Thursday, 29 June 2000 SENATE P 14905

BROADCASTING SERVICES AMENDMENT (DIGITAL TELEVISION AND DATACASTING) BILL 2000

DATACASTING CHARGE (IMPOSITION) AMENDMENT BILL 2000

In Committee

BROADCASTING SERVICES AMENDMENT (DIGITAL TELEVISION AND DATACASTING) BILL 2000

Consideration resumed from 28 June. 

(Quorum formed) Senator ALSTON (Victoria—Minister for Communications, Information Technology and the Arts) (10.41 a.m.)—by leave—I move government amendments Nos 29 to 31 on sheet EK215: (29) Schedule 1, item 140, page 58 (line 6), omit “about any or all”, substitute “, or directlyrelated comment, about any of a wide range of matters, including any”. 

(30) Schedule 1, item 140, page 58 (line 18), omit paragraph (b), substitute: (b) enable and/or facilitate the carrying out and/or completion of transactions; (31) Schedule 1, item 140, page 58 (lines 19 and 20), omit “little or no emphasis on dramatic impact or entertainment value”, substitute “not a significant emphasis on dramatic impact or entertainment”. 

The purpose of these amendments is to enable information only programs to include, in addition to factual information, directly related comment about any of a wide range of matters, including—but not limited to—those listed in clause 4(1)(a); to facilitate the carrying out of the completion of transactions; and to modify the requirement relating to dramatic impacts in entertainment value to read ‘not a significant emphasis on dramatic impact or entertainment’. 

The amendments clarify the definition of an informationonly program in clause 4 of proposed new schedule 6. 

Amendment No. 29 modifies the definition of an informationonly program in clause 4 of proposed schedule 6 to allow a datacasting service to provide programs containing, in addition to factual information, directly related comment on a wide range of issues, including matters set out in proposed clause 4(1)(a). 

Amendment No. 30 modifies the definition of an informationonly program in clause 4 of proposed schedule 6 to clarify that a datacasting service can facilitate the carrying out and/or completion of transactions. 

The current definition of an information only program includes programs which enable people to carry out transactions. 

To clarify that in this context the reference to ‘enable’ is intended to allow all steps in a transaction, the definition is amended to cover matters which are ‘to enable and/or facilitate the carrying out and/or completion of transactions’. 

Amendment No. 31 modifies the definition of an information only program to clarify that the program is allowed where there is no significant emphasis on dramatic impact or entertainment. 

Senator MARK BISHOP (Western Australia) (10.43 a.m.)—The opposition will be supporting these amendments, subject to the following minor amendment. 

I move: After “including”, insert “but not limited to”. 

I understand this is acceptable to the government. 

The TEMPORARY CHAIRMAN (Senator Calvert)—The question is that that amendment be agreed to. 

Question resolved in the affirmative. 

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

Question resolved in the affirmative. 

Senator ALSTON (Victoria—Minister for Communications, Information Technology and the Arts) (10.45 a.m.)—I withdraw government amendments Nos 35 to 41 on sheet EK215. 

I seek leave to move government amendments Nos 27, 45, 47, 49 and 50 together. 

Leave granted. 

Senator ALSTON—I move: (27) Schedule 1, item 140, page 55 (after line 6), after the definition of current affairs program, insert: declared Internet carriage service has the meaning given by clause 23B. 

(45) Schedule 1, item 140, page 68 (line 2), after “Internet carriage service”, insert “(other than a declared Internet carriage service)”. 

(47) Schedule 1, item 140, page 69 (line 9), at the end of subclause (9), add “(other than a declared Internet carriage service)”. 

(49) Schedule 1, item 140, page 70 (before line 11), before Division 3, insert: DIVISION 2A—GENRE CONDITIONS: ANTIAVOIDANCE 23B Antiavoidance—declared Internet carriage services (1) If: (a) the whole or a part of a datacasting service provided under a datacasting licence consists of an Internet carriage service; and (b) one or more persons enter into, begin to carry out, or carry out, a scheme; and (c) the ABA is of the opinion that the person, or any of the persons, who entered into, began to carry out, or carried out, the scheme did so for the sole or dominant purpose of avoiding the application to the licensee of Division 1 or 2; the ABA may, by writing, determine that, for the purposes of the application of this Schedule to the licensee, the Internet carriage service is a declared Internet carriage service. 

(2) The person, or any of the persons, referred to in paragraphs (1)(b) and (c) may be the licensee. 

(3) A determination under subclause (1) has effect accordingly. 

(4) In this clause: scheme means: (a) any agreement, arrangement, understanding, promise or undertaking, whether express or implied and whether or not enforceable, or intended to be enforceable, by legal proceedings; or (b) any scheme, plan, proposal, action, course of action or course of conduct, whether there are 2 or more parties or only one party involved. 

(50) Schedule 1, item 140, page 93 (after table item 2), insert: 2A that an Internet carriage service is a declared Internet carriage service subclause 23B(1) the licensee The purpose of these amendments is to ensure that datacasters do not use the Internet carriage service provisions in the bill as a means of circumventing the genre restrictions by providing a pointtomultipoint broadcasting service. 

