be defined as broadly as possible because it is a new industry that we are trying to create ...

we need a definition that helps the industry emerge ...

I see no reason for it to be as constrained as it is.

News Limited said: The bill expands what freetoair operators can do with their spectrum, and severely limits what datacasters can do.

Therefore putting freetoair operators beyond competition.

And, lastly, Fairfax, in respect of the restrictions on datacasting of educational programs, said: A program which may be educational in relation to interests of rural communities or interests of particular sections of city communities will not be available on datacasting, for no particular reason.

While one of our main concerns is the accessibility of the national broadcasters to this technology, it is alarming to see that, as recently as last weekend, the Australian Financial Review saying: ...

all the potential new entrants into digital broadcasting— including John Fairfax, News Corporation and Telstra— simultaneously withdrew from proposed trials of “datacasting”.

What is the point of promoting the technology if the government intends to stifle its use or concentrate access in the hands of a powerful few? This is one occasion when a policy of ‘let a thousand flowers bloom’ is the best protection for the community from the abuse of monopoly power.

Another issue that is of importance to datacasters and will limit their emergence is that the entertainment value of datacasting is likely to be constrained as it may be perceived to be commercially unattractive to potential datacasters.

This debate is not about TV but about the real potential with this technology to bring a wide range of services to the Australian community not currently available using parallel technologies.

The degree of technological specificity of the proposed bill will in effect prevent potential datacasters keeping up with advancements as they become available.

The complexity of the definition of datacasting and the use of a content based definition will promote complexity and uncertainty in this emergent industry.

These restrictions will stifle innovation and the technological opportunities for consumers alike.

The inherent restrictions in a content based definition specifically concerning educational programming will harm the provision of children’s programs.

The value these programs have to the community in general must be recognised.

And, finally, we also must question the distinction that has been made to news and current affairs programs, a distinction that is totally inappropriate.

This use of a content based definition needs to be amended to remove the artificial anomalies it brings to the provision of datacasting services.

On a recent Lateline program on 10 May 2000 industry leaders discussed this very issue with the minister.

As Paul Budde, a consultant in the field, said: Datacasting of digital television has very little to do with the old freetoair television.

But this government seems to believe that datacasters simply strive to be broadcasters and therefore restricts them unduly and is transferring old rules that simply do not apply in this environment.

The use of a content based definition rather than there being a distinction between datacasting and broadcasting is a contentious issue.

Noone has denied that these are different things.

The Labor Party proposes the definition of datacasting be distinguishable from broadcasting and be worded as broadcasting being the linear, passive, scheduled production of television programs on a repeatable or ongoing basis and datacasting by reference to it not being broadcasting.

Labor’s definition for datacasting stipulates that a datacasting service means a service, other than a broadcasting service, that delivers information, whether in the form of data, text, speech or images or in any other form, to persons having equipment appropriate for receiving that information where the delivery of the service uses the broadcasting bands.

The correct focus should be on the difference between broadcasting and datacasting.

This definition allows the Australian Broadcasting Association to distinguish clearly between a datacasting service and broadcasting service.

The distinction between datacasting and broadcasting is made on the technology and the service provided, not the content, and also remains technologically neutral.

There are commonalities between datacasting and broadcasting which have to be recognised.

However, the service provision is different, and that also has to be recognised in this bill.

The Labor Party fully supports the emergence and development of a datacasting industry.

Hence, we support an industry that in its beginning stages has the flexibility for new services to develop over time.

However, we also support the continued role of the national broadcasters.

Many people in rural and regional Australia benefit from the variety of programming.

The imposition of a licensing charge on the national broadcasters would be an illogical move.

For example, if the government funded broadcasters have to pay this fee back to the government, then their funding will have to be increased to compensate them accordingly.

If their funding is not increased to compensate payment of the fee then this is tantamount to a further reduction in the funding requirements of the national broadcasters.

It is illogical that the ABC and SBS be charged a datacasting licensing fee.

Multichannelling by the national broadcasters is another feature of digital television that will be invaluable.

The reasons this is such an important feature of this new technology are that it will allow the national broadcasters to become more cost effective in their programming and will provide a greater regional focus along with a greater multicultural focus of programming.

The national broadcasters—the ABC and SBS—are in a special position to encourage the takeup of this technology; therefore, to hold them back is tantamount to setting up this technology to fail in Australia.

The ABC and SBS have already stated that to allow them to multichannel will allow them to fulfil their charters better and more comprehensively.

This is not about the ABC and SBS extending their charters and competing with the commercial broadcasters; it is about the government recognising the inherently special role that the national broadcasters play.

It is about ensuring that regional and rural Australia are properly catered for in the new environment.

The reality is that the national broadcasters primarily serve the regions, and it is the national broadcasters that will in effect provide the best service for the bush.

Therefore, it is socially and economically responsible for the national broadcasters to be given the ability to use this technology, especially datacasting and multichannelling, to fulfil their charters, particularly in regional areas.

The argument put forward by the Federation of Commercial Television Stations, FACTS, that to support the national broadcasters is tantamount to uncompetitive behaviour is an absurdity and should be refuted.

The national broadcasters in no way impact on the revenue earning potential of the commercial stations.

