P 14720 SENATE Tuesday, 27 June 2000

BROADCASTING SERVICES AMENDMENT (DIGITAL TELEVISION AND DATACASTING) BILL 2000

DATACASTING CHARGE (IMPOSITION) AMENDMENT BILL 2000 In Committee

Consideration resumed from 22 June.

BROADCASTING SERVICES AMENDMENT (DIGITAL TELEVISION AND DATACASTING) BILL 2000 Tuesday, 27 June 2000 SENATE P 14721 The bill.

Senator BOURNE (New South Wales) (7.30 p.m.)—by leave—I move: (1) Schedule 1, item 11, page 4 (line 9), omit “Schedule 6”, substitute “section 146T”.

(2) Schedule 1, page 16 (after line 19), after item 47, insert: 47A After Part 10A Insert: Part 10B—Datacasting services 146T Allocation of datacasting licences (1) The ABA may allocate a datacasting licence to a person in accordance with the regulations.

(2) Regulations made for the purposes of this section must be directed towards ensuring the achievement of the following policy objectives: (a) the objective that datacasting services must not be, or include, broadcasting services; (b) the objective that datacasting services must not provide access on a storeforward basis to video programming that would function as a videoondemand service; (c) the objective that a datacasting service must not provide access on a storeforward basis to video programming that, if automatically or manually combined with other video material or with other material that contains a mechanism that triggers the activation of material after a specified or calculated period of time, would substantially be, or include, a broadcasting service if transmitted by a radio or television broadcasting service.

(d) the objective that datacasting licences will be allocated in accordance with a process that includes the following elements: (i) the commissioning of independent research by the ABA on the market value of the datacasting spectrum; (ii) the determination of a base market price by the ABA following an assessment of the independent research; (iii) the publication of guidelines by the ABA, not inconsistent with the regulations, for the assessment of acceptable datacasting services; (iv) the calling of tenders by the ABA for the allocation of datacasting licences in relation to which tenderers will be required to provide details of the proposed datacasting service and the proposed price the tenderer will pay for the licence (which need not be the same as the base market price); (v) the giving of opinions by the ABA, on request, on whether proposed datacasting services comply with the guidelines for the assessment of acceptable datacasting services; (vi) the provision of a tender period of not less than 2 months; (vii) the assessment of tenders by the ABA on the basis of the guidelines and in accordance with prescribed public interest tests; (e) the objective that datacasting licences will be subject to conditions which reflect the details contained in the licensees’ tender for the licence; (f) the objective that the ABA will carry out regular reviews of a licensee’s compliance with the conditions of the licence; (g) the objective that a licensee may apply to the ABA for a variation of its licence conditions and that an application for a variation of licence conditions will be assessed by the ABA on the same basis as the allocation of licences.

(3) For the purposes of subparagraph (2)(c)(iv), the regulations must provide for a tenderer to include the following details in the tender for the allocation of a datacasting licence; (a) a business plan; (b) evidence of the tenderer’s financial capacity to provide the proposed service; (c) a statement of the reasons why the tenderer believes that the proposed service constitutes an acceptable datacasting service; (d) a statement of how the proposed service will serve the public interest.

(4) For the purposes of subparagraph (2)(c)(vii), the regulations must provide for the ABA to assess tenders for the allocation of datacasting licences in accordance with the following public interest tests: (a) that the diversity of datacasting services available to the Australian people will be maximised; (b) that the number of new and innovative datacasting services available to the Australian people will be maximised; (c) that the benefits of datacasting services to communities will be maximised; (d) that the financial return from the sale of licences will be maximised for the benefit of the Australian people.

(5) Subsection (3) does not limit the matters for which the regulations may provide in relation to the details to be included in a tender for the allocation of a datacasting licence.

(6) The regulations may provide for the following matters: (a) criteria for assessing the suitability of tenderers; (b) the transfer and surrender of licences; (c) ownership restrictions; (d) general conditions of licences; (e) complaints about datacasting; (f) remedies for breaches of licensing provisions with a maximum penalty of 20,000 penalty units; (g) review of discussions; (h) datacasting technical standards; (i) review of the scheme; (j) such other matters as are necessary or convenient to be prescribed for the regulation of datacasting services.

(6) Schedule 2, item 1, page 99 (line 8), omit “Schedule 6”, substitute “section 146T”.

P 14722 SENATE Tuesday, 27 June 2000 (7) Schedule 2, item 31, page 112 (lines 12 to 21), omit the item, substitute: 31 At the end of section 114 Add: (5) For the purposes of this section, an authorisation by the licensee of a datacasting transmitter licence results in a breach of the BSA control rules if, and only if, the authorisation would result in a breach of section 54A or 56A of the Broadcasting Services Act 1992.

I understand from looking at the running sheet and the list of amendments that we are dealing with my proposed changes to schedule 6, which would take out schedule 6 and substitute my suggested section 146T.

Is that correct? The TEMPORARY CHAIRMAN (Senator George Campbell)—No.We are dealing with schedule 1, amendments (2), (1), (6) and (7) on sheet 1848, which you have moved, by leave, together.

Senator BOURNE—These amendments would change the rules for datacasting and allocating datacasting licences currently under schedule 6.

Is that what we are dealing with? The TEMPORARY CHAIRMAN—That is right.

Senator BOURNE—The suggested form that I have is something that has been known for several years, at least since the pay TV debate, which I was involved in myself, as a beauty contest.

It would mean several things.

First of all, the licences would be allocated not just by price—which would be one of the four reasons for allocating a licence—but also with three other objectives in mind: the diversity of datacasting services available to the Australian people, the number of new and innovative datacasting services available to the Australian people, and the benefits of datacasting services to communities.

This form would also have to be maximised when the ABA determined how they would allocate licences.

Also, the financial return from the sale of licences would be maximised for the benefit of the Australian people, but that would be one of four criteria that would be looked at equally.

This is the sort of way that licences were allocated, as I understand it, when radio was first introduced in Australia—and I know that was a while ago.

It is also the sort of system that I suggested when pay TV was introduced in Australia.

Unfortunately, I did not exactly win that debate.

It is also a system which, I noticed from a newspaper article from, I think, the Age or possibly the Sydney Morning Herald of two Saturdays ago, seems to be coming back into fashion in Europe.

The argument there is that if a licensee pays a great deal of money for a licence, they are going to have to get that money back from somewhere, so they would do that by passing on their costs to those who are paying for their service.

If you have more of a social conscience, you will go for the beauty contest, so the costs of the licences are not as high, but you have a much wider service that way.

You have more diversity in what is offered.

That is the way the licences would be determined by the ABA.

I should let others speak for themselves, but I understand that the problem with this that most people I have spoken to have is that it gives far too much power, as they see it, to the ABA.

I also understand from having spoken not to the minister himself but to others that the minister did consider this as a possible way of undertaking the allocation of these licences and then looking after them.

It would basically be looked after by the ABA.

If somebody came to the ABA and put up a suggestion for a licence, they would have to show how they would maximise the benefit to the Australian people under those four things that I mentioned.

They would have to show their business plan for what they wanted to do.

The ABA would determine whether that was allowable.

If it was allowable, they would wait until the tenders were finished and then they would determine who got the licences.

If somebody wanted to change what they were doing with their licence, they would have to go back to the ABA to make sure that it was still allowable under the four criteria.

The problem, as I understand it, that people have with this is that it gives too much power to the ABA.

People worry about the power of the ABA, but I still think that it allows a much broader diversity for what is going to end up as our datacasting services.

I think it will allow for things that we have not even thought of.

At the moment with the government’s proposed genre rules—and I accept it is really only until 2007 and in some cases before that with all those reviews— we are determining what will happen before we even know what is possible.

I think narrowing down the parameters of what we think is possible before we even start—these things probably will not be on the air for about 12 months or more—is a problem.

I think it is a problem that we have to accept and a problem that we have to try to fix.

I think this is the best way to fix it.

This has a social conscience in it.

It is one way that we can try to get the best datacasting services now and also into the future, up until 2007.

If somebody wants to change, they would have to change according to those four rules.

I am proposing this.

If anybody wants to ask me any questions about it, I will be happy to answer them.

I will also be interested to hear what others have to say about it.

Senator ALSTON (Victoria—Minister for Communications, Information Technology and the Arts) (7.37 p.m.)—I will respond to Senator Bourne to the extent that she suggested that the government had seriously entertained this approach.

In the course of a very extensive examination of the way in which we ought to endeavour to ensure that we strictly adhered to the 1998 digital conversion legislation, we did examine any number of possible options, and a number of them were quite technical.

It was always the view that we took that there had to be certainty.

The trouble with technical approaches is that you cannot always be sure that you understand the current state of the art and you certainly cannot predict what might be around the corner tomorrow.

The general technical approach, we thought, was fraught with difficulty.

Tuesday, 27 June 2000 SENATE P 14723 There are some circumstances in which you do delegate responsibility to regulatory authorities.

Quite clearly, the parliament can set out principles and leave it to others to administer the regime.

But with something as fundamental as this legislation, in which the absolute bedrock principle is that datacasting services must not be broadcasting services and that you cannot be a de facto or backdoor broadcaster, time and again you run up against the vagueness of the current definitions contained in the Broadcasting Services Act.

I do not think it is so much a matter of giving power to the ABA; it is a matter of the ABA not really knowing where to start or where to finish and perhaps finding itself in a situation where it tries to make some judgments, it gets taken to court and it then changes its mind because it thinks that is what the courts will interpret in the future; and then you have an absolutely chaotic environment in which people have to build very substantial business cases and outlay very significant sums of money.

Our approach has always been that we should try to ensure maximum certainty.

At the end of the day, it is not much more than a hospital handpass to the ABA if you say to them, ‘You go away and work out what you think broadcasting means and then decide that datacasting is everything else.’ It seemed to us that that was not a sensible approach to take.

When the definition of broadcasting was put in the act, it was at a time when most of the new technologies, including the Internet, had not even been thought of.

In that sense, it may well be a very outdated and very slippery concept because television services may or may not embrace a particular number of television programs.

Where do you draw the line? A television service might be defined as providing one or a series of programs.

On the other hand, unless it was a full 24hour provision of programs, it may not be regarded as a broadcasting service at all.

One view is that the definition of broadcasting could be interpreted very narrowly; another view is that it could be interpreted very widely.

We thought the only safe approach to take was for the parliament to define as much as possible—still with some general antiavoidance provisions and some de minimus arrangements—and to spell out in advance with as much clarity as possible what we understood to be the general look and feel of television so that people would know in advance what they were allowed to do.

All parties in this debate have said time and again that they adhere to the principles from 1998—that is, that a datacaster cannot be a broadcaster.

If that is so, you have an obligation to define what you mean by broadcasting.

The BSA does not do it.

So with a great deal of effort, consultation and discussion—no doubt along similar lines to others, including Senator Bourne—we have done our very best to identify the principal characteristics of a television service and television programs to then identify that as the benchmark against which you can do other things which amount to datacasting.

The Democrats’ approach, as I say, essentially hands the problem to the ABA.

It invites the ABA, as I understand it, to effectively conduct a beauty con test.

We all know the difficulties of beauty contests and why our predecessors in government moved away from them and we have stayed away from them.

You are exposed to enormous pressures.

I do not believe we have corruption in this country at all in terms of these sorts of decisions, but the pressures that can be brought to bear on people can be very considerable.

The mere fact that the problem is transferred to the Broadcasting Authority does not give me any greater confidence, without for a moment casting aspersions on the integrity on the members of the ABA.

The fact is that when you essentially give someone carte blanche to define a new regime you are susceptible to a whole range of pressures, and it is very difficult to know in advance what the ultimate regime will look like.

We thought it was much better, much safer, for the parliament to define upfront what the rules were and then you can make your decisions.

We will allocate the spectrum by an auction process for datacasters and then they will know what they are entitled to do.

You do not go out there and say to the ABA, ‘Firstly, work out what a broadcaster is and then work out what a datacaster ought to be and then say which one you think provides the most acceptable datacasting service.’ There may be a further definition of that but, on the face of it, that again is fraught with dangers and uncertainty.

The objective is that datacasting licences will be allocated in accordance with a process that includes the following elements, including the publication of guidelines not inconsistent with the regulations for the assessment of acceptable datacasting services.

Again, the ABA is left not only with a huge discretion but a huge and, I would have thought, unwanted responsibility.

It is not their task to make decisions of this magnitude.

Their task is to administer legislation which the parliament is prepared to put in place, and they then go away and ensure that the detail adheres to the framework.

But what you are essentially doing is asking them to construct a completely new edifice.

That is why we very strongly take the view that, much and all as I understand why Senator Bourne might be attracted to this approach, it is an approach that we could not possibly accept, because it fails on all those counts.

Certainly, on one view, as I say, you could end up with not even allowing educational programs or information programs.

It depends entirely on the way in which the definition is interpreted; and that is not a decision that we should be delegating to the ABA or to any other body.

It is a decision that we ought to take here and we ought to make it clear, as best we can, what is in and what is out.

The replacement of the proposed new schedule 6 by a single section dealing with principles ignores the findings of an almost twoyearlong review process.

It does not answer the complex questions.

It merely puts off the decision to a later date and provides no certainty to industry and no guarantees to Australian viewers.

I think it provides the worst of all worlds: you would guarantee that there would continue to be maximum uncertainty and, probably, calls for government intervention.

Whenever anyone disagreed with a decision, it would be immediately reviewed— and, no doubt, endlessly so—because this industry, P 14724 SENATE Tuesday, 27 June 2000 above most others, can well afford to be highly litigious, because the stakes are very high.

I do not think that is a price that any of us would want to pay, because the end result is maximum uncertainty.

You have only to remember back to what occurred in the auction of the third commercial television licence in Western Australia some 10 years or more ago: I think there ended up being 18 separate challenges through the AAT, the Federal Court and the High Court, and back again.

You could do that on almost every decision the ABA took here.

That is why I say that, with the best will in the world, what you are really doing is avoiding the tough decision that I think the parliament needs to take.

It is up to us to work out what datacasting is, and I do not think we should shirk that responsibility.

Senator MARK BISHOP (Western Australia) (7.47 p.m.)—I have a few comments to put the position of the opposition in respect of the amendments put forward by Senator Bourne.

As Senator Bourne outlined and Senator Alston repeated, the regime that the amendments seek to establish is essentially a beauty contest regime.

Prospective datacaster applicants apply to the ABA for a datacast licence, and their application is made on the basis of the proposed service to be offered by the datacaster, and the applicant discloses his or her credentials, the bid fee and the service offered.

If the service is subsequently varied, you would have to go through the entire process again.

What that suggests to us is, quite briefly— and it was referred to by Senator Bourne and certainly strongly mentioned by the minister—that the parliament is delegating its authority and its responsibility to the ABA to define and determine what a datacaster is and what services the datacaster might offer to the public.

The opposition is of the view that those functions are properly reserved to the parliament and should be administered by the parliament—and that presumably means the government of the day.

As Senator Alston said, this is a rich industry with billions of dollars invested on an ongoing basis.

It is not unreasonable, from the perspective of the industry and from the perspective of consumers, that there be certainty at the outset in terms of outcomes.

It is the opposition’s view that that is properly a job for the parliament and not at all to be delegated or referred to the ABA.

We have listened to the propositions put to us over the past two days by Senator Bourne and her advisers on this critical issue, but we have not been persuaded that it is in any way appropriate to depart from our initial principle position that this is the responsibility of the parliament.

In summary, we say for the record that the regime outlined by Senator Bourne does not set a firm framework for ongoing distinctions between datacasting and broadcasting.

The beauty pageant approach may have been more suited to traditional TV services in days gone by, when they could be readily and easily defined—although the comments by Senator Alston are correct: there was a huge problem in Western Australia when the third TV licence was issued, because the stakes were so high and many interested parties chose, for reasons best known to themselves, to spend hundreds of thousands, if not millions, of dollars in a range of court actions that went all over the country for a number of years.

So we are not at all keen on inviting that sort of outcome back into the system.

We think also, going down that line, that the regime put forward by the Democrats simply allows too much discretion to the ABA on the issues of price, who gets the licence, and the specific conditions on each specific licence.

We think each of those three issues is better resolved in other forums: price, by an auction based system; licence, through application; and specific conditions to be attached to the licence, by the government of the day.

This is not a class based system; it is a specific licence by a licence system and it provides no certainty.

For those reasons, the opposition find no comfort in the approach suggested by Senator Bourne and we will oppose it in due course.

Senator BROWN (Tasmania) (7.51 p.m.)—I am interested to see the maximum options available to the viewing public, and this legislation does not provide for that.

I am not a captive of the 1998 decision, and I do not think any of us should be.