This is a generic antiavoidance clause. 

The amendments have the effect of prohibiting datacasters from providing Internet carriage services where they have been determined by the ABA to be ‘declared Internet carriage services’. 

Concerns have been raised that the provisions of the bill may have had the unintended effect of allowing datacasters to use Internet carriage services to provide pointtopoint broadcasting services, thereby circumventing the intent of the datacasting provisions. 

The bill currently allows datacasters to provide an Internet carriage service which is exempt from the genre rules. 

The policy intention behind this is that datacasters should be able to use their spectrum to allow users to have direct connections to the Internet, without the datacasting licensee being legally responsible for the nature of any content accessed and downloaded privately by individuals. 

However, this exemption does not apply where a datacaster selects and copies content from the Internet and provides it to users, thereby assuming responsibility for the nature of that content. 

It has been suggested that the Internet carriage provisions in the bill as drafted could have the unintended effect of exempting a pointtomultipoint broadcast service, where such a service was provided as an Internet carriage service by the datacaster. 

This could provide a mechanism for a datacaster to provide a high quality broadcasting service while avoiding the genre restrictions. 

The amendments provide a mechanism that gives the ABA a broad power to take action should this occur. 

It inserts new antiavoidance provisions in schedule 6 of the Broadcasting Services Act, which establish the concept of a declared Internet carriage service that is not allowed to be provided by a datacaster. 

The ABA can declare a service to be a declared Internet carriage service where the service is a service provided by a datacaster as an Internet carriage service, but where one or more persons enter into, begin or carry out a scheme and the ABA is of the opinion that the person or persons did so for the sole or dominant purpose of avoiding the application of the genre or audio content provisions. 

The term ‘scheme’ means: (a) any agreement, arrangement, understanding, promise or undertaking, whether express or implied and whether or not enforceable, or intended to be enforceable, by legal proceedings; or (b) any scheme, plan, proposal, action, course of action or course of conduct, whether there are 2 or more parties or only one party involved. 

Senator MARK BISHOP (Western Australia) (10.48 a.m.)—This series of amendments is clearly ancillary to and consequential upon the genre approach of the government in terms of classification that is now part and parcel of this bill. 

As a consequence of that, it is clearly necessary. 

The opposition supports the amendments. 

Amendments agreed to. 

The TEMPORARY CHAIRMAN (Senator Calvert)—We now move to the Australian Greens amendments. 

Senator Brown, I understand that you have to withdraw an amendment before you move something else. 

Then you also have to amend something from the floor, don’t you? It is pretty complicated. 

Senator BROWN (Tasmania) (10.49 a.m.)—Yes. 

I withdraw the original Australian Greens amendment No. 2 on sheet 1857 and replace it with revised amendment No. 2. 

Then I wish to amend the date ‘January 2001’ and replace it with ‘January 2002’ where it appears. 

I seek leave to move amendments Nos 2 and 3, including revised amendment No. 2, on sheet 1857 together. 

Leave granted. 

Senator BROWN—I move: (R2) Schedule 1, page 53 (after line 8), after item 139, insert: 139A After clause 60A of Schedule 4 Insert: 60B Review before 1 January 2002 (1) Before 1 January 2002, the Minister must cause to be conducted a review of the regulatory arrangements that should apply to the digital transmission, free of charge, of community television broadcasting services using spectrum in the broadcasting services bands and whether spectrum access should be provided by: (a) datacasting licensees as a condition of their licence; or (b) sharing multichannel capacity with one or both of the national broadcasters. 

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

(3) 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. 

(3) Schedule 1, item 140, page 71 (line 5), at the end of subclause (1), add: ; (i) subject to a condition placed on particular licences by the ABA before allocation, the licensee will be required to provide a community television broadcasting licensee with guaranteed free access to the spectrum needed to broadcast one standard definition digital television channel. 

Senator MARK BISHOP (Western Australia) (10.49 a.m.)—I request clarification from Senator Brown. 

Is your amendment substantially in the same terms and does it seek to achieve the same purpose as the previous amendment put forward by the Australian Democrats? I am a bit unclear on that point. 

Senator BROWN (Tasmania) (10.49 a.m.)—I think I might leave Senator Bourne to explain that. 

It is substantially similar but it goes a little further. 

It seeks a ministerial review of regulatory arrangements on digital transmission of community television broadcasting services. 

But it takes the attitude that these will be free of charge, because that was established in 1998 and does not need to be revisited. 

This review by the minister should look at: ... 

community television broadcasting services using spectrum in the broadcasting services bands and whether spectrum access should be provided by: (a) datacasting licensees as a condition of their licence; or (b) sharing multichannel capacity with one or both of the national broadcasters. 

It may be in (b) that we have a difference with Senator Bourne. 

Senator Bourne—It certainly is. 

Senator BROWN—I want to make it clear to the committee that this is a review being sought. 

It is not mandating anything. 

If the review is to take place, it is a review to see that community television broadcasting services not only exist but also get some certainty. 

They have not got certainty at the moment, but they are important. 