SBS occupies approximately one per cent of the advertising revenue, and obviously the ABC is not in that business at all.

So, what is the competition that the commercial stations are referring to? In fact, it is the reverse, as commercial operators seek to subsume the traditional markets of the public broadcasters.

The benefits to regional and rural Australia of continued support for the national broadcasters to multichannel within the constraints of their respective charters far outweighs any criticisms there may be.

It seems in respect to this bill there are many anomalies and overlaps that are not consistent with previous policy statements by the minister.

This is of particular concern in respect of enhanced program ming.

The problem is specifically when enhanced programming may in fact overlap as multichannelling.

The pay TV industry is concerned with this as they obviously do not want their industry to suffer undue competition from freetoair broadcasters, who have also benefited from a free loan of spectrum space to engage in these services.

Community broadcasters, represented by the Community Broadcasting Association of Australia, are also concerned, and rightly so, about the lack of provisions in their sector for digital transition.

Community broadcasters occupy a necessary and relevant space, and should be treated as such.

They are obviously not the same as the national broadcasters, yet should not have to face undue constraints on them.

There should be legislative certainty established by the minister, rather than this haphazard way of waiting and seeing, which seems to be the case with community broadcasters in this bill.

Captioning arrangements is another facet of this bill that is necessary for people who are hearing impaired.

I support the necessary improvements in captioning arrangements, particularly having led a union that had a lot of boilermakers in it—a lot of people who worked in very heavy industry, who were subjected to constant noise every day, day in, day out, over many years and many of whom suffer from hearing deficiencies in their latter years.

The provision of captioning arrangements allows those people to be able to access news, current affairs and other information as efficiently as do those who have not had to suffer that impact upon their hearing loss.

However, in comparison to the UK and the US these arrangements do not go far enough.

I recognise the difficulties for regional and rural broadcasters, but at the same time we cannot ignore the necessity for those who require captioning and the worth and benefit to them, and hence to the community.

Digital technology is a new technological advancement.

High definition is not being used in other parts of the world.

We have no benchmark to determine how successful this technology will be or how extensive its use.

Therefore, the restrictions that are being placed on the emergence of this industry in Australia are incomprehensible and could effectively destroy its ability to reach its full potential.

Our national broadcasters occupy a unique role in particularly rural and regional Australia and in some areas are one of two broadcasters and in others the sole broadcaster.

This technology has the potential to enable people in rural and regional Australia to access a diversity of information as yet unknown to them and should not be restricted as it will be if this bill goes ahead in its current format.

We cannot ignore the size of this country and the isolation that is often felt by people in regional Australia, so, again, it is incomprehensible that it is these people that will suffer from the shortsighted restrictions being put forward in these bills, especially in respect of the national broadcasters.

We have continuously heard in this chamber and in the other chamber the focus being put on the needs of people in regional and rural Australia, the needs of people in the bush, to get access to modern day communications, to have the same benefit of the communications environment that exists in the capital cities.

The way in which the government is treating the introduction of digital technology, is treating the restrictions in terms of data broadcasting, will simply further impede the capacity of this parliament and further impede the capacity of companies in the communications industry to be able to provide real and lasting benefits to people in rural and regional Australia in terms of allowing them to also get maximum benefit out of the new information environment within which we live.

It would be an absolute farce, another farce, to once again see the junior coalition partner—the socalled National Party of Australia; the people who purport to represent the people in the bush—go along with supporting this bill and, again, by doing so deny the opportunity for people in rural and regional Australia to have real access to real services, real technology, that would allow them to play a real part in the Australian economy and within the Australian community.

Senator LUDWIG (Queensland) (10.43 a.m.)— Before I go to the substantive matters that I wish to address in this debate on the Broadcasting Services Amendment (Digital Television and Datacasting) Bill 2000 this morning I also as an aside wish to give thanks for the contribution of Senator Campbell, who has coalesced some of my thoughts about the issue, particularly the issue about regional and rural Australia, when I recall my youth.

We stand here on a precipice of change, a change that will come about.

It will come inexorably about.

It will come about despite this government’s narrowmindedness about change and about how it embraces new technology and how it goes about trying to restrict what would otherwise be a very useful innovation.

In fact, when I look back, I can say that in my youth I have always been with television.

The debate is not about television as such; it is about new technologies.

I was born some time after television was introduced into this country in 1956, so I have always had it as background noise and as a medium to watch.

One of the times that I found myself unable to watch it was in rural and regional Australia, in Cunnamulla.

One of the profound things that occurred in my youth was that I ran into the living room, looking for the television, ‘the box’, and it was not there.

It was not there because, for a range of factors, technology had not been supported, pushed and delivered to regional and rural Australia.

So, for a while, there was no box.

When I was in Roma, the same thing occurred: colour television was upon us, and it was one of the earlier things my family purchased to ensure that we would have colour.

I recall watching test patterns in colour.

Youth are interested in changing technology.

The youth of today are interested not in Collins Street National Party people but in people who wish to embrace new technologies, look at change and embrace change.

If you recall the need for changing technologies, the youth of today will participate and expect these types of changes.

They will expect that the government of the day leads the way forward and allows new technologies to be embraced.