We have got in train a process where this government is locked into 10 years of captivity to a prescription for restricting the options of Australians to a maximum diversity of information, entertainment and broadcasting in general at the behest of a minimum number of outlets.

I would like to see that freed up.

Australia suffers from very restricted press ownership, and I think we have to find means of diversifying the options when it comes to what people can get through modern technology.

This legislation does not lead us in that direction.

I say again: we should not be confined by mistakes of the past.

This is an option to open up to Australians the advantages that people elsewhere in the world will get through the digital phenomenon.

The restrictions that the government has placed on that are not in the interests of the average Australian.

The Democrats have got amendments which help to loosen that a little, and Labor, I think, go a little further.

I recognise that the options are: government, most restrictive; Democrats, somewhat less restrictive; and Labor, marginally less restrictive again.

So I will take the options from the bottom working up.

I believe all three options are too restrictive.

I think that other players should be enabled to enter into the digital and datacasting options which are now before us, and I do not think we should be closing down on those options for almost a decade to come.

That is the way I will be going as far as these options are concerned, and the amendments coming further down the line.

Senator BOURNE (New South Wales) (7.54 p.m.)—The one thing that probably has been overlooked, or possibly not, by others when they commented on this—the way I see it—is that, because it took less time than we would have hoped to have to put together this whole scheme, we do have in part 6 regulations provided by the minister covering a range Tuesday, 27 June 2000 SENATE P 14725 of matters, including criteria for assessing the suitability of tenders and transfer and surrender of licences, and things like that, that he may make regulations in relation to if he wants to.

That is in there.

The minister mentioned that he thought this could create a chaotic environment for building a business plan.

I was actually trying to stop the creation of a chaotic environment by having everything assessed before the service goes to air.

So there may be confusion, there may be disagreement—more likely—before the service goes to air but, after the service goes to air, it should be quite clear whether or not it is actually allowable, and that, I would have hoped, gave certainty to industry.

I love the minister’s ‘not quite Candide’, where he thought it was the ‘worst of all possible worlds’.

I do not think it is quite that bad, Minister.

I think a lot of people would suggest that your own scheme is not the best of all possible worlds, and I certainly think this is a much better scheme.

I thought it was a much better scheme with pay, and I still think that; I think people around the world are going back to it.

I think it is something which will become more prevalent in the years to come—I hope so.

I would still like it to get up but, as I am able to count, I can see it is probably unlikely to do so at the moment.

Amendments not agreed to.

The TEMPORARY CHAIRMAN (Senator George Campbell)—Senator Bourne, the next set of amendments are Nos 3, 4 and 5—they were consequential.

As you do not want to proceed with those, we will move on to opposition amendments Nos 17 and 18 on sheet 1823.

Senator MARK BISHOP (Western Australia) (7.57 p.m.)—by leave—I move opposition amendments Nos 17 and 18: (17) Schedule 1, item 140, page 53 (line 13) to page 60 (line 15), omit Part 1 of Schedule 6, substitute: Part 1—Introduction 1 Simplified outline The following is a simplified outline of this Schedule: 2 Definitions Classification Board means the Classification Board established by the Classification (Publications, Films and Computer Games) Act 1995.

interactive, in relation to a datacasting service, means a capacity for a user to request specific responses, make choices or engage in digital transactions or communications.

Internet carriage services has the same meaning as in Schedule 5, but does not include a service that transmits content that has been copied from the Internet, where the content is selected by the datacasting licensee concerned, unless the same content is available simultaneously on the Internet.

nominated datacaster declaration means a declaration under clause 45.

noncontemporaneous, in relation to a datacasting service, means that users of the service do not view the same content simultaneously.

nonlinear, in relation to a datacasting service, means that content is designed to be selected or accessed at irregular intervals in accordance with userdefined requests and not as a single, continuous stream of data to users.

ordinary electronic mail does not include a posting to a newsgroup.

qualified entity means: (a) a company that: (i) is formed in Australia or in an external Territory; and (ii) has a share capital; or (b) the Commonwealth, a State or a Territory; or (c) the Australian Broadcasting Corporation; or (d) the Special Broadcasting Service Corporation; or This Schedule sets up a system for regulating the provision of datacasting services.

Datacasting service providers must hold datacasting licences.

A datacasting service cannot be a broadcasting service.

The distinction between datacasting and broadcasting services is based on the attributes of the service.

The ABA will be empowered to determine additional criteria or clarify existing criteria about what constitutes a datacasting service or a broadcasting service.

The ABA may give advisory opinions, on request, about whether a proposed service is a datacasting service or a broadcasting service.

The ABA will be empowered to make determinations about whether particular services are datacasting services or broadcasting services.

A group that represents datacasting licensees may develop codes of practice.

The ABA has a reserve power to make a standard if there are no codes of practice or if a code of practice is deficient.

The ABA is to investigate complaints about datacasting licensees.

P 14726 SENATE Tuesday, 27 June 2000 (e) any other body corporate established for a public purpose by a law of the Commonwealth or of a State or Territory.

related body corporate has the same meaning as in the Corporations Law.

static graphic interface, in relation to a datacasting service, means a method of providing interactivity to a user through menu systems or other control mechanisms common to digital services and applications.

transmitter licence has the same meaning as in the Radiocommunications Act 1992.

3 Datacasting services For the purposes of this Schedule, 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 service has the following attributes: (a) it uses the broadcasting services bands; and (b) it is interactive; and (c) it is noncontemporaneous; and (d) it is nonlinear; and (e) it offers frequent userdefined choices; and (f) it makes frequent use of static graphic interfaces; and (g) it complies with any determinations or clarifications under clause 4 in relation to datacasting services.

4 ABA may determine additional criteria or clarify existing criteria (1) The ABA may, by notice in the Gazette: (a) determine additional criteria to those specified in clause 3; or (b) clarify the criteria specified in clause 3; for the purpose of distinguishing between datacasting services and broadcasting services.

(2) The Minister may give specified directions to the ABA as to the making of determinations and clarifications, and the ABA must observe those directions.

(3) Determinations and clarifications under subclause (1) are disallowable instruments for the purposes of section 46A of the Acts Interpretation Act 1901.

5 Requests to ABA for an advisory opinion on whether a service is a datacasting service or a broadcasting service (1) A person who proposes to provide a datacasting service may apply to the ABA for an advisory opinion as to whether the proposed service is a datacasting service or a broadcasting service.

(2) An application must be in accordance with a form approved in writing by the ABA, and must state the applicant’s opinion as to whether the proposed service is a datacasting service or a broadcasting service.

(3) If the ABA considers that additional information is required before an advisory opinion can be given, the ABA may, by notice in writing given to the applicant within 14 days after receiving the application, request the applicant to provide that information.

(4) The ABA must, as soon as practicable after: (a) receiving the application; or (b) if the ABA has requested further information— receiving that further information; give the applicant, in writing, its advisory opinion as to whether the proposed service is a datacasting service or a broadcasting service.

(5) If the ABA does not, within 28 days after: (a) receiving the application; or (b) if the ABA has requested further information— receiving that further information; give the applicant, in writing, its advisory opinion as to whether the proposed service is a datacasting service or a broadcasting service, the ABA is taken to have given an advisory opinion at the end of that period that accords with the applicant’s opinion.

(6) The ABA may charge a fee for providing an advisory opinion under this clause.

6 Requests to ABA to determine whether a service is a datacasting service or a broadcasting service (1) A person may apply to the ABA for a determination as to whether a service is a datacasting service or a broadcasting service.

(2) An application must be in accordance with a form approved in writing by the ABA, and must state the applicant’s opinion as to whether the service is a datacasting service or a broadcasting service.

(3) If the ABA considers that additional information is required before a determination can be given, the ABA may, by notice in writing given to the applicant within 30 days after receiving the application, request the applicant to provide that information.

(4) The ABA must, as soon as practicable after: (a) receiving the application; or (b) if the ABA has requested further information— receiving that further information; give the applicant, in writing, its determination as to whether the service is a datacasting service or a broadcasting service.

(5) If the ABA has given a determination under this clause to the provider of a datacasting service, neither the ABA nor any other Government agency may, while the circumstances relating to the datacasting service remain substantially the same as those advised to the ABA in relation to the application for the determination: (a) take any action against the provider of the service for the period of 5 years commencing on the day on which the determination is given on the basis that the service is not a datacasting service; or (b) unless the ABA has made a determination or clarification under clause 4 after that determination was given that places the service outside the definition of a datacasting service— take any action against the provider of the service after the end of that period on the basis that the service is not a datacasting service.

(6) If the ABA does not, within 45 days after: receiving the application; orTuesday, 27 June 2000 SENATE P 14727 (b) if the ABA has requested further information— receiving that further information; give the applicant, in writing, its determination as to whether the service is a datacasting service, the ABA is taken to have given a determination at the end of that period that accords with the applicant’s opinion.

(7) The ABA may charge a fee for providing a determination under this clause.

7 Matters to be considered by ABA In making determinations under clause 4 or clause 6 in relation to datacasting services, and in giving advisory opinions under clause 5 in relation to proposed datacasting services, the ABA is to have regard to: (a) the attributes of the service and its mode of delivery; and (b) the dominant purpose of the service; and (c) such other matters as the ABA thinks fit.

(18) Schedule 1, item 140, page 62 (line 17) to page 70 (line 11), omit Divisions 1 and 2 and the heading to Division 3 of Part 3 of Schedule 6, substitute: 13 Primary condition—datacasting service not to be a broadcasting service (1) Each datacasting licence is subject to the primary condition that the licensee will not transmit matter that, if it were broadcast on commercial television or radio, would be a broadcasting service.

(2) The condition set out in subclause (1) does not prevent the licensee from transmitting live matter that consists of: (a) the proceedings of, or the proceedings of a committee of, a Parliament; or (b) the proceedings of a court or tribunal in Australia; or (c) the proceedings of an official inquiry or Royal Commission in Australia; or (d) a hearing conducted by a body established for a public purpose by a law of the Commonwealth or of a State or Territory.

(3) The condition set out in subclause (1) does not prevent a datacasting licensee from transmitting matter that consists of no more than: (a) text; or (b) text accompanied by associated sounds; or (c) still visual images; or (d) still visual images accompanied by associated sounds; or (e) any combination of matter covered by the above paragraphs; or (f) any combination of: (i) matter that is covered by any of the above paragraphs (the basic matter); and (ii) animated images (with or without associated sounds); where: (iii) having regard to the substance of the animated images, it would be concluded that the animated images are ancillary or incidental to the basic matter; or (iv) the animated images consist of advertising or sponsorship material.

(4) The condition set out in subclause (1) does not prevent a datacasting licensee from providing an interactive computer game.

(5) The condition set out in subclause (1) does not apply to the transmission of ordinary electronic mail.

In determining the meaning of the expressions television or television program, when used in a provision of this Act, subclauses (3), (4), and (5) are to be disregarded.

Schedule 6 of the bill sets out the government’s proposed framework for datacasting.

It imposes significant and specific limitations on the scope of datacasting services which are enumerated as datacasting licence conditions in the bill.

The licence conditions limit the types of content allowed to be provided by datacasters according to genre.

The opposition is of the view that the government’s datacasting framework is restrictive, complicated, highly prescriptive and goes beyond restricting datacasting to services that do not constitute broadcasting.

Accordingly, the policy position of the opposition has been to develop a new general definition of datacasting and, in doing so, discard the government’s proposed framework in schedule 6 of the bill and develop an entirely new framework which incorporates a general definition of datacasting which does not allow datacasters to become de facto broadcasters.

The reasons for our amendments are, put simply, that we have concerns that the definition of ‘datacasting’ in the bill was unreasonably confined to datacasting so as to stifle competition and innovation, would be costly to Australian consumers and businesses alike, would delay consumer adoption of digital technology and would deprive business of opportunities to develop new products and services for the world and the Australian market.

We are of the view that such prescriptive regulation is detrimental to this emergent industry and consumers.

The bill is considered likely to have a negative impact on Australian consumers, due to the inability to provide the full range of new digital services, and to significantly limit the viability of the emergent industry.

The opposition is of the view that it is critical that this emergent industry is not stifled in its development and innovative capacity by overly restrictive regulation with consequences for Australia’s technological advancement, improved consumer services and employment and economic opportunities.

We are of the view that the best way to give effect to the policy objectives is to amend the bill so that the definition of datacasting is not based on the existing genre based distinctions.

This requires, as I said, an entirely new framework for the definition of datacasting.

So the amendments, in terms of the alternative framework, replace the provisions of the new schedule 6 of the government’s bill with a new framework for datacasting which uses the datacasting definition in the 1998 act as its foundation and maintains the distinction between broadcasting and datacasting services.

Like the government’s existing framework, the amendments proposed are based on the premise that datacasting will be largely subject to P 14728 SENATE Tuesday, 27 June 2000 the regulatory conditions of the existing broadcasting regulatory framework.

The new framework achieves the following objectives: it confirms that datacasting services may not be broadcasting services and allows the ABA to determine whether a service is a broadcasting service or a datacasting service; it maintains a distinction between broadcasting and datacasting services by recognising the attributes of datacasting services while remaining technologically neutral; it recognises that common elements exist between datacasting services and broadcasting services and allows the Australian Broadcasting Authority to consider the relevant dominance and intent of these attributes in determining whether a service is a broadcasting service or a datacasting service.

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 remained unconstrained in the model effected by these amendments—for example, parliamentary or live court proceedings, information transmitted in the form of text and still pictures, interactive computer games, Internet carriage services and electronic mail.

The 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.

The following attributes will be a guide for the ABA and datacasters.

Firstly, datacasting is noncontemporaneous.

Not all users of the service view exactly the same content simultaneously.

While the amount of content offered at any given time may be finite, the interactivity and userdefined choices mean that different users or viewers will have different viewing experiences.

Datacasting is nonlinear.

While content may be provided in a uniform manner, it is not delivered to users and viewers in a steady, single continuous stream; rather, it is delivered in discrete quantities according to userdefined requests at userdefined intervals.

Datacasting is interactive.

Datacasting services offer interactivity for users to request specific material linked to the Internet or engaged in digital transactions and communication.

Frequent user defined choices reflect the use of interactive menu systems and control mechanisms.

The frequent use of static graphic interfaces also reflects the use of interactive menu systems and control mechanisms.

Consistent with the powers conferred upon the ABA by the Broadcasting Services Act 1992, this framework allows the ABA to determine whether a particular service constitutes a broadcasting service, a datacasting service or any other form of applicable service.

To do this, the ABA must consider both the physical attributes and dominant intent of the service.

This, however, places no limitation on the ABA’s power to consider any other relevant attribute or matter related to a service in making a determination on the nature of that service.

The framework also confers on the ABA the ability to provide a non binding preliminary determination as to the nature of a particular service when requested to do so by the holder of a broadcasting licence or the holder of a datacasting licence.

In summary, we are of the view that the approach of the government to the definition of datacasting is too narrow, too restrictive.

It seriously risks making stillborn an emerging industry, an industry which we are of the view is of high value, high skills, uses creative and technical talent and requires large amounts of capital investment.

Almost without exception, witnesses to the Senate inquiry were critical of the genre based approach.

They were critical of the restriction of entertainment value of datacasting making it commercially unattractive to datacasters and undesirable to consumers.

Restrictions were likely, they said, to stifle innovation.

They objected to the genre based approach as being too extensive, and they said the degree of technological specificity prevented datacasting from responding to technical advances.

So the approach of the opposition has been to define datacasting on the basis of its known physical characteristics, an approach in principle supported by a large number of witnesses to the Senate inquiry.

Senator ALSTON (Victoria—Minister for Communications, Information Technology and the Arts) (8.05 p.m.)—It might be helpful if I indicate that one of the fundamental problems with the Labor Party’s approach in this issue is that they duck the question: ‘What is broadcasting?’ They adopt the definition from the Broadcasting Services Act.

They say that datacasting is to be defined as, ‘other than a broadcasting service’.

If you look of the Broadcasting Services Act you find that ‘broadcasting service’ means: ...

a service that delivers television programs ...

What is a ‘program’? A program is: ...

matter the primary purpose of which is to entertain, to educate or to inform an audience ...

So on one view the definition of broadcasting can be very wide indeed.

It follows that if datacasting has to be ‘other than a broadcasting service’ datacasting might be very narrow indeed.

For example, the government’s genre rules include educational programs and information only programs; under Labor’s definition these may not be able to be provided by a datacaster.

The conditions set out in subclause 13(1) are even more limiting.

They state: Each datacasting licence is subject to the primary condition that the licensee will not transmit matter that, if it were broadcast on commercial television or radio, would be a broadcasting service.