Some eight channels have been established—a new one in Perth in the last year—but they have been given absolute uncertainty by this parliament. 

It is time they were given certainty; it is time we stopped mucking around as far as community broadcasting is concerned. 

Senator Alston—What about grandstanding? Senator BROWN—I get ‘grandstanding’ twice a day from the minister opposite simply for bringing up an alternative point of view. 

Let me say that the government does not have a monopoly on points of view in this country of ours. 

This is a democracy, and we have a multiplicity of points of view. 

I will continue to bring up points of view that the government does not like. 

If the government wants to abolish community broadcasters, it should say so. 

But this motion says to the minister that there is a responsibility on him to foster community broadcasting and to give it certainty. 

I am listening to what the other components of the chamber have to say. 

I thought that it should have been done by now. 

The Greens wanted this to be completed by the end of this year. 

But I am hearing that that is not amenable to other people on this side of the chamber so I have changed the date to the end of 2002. 

Senator Bourne interjecting— Senator BROWN—The Democrats agree with that, but not 2001. 

I cannot understand that. 

I think this matter is not that complicated. 

It simply puts it into the next period of government and effectively allows this government to escape the responsibility of doing something definite for community broadcasting in Australia. 

I have made this amendment to my amendment in the hope that the rest of this amendment will get up. 

I say to the Democrats: yes, this does raise the option in a review of looking at sharing multichannel capacity with one or both of the national broadcasters. 

The question I put to the Democrats, the Labor Party and the government is: where is the defined policy as to how Australian community broadcasting will get its small slice of the digital spectrum? We should be looking at all the options. 

We should be dealing with an option in the wake of a minister’s report. 

To close down those options before the minister gets under way seems to me not to be very sensible. 

I prefer option (a) under this amendment, which is that datacasting licensees provide part of the spectrum— and it will be a small part—to community broadcasters. 

The option of sharing the multichannel capacity of the national broadcasters should be there as part of the review. 

I commend this amendment to the chamber. 

I want to make sure that we do come up with an option which moves towards the Community Broadcasting Association’s goal of knowing where they stand and entering into the age of digital technology. 

Senator BOURNE (New South Wales) (10.54 a.m.)—In response to a couple of things that Senator Brown has said, I point out that we would have been happy with 2001; we are happy with 2002. 

There is a drafting error in our amendment. 

It is a drafting error on my part, not on the drafters’ part. 

I did intend to put 1 January 2002 in my amendment. 

So I am quite happy with 2002. 

I would have been quite happy with 2001. 

If you want to leave it there, I will vote for it, but I do not know whether you will get everybody else to vote for it. 

I am having a look at the differences between Senator Brown’s amendments and my own. 

The differences that I can see are, first of all, that he is assuming that spectrum is free. 

I would agree with that. 

In fact, I had that amendment drawn up first. 

I was given some advice that it was probably unconstitutional, which has now been revised to it being constitutional. 

That said, fabulous, I will vote for it. 

The datacasting licensees as a condition of licence provision is excellent. 

I am into that. 

My only problem is with sharing the multichannel capacity with the national broadcasters. 

Senator Brown has not been following this debate forever, and who can blame him. 

There are an awful lot of debates I have not been following too. 

This has been a debate about what should happen, but there are some problems. 

I cannot vote for that. 

The ABC and SBS are now legislatively required to broadcast in both HD and SD; the simulcast issue has come up and simulcasting has been agreed to by all parties. 

The ABC and SBS will also be doing a bit of datacasting and they have been given multichannel. 

There is no space, there just is not any room, for them in their seven megahertz to fulfil their legislative requirements and also multiplex with community broadcasters. 

I know the community broadcasters thought this was a good idea because it would help them for a long time. 

But I just do not think it is technically possible. 

I think it is technically impossible for it to happen. 

Plus, why should our national broadcasters be forced to give up some of their space? Why should we not force the freetoairs to give up some of their space? I do not see why the national broadcasters should be disadvantaged by this. 

In fact, what I think should happen is that community broadcasters and indigenous broadcasters should be given their own space. 

I find it quite mystifying the way the whole thing is being handled by the government at the moment. 

The minister has put out press releases that say all the right things, but nothing seems to be happening. 

At the committee hearings that we had into the legislation, and Senator Bishop and I were both on the committee, we asked the department about this. 

The department just kept telling us it would be all right. 

We would like to know how it will be all right. 

We do not think it will be all right if there is the possibility of the national broadcasters having to give up their space. 

They cannot do it and do all the other things that they are legislatively required to do under this legislation within the spectrum that they have. 

They have enough imposts on them already. 

We really believe that community and indigenous broadcasters should be given their own spectrum and should be allowed to use their own spectrum as they wish. 

I would be interested to hear what the minister actually intends to do with community broadcasters. 

We have seen his press release, but we have not heard a great deal about what is happening. 

Senator MARK BISHOP (Western Australia) (10.58 a.m.)—It is my understanding that if the Australian Greens amendment (2) is defeated, Democrat amendment (R32) on sheet 1862 will come forward. 