An article in the Sydney Morning Herald headed ‘TV’s big dollars in the balance’ says: The three big wouldbe datacasters, Telstra, John Fairfax and News Corp, last week attempted to place serious pressure on the Coalition, ALP and Democrats by pulling out of datacasting trials.

It is disappointing to find that datacasting as it stands is a matter that is being played with in a manner that might in fact throw it into the dustbin.

The article also says: The bottom line, however, is that Meg Lees is likely to find her position far closer to the Government’s than the Opposition’s.

The general belief is that she will be happy enough with amendments that allow the ABC and SBS to multichannel (broadcast more than one channel).

I turn also to the Sydney Morning Herald of Thursday, 22 June.

The headline reads, ‘Alston to push for digital TV solution’: The Communications Minister, Senator Alston, was prepared to talk with both parties, a spokesman said last night.

It seems to be that there is at least a wish to bring about a digital revolution, to bring about new technology and to bring it about in a manner that the youth and regional and remote Australia can access in a meaningful way and that it is not restricted or unduly affected by legislative enactments.

We also look at the development of technology.

The development of technology has not been impeded by government in any serious way.

I recall when computers were first about.

Having been through a generation which not only spans television but also the development of computers, my early exposure to computers themselves was about punch cards.

I was part time at the Queensland Institute of Technology, where computer science and technology was being taught through punch cards and a mini mainframe.

To do 4GL language, we had to use overheads, because the technology to bring that into a classroom had not been developed at that point.

It had not got to a point where we could then disseminate it and develop it.

Very quickly, the technologies came about.

Very quickly, the educational institutions picked up the technology and delivered it to students.

It took a lot longer to get out to regional and rural Queensland and regional Australia.

It took a lot longer, for a range of reasons, but those reasons should not include government’s restrictive enactments.

The technology should be able to be delivered in a timely and appropriate way.

Turning to the substantive elements of the matter, the purpose of the bill is to refine arrangements for the introduction of digital television and establish a system for the regulation of datacasting services.

The conversion to digital broadcasting requires amendments to the Broadcasting Services Act 1992 and the Radiocommunications Act 1992.

The former act sets out the ownership and programming conditions for broadcasting licences and is administered by the Australian Broadcasting Authority.

The latter act regulates the usage of the spectrum, including the licensing of transmitting apparatus, and is administered by the Australian Communications Authority.

Datacasting is defined in the Digital Conversion Act as a service, other than a broadcasting service, that delivers information to persons having equipment appropriate for receiving that information, where the delivery of the service uses the broadcasting service bands.

This definition of datacasting, as it stands, is overly restrictive and complicated and goes beyond restricting datacasting to services that do not constitute broadcasting.

Labor believes that, while datacasting cannot be de facto broadcasting, the definition should be amended to remove the artificial and unnecessary limitations on datacasting.

This restrictive definition has had a considerable impact on wouldbe datacasters.

According to the Internet Industry Association of Australia, the restrictive provisions in this bill are: the kiss of death for the development of a multibilliondollar datacasting industry in Australia.

They go on to say: A golden opportunity to have the entire Australian population online within three years was about to be thrown aside.

Similarly, Telstra has recently stated that it is: disappointed with the Datacasting Bill as it raises serious questions abut the viability of datacasting in Australia.

It is crucial that this emergent industry is not stifled in its development and innovative capacity by overly restrictive regulation and that the benefits for Australia’s technological advancement, improved consumer services and employment and economic opportunities should not be constrained.

For the same reasons, we also oppose the genre based content definition of datacasting and call upon the government to depart from that approach.

The current provisions prevent datacasters from providing content in genres regarded as the province of freetoair television.

The genre restrictions will also greatly restrict the viability of datacasting and are fundamentally anticompetitive.

The monthly newsletter on Australian telecommunications and media law cites a number of companies voicing their strong opposition to these provisions in the bill, with OzEmail arguing that it would not be financially viable to invest in developing a datacasting business within these constraints.

Labor, on the other hand, supports an approach that favours flexibility, minimises barriers to entry, and allows new services to develop over time.

The basis of the amendments we propose to put forward to achieve this are in the report on the Broadcasting Services Amendment (Digital Television and Datacasting) Bill 2000 of the Senate Environment, Communications, Information Technology and the Arts Legislation Committee.

The report provides an overview of both the bills in question, together with some very good background material on the new technology we are referring to today—datacasting, digital television and HDTV.

The report also contains a minority report from the Labor senators.

In the executive summary on page 64 there is an outline of matters that go to developing appropriate and proper digital and datacasting services in Australia, and a number of recommendations have been put forward in support of that.

Those recommendations provide, subject to the regulatory conditions of the existing broadcasting regulatory framework, a new definition of a datacasting service; namely, that a ‘datacasting service’ means a service—other than a broadcasting service—that delivers information, whether in the form of data, text, speech, images or in any other form, to persons having equipment appropriate for receiving that information, where the delivery of the service uses the broadcasting services bands.

Like the government’s framework, this proposed framework confirms the 1998 legislative position that datacasting services cannot be broadcasting services.

Similarly, the proposed framework provides that those matters allowed without constraint in the government’s bill remain unconstrained in the model effected by these proposals, for example, parliamentary broadcasts.