Again, you are back at that threshold question of what is a broadcasting service.

Again, much as I concede that many people have made honest endeavours to tackle this issue—and noone pretends that there is a perfect solution and, particularly given the interests at stake, noone is going to go out there and for a moment concede that there is anything like a perfect solution, so we are always going to end up with something imperfect if it is judged by the reactions of players, who will see it through a particular financial Tuesday, 27 June 2000 SENATE P 14729 prism—as a result, what you again find is maximum uncertainty.

The great virtue of the genre approach, much as some might say it goes too far or is too prescriptive, is that it at least gives you a higher degree of clarity than any of the other alternatives, which not only are very discretionary but lend themselves to ad hoc interpretations.

Again, I think that is part of the problem that the ABA would face if it were put in the position that the opposition seeks to place it in.

For example, if one looks at the simplified outline, the distinction is based on the attributes of the service.

But a number of those attributes, as spelt out in clause 3— and they are cumulative—are not clear in meaning.

Noncontemporaneous and nonlinear may mean things that very significantly overlap with what might be allowed via the Internet or what might be allowed via a datacasting service that, at one level, might appear to be permitted but, at another level, will not be permitted because the broadcasting definition could be very wide.

You get no assistance at all in determining what I believe is the starting point, and that is that, unless you know what broadcasting is, you cannot then look to see whether something qualifies under the datacasting regime.

If you have already decided that the broadcasting is very wide, you have very little room to breathe, so you may end up with a very narrow definition of datacasting.

You may end up with only the proceedings of parliaments and the courts, text and still pictures, interactive computer games and electronic mail.

Again that would be a very poor quality outcome and it would have arisen largely because the parliament was not prepared to grasp the nettle and do its best to define this up front in order to give certainty to those who have to make the significant investments.

Our concerns are manifold in relation to this approach which throws the whole genre regime out of the window and replaces it with a regime that is much less certain and in some respects illogical.

In clause 13.1, for example, if datacasting is not broadcasting, there is no point in having the provision in clause 13.1 that datacasters must not transmit matter that would be a broadcasting service.

You have to answer that threshold question up front.

If they are not broadcasters, then they are datacasters by definition, so presumably they are allowed to go out and transmit a range of other material.

Our datacasting regime would allow datacasters to provide Internet carriage services.

Labor’s conditions in clause 13 do not appear to allow this to happen.

There is no reference to datacasters being allowed to provide such services, although ‘Internet carriage services’ is given a meaning in the definitions.

But this suggests that, because there is no reference, the general prohibition in subclause 13.1 may prevent it.

Further, as I say, the list of attributes is cumulative, which suggests that a datacasting service must have all of the attributes at the same time.

It is not clear whether that is intended, but that may well be a very onerous demand, one that could fail on one count only and then render the service not a datacasting service.

It may not be a broadcasting service—you may have got over that hurdle—but is still fails to be a datacasting service, so you end up in noman’sland.

The crossreferences to enforcement provisions in schedule 6 do not seem to be there.

For example, the amendments do not insert references to the datacasting model in the main provisions in clause 52 which make it an offence to provide a service without a licence.

This has the effect that there are no enforcement provisions applying to the Labor model.

Labor’s list of definitions does not include a number of important definitions which are used elsewhere in schedule 6—for example, ‘advertising and sponsorship’, which is used in their subclause 13.3, and ‘interactive computer games’, which is used in subclause 13.4.

There is not a definition of ‘engaging in conduct’, which technically is crucial to the enforcement provisions in the bill in relation to datacasting.

The proposal could also mean there would be two different definitions of ‘datacasting’ in the Broadcasting Services Act.

Clause 6 refers to a person who applies to the ABA for a determination.

Presumably that means a person who proposes to provide a datacasting service, but it is not clear in what circumstances those sorts of rulings could be made.

For all those reasons, much as I acknowledge that the opposition has endeavoured to come up with an alternative approach, it founders in the same way that the other approaches we looked at foundered.

It does not provide the certainty and it does not give you a clear picture of what you are allowed to do and what you are not allowed to do.

We all know that there are reviews built into this whole process and we all know that the technology keeps changing.

I did not think anyone is out there seriously suggesting that they cannot tell the difference between a television set and a PC, so the age of convergence has not quite overwhelmed us.

While those distinctions are very valid, the fact is—and I am not sure whether Senator Brown is a party for these purposes—that both the Democrats and the Labor Party are on the record as saying that they want to adhere to the spirit of the digital conversion legislation.

If you are serious about doing that, you have to do your best—imperfect though it may be—to give all of the stakeholders every opportunity to know what it is that they are allowed to do and not simply give them a form of words which will lead to endless wrangling in meanings and interpretations and which may lead you down the same path that we canvassed a little earlier in terms of litigation.

I simply say that the government could not accept this approach.

It is a very radical one and it is not in any way consistent with the spirit of the earlier decision.

That being the case, it is not acceptable to the government.

Senator BOURNE (New South Wales) (8.14 p.m.)—by leave—I move: (1) Amendment (17), clause 2 of Schedule 6 (definition of Internet carriage services), omit “, unless the same content is available simultaneously on the Internet”.

(2) Amendment (18), subclause 13(1) of Schedule 6, omit “that, if it were broadcast on commercial television or radio, would be a broadcasting service”, substitute: of the following kinds:P 14730 SENATE Tuesday, 27 June 2000 (a) matter that, if it were broadcast on television or radio, would be a broadcasting service; or (b) matter in the form of video programming that is provided on a storeforward basis to function as a videoondemand service; or (c) matter in the form of video programming that is provided on a storeforward basis and, if automatically or manually combined with other video material or with other material that contains a mechanism that triggers the activation of material after a specified or calculated period of time, would substantially be, or include, a broadcasting service if transmitted by a radio or television broadcaster.

These are amendments to Senator Bishop’s amendments and are found on sheet 1850.

From reading through Senator Bishop’s first amendment, opposition amendment No.17, I think he did not realise that the effect of part of his amendment would be that all political and election material under schedule 2—the broadcasting of political and controversial material— would be just be allowed without anything stopping any of it.

We know we have good rules for the broadcast of election and political material for very good reasons, and I think he would probably want to keep those rules.

The other things we think would be exempted under his amendments would be the ABA telling the licensee what to do—this is if stuff comes off the Internet—so political and election material are things the ABA said not to do; the material classified as RC, X and NVE by the Classification Board; and material classified as R by the Classification Board unless the content has been modified as mentioned in paragraph 28(4)B or access to the program is subject to a restricted access system.

I am pretty sure that is part of it and is probably something he missed out on and did not expect to be a consequence of one of his amendments, but I think it is.

My amendment No.1 on sheet 1850 would fix that problem.

Concerning my amendment No 2, the main problem in Senator Bishop’s amendment No.18 is that it allows what is virtually a broadcast channel to be stored forwards; that is, to be stored onto a hard drive of a black box sitting on the top of somebody’s television set or in the back of the television, depending on the technology, and then viewed as a broadcast channel.

As Senator Alston said, that would go against the spirit of what we all agreed on a couple of years ago.

I believe that my second amendment would stop that.

It would also stop the possibility of automatically chopping and changing between channels so that you create a broadcast channel by automatic changing.

I am explaining this extremely badly, but I am sure that Senator Bishop understands what I mean.

The object of my amendments would be to be make sure that, as far as we can, a broadcast channel could not be shown accidentally through the use of Senator Bishop’s amendments.

Apart from those two things, I acknowledge that I, too, have a few fears about the way this could possibly lead to court challenges.

But I have to say that my amendments or the minister’s genre rules and proba bly any rules on the face of this earth would lead to court challenges.

Senator Alston put it very eloquently: these are people with a lot of money; these are people who really want something.

And I think that court challenges will be absolutely inevitable, no matter what we go for: whether we go for this one, whether we go for my one—which, I must say, I thought was a better one; well, we have lost that one—or whether we go for the genre rules.

I think that is something we are will have to live with, no matter what.

Senator ALSTON (Victoria—Minister for Communications, Information Technology and the Arts) (8.19 p.m.)—There are degrees of difficulty in all these matters.

The more uncertain it is, the more you are likely to invite litigation.

The object of the exercise should not be to eliminate, because I accept that you probably will not be able to that, but you can certainly minimise.

I will give you an example from the telecommunications industry in America, where litigation is a very common business tool.

It has not proven to be the case here because of the very different legislative approach we have taken.

You can, therefore, aspire to minimise those difficulties.

If Senator Bourne’s concern is that Labor’s approach would allow fullyfledged broadcasting to be downloaded and stored in a walled garden format, I cannot see how she can possibly support it, unless she were absolutely confident that her amendments would stop that happening.

The vice of this amendment is pretty much the same vice I have been canvassing all along.

It becomes a circular argument if you say that a datacaster cannot provide matter that would be a broadcasting service if it were broadcast on television, unless you know what a broadcasting service is—and that is the problem.

It does not solve your difficulty; it simply highlights the concern you would have quite rightly, about the Labor model.

But it does not go in the direction that you want it to go, which is to endeavour to identify the characteristics of a broadcasting service.

You have an outmoded definition.

This is not a criticism of the legislators of the time; it simply reflects the fact that technology has moved on unrecognisably since television was first introduced in 1956 and evolved thereafter.

It has now reached a point where definitions of broadcasting are not of any great assistance in interpreting what is meant by datacasting.

To simply say that it is the opposite is not at all helpful.

That is the problem with this type of patchup on the run.

The only sensible way you can do it is to have a genre approach.

You might say, as I have said before, that some of those categories are too prescriptive or that there might be a capacity to overlap to some extent.

I think we can do with that where there are the minor infractions.

But to say that, because you have concerns about a couple of categories at the margin, you therefore reject an approach which is very clear in its definition and substitute it with something which is entirely uncertain just underlines the fact that, much as everyone has been looking for a better approach, there isn’t one.

One might emerge down the track, all might become clear, Tuesday, 27 June 2000 SENATE P 14731 all might be revealed with the march of technology but, at this point in time, the best you can do is try to identify the essential characteristics of television, spell them out in advance, and then people will know what it is they are not allowed to do.

That then tells them what datacasting involves.

To simply say that a datacaster cannot be a broadcaster is not doing much more than restating the principle that we all established a couple of years back.

It does not take the matter any further in terms of interpretation or prescription, and I think it is the responsibility of the parliament to do just that.

Senator MARK BISHOP (Western Australia) (8.22 p.m.)—I just want to make a few comments on Senator Bourne’s amendments Nos (1) and (2).

Just briefly, their effect is to amend the ALP’s framework approach.

If content is simultaneously available on the Internet, the opposition are of the view that it should also be available to datacasters.

That might strike some as either a radical or a novel position to hold.

The question becomes: why do we hold to that particular view? The genesis of our view is really in the debate we held some 12 months ago on the broadcasting services bill—almost at this time last year—when the government sought to regulate and was eventually successful in regulating access to offensive material.

During that debate, there was an extensive discussion among all interested parties concerning material derived from ISPs located within Australia, which could be regulated by Australian law, and material received from ISPs located offshore.

In that discussion, we had the policy and conceptual arguments, but there was also extensive reference to a CSIRO report commissioned by the government.

That report found that at that time it was not technically feasible to regulate content coming into this country from offshore.

The same argument applies here now.

With the Internet, there is potentially the ability to receive material from thousands and thousands of sites all around the world.

The opposition are aware that the government, through the ministerial council on gaming, has commissioned another inquiry or report on the technical feasibility of regulating material from offshore, and the opposition made reference to it in our minority report on the online gambling issue.

We said then—and we repeat it now—that when that report came down we would examine it with interest.

At the moment, the opposition are of the view that it is not technically possible to regulate material coming in via the Internet offshore and, if it is available simultaneously, datacasters should have access to the material so that they can put it out.

We do recognise the problem that the minister referred to of the walled garden, whereby material from a range of Internet sites might be aggravated and put out as a commercial product.

We do recognise that as a serious problem, and I made reference to that in the opposition’s second reading speech.

The problem with the Australian Democrats’ amendment is that it destroys the integrity of the Internet content, it does not address the problem of walled gardens and things that derive from that, and the restrictions it places are potentially more restric tive than the government model.

Democrat amendment No.(2) in particular would prohibit any form of Internet data stored at the user end, which even the government framework would allow.

As such, the opposition are of the view that the Democrat amendments impose restrictions that are unacceptable, and at the appropriate stage we will not be supporting those amendments.

Senator BOURNE (New South Wales) (8.26 p.m.)—I make one comment about Senator Bishop’s comments.

He has mentioned that there is potentially the ability to receive thousands and thousands of channels on the Internet.

That is true of the Internet, but I am sure he is aware that, as far as datacasting channels go, you would get quite a few if you had pure text and it was as boring as hell, but I do not think that is going to happen.

The most likely thing is that you will get 50 channels or something like that and 50 Internet channels.

I am sure it is possible to regulate to make sure that there is no R or Xrated material and to make sure that there is no political or broadcasting material where it is inappropriate.

I do not think that that is really an appropriate argument for what we are looking at right now.

I take your point that it could get much bigger once compression comes in and you can get much more on seven megahertz, but I think that at the moment it is perfectly possible to regulate those 50 probable datacasting channels.

Senator MARK BISHOP (Western Australia) (8.27 p.m.)—I will just respond very briefly to that point.

Senator Bourne is correct.

The comments I was making were in the context of the future of, potential of and development of the industry with the various techniques that would allow transmission via the Internet of a number of sites significantly in excess of 50.

Senator HARRADINE (Tasmania) (8.28 p.m.)—I assume, therefore, that the Labor Party is not going to pursue its amendments.

It has been acknowledged by Senator Bishop that what Senator Bourne has stated is quite accurate.

There is an opportunity and an ability on the part of the regulatory body to ensure that this material is not provided on datacasting services.

After all, under this particular part of the legislation, which the Labor Party is not quibbling about, a datacasting service provider must hold a datacasting licence.

Obviously, through the licensing mechanism, the regulatory authorities will be able to ensure that this applies and that R and Xrated material is not available through datacasting.

I invite honourable senators to consider the problem.

You have interactive services as well.

You can have very seriously violent material with an R rating.

If you have the interactive services, you establish a situation which is quite damaging not only to the people involved but also to the integrity of the system itself—if it does have any integrity.

I am surprised that we are going along the path anyhow.

Let us face it: when you speak to the ordinary person, the ordinary family, they are not interested in digital television at all.

If you have a look at the evidence given to the committee, it is most interesting to note that the P 14732 SENATE Tuesday, 27 June 2000 crucial factor in the submissions that were supporting the rapid introduction of digital television was money.

What a surprise.

Almost all of those who were pressing the case for this new medium were saying that this will generate activity in electrical stores and in television stores, and so on, and that it will generate a demand for this new technology in the home.

And so it will.

You can imagine the peer group pressure that will be applied by many senior school students and university students, and so on, on their struggling parents.

This is what it is all about: the pressure for people to expend their money unnecessarily on something that has been found in one or two countries to be a failed system.

This is a problem at the moment.

The gap between the poor and the welloff is widening and, with this sort of pressure on the poor people, it is going to widen even further.

They will go into debt, they will go into hire purchase and the gap will grow wider.

The report of the Environment, Communications, Information Technology and the Arts Legislation Committee indicates on page 3: 1.12 In evidence to the Committee, FACTS was strongly supportive of HDTV as a driver for encouraging the takeup of digital television: High definition will be very significant in promoting digital television, although we would not expect large numbers of high definition sets to be sold in the very early years … … We think HDTV will be very important early on to promote digital television generally.

We think, without HDTV, we would have a huge uphill battle to get anyone into an electrical goods store.

It is all about money and pressure on people who cannot afford it.

I am surprised that the Labor Party, the workers party, would so readily go along with this gogetting, money grabbing exercise.

This nation has more to spend money on than digital television, for crying out loud.

I am sorry, I digress.

Now that it has been eloquently pointed out to the opposition by Senator Bourne, I assume they recognise the problem that will be created if these amendments are carried.

To repeat: the regulatory authority can ensure that X and R material is not transmitted through datacasting services by the control the regulatory authority has over the providers through the issue or withdrawal of licences.

Senator BROWN (Tasmania) (8.36 p.m.)—We have probably heard an excellent argument for the regulation of the introduction of motor cars or the regulation of the introduction of television—we had radio, and that was perfectly adequate.

And why should we have computers spreading in schools when there is enough to do learning how to read and write and use pens? The fact is that we have this technology which the rest of the world is using and which Australians will be wanting to use as well.

We should not be banning such technology, effectively, by failing to ensure that it is ushered in and that its use is as accessible and as wide as possible.