My understanding is that the Democrats agree to the proposal to bring forward the review date to 1 January 2002. 

That being the case, we will oppose the Greens amendment and support the Democrat amendment when it comes forward. 

Our understanding is that the content of the two amendments is very close, if not identical. 

On that basis, the merit of the review is clearly understood and agreed by those on this side of the chamber. 

As for comments about the community broadcasters, after hearing submissions from representatives of the community broadcasters that they needed access to spectrum, the opposition did make the point in its minority report—and this remains its view to date— that the community broadcasters are entitled to legislative certainty. 

We think having a specific finite date of report in this review goes a significant way down the road to giving them that legislative certainty. 

We look forward to looking at the content of the review when it does come down in due course. 

Senator BROWN (Tasmania) (11.00 a.m.)—My response to that is: I wonder whether the opposition will accept a review date of 2001. 

The problem with not having a review date of 2001 is that— Senator Alston—That is six months. 

Senator Mark Bishop—Yes, it’s too short. 

Senator BROWN—The year is 2000. 

Senator Alston—You want it done within six months. 

Senator BROWN—That is right. 

The information is available on all the matters that are here. 

If the minister cannot do it in six months, then so be it. 

Let that speak for itself. 

I was interested to hear Senator Bourne say that she would be amenable to 2001, and I would have thought that was a reasonable date. 

The uncertainty goes on, and I would not like it to be barrelled on for another year if we can bring it forward. 

This is the other point I would make: it appears that I am not going to get support for the Greens’ amendment, which is the best. 

When we get to Senator Bourne’s own amendment, it will be seen that it removes the words ‘and whether access to spectrum should be provided free of charge’. 

I cannot see why we should be going back into that matter. 

It was resolved in 1998. 

It is the basis upon which all parties moved forward. 

The government said in 1998 that it was going to move ahead and provide a conversion scheme for community broadcasting—but nothing has happened. 

The more ground we go over again, the less likely it is that we are going to get a result. 

It has been determined by all parties that this access to the spectrum should be free of charge. 

I would seek advice from Senator Bourne and Senator Bishop as to whether we might not, when we move to it, delete that section. 

Otherwise, I will not be happy with the amendment, and we will get into this difficulty again where we will not progress the issue. 

Senator MARK BISHOP (Western Australia) (11.02 a.m.)—Perhaps I can request clarification on that point from Senator Brown and possibly thereafter Senator Bourne. 

Senator Brown, are you requesting that the reference to the provision of spectrum free of charge be put into or taken out of Senator Bourne’s amendment? Senator BROWN (Tasmania) (11.03 a.m.)—I am saying that the provision of spectrum free of charge should be taken out. 

It is there at the moment. 

You will see it at the end of the first paragraph of Senator Bourne’s amendment. 

That is 60B(1). 

The last phrase is ‘and whether access to spectrum should be provided free of charge’. 

If that could be deleted, I would be much happier with that alternative. 

Senator ALSTON (Victoria—Minister for Communications, Information Technology and the Arts) (11.03 a.m.)—Before there is general agreement on it, I would like to speak on this issue. 

I would apprehend that what Senator Bourne has in mind is not so much whether the community sector should have to pay but whether anyone else might have to pay. 

Senator Bourne interjecting— Senator ALSTON—No. If you have a multiplex arrangement and you reserve a portion of the spectrum for the community sector, the issue is whether the multiplexer has to provide it free of charge. 

If they do, they will pay less upfront. 

So I think it is the arrangements that underpin the provision of that guaranteed portion of the multiplexed spectrum that really need to be explored. 

There is no reason, if you are so confident about all of this, why those issues should not be addressed in that inquiry. 

Certainly, in terms of whether it should happen in the next six months, I would simply say that the community sector itself is still not in a position to put forward its own plans for the future. 

So I think they would appreciate more time. 

If you had a review before 1 January 2001, they would have to knock up a submission in the next month or two, which they are simply not in a position to do. 

More importantly, I think everyone wants to see the outcome of the spectrum clearing arrangements. 

We are committed to having a review by 31 October of all that might be involved in expediting the spectrum clearing process. 

Until you know that, until you know what is available and—I think just as importantly— how the system beds down once digital is introduced in 2001, then it is entirely premature to be having this sort of review. 

You would probably need to have it in another 12 months time anyway. 

All I can say is that I accept that the view of Labor and the Democrats is that 2002 is reasonable, and we would not quarrel with that. 

But we would certainly say that it would be a complete waste of time and money to have one in the next six months. 

Senator BOURNE (New South Wales) (11.05 a.m.)—In response to the minister, on the issue of whether the access to spectrum should be provided free of charge: my original idea was that the community broadcasters ought to be able to broadcast on the same basis upon which they broadcast now. 

So, perhaps it might be helpful to the committee if I amended my (1) to read in the last line—I suppose I am really talking about Senator Brown’s amendment, but perhaps I could just finish this. 

The TEMPORARY CHAIRMAN (Senator Calvert)—You are foreshadowing something further down the track, I think, Senator Bourne. 

Senator BOURNE—I am, yes, the next one. 