Unlike the government’s bill, which seeks to limit or restrain the creative and economic potential of what might be offered by potential datacasters, this framework considers both the physical attributes of emerging digital services and the intent of services provided, in order to make a distinction between broadcasting and datacasting services.

Labor believes the national broadcasters should have the ability to multichannel content consistent with the operation of their respective charters; broadcasters should be allowed to broadcast radio programs for datacasting purposes and should be exempted from payment of datacasting fees; regulatory arrangements pertaining to the ABC and SBS should be incorporated into their respective acts; the silly decision to impose datacasting fees on the national broadcasters should be reversed; they should be exempted from payment of those types of fees; and national broadcasters should be allowed to broadcast radio programs for datacasting purposes.

There is broad support for allowing the national broadcasters the ability to multichannel.

There is no valid justification for denying the national broadcasters the ability to multichannel, particularly when those arguments are balanced against the resultant benefits.

The ABC do not come into what you would call direct competition; unlike the commercial freeto air broadcasters, they do not have paid advertisements.

They do not come into direct competition with the subscription broadcasting industry or the pay TV industry, but they perform essential public and national interest good, particularly in rural and regional Australia—and should not be abandoned.

The government’s restrictions on the ABC and SBS being able to multichannel will do disproportionate harm to rural and regional Australia as those areas are deprived of what could be a flourishing new information service.

On the issue of regional Australia, Steve Lewis writes in today’s Australian Financial Review: Regional Government members of parliament have been warned the Coalition’s digital broadcasting reforms will reduce the amount of sport and other programs delivered to the bush by payTV operators.

The article goes on: Austar United, the regional payTV operator, also suggested that its $800 million proposed investment in regional Australia could be threatened if the government’s proposals were legislated.

The article quotes a letter to government regional members of parliament by the chief executive officer of Austar United, Mr John Porter: In his letter, Mr Porter expressed ‘concern at the Government’s latest proposed amendments to the digital television regime’.

The aspect that is of concern, and the theme I have developed today, is that regional and rural Australia will suffer as a consequence of this government’s bills.

Similarly, they will lose out with the problems that they face more generally, in addition to the direct issues of access to new technologies, digital television and datacasting services.

Labor senators acknowledge the legitimate concerns of the national broadcasters that the genre based content definition of datacasting might impinge on programming decisions that are properly the province of their boards.

However, the definition of datacasting in the bills gives occasion for this concern.

Specific provisions that might apply to datacasting by the ABC and SBS might more appropriately be contained within the Australian Broadcasting Corporation Act 1983 and the Special Broadcasting Service Act 1991.

The former Managing Director of the ABC recently commented that it was extraordinary that the government was preserving the status quo with a regulatory regime that was far too restrictive.

He stated that the ABC will be at a huge disadvantage with these bills, which have a severe effect on its ability to keep pace with the digital revolution.

The provisions offering enhanced services by freetoair broadcasters are substantively different from those previously proposed.

Labor believes that the government’s enhanced services framework, to more accurately reflect the framework announced in 1999, should contain matters, firstly, that the Senate committee addressed, which go to allowing overlap of broadcasts where an unexpected delay or extension in the time of one broadcast coincides with the scheduled broadcast of a news bulletin; secondly, that go towards maintaining enhanced service provision for freetoair broadcasters at the level described by the December 1999 announcements of this government; and, thirdly, that allow simultaneous transmission of content additional to the primary broadcast content, provided the additional content has a ‘direct and obvious’ link with the primary broadcast.

These bills contain a range of provisions that develop a framework for the regulation of digital television, and a range of deficiencies have been identified in the following areas, as stated in the Senate report: the datacasting regulatory regime, the rights of administrative appeal and the regulation of technical standards.

It is believed that a range of proposals to assist with the regulatory framework and to develop more appropriate regulatory conditions are necessary.

Those that go to the ABA’s power to rationalise and clear spectrum for datacasting should be enhanced.

In addition, a ‘use it or lose it’ provision for datacasting transmission licences should be incorporated into the datacasting framework, and the calculation of a commercial television licence holder’s datacasting fee should be subject to parliamentary disallowance.

Lastly, review of datacasting transmission licences should include competitive and regulatory arrangements and ‘revenue to the Commonwealth’ provisions.

Turning to the regulatory issues, Labor believes that the bills deny interested parties the ability to access stay powers or seek injunctive relief in relation to the ABA.

In summary, it is not about datacasting being backdoor or de facto broadcasting.

The government’s model is simply not sensible.

Datacasters will not be broadcasters.

Labor has relied on an attributes basis to distinguish them rather than a contents basis, which is the model of the government.

Labor’ approach underpins our objective for Australia to become a knowledge nation.

(Time expired) The ACTING DEPUTY PRESIDENT (Senator Calvert)—Before I call Senator Schacht, I will remind him—he has been here long enough to know— that it is classed as disorderly and against the standing orders to walk between the chair and the person speaking.

Senator SCHACHT (South Australia) (11.04 a.m.)—Will I be flogged at lunchtime or put away in the dungeon of the privileges committee? Senator Kemp—Disgraceful behaviour! Senator SCHACHT—Thank you, Mr Acting Deputy President.