I want to ask the minister if he would give his definition of the word ‘genre’.

According to the Macquarie Dictionary, it means ‘genus; kind; sort’ and I wonder why that word is not being used.

Could the minister inform the committee as to what is meant by ‘sort’ or ‘kind’ of material if it is different from what is left over after you take out broadcasting? If the minister has a definition of datacasting, I ask whether he could apprise us of that as well.

Senator ALSTON (Victoria—Minister for Communications, Information Technology and the Arts) (8.37 p.m.)—I am just not sure whether Senator Brown has being paying attention to any of this discussion if he thinks that one should be providing a definition of datacasting on the run.

Senator Brown—Not on the run; I want the standard definition.

Senator ALSTON—The whole thrust of the Broadcasting Services Amendment (Digital Television and Datacasting) Bill 2000 and the purpose of this exercise is to say that the meaning of the term ‘broadcasting services’ is quite uncertain in this day and age—it has been in the Broadcasting Services Act for a long time.

Because datacasting services are new and different and have not been allowed to take off in this country as yet, they have to be defined by reference to broadcasting.

The way in which you therefore define broadcasting is critical.

You do not attempt to define datacasting; you attempt to define broadcasting.

The term ‘genre’ is nothing more than another word for category.

You will see that clause 13 of the bill on page 62 lists a number of programming categories which constitute a best endeavour to replicate the suite of program offerings of a conventional commercial television service.

I do not know why you would say we should have used ‘kind’, ‘sort’ or ‘genus’ instead of ‘genre’.

In terms of familiarity of terms, people would be more comfortable with ‘genre’ because I think we know instinctively what it means.

It is defined here for the benefit of everyone as simply ‘a series of categories of television programs’.

That is really the basis on which this whole construct proceeds.

I will move to some of the concerns that have been expressed by Senator Bourne.

In Democrat amendment No.1 on sheet 1850, the deletion of ‘unless the same content is available simultaneously on the Internet’ takes you back to where the government is, because that gives you the government’s definition of ‘Internet carriage service’.

I cannot see—I may be wrong—where the Labor model provides for an Internet carriage service.

Even though they adopt a definition, I do not see where that definition then brings another section into play.

It does look to me as though they do not allow for an Internet carriage service, meaning that whatever you brought in direct— in other words, it was not intercepted by the datacaster; it was simply allowed to flow across onto your television screen—would be banned, irrespective of the fact that most web sites are quite innocuous and do not infringe against the genre restrictions.

There would, however, be some that might.

You might have read a piece in the Financial Review the weekend before last which said there were literally dozens of television web sites springing up in theTuesday, 27 June 2000 SENATE P 14733 United States.

It is certainly not beyond the wit of major content owners to construct a web site so that, in a sense, the difference merges very quickly.

If you allow someone to put any Internet web site onto your television screen, then you are driving a Bdouble through any limitations that you might think you are placing on broadcasting services being datacasting services.

Under our regime, we do firstly permit Internet carriage services.

They are subject to the overriding provision in the Broadcasting Services Act that they should not amount to a television service—again, accepting there are some doubts about at what point you satisfy that definition.

But, crucially, we have a general antiavoidance provision, which is lacking in the Labor approach.

In other words, by simply relying on attributes, they do not deal with the question of distinguishing between some web sites and others in terms of Internet carriage services, because they appear not to allow it, full stop.

However, when it comes to the walled garden, under our regime that has to comply with the genre restrictions; under the Labor approach it does not seem that it does.

That, again, is a much more likely way of driving a big truck through any regime.

It is part and parcel of the business case of those wanting to be in the entertainment business that they would simply enable you to select from a carousel that is drawn from a number of web sites which in themselves would not constitute a television service but which aggregated, packaged and represented could replicate a televisionlike service very quickly indeed.

None of those very serious concerns—which, of course, make a mockery of the spirit of the 1998 legislation— are addressed by the Labor approach.

That is why I say the Democrats first amendment takes you back to where we are.

Unless you then proceed to adopt the genre approach with its builtin antiavoidance mechanisms and its ultimate subservience to the Broadcasting Services Act—if you simply tack it onto an attributes approach or model—you do not have any of those safeguards.

You do not allow Internet carriage services when there is a case for allowing some of them and you do not then deal with the ones that should not be allowed in because you have banned everything—and, when it comes to the walled garden, again you have gone far too far.

I simply say that, much as I think your first amendment is innocuous because it takes us back to where we were in the bill, it does not go any distance at all to solving the fundamental deficiencies of the opposition’s alternative model.

That being the case, much as I understand Senator Bourne’s reservations about any ultimate regime, I think we should all be striving for maximum certainty—not absolute certainty, but maximum certainty.

We should be prepared to give that approach a go, recognising that there will be plenty of opportunities for it to be assessed in the marketplace as well as formally by way of review.

Then we can respond down the track, if we need to.

But I think it would be the height of folly to embark on a new regime if noone really had any sense of where it would take us, whereas the genre approach does give us that certainty.

Much as people might criticise it, they know what it delivers, and it does deliver a clear understanding of what a broadcasting service is.

Senator MARK BISHOP (Western Australia) (8.45 p.m.)—I want to respond briefly to a couple of the issues raised by Senator Harradine.

At the outset, I would say that the opposition is of the view that it is probably correct that, if you wanted to impose a condition or a set of conditions on an activity a datacasting licensee might choose to engage in, it could quite easily be done.

You could simply make it a condition of the licence that it cannot datacast X or Rrated material.

For those licensees resident in Australia and datacasting from Australia, if that were a condition of the licence the mischief raised by Senator Harradine would probably be addressed.

So, to that extent, that is correct, but it does not address the real problem at the kernel of this debate.

The issues raised by Senator Harradine go to material that is brought in from offshore in relation to the Internet being able to be accessed through a datacast via one click on a TV screen.

There is no ability to control that material.

The government in its bill does not seek to; the minister’s second reading speech and the explanatory memorandum make it quite clear that the government does not seek to regulate content put out by datacasters coming in from offshore.

The government makes the point that it has legal advice that that is not comprehended within the definition of the Broadcasting Services Act and, hence, is probably regulation free at this stage.

That is why it proposes at a later stage to have a review of video and audio streaming material and why the opposition is also going to be moving an amendment to bring forward that review.

The issues raised by Senator Harradine may properly be attended to in that review.

If the opposition’s later amendments get up, there will be a public review— a statutory review, an open review.

Persons in the community who have concerns going to the issues raised by Senator Harradine can address those concerns in the context of those reviews of video and audio streaming content.

But I repeat: the bill before us is a government bill; it does not in anyway seek to regulate content put out by datacasters coming in via the Internet.

Simply clicking on your screen gives you access to millions and millions of web sites overseas.

The government bill does not seek to attend to that mischief for the reasons I have outlined.

Whilst the opposition acknowledges the concerns raised by Senator Harradine, I simply refer him to the extensive debate on identical issues last year in the broadcasting services bill.

Identical issues probably will emerge later on this year when the government introduces a bill to regulate gambling on the Internet.

There will be the same issues again.

First, there is the question: do you want to regulate the Internet and material derived from it? If the answer to that is yes, the second question is: how are you going to do so in an effective manner? The opposition’s only comment at this stage is that the government’s bill does not pretend to attend to that mischief.

However, the re P 14734 SENATE Tuesday, 27 June 2000 views that are part and parcel of the bill might show a way through that particular thicket.

Senator BROWN (Tasmania) (8.49 p.m.)—If we were having a debate here about ownership across the board, that would be one thing; if we were to have a debate about content across the board and how it might be restricted, that would be another thing.

The problem with this debate and this legislation is that we are trying to define, restrict and trammel new technology by monopolistic ownership of what is termed ‘broadcasting’ in an old technology.

We cannot come to a satisfactory conclusion while that restriction, that impediment, stands in the way.

The minister said that you cannot define datacasting on the run, although I thought that was the term he used to, in a way, anchor the discussion we are now having.

He said that you cannot define datacasting but attempted to define broadcasting, having just told us that the definition of broadcasting had moved, even since this chamber was last debating the issue.

It just points up that really this is an effort to shore up the monopoly of those who have the broadcasting licences at the moment and to restrict the new technology in a policy of leftovers.

That is totally unsatisfactory.

That is the problem that we have here.

This is an opportunity to broaden ownership in Australia, to allow new players into the whole field, but it is being stymied by the confines of the mistake of 1998.

Obviously, in these circumstances, we will not be able to move to get around that block.

All I am left to do here is to try to work out which of the three sets of opinions is the most affable at least to the Australian public.

So I will do the best I can.

Senator HARRADINE (Tasmania) (8.52 p.m.)—I would like to have a response by the minister to the comments by Senator Bishop that the government does not, and does not intend to, attend to the mischief that was referred to by me and then consequently referred to by Senator Bishop.

I do not know that I am necessarily in order at the present moment in doing this, but it is germane to the amendments that have been moved by Senator Bishop and the amendments moved thereto by Senator Bourne.

Page 54 of the legislation states: Datacasting licensees will be allowed to provide the following types of content: (a) informationonly programs (including matter that enables people to carry out transactions); (b) educational programs; (c) interactive computer games; (d) content in the form of text or still visual images; (e) Parliamentary broadcasts; (f) ordinary electronic mail; (g) Internet content.

I was wondering whether the minister may indicate to the chamber whether any of that material which would be classified by the Classification Board as X, R or refused classification would be permitted to be transmitted by datacasting providers.

I would be most grateful if the minister responded to that.

Secondly, I did mention in my previous comments that in a general sense this matter is not of great concern or not of great interest or merit to the public of Australia, particularly the working poor, because these things are at the present moment out of their range.

As I understand it—and you can correct me if I am wrong—one statement was made to the committee that you would have to pay $20,000 for a unit for digital television.

Sony I think said it would cost $8,000.

In the minds of the people who are concerned that this is coming in and is not needed is the concern that they will be pushed into keeping up with the Joneses, and quite clearly that is the aim of those who will be holding the licences.

I wonder whether Minister Alston would be kind enough to respond to my questions in relation to page 54, which of course is datacasting services part 1, item 1.

Senator ALSTON (Victoria—Minister for Communications, Information Technology and the Arts) (8.56 p.m.)—I think the answer to Senator Harradine’s question is really contained in the general conditions attaching to a datacasting licence, which are set out on page 70 of the bill and which state: (e) the licensee will not transmit datacasting content that has been classified as RC, X or NVE by the Classification Board ...

That makes it plain that any datacaster is subject to that requirement by way of licence conditions.

Senator HARRADINE (Tasmania) (8.57 p.m.)—I acknowledge that.

That is in respect of RC, X or NVE.

I was most interested in the provisions contained in paragraph (f) which states: (f) the licensee will not transmit datacasting content that has been classified R by the Classification Board unless: (i) the content has been modified as mentioned in paragraph 28(4)(b); or (ii) access to the program is subject to a restricted access system (within the meaning of clause 27) ...

I am raising this matter because it does seem to me that datacasting is extending the propagation of this particular material beyond that which is through the Internet at the present moment.

Under the provisions of the online services legislation, that required a restricted access provision for access to R.

I do not agree with the suggestion that the conditions surrounding online services should be taken up and made the same for datacasting.

I think, as the government has inferentially acknowledged, there is a difference between datacasting at this present point in time and the transmission of Internet content.

Can I ask for some classification as to what is meant—unless I should not do it now; maybe I should leave it until we get to paragraph 28(4)(b) of the legislation.

Senator ALSTON (Victoria—Minister for Communications, Information Technology and the Arts) (8.59 p.m.)—I do not think I could add much to what Senator Harradine has said other than to refer to clause 27, which does provide for a restricted access system.

It states: ...

the ABA must have regard to:Tuesday, 27 June 2000 SENATE P 14735 (a) the objective of protecting children from exposure to matter that is unsuitable for children; and (b) such other matters (if any) as the ABA considers relevant.

A restricted access system is presumably a conditional access arrangement and you are not allowed to transmit datacasting content classified R unless you do have that conditionality regime.

Beyond that, perhaps we can wait until we get there if there are other more specific matters.

I think it is worth noting the opposition’s approach on this matter.

If one endeavours to identify where a walled garden would be permitted, it is presumably under the definition of ‘Datacasting services’ in clause 3, if you assume that a combination of those attributes gives you that ability, but there does not seem to be any safeguard to protect against what we all clearly anticipate as a very likely model of downloading into a walled garden environment where you simply pick out a number of TVlike web sites.

One could argue that they are caught up under the prohibition, or what is contained in brackets—(other than a broadcasting service).

But, again, it is not at all clear that, in the first instance, a walled garden is permitted.

You have to infer that definition 3 amounts to permission.

If you get to that stage, it is not at all clear that sites that are clearly TVlike sites are banned.

It seems to me that this attributes model suffers very much from the vagueness that led me to criticise earlier proposals and particularly because that walled garden is a much more effective way of replicating a television service than simply an Internet carriage service.

Our approach, by making walled gardens subject to the genre restrictions and then having a general antiavoidance provision, in my view, provides you with a much more secure arrangement.

It gives you a lot more confidence that you are able to deal with what we would all instinctively acknowledge are broadcast services.

If you adopt the Labor model, you do not get any of that certainty at all.

You simply have, at best, some definitions that you hope might amount to those sorts of limitations.

The TEMPORARY CHAIRMAN—The question is that the amendments moved by Senator Bourne on behalf of the Australian Democrats to opposition amendments (17) and (18) be agreed to.

Question resolved in the negative.

The TEMPORARY CHAIRMAN—The question is that opposition amendments (17) and (18) be agreed to.

Question resolved in the negative.

Senator ALSTON (Victoria—Minister for Communications, Information Technology and the Arts) (9.03 p.m.)—I table three supplementary explanatory memoranda relating to the government amendments to be moved to this bill.

The memoranda were circulated in the chamber on 27 June 2000.

Senator ALSTON (Victoria—Minister for Communications, Information Technology and the Arts) (9.04 p.m.)—I move government amendment No.2 on sheet EK215: (2) Schedule 1, item 2, page 3 (lines 7 to 11), omit the item, substitute: 2 After paragraph 3(1)(a) Insert: (aa) to promote the availability to audiences and users throughout Australia of a diverse range of datacasting services offering education and information; and 2A After paragraph 3(1)(b) Insert: (ba) to provide a regulatory environment that will facilitate the development of a datacasting industry in Australia that is efficient, competitive and responsive to audience and user needs; and 2B After paragraph 3(1)(f) Insert: (fa) to promote the provision of high quality and innovative content by providers of datacasting services; and This amendment more explicitly acknowledges the role of datacasting services and the objects of the BSA and, in particular, the central role of education and information in datacasting and the role of datacasting in providing high quality innovative content.

Senator MARK BISHOP (Western Australia) (9.05 p.m.)—I move: Paragraph (aa), omit ‘offering education and information’.

Paragraph (aa) is in respect of the objects of the act.

It is appears to the opposition that, if we retain those words ‘offering education and information’, it tends to limit the object of the act in promoting the availability to audiences and users throughout Australia of a diverse range of datacasting services.

It limits that broad range of datacasting services offering education and information, and not the other matters that are contained in the definition that is now going to be the framework of the act that the government has allowed or the whole myriad of additional services that might be offered in the future as this industry develops and becomes (1) more technical and (2) much more commercial with the focus on consumer wants.

While there is nothing wrong in principle with having a diverse range of datacasting services offering education and information—and we certainly applaud that—including it in that sentence as part of the object of the act appears to the opposition to limit the breadth of the act.

As we all know, this whole industry is developing at a rapid pace.

There is a convergence issue that we will all be facing in the not too distant future.

The government has indicated that there is going to be a whole range of reviews over the next three or four years.

The opposition seeks to have some more reviews and to bring the start and finish dates of those reviews forward.

We are of the view that, whilst to extend the object of the act in this way is okay, if we take out the words ‘offering education and information’, we broaden the scope of the purpose of the objects and that in a developing environment is a worthwhile thing.

 P 14736 SENATE Tuesday, 27 June 2000 Senator BOURNE (New South Wales) (9.08 p.m.)—The Democrats would agree with pretty well everything that Senator Bishop has said.

We agree with the government’s amendment, except that we also believe that if you put into (aa) ‘a diverse range of datacasting services offering education and information’ we think that does restrict it to just education and information, and we would not want to see that done.

So we would be in support of Senator Bishop’s amendment and then in support of the amended objects, as Senator Alston has moved.

Senator HARRADINE (Tasmania) (9.08 p.m.)—I would be interested to know what the minister has to say about that.

I thought that this was one of the things the government was putting forward in support of its legislation, that here was an opportunity to have datacasters providing content which will enhance the education and information available to the public.