But it might be helpful for the committee if I do it now. 

My 60B would read ‘review before’, and that would be ‘1 January 2002’—and I apologise for that error that I made. 

At the end of (1), ‘in the broadcasting services band and how access to spectrum should be provided free of charge’, rather than ‘whether’. 

That would cover the question of how it can be done. 

It might take a bit longer, Senator Brown—and that might take the whole 18 months, I would imagine— but you can look at how that can be done. 

It gives the impression that the view of this parliament is that it should be, but the question of how it can be done would be covered under that review. 

Senator MARK BISHOP (Western Australia) (11.07 a.m.)—I will just indicate to the chamber that the insertion of the word ‘how’ in lieu of the word ‘whether’ appears to address the concerns raised by Senator Brown and maintains consistency with the expressed undertakings deriving from the 1998 framework legislation. 

If Senator Bourne in due course wishes to amend her amendment to that effect, the opposition is quite comfortable with that. 

The TEMPORARY CHAIRMAN—Perhaps we could dispose of the Green amendment. 

Senator BROWN (Tasmania) (11.08 a.m.)—I seek leave to withdraw my amendment, regretfully. 

Leave granted. 

Senator BROWN—I want to clarify the amendment to the date: where 2003 appears twice in Senator Bourne’s amendment, it will become 2002. 

The TEMPORARY CHAIRMAN—We now move to Democrat amendment R32 on sheet 1862. 

Senator Bourne could you please explain what you had in mind. 

Senator BOURNE (New South Wales) (11.08 a.m.)—I would like to amend amendment R32, as circulated, to remove 2003 wherever it appears and to replace it with 2002, and in 60B(1) in the last line where ‘whether’ appears to replace that with ‘how’, so it would read: ...using spectrum in the broadcasting services bands and how access to spectrum should be provided free of charge. 

Accordingly, I move: (R32) Schedule 1, page 53 (after line 8), after item 139, insert: 139A After clause 60A of Schedule 4 Insert: 60B Review before 1 January 2002 (1) Before 1 January 2002, the Minister must cause to be conducted a review of the regulatory arrangements that should apply to the digital transmission of community television broadcasting services using spectrum in the broadcasting services bands and how access to spectrum should be provided free of charge. 

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

(3) 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. 

Senator MARK BISHOP (Western Australia) (11.09 a.m.)—The opposition supports the amendment. 

Amendment agreed to. 

The TEMPORARY CHAIRMAN—We now move to opposition amendment (46) on sheet 1823. 

Senator MARK BISHOP (Western Australia) (11.09 a.m.)—I move: (46) Schedule 1, page 51 (after line 20) after item 137, insert: 137A Subclause 60(1) of Schedule 4 Omit “31 December 2005”, substitute “1 January 2005”. 

Note:The heading to clause 60 of Schedule 4 is altered by omitting “31 December 2005” and substituting “1 January 2005”. 

Opposition amendment (46) goes to the timing of the reviews. 

It brings forward the review date for what we categorised as the group A reviews, which include spectrum use, simulcast period duration, subscription TV services, and regulatory and revenue arrange ments for datacasting transmission licences and commercial television licences in underserved areas. 

I will not speak to the merit of that proposal. 

It is on the record from previous discussion. 

Amendment agreed to. 

The TEMPORARY CHAIRMAN—We now move to government amendments (1) and (2) on sheet EK218. 

Senator ALSTON (Victoria—Minister for Communications, Information Technology and the Arts) (11.10 a.m.)—by leave—I move: Schedule 1, page 51 (before line 21), before item 138, insert: 137B Paragraph 60(1)(d) of Schedule 4 Repeal the paragraph. 

(2) Schedule 1, item 139, page 53 (after line 8), after clause 60A, insert: 60B Review before 1 January 2006 (1) Before 1 January 2006, the Minister must cause to be conducted a review of the content of any regulations made for the purposes of paragraph 6(3)(c) of this Schedule (which deals with the duration of the simulcast period). 

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

(3) 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. 

The Labor Party’s proposed amendments bring forward the completion date of all reviews currently scheduled for completion by 31 December 2005 by one year to 1 January 2005. 

Discussion on this matter was deferred. 

These amendments would work together with Labor amendment (46), which has just been carried, so that the completion date of one review— the review of the length of the simulcast period— becomes 1 January 2006. 

I will elaborate: the Senate postponed discussion of Labor amendment (46) to allow consideration of concerns raised by Senator Bourne about bringing forward the date of the 2005 review into the length of the simulcast period. 

Labor amendment (46), just passed, would have the effect of bringing forward the completion date of all reviews currently scheduled for completion by 31 December 2005, that is, the reviews into the length of the simulcast period, whether freetoair broadcasters should be allowed to provide other forms of broadcasting services such as pay TV, multichannelling by commercial broadcasters and whether all parts of the broadcasting spectrum have been efficiently planned and structured. 

Senator Bourne indicated support for Labor’s amendment that was concerned about bringing forward the date of the review into the length of the simulcast period. 