I apologise for this extraordinary breach of democracy.

The sovereignty of the Senate has been impugned.

Senator Kemp—Apology accepted.

Senator SCHACHT—I am not apologising to you, Minister, but to the chair.

I have always apologised to the chair.

I rise to speak on the Broadcasting Services Amendment (Digital Television and Datacasting) Bill 2000 and the Datacasting Charge (Imposition) Amendment Bill 2000.

These bills are part of a long, ongoing saga that this government has created for itself about how to establish a regulatory regime for the new broadcasting and telecommunications technologies that are now sweeping the world and sweeping Australia.

The government’s whole attitude to this area over the last four years has been completely dominated by how it thinks it can curry favour with the various existing media moguls and proprietors in this country.

You do not have to be a genius to work that out.

Obviously, politicians on all sides are sensitive to those who control, own and run the media that report political developments and political issues in this country.

But, in my view, it has been humiliating in many ways that this government has done everything possible to curry favour with a particular media proprietor.

There is no doubt that, on a whole range of issues, it has decided to align itself with the fortunes of PBL, or Mr Packer and his companies.

This has upset Mr Murdoch and his companies and, accordingly, there have been some public statements.

I believe that, whenever you attempt to conduct a policy structure for media, broadcasting or telecommunications in this country, if you start on the basis of currying favour, you will end up with a mess.

The only principle that should guide the formation of policy for the media in this country is to aim for maximum diversity of ownership of the media and maximum plurality of content.

I have said before that all politicians of all parties of all governments have never been 100 per cent pure about that; there has always been the pressure and the concern about what the media will do to government and politicians if they appear to be opposing the interests of the media.

There is no doubt that, as public policy makers, we should, wherever we can, separate our nervousness or anxiety about how we may be reported or treated by a particular media outlet from the issue of what is best for the operation of a pluralistic, democratic system.

We should try to get it right in the long term rather than trying to appear to appease the interests of various media owners.

As a former shadow minister for communications, I am as aware as anybody of the pressures that operate in this area on all politicians on all sides, but I have always believed that, if possible, you should argue for those two principles: diversity of ownership and plurality of content.

The bills before us do not do anything to extend the diversity of ownership of the major media forms in this country.

I think we may be missing an opportunity in the operation of digital data and datacasting to ensure that there are more effective new players coming into the market to add to that diversity of ownership.

But time will tell whether my comments about that are correct or whether I am unnecessarily pessimistic.

We are debating these bills because, two years ago—when the government first introduced the legislation for a regime to regulate digital broadcasting, data broadcasting and the introduction of high definition television—the Senate refused to give the government carte blanche to regulate by administrative decision in all of these areas.

We insisted in the Senate that the government would have to come back to the parliament and debate the definitions in the various areas of multichannelling, digital data, et cetera.

I think we have been proved correct in that it was a good policy for the Senate to have adopted with the opposition, the Democrats and the Independent senators.

It is disappointing, though, that when the government returned here with this legislation they still took an unnecessarily restrictive and narrow view of what these rules and regulations should be.

They took the bizarre decision that the ABC and SBS, as national broadcasters, should not be able to multichannel.

This has been roundly condemned by everybody else in the community, and I am told that even the commercial broadcasters support the ABC and SBS having the right to multichannel.

Of course, we want to provide increased broadcasting services in rural areas, and multichannelling will be one way that that can be achieved if the ABC and SBS are able to do it.

At the moment, in some areas of regional and rural Australia, people get an effective reception of only two channels: one is the ABC and one is commercial.

They may also receive some SBS.

They may now be able to get several further channels and get a diversity of programming, whether it is entertainment, education, sport or arts programs.

We would all welcome that.

The rest of us—those other than the inner cabal of the cabinet—could not work out the policy justification for denying the ABC and SBS the ability to multichannel.

It appears from public comments from both the Labor Party and the Democrats that there is now a majority in the Senate to force those amendments so that those two public broadcasters will be able to multichannel.

I see that today it appears the government have finally seen commonsense, have rolled over and will agree to it.

That is a very welcome decision by the government, and it is a good decision for our national broadcasters.

When I went to one of the committee hearings on this legislation, the new Managing Director of the ABC, Mr Shier, was there.

He was very forthright, as was the Chairman of the ABC, who is a close friend of the Prime Minister, and they were arguing strongly for multichannelling capacity for the ABC.

Mr Shier made quite a reasonable case for it.

As Mr Shier has been appointed by a board that is now overwhelmingly appointed by the present government, one could see that even those who have been appointed to the ABC board with the support of the government could not understand the government’s decision.

I say as an aside that, although I agree with Mr Shier’s remarks and the need for the ABC to multichannel and multibroadcast, I cannot agree with some of the ways he has gone about reorganising the ABC.

The way a number of senior people have been treated is a good example.

I understand, for example, that some of the very senior executives of the ABC who have had their jobs wiped out, who have effectively been sacked, never had an opportunity to speak to Mr Shier before they were actually in the conversation in which he dismissed them.

That was even though he had been there for some two or three months.

I find that an odd way for a chief executive to work.

I find it odd that he did not discuss it with the existing senior managers and make his own judgment about their capabilities.