We have heard this time and time again over the last two years.

That is how this whole thing has been sold.

It has been sold on the basis that the datacasting licensees would be able to transmit material in that genre and will improve the education and information available to the Australian public.

The legislation on datacasting, schedule 6, sets out what types of content will be available.

It states: (a) informationonly programs (including matter that enables people to carry out transactions); (b) educational programs; (c) interactive computer games; Presumably that was sold on the basis that it would be material that was informational and educational.

That would be a very fine tool not only in classrooms but also in an increasing number of homes where there is home schooling.

It goes on: (d) content in the form of text or still visual images; (e) Parliamentary broadcasts— Well, I do not know whether that is educational or informational or both—or neither.

I would like to hear the government’s response, the minister’s response, to this.

I do not know whether the opposition has just decided to do this, but I am rather disappointed.

If huge amounts of money are going to be spent on it, under those circumstances we should, at least at this particular stage, have as our objective ‘to promote the availability to audiences and users throughout Australia of a diverse range of datacasting services offering education and information’.

I would support that.

Why not try that? The opposition, the Democrats and the government have referred to the fact that we are going to have some reviews of the legislation, and the earlier that can take place after the trial period the better.

Why not just stick with what the government has here until such time as the reviews take place and the public and interested organisations can make submissions to those conducting the reviews as to whether there are other user needs which should be satisfied? Senator ALSTON (Victoria—Minister for Communications, Information Technology and the Arts) (9.13 p.m.)—To respond to Senator Harradine’s concerns, we have always taken the view that datacasting provides the opportunity to deliver new information and education services in contradistinction to the commercial television sector, which is noted for its emphasis on entertainment.

That has been the essential dichotomy.

You are quite right in saying that time and again we have advocated the virtues of datacasting as offering those new opportunities.

That is why we have put forward this new object to try to specifically identify the benefits that attach to offering new education and information services.

I presume that Labor and the Democrats accept that but subsume it into a wider object and take the view that you ought to go for maximum diversity which may, certainly over time, extend beyond mere information and education.

So I do not think they are telling us that they no longer think education and information are paramount or that they will not be the dominant aspect of datacasting; they are really arguing for maximum diversity.

I prefer my form of words.

That is why we put the new object forward.

We do think the emphasis ought to be clearly and explicitly on the alternative to the entertainment sector, which is capably represented by commercial television interests.

We want to see a new and different approach emerge, and that is why we have specifically anointed education and information.

But, as I say, we have put it forward.

We would like it to be supported.

It does not sound as though it is going to be.

Senator MARK BISHOP (Western Australia) (9.14 p.m.)—To further help the committee, not only are education information services going to be available through datacasting—we acknowledge that they are certainly going to be part and parcel of the new world—but we also confirm Senator Alston’s point that we are seeking to broaden the definition.

It is not just services that are going to be available through datacasting.

Other tools will be available.

Tools have utility: for example, you will be able to get word processing services and email devices through datacasters.

So our concern is that, by retaining the words ‘education and information’, you limit the range of services and the utility of the range of tools that will be available through the new facility.

The TEMPORARY CHAIRMAN (Senator Bartlett)—The question is that the opposition amendment to government amendment No.2 be agreed to.

Question resolved in the affirmative.

TEMPORARY CHAIRMAN—The question now is that the government amendment, as amended, be agreed to.

Question resolved in the affirmative.

TEMPORARY CHAIR—We move on to Democrat amendment No.1.

Senator BOURNE (New South Wales) (9.16 p.m.)—I believe that the amendment we are discussing now is where the Democrats proposed to add another subsection to 3(1) to the objects, and this is on sheet 1827.

We have circulated an amendment.

After discussions with the opposition, I would like to move our amended amendment: Schedule 1, page 3 (after line 11), after item 2, insert: Tuesday, 27 June 2000 SENATE P 14737 2A At the end of subsection 3(1) Add: ;and (n) to ensure the maintenance and, where possible, the development of diversity, including public, community and indigenous broadcasting in the Australian broadcasting system in the transition to digital broadcasting.

I am pretty sure that that is what they were happier with.

The difference from my original amendment, which I had done a couple of days ago, is that it actually spells out public community and indigenous broadcasting as being included in the intended diversity of the broadcasting system in Australia.

While we do have a community broadcasting system in place and, I hope, expanding, the indigenous television broadcasting system is extremely fledgling.

Having looked at the Productivity Commission report on broadcasting, we would hope that that would have the room to expand and grow within Australia.

It is probably a very sensible idea of the opposition’s to include public community and indigenous broadcasting spelt out in the objects of the act and also as part of the intended diversity of the broadcasting system in Australia.

Senator BROWN (Tasmania) (9.18 p.m.)—I would go along with that.

I think it would be improved if it were ‘in particular’ in instead of ‘including’.

I ask Senator Bourne if she would mind taking note that I would have a preference for the words ‘in particular’ instead of ‘including’.

I want to comment on the direction that we are going in with the whole amendments here.

It seems to me that what has happened is that the opposition and the Democrats have knocked each other out as far as the major amending provisions are concerned.

If that continues, the government is going to have its way as far as this legislation is concerned.

The only way that we are going to bring this back to the intention of the major parties on this side of the house is for a no vote on the third reading so that the whole matter can be looked at again and improved.

Otherwise, the opposition and the Democrats are effectively saying that the government has the best alternative.

I do not think that is the intention.

It is certainly not what is being said by either party, but that is the result of what we have just seen.

I think that the opposition and the Democrats should, overnight, reflect very much on that and ask if it is really their intention, through inability to find a common formula which is better than the government’s, to leave the government to have the day on this matter—because that is the worst outcome of the lot.

Senator HARRADINE (Tasmania) (9.20 p.m.)— Mr Temporary Chairman, could I, through you, ask Senator Bourne a question about the running sheet? Are we are dealing with sheet 1827? There must be another 1827, because some of the words that were read out by Senator Bourne— Senator BOURNE (New South Wales) (9.21 p.m.)—Yes; I have amended it, Senator Harradine.

I was reading out my amendment to that amendment.

Senator ALSTON (Victoria—Minister for Communications, Information Technology and the Arts) (9.21 p.m.)—I suppose that we are dealing with amendment upon amendment, as Senator Harradine has rightly identified.

It does seem to the government that, whilst it is laudable to seek to identify all the various interests that might be represented in the debate, in itself it does not necessarily lend itself to being included in the objects clause, particularly in the context of talking about a transition.

In other words, if the objects are there on a lasting basis—as one assumes they are—then one would, quite understandably, aspire to see datacasting made available to the maximum number of individuals and groups in the community.

Senator Bourne’s amendment upon her amendment does not really express it in those terms, but rather in a transition arrangement to develop sectoral diversity which is then subcategorised into three different groupings.

I would not die in a ditch on it, but it seems to me, with respect, it is a little clumsy in an objects clause.

Certainly I think the point can be made on the way through in a number of other places that each of those interests is very important and should have access wherever possible.

But whether it is appropriate to be in the objects clause is, I think, a moot point.

The TEMPORARY CHAIRMAN (Senator Bartlett)—The question is that the amendment moved by Senator Bourne in amended form be agreed to.

Question resolved in the affirmative.

The TEMPORARY CHAIRMAN—The next amendment on the running sheet is Senator Brown’s amendment, which I think is identical to Senator Bourne’s original one.

Do you want to proceed with that, Senator Brown? Senator BROWN (Tasmania) (9.23 p.m.)—I will withdraw that because of the passage of Senator Bourne’s amended amendment.

The TEMPORARY CHAIRMAN—We proceed to Democrat amendment No.2, on sheet 1827, dealing with national broadcasting services.

Senator BOURNE (New South Wales) (9.23 p.m.)—I am just looking this one up, if I could seek the indulgence of the committee once again.

The TEMPORARY CHAIRMAN—While Senator Bourne is being indulged, perhaps, Senator Brown, you might like to speak.

Senator BROWN (Tasmania) (9.24 p.m.)—I would like to add a little to my earlier comment.

I would like to know from the opposition and from the Democrats what the intended outcome now is as far as the passage of this legislation is concerned.

I think it will make a great deal of difference to how the committee deals with further amendments and, indeed, what conclusion we come to tomorrow.

I am puzzled, to say the least, by the phenomenon of the opposition and the Democrats seeming, on the face of it, to have a complementary viewpoint visavis the government, but in fact knocking each other out to allow the government to have the day.

One can only take from that that the intention is to allow the government to have the day; that there is some withP 14738 SENATE Tuesday, 27 June 2000 drawal from the position publicly stated by the two parties.

I find that hard to fathom, and I would appreciate some clarification.

Senator ALSTON (Victoria—Minister for Communications, Information Technology and the Arts) (9.25 p.m.)—Mr Temporary Chairman, you granted indulgence to Senator Bourne to enable her to collect her thoughts, but instead you provided an opportunity for Senator Brown to do a bit of additional grandstanding.

He has twice tried to make a second reading point when we are dealing with committee stage amendments.

If he wants to go outside the chamber and rabbit on in his usual fashion he is perfectly entitled to, but in the committee stage of the debate he should not be permitted to make gratuitous observations that have nothing to do with the amendments before the chair.

The TEMPORARY CHAIRMAN—Thank you, Minister.

I think others can choose to respond if they want to.

Senator Bourne is now ready to move her amendment, in any case.

Senator BOURNE (New South Wales) (9.25 p.m.)—Yes.

Thank you, Mr Temporary Chairman.

I am sure Senator Brown knows that is not the case, but we can speak about that afterwards, I am sure.

On to my next amendment.

This is one part of three amendments, and the other two—I would seek leave to move them together—are amendments Nos 52 and 53.

Those three amendments put together would put the datacasting regime for the ABS and the SBS into their own acts.

They may still be under the ABA, but what happened to them would be within our own acts.

So the ABC’s datacasting regime, even if it were still under the ABA, would be in the ABC’s act, and SBS’s datacasting regime, even though it may still be under the ABA, would be in the SBS act.

The TEMPORARY CHAIRMAN—Is leave granted for those three amendments to be moved together? Is there any objection? Senator BOURNE (New South Wales) (9.27 p.m.)—To clarify, it might be easier if we move Democrat amendment No.2 down, because there seems to be some confusion—mine included.

If we move it down to where we look at Nos 52 and 53, I think those two amendments would go with this amendment.

That would give people time to look at it and make sure that it is doing what we think it should be doing.

The TEMPORARY CHAIRMAN—Are you suggesting not moving Democrat amendment No.2 either at the moment? Senator BOURNE—Yes, Mr Temporary Chairman.

I am suggesting that it be moved later on, in conjunction with Nos 52 and 53 when we get to them.

The TEMPORARY CHAIRMAN—The proposal is not to proceed with Democrat amendment No.2 at the moment, but to group that with amendments Nos 52 and 53.

Senator MARK BISHOP (Western Australia) (9.28 p.m.)—Senator Bourne, Democrat amendment No.2 is relatively simple.

It extends the datacasting to the national broadcasters.

We support it.

Let’s do it.

Senator ALSTON (Victoria—Minister for Communications, Information Technology and the Arts) (9.28 p.m.)—There is still an opportunity to reflect on it.

The combination of these three amendments would impose different regimes in terms of obligations on the commercial sector—in other words, ordinary datacasters— and on the ABC and on the SBS.

We do not support three different regulatory models for datacasting.

It seems to us that you ought to have a common regime.

It ought to be overseen by a single regulator—the ABA.

If the ABC and SBS regulate their own datacasting, then there is a risk that their boards may apply different interpretations of the rules than the ABA does for commercial datacasters.

It is certainly not beyond the bounds of possibility that, if the national broadcasters are effectively able to regulate themselves and indulge their own interpretations, they will go much further than the ABA would allow the commercial sector to go, and that is neither a coherent nor a desirable public policy outcome.

Whilst there may be other ways in which there can be embedded recognition in the ABC and SBS acts, I would strongly urge the Labor Party to consider the implications of this combined proposal, because it does quite clearly result in three different regulatory regimes.

I make the point again: it does result in three potentially quite different regulatory regimes.

You have all of the nonnational broadcaster datacasters being governed by the ABA—which provides its own interpretation of the regime, as it should, because this is a new model and you ought to have a regulator charged with responsibility for coming up with consistent interpretations—but alongside that the last thing you want is to have the ABC and the SBS, with the best of goodwill one would assume, going off on frolics of their own without any serious constraints.

So we do not support different regulatory models.

I should also say that in the government’s view the amendment has a major technical flaw, as consequential changes are not made to the relevant transmitter licence provisions in the Radiocommunications Act, which requires the national broadcasters to hold a BSA datacasting licence before the transmitters can be used to transmit a datacasting service.

It is not clear to me why the Democrats indeed want three different and potentially conflicting regimes.

Senator Bourne—Sit down and I’ll tell you.

Senator ALSTON—All right.

I will sit down and give you go.

The TEMPORARY CHAIRMAN (Senator Bartlett)—Senator Bourne, can I just clarify you are wishing to proceed now with amendment No.2.

Senator BOURNE (New South Wales) (9.31 p.m.)—Yes, but can I clarify first that I think the minister is discussing my amendment No.41.

I do not think that we have that problem at all with amendment No.2.

The TEMPORARY CHAIRMAN—Perhaps you can move amendment No.2 and then speak to it.

Tuesday, 27 June 2000 SENATE P 14739 Senator BOURNE—I move Democrats amendment No.2: (2) Page 5 (after line 23), after item 17, insert: 17A Paragraphs 13(1)(a) and (b) After “broadcasting services” (wherever occurring), insert “and/or datacasting services”.

The effect of amendment No.2 is that, with both the ABC and SBS, whenever it mentions ‘broadcasting services’ it would also add ‘datacasting services’ to what they are able to do.

It is amendment No.41, I think, that you are thinking of, Minister, where the ABC and I think SBS boards would have the responsibility for regulating their own datacasting regimes.

That is neither amendment No.2 nor amendment No.52 or No.53.

But when we get up to amendment No.41, I am sure we will be interested in hearing that speech again.

Senator MARK BISHOP (Western Australia) (9.32 p.m.)—I think there is a bit of confusion here.

Broadly, in terms of the minister’s argument in terms of one regulatory regime to regulate the ABC and the SBS, the opposition does not demur.

I had thought there was common ground.

In respect of Democrats amendment No.2, we are simply dealing with extending ‘broadcasting services’ to ‘datacasting services’.

Senator ALSTON (Victoria—Minister for Communications, Information Technology and the Arts) (9.33 p.m.)—Could I perhaps just ask for some further advice on this matter.

It may be selfinflicted, but there is some confusion, certainly on my part, as to whether we are in fact dealing with the matter that Senator Bourne thinks I should be dealing with.

Senator BOURNE (New South Wales) (9.33 p.m.)—My amendment No.2 would amend the Broadcasting Services Act to add ‘datacasting services’ wherever ‘broadcasting services’ appears behind ABC and SBS.

That will be needed—which is one of the reasons I thought we possibly should have done it while we were doing Nos 52 and 53—if Nos 52 and 53, and I understand particularly No.52, are passed.

It has nothing to do with that ‘third regime,’ as you called it; that is my amendment No.41.

Senator ALSTON (Victoria—Minister for Communications, Information Technology and the Arts) (9.34 p.m.)—If that is the case, I apologise to Senator Bourne.

Can I belatedly support her suggestion that we defer further consideration of this in order to enable us all to perhaps get some more informed advice.

My advice, for example, is that 13(5) of the Broadcasting Services Act it says: Except as expressly provided by this Act, the regulatory regime established by this Act does not apply to national broadcasting services.

What Senator Bourne is seeking to do is to add in ‘datacasting services’ to subclause (1), so that would say: National broadcasting services are: (a) broadcasting services and datacasting services ...

If you then go down to subsection (5), you find that the regulatory regime does not apply to datacasting.

On the face of it, that seems to be a nonsense.

There fore, I would be more comfortable if we could reflect on it.

Thank you.

Senator MARK BISHOP (Western Australia) (9.35 p.m.)—We will also reflect upon that.

Motion (by Senator Bourne) agreed to: That further consideration of amendment No.2 be postponed.

Senator BOURNE (New South Wales) (9.36 p.m.)—I move Democrats amendment No.3: (3) Schedule 1, item 20, page 6 (line 2), omit “6 MHz or”.

As senators will know, there is currently a six megahertz lump of spectrum in the middle of the broadcast spectrum.

Six megahertz pieces of spectrum cannot be utilised properly under the hardware that we expect to have in Australia for seven megahertz pieces of spectrum, which is what will be allocated for datacasting and eventually for broadcasting.