Government amendments (1) and (2) will work together with Labor amendment (46) so that the date of completion of the review into the length of the simulcast period is 1 January 2006 and the date of completion of the other reviews is 1 January 2005. 

Amendments (1) and (2) do not directly modify the words of Labor’s amendment to achieve the change to the review dates that I have outlined. 

It is necessary for the Senate to agree, as it has just done, to both Labor amendment (46) on sheet 1823 and these government amendments. 

Senator BOURNE (New South Wales) (11.12 a.m.)—I would like to thank both the government and the opposition for taking account of my concerns and naturally I will vote for it. 

Senator MARK BISHOP (Western Australia) (11.12 a.m.)—On the basis that the government and the Democrats have apparently reached an understanding on this issue, I think the opposition is happy to support it. 

Amendments agreed to. 

The TEMPORARY CHAIRMAN—We now move to opposition amendment (57) on sheet 1823, which is opposing item No. 140. 

Senator MARK BISHOP (Western Australia) (11.13 a.m.)— The opposition opposes item 140 in the following terms: (57) Schedule 1, item 140, page 92 (lines 5 to 25), clause 57, TO BE OPPOSED. 

I have not spoken to this as yet. 

This goes to the rights of administrative appeal and determinations of the ABA to be subject to existing appeal and review arrangements. 

Clause 57 in schedule 6 of the bill denies interested parties the ability to access stay powers or to seek interlocutory injunctive relief in relation to decisions of the ABA. 

The exclusion of stay proceedings and interim interlocutory relief relating to decisions of the ABA concerning datacasting licences, we believe, needs to be removed from the act to ensure normal avenues for judicial review of ABA decisions are not precluded. 

This is particularly important in the context of the significant implications of these ABA decisions. 

Labor opposes the exclusions in the bill to restore the usual avenues for general review. 

When this matter was raised—I think the representatives of Fairfax at the Senate inquiry raised the issue that their rights were about to be denied—we had some discussions and I made a mental note at the time just to make reference to it in our report. 

When the eventual negotiations were going to take place with the government and the Australian Democrats, I had presumed it was one of those matters that was capable of resolution by negotiation because in this area it does go to a fundamental issue of law and a fundamental issue of rights. 

The two issues that are interwined are, firstly, property rights and the necessary protection of those rights expressly provided for in our Constitution but, more importantly, by way of custom and practice in this country and, secondly, the right of parties, in exercising their rights in judicial appeal proceedings, not to have those rights taken away from them and a possible benefit they might derive from the exercising of their rights being denied to them prior to the completion of the appeal proceedings. 

I am very surprised that we have to go to debate on this issue. 

The issues at stake do involve significant sums of money. 

If a datacaster, for example, wishes to datacast a particular program and is restrained from doing so after review by the ABA, the aggrieved party who is denied that right simply has to stop going about his or her lawful business. 

They still have appeal rights to the Federal Court or higher to have the decision of the ABA overturned, but they do not have the ability to protect their legitimate financial interests. 

I do not understand why the rights of corporations and individuals to go about their lawful business should be denied to them in what is essentially an area that might be under dispute as to content and programming, whilst they go through tortuous legal processes. 

I am not going to make a great song and dance on property rights and the rights of individuals, but I can remember that the importance of this was constantly visited upon me in my other lives as a law student and in my early years of practice—the right of individuals, the right of corporations, the right of any citizen in our community to seek relief, to seek justice through the judicial system. 

With due respect, I understand that the Democrats and the government are of the view that aspirant datacasters should not be able to seek interlocutory injunctive relief or access stay powers to protect their rights. 

When this matter comes on for vote, the opposition will oppose it, and I put those matters on the record. 

Senator BOURNE (New South Wales) (11.17 a.m.)—I should put on the record as well that if there had been a middle way to do this I would have preferred that too, but we did not have the ability. 

We looked for one but we were told that the time and effort involved in determining another amendment that would have looked after our concerns were so huge that being a small party without the resources to do so we could not do it. 

Out of the two positions that were available to the party room, the party room decided to agree with the government on this. 

The reason for that was that there is an expectation that whoever gets those datacasting licences may well be somebody with lots and lots of money. 

We would expect that because they are going to cost a lot of money. 

Despite everybody saying that they do not want to do it, they may well put on a broadcasting channel over the datacasting channel. 

If that happens and they do not take that broadcasting channel off immediately, then it is most unlikely that if they are on air for a year or 18 months, or however long it takes, they would then be able to be removed at all. 

Thus the original intention of the 1998 bill would have been thwarted, that there be no new broadcasters until 2007. 

With that in mind, we did look at amendments. 

We tried to find something that would have a reasonable time. 

Then we were asked: what is a reasonable time and how can you determine how fast the courts will work? That is a good point. 

How can we? We did not know. 

We found that we were unable to write an amendment which satisfied us. 

I regret that. 

I wish we had been able to, but we were not. 

We just do not have the resources. 

So we ended up having to determine between the two, and we determined to go with the government’s original amendment. 

Senator MARK BISHOP (Western Australia) (11.20 a.m.)—In response to Senator Bourne’s point, I do not wish to comment about the Democrats being underresourced. 