To just leave them hanging for two or three months and then to call them in and say, ‘You’re dismissed.

I’ve got no job for you,’ is a bit of an odd way to work.

I do not think it engenders good morale in an organisation if people can have their heads lopped off without any prior warning or discussion.

The proof will be in the pudding of Mr Shier’s appointments and restructuring of the ABC.

I look forward to hearing his explanation at the next Senate estimates hearing of how his new structure for the ABC and his new appointments will improve the quality of the ABC as a national broadcaster.

I now turn to the digital datacasting definitions.

The proposals by the Labor Party offer a very sound and sensible definition.

The government clearly had a very restrictive definition purely to satisfy the interests of the freetoair operators in Australia.

Those definitions are unnecessarily restrictive and do not allow the full development of datacasting in this country as a new form of service to Australian consumers.

Therefore, I hope the Senate carries the definitions put forward by our shadow minister Stephen Smith on behalf of the Labor Party, and I hope the government again sees sense—as it did over the multichannelling for the ABC—and accepts these amendments.

The government’s definitions will collapse anyway, because they are so restrictive.

They will have the ABA endlessly chasing data broadcasters down every burrow and warren trying to find out whether there was a breach here or a breach there.

It will not be a light handed regulation, which the government says it is always in favour of; it will be heavy handed regulation, designed to restrict data broadcasters from developing the new services—to the advantage of existing freetoair broadcasters only, not to the advantage of Australian consumers.

We should acknowledge that the freetoair broadcasters got a major advantage from the initial legislation in the introduction of digital broadcasting by having a guarantee that their existing licences would last until 2007.

That is a guarantee that they are the only ones who will be freetoair broadcasters in this country—a significant advantage.

I cannot think of any other major industry where the existing players have been guaranteed by government legislation, with no increased or further payment, an existing entitlement to stop competition coming in against them.

At the time, two years ago, we tried to reduce the period of time.

We agreed there should be some guarantee to help the cost of the introduction of high definition television, to encourage its uptake and the development of programming and the equipment that would be needed, which is costly.

There was a reasonable case, but we did not think the length of time granted was necessary or appropriate.

Some economically dry commentators in the media— and even in the Treasury and the cabinet— would have liked to have seen the auction of those licences in the next year or so, particularly the auction of all the digital spectrum for either HDTV broadcasting or standard digital broadcasting.

In view of what is being paid around the world, the government has forgone an opportunity to raise not hundreds of millions of dollars but billions of dollars of revenue.

Some other media commentators—led by the News Ltd organisation, which does not have a licence and which is prohibited, under the existing crossownership rules, from having a licence—keep pointing out that the existing freetoair broadcasters have a great economic gift available to them whereas elsewhere in the world it would have been put up for auction.

If people are willing to pay several billion dollars to get into the new third level of mobile telephone technology, one can imagine what others would have been willing to spend to get the licence for digital television.

Only recently, the last FM licence in Sydney was sold for $120 million.

Let me repeat: one FM radio licence for broadcasting in Sydney went for $120 million at auction.

You can therefore imagine what digital licences could have brought in if they had been auctioned right across Australia.

The government is forgoing that.

If they restrict the definitions of digital data too much, maybe noone will bid.

There is not much point in bidding for something that is too restrictive.

There must be an interesting argument between people like the Treasurer, the Minister for Finance and Administration, the Assistant Treasurer and people from Treasury, who are always looking at ways of raising revenue.

They have been forced to forgo an opportunity to raise more revenue to pay for the services of the community.

Some more money for the ABC and SBS could be provided from the income of these licences if they were put properly to the Australian people.

I want to conclude on a matter that shows the government is not able to understand that technology is going to make this legislation irrelevant.

That is why we are recommending a number of statutory reviews over the next two or three years.

This piece of legislation will fall apart and be ineffective almost from the day it is gazetted if it gets through the parliament in the way the government wants it to.

I draw the attention of the chamber to an article by journalist Ivor Ries that appeared on 15 June in the Australian Financial Review.

Part of the story indicates that Telstra is now seriously considering bidding for the AFL football rights for 10 years and paying a figure that is rumoured to be in excess of a billion dollars.

That is for the full AFL television rights for freetoair television, pay TV and the Internet.

Telstra would use those rights to put the AFL on Foxtel, which it half owns.

When I saw the article, I thought, ‘This does raise a number of interesting implications.’ I am sure Mr Packer, Mr Stokes and Mr Asper—who own the three freetoair commercial stations—might have a view about bidding against Telstra.

If Telstra does put a bid in, I bet anything you like, Mr Acting Deputy President, those three media owners will hotfoot it to the Prime Minister immediately, demanding that Telstra not be able to bid, because it is against their interests.

Telstra does have the money to bid.

Telstra does have the delivery system.

It would clearly onsell to the freetoair stations, put the AFL football on its pay TV operation and, above all else, reserve for itself AFL Internet rights to develop its part of the communications network.

In all, it may well be a very good outcome for Australia that the national carrier, 51 per cent owned by the Australian people— although the government is trying to sell it off— would, in public interest terms, be providing a greater service and a greater spread of AFL football around Australia.

To see the Crows win more premierships in the near future would be a good outcome.

What it does show is that this government is flatfooted.