This amendment seeks to stop any possibility of the government utilising the six megahertz piece of spectrum as an entity.

It will be available, because it is in the middle of what is currently in the analog spectrum—there may be others around that they are thinking of doing, but the one I am thinking of is in the middle of the analog spectrum—and we think it would be sensible if that were not available for use because it probably cannot be picked up by any of the equipment that will be available in Australia in the near future anyway, and it will also become part of that very large piece of spectrum which will be available to be divided up once the analog services are turned off.

I do not think it will have any huge impost on the government if this happens.

There will be some small cost because it cannot be auctioned off, but I cannot see why too many people would want a six megahertz piece of spectrum anyway.

Senator ALSTON (Victoria—Minister for Communications, Information Technology and the Arts) (9.38 p.m.)—It is not a big deal, I suppose, in one sense, because it probably is highly unlikely that the ABA would ever allocate a six megahertz channel but this is probably a classic example of where planning decisions should be taken by the experts and not by the parliament on the run.

I do not think any of us necessarily understand the full implication of a provision of this sort.

I think it should be left with the ABA to make its own judgment on it.

As I understand the way in which the spectrum is configured, datacasting services and broadcasting services will only be available via the same seven megahertz spectrum band.

If that is the case then it would suggest that six megahertz will not be particularly useful for current purposes.

But, at the end of the day, that is just the secondhand advice you get.

I would probably feel more comfortable if the ABA made that judgment.

Senator MARK BISHOP (Western Australia) (9.38 p.m.)—The opposition supports the Democrats amendment.

The government is proposing to effect spectrum clearance and have a review to enable the government to plan quarterly on this issue in the future when the issue becomes whether to clear the six to seven or to remain with the seven megahertz.

WeP 14740 SENATE Tuesday, 27 June 2000 will await the review, but we support the amendment at this stage.

Amendment agreed to.

Senator ALSTON (Victoria—Minister for Communications, Information Technology and the Arts) (9.39 p.m.)—by leave—I move government amendments (3) to (11) on sheet EK 215: (3) Schedule 1, item 23, page 7 (lines 15 and 16), omit “commencement of this section”, substitute “designated time for the licence area”.

(4) Schedule 1, item 23, page 7 (line 34) to page 8 (line 1), omit “commencement of this section”, substitute “designated time for the licence area”.

(5) Schedule 1, item 23, page 8 (line 5), omit “commencement of this section”, substitute “designated time for the licence area”.

(6) Schedule 1, item 23, page 8 (line 11), omit “commencement of this section”, substitute “designated time for the licence area”.

(7) Schedule 1, item 23, page 8 (line 27), omit “commencement of this section”, substitute “designated time for the licence area”.

(8) Schedule 1, item 23, page 10 (line 21), before “the licensee”, insert “if the licence area for the licence is wholly outside a remote licence area (within the meaning of Schedule 4)—”.

(9) Schedule 1, item 23, page 10 (line 27), omit “2004.”, substitute “2004; and”.

(10) Schedule 1, item 23, page 10 (after line 27), at the end of subsection (18), add: (c) if any part of the licence area for the licence is within a remote licence area (within the meaning of Schedule 4)—the licensee will commence to provide the commercial television broadcasting service concerned in SDTV digital mode (within the meaning of Schedule 4) by the time that is notified in writing to the licensee by the ABA, being a time that is not earlier than the date determined by the ABA in relation to the remote licence area as mentioned in subclause 6(6A) of Schedule 4.

(11) Schedule 1, item 23, page 11 (after line 30), at the end of section 38B, add: Designated time (26) In this section: designated time, in relation to a licence area, means: (a) if the licence area is wholly outside a remote licence area (within the meaning of Schedule 4)—the commencement of this section; or (b) if any part of the licence area is within a remote licence area (within the meaning of Schedule 4)—the time determined by the ABA in relation to the remote licence area for the purposes of this paragraph.

The purpose of these amendments is to correct the existing provisions in relation to the allocation of section 38B licences in remote twostation licence areas to reflect the delayed commencement dates in remote areas.

Currently, the bill requires that if a licensee in a twostation market wants to apply for a third commercial broadcasting licence, it must notify the ABA that it intends to do so within 90 days of the commencement of the provisions in this bill.

Given that there are no relevant dates in relation to remote areas, it may well be that digital services will not commence for some years and, in those circumstances, it would make a nonsense of the requirement for notification within 90 days of the commencement of the bill.

The amendments as proposed will restrict the application of paragraph 18(b) to a licence area which is not a remote licence area and will make a new provision which requires the licensee to commence the service by the time notified by the ABA.

Amendments agreed to.

Senator BOURNE (New South Wales) (9.42 p.m.)—by leave—I have been working off the old running sheet which would now have the ALP reviews but I think that has moved to our EPG regime.

I move Democrats amendments Nos 4, 13, 14, 18, 38, 40 and 42 to 44 on sheet 1827: (4) Schedule 1, page 19 (after line 20), after item 69, insert: 69A After subclause 7(2A) of Schedule 2 Insert: (2B) Each commercial television broadcasting licence is also subject to the condition that the licensee will provide information to another commercial television broadcasting licensee, a subscription television broadcasting licensee or a datacasting licensee: (a) in a timely manner; and (b) at no cost; and (c) in a form (and accompanied by any necessary digital systems information) that reasonably enables its inclusion in an electronic program guide; if required to do so by that other licensee for the purpose of compiling information for an electronic program guide.

69B At the end of clause 10 of Schedule 2 Add: (2A) Each subscription television broadcasting licence is also subject to the condition that the licensee will provide information to another subscription television broadcasting licensee, a commercial television broadcasting licensee or a datacasting licensee: (a) in a timely manner; and (b) at no cost; and (c) in a form (and accompanied by any necessary digital systems information) that reasonably enables its inclusion in an electronic program guide; if required to do so by that other licensee for the purpose of compiling information for an electronic program guide.

(13) Schedule 1, item 94, page 27 (line 31) to page 28 (line 3), omit paragraph (24)(a), substitute: (a) a schedule of the television programs provided by: (i) the commercial television broadcasting service transmitting the matter; orTuesday, 27 June 2000 SENATE P 14741 (ii) each of the commercial television broadcasting services and each of the national television broadcasting services; or (14) Schedule 1, item 94, page 28 (line 21), at the end of subclause (24), add: ; or (e) a combination of: (i) a schedule covered by paragraph (a); and (ii) items of factual information, and/or items of comment, about some or all of the programs in the schedule, where each item is brief and in the form of text; and (iii) a facility for the sole purpose of which is to enable an enduser to select, and commence viewing, one or more of the programs in the schedule; and (iv) a schedule of the programs provided by any or all holders of datacasting licences issued under Schedule 6; and the matter complies with the following rules: (f) if a licensee transmits an electronic program guide containing information about any programs transmitted, or services offered, by a third party (the third party service), the licensee must transmit equivalent information about programs transmitted by itself and by each other service that is the same type of service as the third party service; (g) if a licensee transmits matter in accordance with paragraph (f), the licensee may organise the matter in the electronic program guide as the licensee sees fit provided that the electronic program guide gives equal prominence to information about each third party service and the licensee’s own services; (h) if a licensee transmits matter in accordance with paragraph (f) that provides clickon access to the services about which it provides information, clickon access must be provided to each of those services by an equally easy to use method.

(25) For the purposes of subclause (24), the following services are the same type of service as a third party service: (a) if the third party service is a freetoair broadcasting service—all other freetoair broadcasting services; (b) if the third party service is a datacasting service—all other datacasting services; (c) if the third party service is a subscription broadcasting service—all other subscription broadcasting services.

(26) In subclause (25), freetoair broadcasting service means: (a) a commercial television broadcasting service; and (b) a national broadcasting service.

(18) Schedule 1, item 115, page 36 (line 16), at the end of subclause (24), add: ; or (e) a combination of: (i) a schedule covered by paragraph (a); and (ii) items of factual information, and/or items of comment, about some or all of the programs in the schedule, where each item is brief and in the form of text; and (iii) a facility for the sole purpose of which is to enable an enduser to select, and commence viewing, one or more of the programs in the schedule; and (iv) a schedule of the programs provided by any or all holders of datacasting licences issued under Schedule 6; and the matter complies with the following rules: (f) if a national broadcaster transmits an electronic program guide containing information about any programs transmitted, or services offered, by a third party (the third party service), the national broadcaster must transmit equivalent information about programs transmitted by itself and by each other service that is the same type of service as the third party service; (g) if a national broadcaster transmits matter in accordance with paragraph (f), the national broadcaster may organise the matter in the electronic program guide as the national broadcaster sees fit provided that the electronic program guide gives equal prominence to information about each third party service and the national broadcaster’s own services; (h) if a national broadcaster transmits matter in accordance with paragraph (f) that provides clickon access to the services about which it provides information, clickon access must be provided to each of those services by an equally easy to use method.

(25) For the purposes of subclause (24), the following services are the same type of service as a third party service: (a) if the third party service is a freetoair broadcasting service—all other freetoair broadcasting services; (b) if the third party service is a datacasting service—all other datacasting services; (c) if the third party service is a subscription broadcasting service—all other subscription broadcasting services.

(26) In subclause (25), freetoair broadcasting service means: (a) a commercial television broadcasting service; and (b) a national broadcasting service.

(38) Schedule 1, item 140, page 68 (after line 6), after Division 1, insert: DIVISION 1A—ELECTRONIC PROGRAM GUIDE CONDITION 20A Electronic program guides For the purposes of this Division, an electronic program guide is matter transmitted using a digital modulation technique, where the matter consists of no more than: (a) a schedule of programs provided by a broadcasting service or a datacasting service; or (b) a schedule covered by paragraph (a) and either or both of the following: (i) items of factual information, and/or items of comment, about some or all of the program in the Schedule, where each item is brief and in the form of text;P 14742 SENATE Tuesday, 27 June 2000 (ii) a facility, the sole purpose of which I to enable an enduser to select, and commence viewing, one or more of the programs in the schedule.

20B Condition relating to electronic program guides (1) Each datacasting licence is subject to the condition that the licensee will not transmit an electronic program guide except in accordance with the following rules: (a) a licensee may transmit an electronic program guide containing information about the programs transmitted by the licensee; (b) if a licensee transmits an electronic program guide containing information about any programs transmitted, or services offered, by a third party (the third party service), the licensee must transmit equivalent information about programs transmitted by itself and by each other service that is the same type of service as the third party service; (d) if a licensee transmits matter in accordance with paragraph (b), the licensee may organise the matter in the electronic program guide as the licensee sees fit provided that the electronic program guide gives equal prominence to information about each third party service and the licensee’s own services; (e) if a licensee transmits matter in accordance with paragraph (b) that provides clickon access to the services about which it provides information, clickon access must be provided to each of those services by an equally easy to use method.

(2) Each datacasting licence is also subject to the condition that the licensee will provide information to another datacasting licensee, a commercial television broadcasting licensee or a subscription television broadcasting licensee: (a) in a timely manner; and (b) at no cost; and (c) in a form (and accompanied by any necessary digital systems information) that reasonably enables its inclusion in an electronic program guide; if required to do so by that other licensee for the purpose of compiling information for an electronic program guide.

(3) For the purposes of this clause, the following services are the same type of service as a third party service: (a) if the third party service is a freetoair broadcasting service—all other freetoair broadcasting services; (b) if the third party service is a datacasting service—all other datacasting services; (c) if the third party service is a subscription broadcasting service—all other subscription broadcasting services.

(4) In this clause, freetoair broadcasting service means: (a) a commercial television broadcasting service; and (b) a national broadcasting service.

(40) Schedule 1, item 140, page 73 (after line 18), after paragraph (3)(b), insert: (ba) clause 20B; or (42) Schedule 1, item 140, page 87 (line 30), after “16”, insert “20B,”.

(43) Schedule 1, item 140, page 89 (line 10), after “16”, insert “, 20B”.

(44) Schedule 1, item 140, page 89 (line 20), after “16”, insert “, 20B”.

Can I ask for advice just in case my amendments do not happen to get up and the ALP’s do? I would also want to amend the ALP’s by seeking to put in one of the amendments I am moving now as an amendment to theirs.

Could I still do that, even though I have just moved it? The TEMPORARY CHAIRMAN (Senator Hogg)—Yes.

Senator BOURNE—Thank you.

Let me explain my own.

The electronic program guide, as we know, is a very important part of any broadcasting or datacasting system.

I am sure, as honourable senators know, when we move to digital you will be able to see on the screen of your television what is available and what the program will be for the day you are looking at, or possibly for the week—probably the day.

Having looked at experience mostly in the UK, where this was started and has been amended, we have looked at the amendments that they moved and expanded on those a bit.

The idea would be that if you were a freetoair broadcaster you could put up your own program guide, or you could put up the program guides of all freetoair broadcasters but you could not pick and choose amongst others.

If you wanted to put up a datacasting logo so that you could go to a datacasting channel, you could put up your own datacasting logo or, if you wanted to put up more than one, you would have to put up all of them so you could see what was available.

There is probably no schedule as it would be pretty asynchronous with the datacasting, but we think it is important that you are able to see which datacasting services are available outside the one on the channel that you have selected.

We would include that.

Also, if anybody wanted to include a pay channel on their datacasting system, that would have to be included.

It is basically a matter of putting up one channel—your own—or all channels in freetoair, datacasting and pay, if that is available.

The amendment to clause 69A makes commercial broadcasters have to provide information to people providing the EPG.

It would be very standardised, and it would be very simple.

I commend these amendments to the Senate.

Senator MARK BISHOP (Western Australia) (9.46 p.m.)—The opposition has given consideration to the amendments circulated by Senator Bourne, and we will be opposing those amendments.

We are much more attracted to the UK model, where broadcasters will have three options in the provision of EPGs.

I know the Democrats addressed that—more than in passing—in their minority report.

We are attracted to that proposition: you have no EPG, you show guides only for your own programs or you show all other Tuesday, 27 June 2000 SENATE P 14743 broadcasters’ programs using comment standards.

For those reasons, the opposition opposes the Democrat amendments, as foreshadowed, and will move their own in due course.

Senator ALSTON (Victoria—Minister for Communications, Information Technology and the Arts) (9.47 p.m.)—I simply indicate that the government opposes these provisions because they are selective and discriminatory.

It seems to us, as a matter of commercial reality, that players ought to be able to make their own arrangements and that, if they are prepared to build an EPG that serves their purposes, they should not be required to somehow solicit on behalf of the opposition.

In those circumstances, we oppose the approach put forward by Senator Bourne.

Senator BOURNE (New South Wales) (9.48 p.m.)—Minister, you will be glad to hear that that is not what we are doing at all.

We are not making anybody solicit on behalf of the opposition.

If you want to put up your own broadcasting EPG, that is fine.

But if you want to put up one other, you would have to put up all others.

I may have missed something that Senator Bishop said, but I think what he was describing is what I have put up, with the addition, in my own EPG amendments, of the datacasting logos.

If you put up your own datacasting logo, that would be fine but, if you put up more than one, you would have to put up all of them.

From what I understand, he probably has a small problem with the datacasting part of it, but I think that what he is saying is covered in my amendments.

Senator ALSTON (Victoria—Minister for Communications, Information Technology and the Arts) (9.49 p.m.)—It was not my intention to indicate that there was any compulsion in the sense that, if you choose to go it alone, you can.

My understanding is that, if a broadcaster chooses to carry another broadcaster, it is required to provide an EPG for all broadcasters.

But I am not clear whether that then means you have to carry datacasters as well—or if it is only that if you carry one datacaster that you have to carry all other datacasters? So that applies, presumably in reverse, to a datacaster: if a datacaster operates as a sole trader, it presents its own EPG; if it carries one broadcaster, it has to carry all other broadcasters; if it carries one other datacaster, it has to carry all other datacasters; if it carries one of each, it has to carry the lot.

Is that the way you put it forward? Senator Bourne—You carry one other.

Senator ALSTON—As I say, I think it imposes a degree of compulsion that I do not think is justified by the commercial realities.

It may well make sense for some to combine with others, but does that mean you ought to be required to offer your competitors a programming guide? We do not think so.

The TEMPORARY CHAIRMAN (Senator Hogg)—The question is that the amendments moved by the Democrats be agreed to.

Question resolved in the negative.

Senator MARK BISHOP (Western Australia) (9.51 p.m.)—I move opposition amendments Nos 41 to 44 and 53 to 56 on sheet 1823: (41) Schedule 1, item 94, page 27 (line 29), omit “a digital”, substitute “a uniform digital”.