The more important comment she made was in the latter part of her speech when she said essentially that, after the ABA have issued a determination on a particular issue, an aggrieved party might be well funded and choose to litigate. 

It may take some considerable period of time before that matter is resolved in a higher court and, in the meantime, they would have the ability to datacast or broadcast their particular product and, hence, essentially gain improper advantage in the marketplace. 

That was really the kernel of Senator Bourne’s argument. 

In response to that, an application for interlocutory injunctive relief or an application for stay is not automatic. 

There is no automatic granting of those by the court that you apply to. 

It is a discretionary matter in most jurisdictions, determined on merit. 

So once a decision of the ABA is made on a particular issue, if the aggrieved party is dissatisfied, they can apply to either stay or get injunctive relief. 

The court they apply to has a discretion to allow the matter or to refer it. 

My recollection is that that is always done on merit. 

So, essentially, in the merit decision, the review tribunal or review court would make a prima facie assessment of the worth or otherwise of your argument. 

I am not aware of whether Senator Bourne or her advisers were aware of that. 

So I put that on the record. 

Senator ALSTON (Victoria—Minister for Communications, Information Technology and the Arts) (11.22 a.m.)—I understand the concerns that people have and, clearly, we are not wanting to interfere with people’s rights of appeal. 

It is really a matter of what should prevail in the interim. 

As Senator Bourne rightly says, this area is replete with gaming opportunities, and there are those who can use litigation as a business tool very effectively. 

The courts do not need much encouragement to have the time that an appeal comes on take what we might regard as inordinate length. 

If that is the case, what you do not want is a situation where there may be every incentive for someone to drag their heels and at the same time effectively be doing something which the ABA has already ruled that you cannot do and which an appeal court might ultimately agree on. 

It then provides opportunities for pressure to be brought to bear in other quarters; whereas what we would be keen to see is the legal process dealt with as expeditiously as possible. 

So something along these lines would provide every incentive to the courts themselves to ensure that the appeal is heard very speedily. 

The TEMPORARY CHAIRMAN (Senator Murphy)—The question is that the item stand as printed. 

Question resolved in the affirmative. 

The TEMPORARY CHAIRMAN—We now move to Democrat amendments Nos 45 and 46 on sheet 1827. 

Senator BOURNE (New South Wales) (11.23 a.m.)—These two amendments on technical standards were covered by government equipment amendments that were moved yesterday. 

I am being nodded at, in which case I withdraw those amendments. 

Senator MARK BISHOP (Western Australia) (11.24 a.m.)—by leave—I move opposition amendments Nos 58 and 59 on sheet 1823 together: (58) Schedule 1, item 140, page 95 (line 16), omit “2004”, substitute “2003”. 

(59) Schedule 1, item 140, page 95 (line 17), omit “2004”, substitute “2003”. 

I have also spoken to these amendments previously in the debate and so I will not repeat those comments. 

Amendments agreed to. 

The TEMPORARY CHAIRMAN—We now move to Democrat amendment No. 50 on sheet 1827. 

Senator BOURNE (New South Wales) (11.24 a.m.)—The next three amendments from the Democrats, the ALP and the government are all similar on ‘use or lose your datacasting spectrum’. 

Having looked at all three, I think it is the case that the government’s position is similar to my own but also that it is probably better drafted. 

It is probably better that I go with the government’s position on that. 

The ALP’s position is quite different, and I will mention why I would rather not vote for the ALP’s position as I understand it. 

In the worst possible case, it allows a datacaster to run a service for one day and then go off air for 30 days and then run it for one day and then be back off air—which is a bit similar to what happened to poor old Radio Australia with the Cox Peninsula, but not what we really wanted. 

So I do not think it is a particularly good idea to do it that way. 

I think that the amendment that both the government and the Democrats are moving similarly is a better one. 

Because I think the government’s position is better drafted than my own, I think I will withdraw mine in favour of the government’s. 

The TEMPORARY CHAIRMAN—Okay. 

You are withdrawing yours and you are not supporting the opposition amendment but you are supporting the government’s amendment. 

Senator MARK BISHOP (Western Australia) (11.26 a.m.)—The opposition understand the will of the Senate, and so we will withdraw our amendments Nos 36 to 38 on sheet 1823. 

Senator ALSTON (Victoria—Minister for Communications, Information Technology and the Arts) (11.26 a.m.)—by leave—I move government amendments Nos 11 to 16 on sheet ER232: (11) Schedule 2, item 25, page 108 (after line 25), after paragraph (g), insert: (ga) a condition that the licensee, or any person so authorised, will transmit a datacasting service during the whole or a part of each day in the period: (i) beginning on the commencement referred to in paragraph (g); and (ii) ending immediately before 1 January 2007; (for this purpose, disregard a particular day if, in that period, there are fewer than: (iii) 180 days; or (iv) if the ABA, by writing, notifies a greater number of days—that greater number of days; on which there has been no transmission of a datacasting service under the licence); (12) Schedule 2, item 25, page 109 (after line 5), after subsection (1), insert: (1A) The ABA must not notify a longer period for the purposes of paragraph (1)(g) unless the ABA is satisfied that there are exceptional circumstances that warrant the longer period. 