If the national telecommunications carrier is seriously preparing a bid for AFL television rights, it just shows you that the old mindset of this government in handling regulatory arrangements is outdated.

Will the government use its 51 per cent ownership to direct the Telstra board not to bid for AFL football rights? It will be an interesting test because the minister, Senator Alston, has always refused in any way to direct the Telstra board.

I suspect there will be no direction.

The weights will just be put on individual board members who have been appointed by the minister if they believe it is not in the interests of this government to upset the existing media owners.

This legislation is, as I said before, going to die and be ineffective almost from the day it comes into effect if it is not amended by the sensible amendments being put forward by the opposition and the Democrats.

ABC multichannelling is a must.

The definition to widen the broadcast of digital datacasting is a must.

The issues of how to effectively manage the new regulatory regime have not been covered in this legislation.

So we look forward to the debate in the committee stage and hope that the Senate will be able to convince this government that the legislation at the moment is overwhelmingly defective and is not in the interests of the Australian people.

Senator BROWN (Tasmania) (11.23 a.m.)—I concur with many of the remarks and proposals put forward by Labor and Senator Schacht.

Indeed, politics sometimes is on its head, but I think the Greens will take the most freemarket approach to this important matter, while we have the coalition taking the most conservative— Senator Schacht—The Stalinist view of the world.

Senator BROWN—Certainly the most controlled and narrow view of the world.

After all, the digital spectrum does belong to everybody; it is a public resource.

How that resource is handled is a matter for government.

What this legislation does is lock up that resource for a few—in particular, for a few already big players.

It is the existing commercial networks that are being given that resource dirt cheap.

Following on from what Senator Schacht said, there is no doubt that the auctioning, allocation, tendering for and selling of that resource would potentially enrich the public coffers, the public owners, by many billions of dollars.

With the government looking in the future to ways of resourcing important items like the environment, it is one of those options that it has quite unnecessarily closed down.

The existing freetoair networks fear that, if the datacasting provisions are too lax, other players will be able to backdoor broadcast—that is, rather than just provide teletext type services, they will be able to provide content that will be in competition with this service.

Well, why not? The Productivity Commission found that the rules are too restrictive, and I agree with Labor that the whole thing needs to be rejigged.

There is a real concern that the influence of the current big players in television in particular has blinded the government to a public obligation to open up this technology for the advantage of Australians—it is inevitably going to happen; it is just that we are going to be decades behind—and also to give information technology a boost so that Australia goes to the forefront instead of being at the back of what is going to be one of the great industries of the 21st century, one of the great sources of wealth and, of course, one of the great sources of jobs.

I note that the Democrats will be supporting many of the measures that Labor has mooted, or they will be putting forward similar measures, to allow liberal use of datacasting, but I am concerned that they are going to oppose some of the Labor amendments which would allow a very broad definition of datacasting.

I would have thought the Democrats would be keen on busting up the existing media monopolies when the opportunity came or at least affording Australians the broadest access to different media outlets possible.

High definition TV comes into this.

It is important, but everyone seems to have just about given up on it because it has been government policy for so long.

It was legislated last year and has led to very little action.

Mandatory high definition TV along those lines seems unique to Australia.

It needs to be reviewed.

It has just been the wrong way to go.

It may suit the existing networks, but increasingly even that seems to be not totally the case.

But it will not service the best interests of the most important people as far as we as representatives in a democracy are concerned, and that is the 19 million Australians out there who are looking forward to the best in the world when it comes to communications.

I note the comments of Alan Kohler in the Financial Review on Saturday, 17 June where, amongst other things, he said: Why John Howard and his Communications Minister, Richard Alston, remain so determined to press on with a bill that now has absolutely no support beyond the three commercial TV networks has become an abiding mystery to observers of media policy.

It shouldn’t be.

Every meeting between executives of Fairfax or News Corp and Government ministers over digital TV policy begins with a tirade about the biased political reporting of the two companies’ newspapers, especially The Sydney Morning Herald and The Daily Telegraph.

When the minister— usually Alston—has got that off his chest, they then start talking about the unrelated matter of broadcasting policy.

Unrelated? Well, it turns out that the two big newspaper companies and Telstra, all desperately keen to become broadcasters, have been such big losers out of the digital TV policy that they are giving up.

So well have potential competitors been blocked from the TV business, there is universal agreement, outside the Government and the networks, that Australia’s conversion to digital TV is doomed.

The policy is not just a dud that won’t achieve its aim of converting the nation to digital by 2008.

It also represents a decision by the Government to forgo billions in revenue, as well as the wellunderstood benefits of competition and the chance to thrust Australia to the global forefront of technology, all to protect the existing broadcasters from having to deal with competition from newspaper and phone companies.

Even the networks agree full conversion to digital in 2008, as required by the policy, will probably be impossible.

The head of the Federation of Australian Commercial Television Stations, Tony Brannigan, told a Senate committee last week (regarding digital takeup): “I would not be at all confident that by 2008 we would be much beyond the 50 or 60 per cent mark.” That is a column worth reading in full.

The ABC and SBS are important focuses in this.

They should have the right to datacast and multichannel without restriction so that they can reach more people with more content, and with a different form of content.