(42) Schedule 1, item 94, page 27 (line 31) to page 28 (line 3), omit paragraph (24)(a), substitute: (a) a schedule of the television programs provided by: (i) the commercial television broadcasting service transmitting the matter; or (ii) all of the commercial television broadcasting services and all of the national television broadcasting services; or (43) Schedule 1, item 115, page 35 (line 24), omit “a digital”, substitute “a uniform digital”.

(44) Schedule 1, item 115, page 35 (lines 26 to 31), omit paragraph (24)(a), substitute: (a) a schedule of the television programs provided by: (i) the commercial television broadcasting service transmitting the matter; or (ii) all of the commercial television broadcasting services and all of the national television broadcasting services; or (53) Schedule 1, item 140, page 68 (after line 6), after Division 1, insert: DIVISION 1A—ELECTRONIC PROGRAM GUIDE CONDITION 20A Electronic program guides For the purposes of this Division, an electronic program guide is matter transmitted using a digital modulation technique, where the matter consists of no more than: (a) a schedule of programs provided by a broadcasting service or a datacasting service; or (b) a schedule covered by paragraph (a) and either or both of the following: (i) items of factual information, and/or items of comment, about some or all of the program in the Schedule, where each item is brief and in the form of text; (ii) a facility, the sole purpose of which is to enable an enduser to select, and commence viewing, one or more of the programs in the schedule.

20B Condition relating to electronic program guides (1) Each datacasting licence is subject to the condition that the licensee will not transmit an electronic program guide except in accordance with the following rules: (a) a licensee may transmit an electronic program guide containing information about the programs transmitted by the licensee; (b) if a licensee transmits an electronic program guide containing information about any programs transmitted by a commercial television broadcasting service or a national television broadcasting service, the licensee must transmit equivalent information about programs transmitted by itself and by each other commercial television broadcasting service or a national television broadcasting service.

(54) Schedule 1, item 140, page 87 (line 30), after “16”, insert “20B,”.

 P 14744 SENATE Tuesday, 27 June 2000 (55) Schedule 1, item 140, page 89 (line 10), after “16”, insert “, 20B”.

(56) Schedule 1, item 140, page 89 (line 20), after “16”, insert “, 20B”.

By way of summary, the outcome we seek in these amendments is that the EPGs, the electronic program guide rules, operate similarly to the way we understand they operate in the United Kingdom.

Accordingly, if the amendments get up, broadcasters will have three options in the provision of EPGs.

Firstly, they will have no EPG if they choose to go down that path.

Secondly, they will show guides only for their own programs.

Thirdly, they will show all other broadcasters’ programs using common standards— the key there being the phrase ‘using common standards’.

The amendments seek to avoid anticompetitive conduct through the selective display of competitors’ guides so that, if programming guides are to be displayed, the datacaster has three options.

Our emphasis is to avoid nondisclosure of information, an activity which is used as a tool to gain market advantage.

Our amendments are limited to commercial and national broadcasters, and only if a datacaster puts up a broadcast will that come into play.

They are the amendments before the chair.

Senator BOURNE (New South Wales) (9.53 p.m.)—I am sure Senator Bishop is aware that his amendments are almost the same as the amendment I just put up, which he voted down, but the significant difference is that in his amendments freetoair broadcasters do not have to carry datacasters, whereas in my amendment they do.

Everything else is very similar.

I propose to amend Senator Bishop’s amendments by again moving Democrat amendment No. 4 on sheet 1827.

Senator ALSTON (Victoria—Minister for Communications, Information Technology and the Arts) (9.54 p.m.)—Could I inquire of Senator Bishop whether it is the intention or the effect of his amendments that, where a datacaster carries one broadcaster, they are then required to carry all broadcasters? Senator Mark Bishop—The answer to that is yes.

Senator ALSTON—Again, I think the degree of compulsion attached to all of this is not desirable in principle.

The TEMPORARY CHAIRMAN (Senator Hogg)—We have a bit of minor confusion here.

Senator Bourne, can you tell us precisely what your amendment No.4 is amending? We are a little bit confused.

Senator BOURNE (New South Wales) (9.55 p.m.)—My amendment No. 4 would be an addition to Senator Bishop’s amendments on EPGs.

The TEMPORARY CHAIRMAN—So it is not amending any of his amendments? Senator BOURNE—No, it would be an additional amendment.

The TEMPORARY CHAIRMAN—We will dispose of the amendments moved by Senator Bishop, then we will move to your amendment, Senator Bourne.

We understood originally that yours was an amendment to Senator Bishop’s amendments.

Now that has been clarified, that might help with some of the things you wish to say as well, Minister.

We have before the chair the amendments moved by Senator Bishop.

The amendment foreshadowed by Senator Bourne will be taken up after we have disposed of Senator Bishop’s amendments.

Senator ALSTON (Victoria—Minister for Communications, Information Technology and the Arts) (9.57 p.m.)—I was really making the point that imposing a set of restrictions which have automatic effect— if a player moves into an alliance with any other player at least to the extent of any EPG activities concerned—seems to me to be a very artificial construct.

A better way of doing it is to leave it to the ACCC, which will always have overarching responsibility for ensuring that the players do not engage in any competitive activity.

I presume that is really what this is designed to achieve.

For that reason, the government does not favour this approach.

One matter that I would appreciate some clarification on is the use of the word ‘uniform’.

It is not clear what changing the definition of an electronic program guide in the bill to refer to a uniform digital technique means in practical terms.

The current reference in the bill is simply there to describe EPGs as part of a digital service, not to stipulate that they should be in any particular format.

If Senator Bishop could indicate what the use of the word ‘uniform’ does, I think we would all be much the wiser.

Senator MARK BISHOP (Western Australia) (9.58 p.m.)—In response to Senator Alston, the change seeks to achieve in general terms what Senator Bourne’s later amendment seeks to do in more specific terms—that is, the provision of information.

Senator Alston—I asked you about the use of the term ‘uniform’.

Senator MARK BISHOP—We made the provision of EPGs to be in a standard form.

Senator ALSTON (Victoria—Minister for Communications, Information Technology and the Arts) (9.59 p.m.)—Again, that is really secondguessing the market big time, is it not? If someone gets in first, does that mean that they then determine the structure? It is not a matter of format, presumably.

Is it that the technical requirements would have to be uniform? Senator MARK BISHOP (Western Australia) (9.59 p.m.)—It is not a matter of format, arrangement or process.

It is the provision of information to users in a standard form.

Senator ALSTON (Victoria—Minister for Communications, Information Technology and the Arts) (10.00 p.m.)—What is really being said is that, to the extent that you choose to present a quantity of information, you would be entitled to get the same information from all other players, and it would then be presented in that format.

Even though someone else might have a shorthand EPG and you have a longhand one, one of the two is effectively going to be imposed on the other; is that what it is saying? I do Tuesday, 27 June 2000 SENATE P 14745 not quite know why you want to ensure that degree of uniformity.

It may well be that you have a whole bunch of players presenting themselves quite differently— some taking the view that you do not need much more than the name of the show, others wanting a couple of lines to excite your interest and others having a clickon site that enables you to view an extract.

Senator HARRADINE (Tasmania) (10.01 p.m.)— My question is directed to both the minister and to Senator Bishop, since it is his amendment.

Are the provisions of standards for content to be applied to the EPGs? Senator ALSTON (Victoria—Minister for Communications, Information Technology and the Arts) (10.01 p.m.)—My advice is that the community standards would govern the EPG, as it is within the definition of content on a datacasting or broadcasting service.

For the benefit of Senator Bishop, my advice is that there appears to be a technical error in the drafting of the Labor amendment No.44, paragraph 24(a)(i), which refers to ‘a commercial service’.

We believe that should be a reference to a national broadcasting service.

Senator MARK BISHOP (Western Australia) (10.03 p.m.)—I seek leave to amend amendment No. 44 by, in paragraph (i), omitting ‘commercial’ and substituting ‘national’.

Leave granted.

Amendments, as amended, agreed to.

Senator ALSTON (Victoria—Minister for Communications, Information Technology and the Arts) (10.05 p.m.)—This is quite a significant infringement upon the intellectual property rights of licensees.

A lot of innovation is likely to occur as various broadcasters— and, indeed, datacasters—seek to distinguish their product and to present it in an attractive format.

To obligate a commercial broadcasting licensee to simply hand over information to its competitors in this way seems to me to be not only dumbing down but also applying very onerous obligations which can only cramp innovation and which would be quite unjustified in a normal marketplace activity.

It is not at all clear why one player should have to provide information to another to provide those services, and we strongly object to it.

Senator BOURNE (New South Wales) (10.06 p.m.)—In response to the minister, the players we are talking about provide this information to television guides all the time.

This is a matter of providing program guide information.

I cannot understand why the minister finds it so extraordinary and so outrageous that people would be asked to provide standard information in a way they already do but in an electronic form.

I do not think it is outrageous at all.

It is basically what is already happening, only it is being asked for in an electronic form.

The reason that Senator Bishop put up his amendments and the reason I put up mine is to ensure that any program guide information is fair to all players in any specific regime so that within the freetoair broadcasting regime or elsewhere noone could be excluded.

It would be very difficult—or impossible under this regime—to make your own information much more prominent, dazzling or glitzy than another broadcaster’s information.

It is merely a matter of standardising information, as happens in program guides now which are printed or even on the Internet.

I know you can get them on the Internet as well.

It is a matter of saying that, if program information is requested or required by one broadcaster, under Senator Bishop’s amendments that have gone through, that broadcaster should not be prevented from putting up the whole program guide—as they would be required to do under Senator Bishop’s amendments—by a second or third broadcaster not giving them the information that they need in a timely manner.

I do not think there is anything extraordinary about it at all.

Senator ALSTON (Victoria—Minister for Communications, Information Technology and the Arts) (10.08 p.m.)—It is really the compulsion that I think concerns the government.

It is one thing to say that information is readily available in the green guide or elsewhere and you are able to accumulate that for your own purposes; it is another to say that because one of the national broadcasters might choose to provide information to a datacaster that then has a knockon obligation on other commercial networks to provide information to datacasters.

Senator Bourne—No.

Senator ALSTON—You are saying that is not right? Senator BOURNE (New South Wales) (10.09 p.m.)—That is not what this amendment says at all.

The datacasters concerned do not have to put up information given by a commercial freetoair or a national broadcaster; they do not have to put up any of that information.

They can put it up.

But, if they have to put one up, they have to put them all up.

A commercial freetoair or a national broadcaster can put up their own or they can put up everybody’s.

We have just agreed to that as an amendment—that that would be the case.

There is the possibility that one of the others could ensure that a rival was not able to put up all the program information that they are required to do by not providing their own information because we have now required them, as we have accepted Senator Bishop’s amendment, to put up either only their own information or everybody’s information.

So this is designed to stop that happening: it will stop one broadcaster stopping everybody’s information going up by just not providing their own information.

That is why there is the compulsion there.

We have already agreed to Senator Bishop’s amendments.

That is why we need these amendments to not allow one of the broadcasters to stop another of the broadcasters from putting up a whole program guide.

Senator MARK BISHOP (Western Australia) (10.11 p.m.)—The opposition accepts the amendment put forward by Senator Bourne.

I would just indicate to the minister that, prior to the third reading of the bill, the opposition would be amenable to a suggestion re the provision of schedules on request.

The P 14746 SENATE Tuesday, 27 June 2000 government might care to entertain those discussions prior to the third reading.

Amendment agreed to.

Senator ALSTON (Victoria—Minister for Communications, Information Technology and the Arts) (10.12 p.m.)—by leave—I move government amendments Nos 13, 16 and 51 on sheet EK215: (13) Schedule 1, page 20 (after line 22), after item 76, insert: 76A Clause 2 of Schedule 4 Insert: national radio broadcasting service means a national broadcasting service that provides radio programs.

(16) Schedule 1, item 107, page 31 (line 13) after “licences”, insert “or for the purpose of the transmission of national radio broadcasting services”.

(51) Schedule 2, page 102 (after line 3), after item 13, insert: 13A After section 100B Insert: 100C NBS transmitter licences—authorisation of radio broadcasting services (1) If: (a) an NBS transmitter licence is or was issued to a particular national broadcaster; and (b) the licence authorises the operation of one or more specified radiocommunications transmitters for transmitting a national television broadcasting service in digital mode using one or more channels; the licence is also taken to authorise the operation of the transmitter or transmitters concerned for transmitting national radio broadcasting services in digital mode using those channels.

(2) In this section: national broadcaster has the same meaning as in the Broadcasting Services Act 1992.

national broadcasting service has the same meaning as in Schedule 4 to the Broadcasting Services Act 1992.

national radio broadcasting service means a national broadcasting service that provides radio programs.

national television broadcasting service means a national broadcasting service that provides television programs.

NBS transmitter licence means a transmitter licence for a transmitter that is for use for transmitting, to the public, a national broadcasting service.

These amendments enable the national broadcasters to transmit radio services on their digital television channels, which I think is generally supported.

This was a recommendation of the Senate Environment, Communications, Information Technology and the Arts Legislation Committee’s report into the bill, and the government accepts the committee’s recommendations.

The amendments will amend schedule 4 of the Broadcasting Services Act to allow the ABC and SBS to transmit national radio broadcasting services on their digital channels.

The amendments will also provide for an amendment to the Radio Communications Act to authorise NBS transmitter licences, which can be used for transmitting a national television broadcasting service in digital mode, to be also used for transmitting national radio broadcasting services.

The amendments will enable the ABC and SBS to use digital television transmission capacity to make the ABC and SBS radio services available in regional areas where these services have not been extended through AM or FM radio transmission.

Amendments agreed to.

Senator ALSTON (Victoria—Minister for Communications, Information Technology and the Arts) (10.14 p.m.)—by leave—I move government amendments Nos 1 to 5 and 8 on sheet ER232: (1) Clause 2, page 1 (line 11), after “137,”, insert “137A,”.

(2) Schedule 1, page 22 (after line 11), after item 85, insert: 85A At the end of subclause 6(3) of Schedule 4 Add: ; (n) the objective that, in allotting channels under the scheme or a digital channel plan, the ABA must have regard to: (i) the need to plan the most efficient use of the spectrum; and (ii) the other relevant policy objectives of the scheme.

(3) Schedule 1, page 23 (before line 22), before item 87, insert: 86A Before subclause 6(6) of Schedule 4 Insert: (5D) For the purposes of paragraphs (3)(ha) and (n) and (5B)(c), in determining the most efficient use of the spectrum, the ABA is to have regard to: (a) the need for spectrum to be made available for allocation for the purposes of the transmission of datacasting services under, and in accordance with the conditions of, datacasting licences; and (b) such other matters as the ABA considers relevant.

(4) Schedule 1, page 31 (after line 13), after item 107, insert: 107A At the end of subclause 19(3) of Schedule 4 Add: ; (n) the objective that, in allotting channels under the scheme or a digital channel plan, the ABA must have regard to: (i) the need to plan the most efficient use of the spectrum; and (ii) the other relevant policy objectives of the scheme.

(5) Schedule 1, page 31 (before line 14), before item 108, insert: 107B Before subclause 19(6) of Schedule 4 Insert:Tuesday, 27 June 2000 SENATE P 14747 (5A) For the purposes of paragraphs (3)(ha) and (n), in determining the most efficient use of the spectrum, the ABA is to have regard to: (a) the need for spectrum to be made available for allocation for the purposes of the transmission of datacasting services under, and in accordance with the conditions of, datacasting licences; and (b) such other matters as the ABA considers relevant.

(8) Schedule 1, page 51 (after line 20), after item 137, insert: 137A After clause 59 of Schedule 4 Insert: 59A Reviews before 31 October 2000 (1) Before 31 October 2000, the Minister must cause to be conducted a review of the following matters: (a) whether the ABA has sufficient powers to allow the most efficient use of the broadcasting services bands spectrum (including for the purposes of promoting the availability to audiences and users throughout Australia of a diverse range of datacasting services provided under, and in accordance with the conditions of, datacasting licences); (b) if those powers are insufficient, what additional powers should be provided for in laws of the Commonwealth.

(2) The Minister must ensure that, in the conduct of a review under subclause (1), provision is made for: (a) public consultation; and (b) consultation with national broadcasters; and (c) consultation with holders of commercial television broadcasting licences.

(3) The Minister must cause to be prepared a report of a review under subclause (1).

(4) The Minister must cause copies of a report to be laid before each House of the Parliament within 15 sitting days of that House after the completion of the preparation of the report.

(5) For the purposes of this clause, in determining the meaning of the expressions datacasting service and datacasting licence, it is to be assumed that all of the amendments made by the Broadcasting Services Amendment (Digital Television and Datacasting) Act 2000 had commenced at the commencement of this clause.