ABC and SBS are fundamental to the spectrum of information available to Australians.

They are outlets, in relation to not only news but also entertainment, which are coveted by people all around the world.

With new technology, it is very important that they are players so that the particular quality of service they bring the public is available in the new formats.

I am very pleased to hear that the Democrats and the Labor Party are much more aware of that than the government.

Quite clearly, they are quite determined to see that the ABC and SBS have their opportunity in this new world of information technology.

So the Greens support the amendments coming from this side of the house.

We will be supporting those that give the fullest reach to choice and alternatives.

Senator Kemp—That is strange for you.

Senator BROWN—No, it is clearheaded thinking, Minister.

It is a swap around, if you like, in philosophical terms.

But, while it is strange for the Greens to be saying they are freemarket oriented in this, it is tragic that the government has got the blinkers on and, at the behest of some big players, is trying to restrict this market down in a way that, as far as I know, no other country in the world is doing.

So it is strange for us, but we are not in government.

Mr Howard and his ministers are in government, and the word ‘strange’ does not apply there— but the words ‘bad government’ do.

This is a missed call.

This is a very big policy mistake for this nation.

It needs to be rectified, and here is the opportunity.

Again, here is the Senate fulfilling a very important role, not just as a check on government but also as a stimulus to government changing its mind.

I believe that change will come out of this debate that is taking place, and I believe that change will come out of the power of the Senate to say ‘think again’ to the government.

That is what is important here.

(Quorum formed) Senator ALSTON (Victoria—Minister for Communications, Information Technology and the Arts) (11.37 a.m.)—I rise to conclude the debate on the package of bills relating to digital television.

In 1998, all the main parties supported an extension of the moratorium on new commercial freetoair television broadcasters until the end of 2006; the loaning of seven megahertz of spectrum free of charge to all freetoair broadcasters, including the ABC and SBS, with a requirement that they broadcast in high definition; a requirement to simulcast in analog and digital for at least eight years; and a prohibition on multichannelling by freetoair commercial broadcasters until 2005.

The legislation before the Senate reflects the framework agreed by the coalition, Labor and the Democrats in 1998 and builds on this framework by establishing the rules that will govern datacasting and enhancements.

In relation to datacasting—the issue that has caused most conjecture over the last month—it seems to me that noone in the parliament is seriously disputing the government’s position that datacasters cannot be broadcasters and that they must offer a service that is different to broadcasting.

Rather, the issue is: what is the most effective means of ensuring that while datacasters are not broadcasters they can still offer an attractive array of nonbroadcasting services? The government considered this matter in great detail during the reviews that were conducted between June 1998 and the introduction of this legislation earlier this year.

The clear conclusion from these reviews was that the genre based regime is the most effective and practical means of providing certainty to broadcasters and datacasters.

The government rejects the claim that the genre based regime is so tight that it will not allow datacasters to establish viable businesses.

It must be remembered that the datacasting spectrum will enable datacasters to reach nearly 100 per cent of the population offering a wide array of information, ecommerce and educational products and services.

Probably the most vexing issue in this debate is the provision of Internet content by datacasters.

The point that needs to be made on this issue is that to seek to exempt material merely because it is on the Internet is really seeking to water down the rules which prevent datacasters from being broadcasters because any content can be placed on the Net, from text to full motion video.

A number of senators may well be aware that there have been stories in recent days regarding the virtual avalanche of new Internet television sites springing up in the United States.

Those who are asking the government to make different rules for content controlled by datacasters but which is really on the Internet are really asking for the rules to be relaxed across the board.

A number of other issues have been raised during the debate.

I am sure they will be discussed at greater length during the committee stage next week.

In relation to enhancements, it has always been puzzling to me that the same people who argue that the datacasting rules should be relaxed argue that the enhancements should be more tightly constrained.

The claims by some that the government has welshed on a deal in relation to enhancements are totally false.

In 1998, the government made it clear that it would not allow freetoair broadcasters to multichannel—that is, to provide fullblown sports channels, news channels, movie channels or any other simultaneous channels.

The overlap provisions only relate to those few instances where a sporting event runs over time due to unforeseen circumstances such as weather delays and playoffs.

To only allow the overlap when the other program is a news program is nonsensical.

The same sport at the same venue at the same time provision is tightly confined and only one sport is likely to be affected—that is, tennis, and only in the early rounds of tennis matches.

Any claims that such a narrowly applicable provision will have a massively detrimen tal impact on existing businesses are gross overstatements.

Obviously, the issue of whether the national broadcasters should be allowed to multichannel will be further considered in the committee stage.

However, it is the government’s view that all freetoair broadcasters should be treated equally in the digital environment.

The 1998 decision not to allow the freeto air broadcasters to multichannel, so as not to encroach on the primary business of the fledgling pay television industry, was supported by all the main political parties.

A decision now to allow the national broadcasters to provide unrestricted multichannelling would run contrary to the 1998 decision.

I conclude by thanking all those who have contributed to the debate and by commending the main political participants for the way in which they have sought to tackle this complex and prominent matter of public policy in a serious and constructive fashion.

Question resolved in the affirmative.

Bill read a second time.

Ordered that consideration of this bill in committee of the whole be made an order of the day for the next day of sitting.