These amendments are designed to encourage efficient allocation of spectrum to enable the greater availability of channels for datacasting.

They modify the policy objectives to which the ABA must have regard in relation to commercial and national television conversion schemes to include the need to plan for the most efficient use of spectrum.

These amendments also require the ABA, when determining whether spectrum is being used efficiently, to take into account the need for spectrum to be made available for allocation for purposes of the transmission of datacasting services.

They also provide for a statutory review before 31 October this year in relation to the powers that the ABA has to allow the most efficient use of broadcasting spec trum, including for promoting the availability of datacasting services.

The amendments are aimed at strengthening the ability of the ABA to plan for the most efficient use of spectrum in the broadcasting services band, taking into account the need to increase the availability of channels for datacasting.

Amendments Nos 2 and 4 modify the policy objectives to which the ABA must have regard when formulating the commercial and national television conversion schemes by adding an additional objective: the need to plan for the most efficient use of spectrum.

Amendments Nos 3 and 5 require the ABA, when determining whether spectrum is being used efficiently, to take into account the need for spectrum to be made available for allocation for purposes of the transmission of datacasting services.

I have mentioned the statutory review, and the report of that review would be tabled in the parliament.

Senator BOURNE (New South Wales) (10.15 p.m.)—The Democrats are well and truly in favour of these amendments.

But I ask the minister whether he would undertake to act on the results of his review, and to act on them very swiftly.

Senator ALSTON (Victoria—Minister for Communications, Information Technology and the Arts) (10.16 p.m.)—I suppose I could always give an assurance that we will act as expeditiously as possible.

Whether I can give you an assurance that will rubberstamp whatever comes out of the review process is another matter.

Obviously we would expect that it will be a sensible, plausible and persuasive report and that there will be much in it to commend itself to the government.

I cannot, as I say, give you a blank cheque.

But certainly the whole object of the exercise is to acquire, as quickly as possible, an expert assessment of any deficiencies in the powers of the ABA and ways in which we can fill any gaps.

Senator MARK BISHOP (Western Australia) (10.17 p.m.)—This is a worthwhile amendment, and the opposition has no problems in supporting it.

Senator HARRADINE (Tasmania) (10.17 p.m.)— Mr Chairman, this may not be the time to raise this.

But I would be most grateful to the government if it could indicate, at some stage of the discussions in the committee stage, how parliament is kept informed and is able to review decisions taken by the ABA in respect of not only these particular matters but also certain other matters.

After all is said and done, this legislation will impose further obligations upon the ABA and enhance its powers.

The question is: at some particular stage—and I do not know whether you could draw it all together—will parliament have an audit and, I suppose, a control role to play in these matters; and, if so, how? In other words, will we have that opportunity? I notice, for example, in some other parts of the— The TEMPORARY CHAIRMAN (Senator Hogg)—Senator Harradine, could I just seek your advice on whether are you wanting an answer on these matters now before I put this question, or will you be seeking an answer after the question has been put?P 14748 SENATE Tuesday, 27 June 2000 Senator HARRADINE—I do not mind.

The TEMPORARY CHAIRMAN—Senator Harradine, I will put the amendment and then you can raise your issue.

The question is that government amendments Nos 1 to 5 and 8 on sheet ER232 be agreed to.

Question resolved in the affirmative.

Senator ALSTON (Victoria—Minister for Communications, Information Technology and the Arts) (10.19 p.m.)—Senator Harradine indicated that perhaps we might respond at a later time.

But I think the general answer would be that the parliament is kept informed through a variety of means.

Progress reported.

ADJOURNMENT The ACTING DEPUTY PRESIDENT (Senator Knowles)—Order! It being 10.20 p.m., I propose the question: That the Senate do now adjourn.

Human Genome Project Senator COONAN (New South Wales) (10.20 p.m.)—I would like to make a brief contribution to tonight’s adjournment debate on the human genome project.

Today’s landmark announcement of the working draft of the human genome project, said to be the genetic blueprint of who we are and what we are, offers almost unimaginable scientific possibilities.

Simply because it is a scientific milestone, I believe the announcement should not go unremarked in the Senate.

It has the potential to simply transform our understanding of how our bodies work and to cure all types of genetic diseases.

But an understanding of the sequence of the chemical building blocks that make up our DNA also opens up some frightening scenarios.

These range from commercial exploitation and who controls the technology to what Madeleine Bunting, writing recently in the Guardian, calls a ‘Pandora’s box of eugenic possibilities’.

As many senators would know, the internationally funded human genome project has been undertaken by two rival groups—one a publicly funded consortium and the other privately funded, Celera Genomics.

In keeping with the extraordinary significance of the discovery, the two rival groups, interestingly enough, decided to share the glory of today’s announcement by President Clinton and Prime Minister Blair.

Whilst the draft has completed a map of the estimated 120,000 genes in the human body, genetic scientists say that, although they now know the sequence of our genes, not much is known about what they actually do.

Although it opens up a new world of discovery, the draft list is just the beginning of the journey.

One of the remaining tasks is to distinguish between the genes that determine the growth, repair and death of the body—about three per cent—and the junk DNA genes thought to have no effect at all on the development of the human body— up to 97 per cent.

But determining how genes work, and how and for whom the knowledge will be used is the truly difficult part.

Few of us would quibble with the benefits to humankind of eradicating fatal, disabling and painful diseases.

The benefits of being able to identify what genes are involved in diseases or the risk of developing diseases such as Parkinson’s, Alzheimer’s and cystic fibrosis—just to mention a few—will give doctors the capacity to identify those at risk and to better target preventative treatment or, even better, to prevent the malfunctioning gene in the first place.

We can only marvel at and applaud the recent achievement of French geneticists who have been able, through gene therapy, to repair the immune system of affected children who have hitherto been forced to live in a bubble just to stay alive.

It is, therefore, not fanciful I think to predict a future market for the rich and famous to engineer designer children.

It is not beyond comprehension to imagine a world devoid of any socalled undesirable characteristics, either physical or mental.

Eugenics, in my view, can be just as horrifying as statesanctioned euthanasia.

What is unacceptable and undesirable is entirely subjective and capricious.

It can change, as do values and norms of different generations.

A subtext to all this is: who controls the information? The Celera company, which is privately held, restricts the information it has to subscribers—usually United States pharmaceutical companies that in turn apply to patent the information.

Literally thousands of applications have now been filed seeking to patent pieces of genetic information.

This raises the prospect that the true beneficiaries of this fabulous technology will be the new biotech billionaires, the generation that will follow the dot.com billionaires, and the information will not be freely available for the benefit of humankind.

Interestingly, a recent poll of 1,218 adults shows that almost twothirds of Americans oppose patenting the human genetic code for commercial use.

Respondents to the poll were also concerned that, while they could benefit from knowing about their own predisposition to disease, they wished to keep the information private—not surprisingly.

Unfortunately, this is not an option that may be available in instances where disclosure of preexisting or known conditions may be lawfully required as in, for example, an application for life or disability insurance.

Such information may need to be provided, for example, to a medical practitioner for treatment, but that information may also be revealed if those records are compellable for production in any court process.

There are simply no guarantees of nondisclosure even though the information may contain a window into what it is that makes a person genetically unique.

The crucial issue for us as legislators is to address what Madeleine Bunting has identified as ‘our capacity both at an institutional and government level to regulate the use and commercial exploitation of scientific discovery’.

We are already facing these dilemmas in the context of genetically modified crops, the capacity for cloning and the ability to manipulate the environment.

Our powerlessness to regulate much of this activity at a domestic level stems from the increasing pressures of globalisation and the rise of the World Trade Organisation as the Tuesday, 27 June 2000 SENATE P 14749 arbiter of what comprises defensible precautions on the one hand and barriers to free trade on the other.

There are, however, compelling moral questions that these issues require us to address that are far more profound than just enabling market access.

We can worry about whether or not our privacy, insurance, employment and discrimination laws are adequate.

That will matter little, I suggest, if this information is already available on some global genetic network or freely posted on the Internet.

The inevitable conclusion is that we are embarking on a genetic revolution with the capacity to transform what it means to be human.

As legislators, lawyers, regulators and social scientists we are navigating this brave new world without a moral compass.

We do need a debate in this country on the human genetic revolution and on how we should be both anticipating and responding to it.

The sum of an individual is certainly more than his or her genetic profile, but if that is on display for all to see then the damage to an individual may well outweigh the benefits.

This is a new and emerging field of human rights obligations, hopes and aspirations.

We need to address these challenges as a matter of the utmost public importance.

Australian Federal Police: Accolade Senator QUIRKE (South Australia) (10.29 p.m.)—I want to take a short moment here tonight in the Senate to reflect on an incident— Senator Abetz interjecting— Senator QUIRKE—It will not be very short: is that what you are saying, Eric? I am sorry, Senator, it will take a little while to develop this case, but I will be as brief as I can.

I know you are thoroughly ready to listen.

A rather interesting case was brought to my attention last Friday.

Indeed, the purpose of this address tonight is to congratulate the Australian Federal Police on an operation that will receive virtually no recognition publicly, but one which made a little girl very happy and a father extremely happy.

I think it has, at least until court proceedings go further, ensured that the right outcome, in the minds of most people in the community, has been obtained.

What happened basically is this: a child was taken away by her natural mother many months ago.

During the process of a bitter custody battle for this particular child the mother disappeared with her de facto and went interstate.

As I understand it, at that time there were court proceedings which may well have seen the father get custody of the child because the mother, unfortunately, had a severe drug problem.

When a child disappears, or when any person disappears, it is very difficult sometimes to find out where they are.

This case was referred to me, and I advised the natural father that a missing persons report needed to be made but that, effectively, until the child surfaced somewhere, not much could be done about it.

During the course of last week, the ‘de facto stepfather’— I suppose is one way to describe him—was arrested on armed robbery and drug charges in Darwin.

He was wanted in South Australia and faced extradition, and I believe that process has now taken place.

I make no further comment upon that—that is a matter now before the courts.

The mother was, effectively, with the stepfather, as I understand it, in the detoxification centre at the time.

A very desperate family sought my assistance last Friday to see if something could be done very quickly.

In fact, a court order was procured to give temporary custody, pending further court intervention, to the natural father.

That court order was faxed through to my office late on Friday afternoon.

I think it was about 4.30 or 5 o’clock—not very much time left before the close of business.

Had that not happened, I think the mother probably would have disappeared somewhere else over the weekend with the child.

That of course is the first problem: you have a court order and something has to be done about it.

I contacted the Federal Police and spoke to their Brisbane office, which then put me through to the Darwin office and the officers on duty there.

I do not want to name all of the officers concerned because I spoke to four of them as the night unfolded.

But the purpose of this address here is to say what a firstclass and sterling service these men and women did in Darwin.

I explained the case to them.

I sent it up in a written form and the judgment was faxed to them, as well.

Indeed, within a matter of two hours the mother’s address was identified—the probable address of the girl—and the police assembled a team to go and execute the court order that had been given that afternoon.

The police, in fact, sought the assistance of the Department of Family and Community Services, or the Northern Territory equivalent of that particular agency, the child was placed in protective custody at 9.30 that night, and during the next hour or so I organised an airfare for the child to come down to South Australia to meet the natural father.

The father is an invalid pensioner.

Ansett did a very good job proceeding with this booking.

The police, with the relevant workers from Family and Community Services, delivered the child up to Ansett airlines for the appropriate flight, and by Saturday afternoon the reunion had taken place.

Quite often we get a lot of negative stories about the police and their response times in all of the states and federally.

I think it is appropriate, when we see something which is done with such speed—and the only way in fact that this could have been carried out was with absolute haste, speed and professionalism— that we comment upon it publicly.

This is probably one of many cases that the public out there will not, in the normal course of events, come across.

In this instance, I think it is appropriate on the public record to congratulate the Federal Police and, in particular, the men and women who dealt with this case last Friday so expeditiously.

Wright, Ms Judith Senator FORSHAW (New South Wales) (10.35 p.m.)—Last weekend saw the passing of one of the giants of Australian literature of the 20th century.

I refer to the passing of Judith Wright.

I am sure there is not a person in this parliament and probably not a person in this country over the age of about 30, maybe even younger, who at some stage in their lifeP14750 SENATE Tuesday, 27 June 2000 did not read some of Judith Wright’s poetry.

It was on the syllabus of high school literature for as long as I can remember, and I am sure many of us recall learning off by heart the words to poems such as Bullocky or South of My Days.

Senator Coonan—Can you recite a bit, Michael? Senator FORSHAW—No, time does not permit and my memory is not that good, but I do remember those wonderful references to ‘sinewy hands’.

I had the pleasure of meeting Judith Wright on a couple of occasions during the early 1970s when I was studying literature at Sydney University.

There was a course in Australian literature in either 1971 or 1972—I cannot recall exactly which year.

We were fortunate to have as guest lecturers and guest tutors people such as James McAuley, Alec Hope, David Malouf—now a world renowned Australian author—and Judith Wright.

I can still recall watching Judith Wright stand before a lecture theatre at Sydney University, talking to us for about an hour about her ideas on poetry.

She certainly left an incredible legacy, not only in terms of the volume of her work over some 60odd years or more of writing poetry but also her commitment to many other issues.

Her poetry, as has been reflected upon in articles written in newspapers and journals in recent days, celebrated the land, the harshness and the beauty of the Australian landscape.

It celebrated the environment and pointed to how man has been the destroyer of the environment as well as reaping the benefits of it.

Her poetry reflected on our history—the great aspects and the injustices, particularly those perpetrated upon the indigenous people.

She was a conservative poet but she was never a conservative person in outlook.

By ‘conservative’ I mean in the literary sense of someone who paid particular attention to form and substance.

She was to poetry what Patrick White was to the Australian novel and Sidney Nolan and Drysdale were to Australian painting.

They were people who were able to reflect, as Judith Wright did in words, on all that makes Australia great as a nation but equally those aspects that we have to focus upon and try to correct.

Whilst being, as I said, a conservative poet in terms of her style, she was at a very early age—indeed, in the 1940s—writing about personal relationships and touching upon subjects that did not become major political issues until the feminist revolution of the 1960s and 1970s.

Indeed, many a critic has been astounded by the ideas and the issues that she raised in her work Woman to Man, published in 1949.

Judith Wright, as people have clearly recognised in commenting upon her life, was a strong advocate for the environment, a lifelong member of the Australian Conservation Foundation and particularly a supporter for the cause of indigenous people.

She was a supporter for that cause long before many of us saw the light and recognised that we had to do something about correcting the injustices of the past.

I note, as her biographer, Sister Veronica Brady, noted in an article in the paper today, that one of the Judith Wright’s last public acts was to lead the Reconciliation Walk across the bridge in Canberra a couple of weeks ago.

I look back, like everyone I suppose, with fond memories of reading her poetry as a student at school and being forced to learn it off by heart, coming later to recognise what a wonderful contribution she has made to our literary history.

As I said, she is the last of the giants of Australian literature of the 20th century.

People like James McAuley and Alec Hope and others have gone before her, and Judith Wright represents the end of an era of great poetry and literature that we had in Australia in the middle and latter part of the last century.

No doubt other younger and talented writers, authors and poets will continue that tradition.

I think her contribution not only to Australian literature but also to the nation is probably best reflected in the captions of two articles in today’s Australian.

One article written by Julian Croft is headed ‘Poet probed the nation’s soul’.

The other article by Veronica Brady is headed ‘Guardian of the land and people’.

I make these comments tonight in the adjournment debate, which, I believe, is the appropriate place to do it.

But I wish to make this point: I think it is a shame that there is a procedural impediment in this chamber that we are not able to move notices of motion to honour the memory of people such as Judith Wright and their contribution.

I know that in the past when people, including me, have moved notices of motion to pay tribute to somebody who has made an outstanding achievement in Australian life it has been said that, unless you can link that person’s contribution to something that this parliament or this chamber deals with, you cannot move it.

Maybe I am wrong in regard to this situation, but I recall, for instance, when we have tried on similar occasions to reflect the achievements of sporting heroes or other heroes it has not been allowed.

That is the advice I have received from the President.

If it were possible to do it, I would have preferred to do it by notice of motion.

I am getting nods from the chair.

All I can say, Madam Acting Deputy President Knowles, is that I do not think the guidelines are that clear.

If we are going to say that we can do it for some who have made a great contribution to Australian life but not for others, then I think we should sort that issue out.

In any event, I have appreciated the opportunity here tonight to place some comments on the record in the adjournment debate in respect of the great contribution Judith Wright made to our culture, to our history and, above all, to the Australian people and the Australian nation.

Senate adjourned at 10.45 p.m.