(13) Schedule 2, item 25, page 109 (before line 6), before subsection (2), insert: (1B) The ABA must not notify a greater number of days for the purposes of paragraph (1)(ga) unless the ABA is satisfied that there are exceptional circumstances that warrant the greater number of days. 

(14) Schedule 2, item 35, page 113 (line 2), after “(g),”, insert “(ga),”. 

(15) Schedule 2, item 36, page 113 (line 13), after “(g),”, insert “(ga),”. 

(16) Schedule 2, item 36, page 114 (line 7), after “(g),”, insert “(ga),”. 

These amendments insert a ‘use it or lose it’ provision to ensure that datacasting transmission licensees continue to provide a service and do not simply commence and then shut down a service and thereby hoard the spectrum. 

These amendments modify the current provisions in the bill which require a datacasting transmitter licensee to commence a service within 12 months of allocation of the licence unless granted further time by the ABA. 

Amendment No. 11 requires that datacasting transmitter licensees must, after commencing the service, continue to transmit daily until 1 January 2007. 

The transmitter may only be off the air during that period for a cumulative total of 180 days unless there are exceptional circumstances. 

That is amendment No. 13. 

Amendment No. 12 limits the ability of the ABA to specify a startup period longer than 12 months. 

The ABA must not so specify unless it is satisfied that there are exceptional circumstances. 

Amendments Nos 14 to 16 are minor consequential amendments to the Radiocommunications Act. 

Amendments agreed to. 

Senator BOURNE (New South Wales) (11.29 a.m.)—by leave—I move Democrat amendments Nos 2, 52 and 53 on sheet 1827: (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”. 

(52) Schedule 3, page 120 (after line 3), before the heading preceding item 1, insert: Australian Broadcasting Corporation Act 1983 1A Subsection 3(1) Insert: datacasting service has the same meaning as in the Broadcasting Services Act 1992. 

1B At the end of subsection 6(1) Add: ; and (d) to transmit datacasting services. 

1C Paragraph 8(1)(e) After “matters”, insert “and datacasting services”. 

(53) Schedule 3, page 120 (after line 15), after item 4, insert: Special Broadcasting Service Act 1991 4A Section 3 Insert: datacasting services has the same meaning as in Broadcasting Services Act 1992. 

4B At the end of section 6 Add: (6) The SBS, in performing its principal function, may transmit datacasting services. 

4C Paragraph 10(1)(j) After “matters”, insert “and datacasting services”. 

Amendments Nos 2, 52 and 53 are the ones that would move the things that refer to the ABC and the SBS out of the BSA and back into their own acts— the ABC Act and the SBS Act. 

This is, I would have thought, a fairly technical thing. 

It does not change responsibilities—the responsibilities are changed with No. 41—so I would hope that I have got support for this. 

Senator ALSTON (Victoria—Minister for Communications, Information Technology and the Arts) (11.29 a.m.)—The bill contains provisions at clauses 39 and 40 of schedule 6 which will enable the ABC and SBS to provide datacasting services. 

They may do so directly or through a subsidiary company or other business arrangement. 

These provisions will have the same effect as more directly amending the charters of both the ABC and SBS. 

The government accepts that it may be more appropriate that these additional functions are directly reflected in the enabling legislation of each of the two national broadcasters. 

However, the government considers that there are problems with how the Democrat amendments propose to achieve this; in particular, the amendments would need to make it clear that the function of providing a datacasting service was under and in accordance with the conditions of a datacasting licence. 

This requirement is necessary to ensure that the ABC and SBS are subject to the same rules as other persons providing a datacasting service. 

There are a number of ways in which this could be achieved. 

It could, for example, involve making reference to the relevant regulatory regime which will apply through the Broadcasting Services Act or through replication of some or all of those provisions in the ABC and SBS acts. 

The government therefore undertakes to examine the most effective means of amending the ABC and SBS acts to reflect the new statutory functions, and to bring forward further legislation at the earliest opportunity. 

The proposed amendments would also deal with the code of practice and complaints arrangements to provide similar mechanisms to those which apply to the ABC and SBS in relation to their broadcasting services. 

Senator MARK BISHOP (Western Australia) (11.31 a.m.)—I thank the minister for that explanation and those comments. 

In respect of the Democrat amendments seeking to remove the ABC and SBS from the regulatory framework for datacasting, whilst Labor thinks it is appropriate that where possible the ABC and SBS should be governed by reference to their own respective acts, we do prefer that this be done in a considered and detailed fashion rather than on the fly during this debate. 

We have noted the government’s undertakings on the record, and accordingly we will oppose the Democrat amendments. 

Amendments not agreed to. 

Senator BOURNE (New South Wales) (11.32 a.m.)—I move Democrat amendment No 41 on sheet 1827: (41) Schedule 1, item 140, page 81 (line 22) to page 82 (line 19), omit clauses 39 and 40, substitute: 39 Application of Parts 4 and 5 to national broadcasters Parts 4 and 5 do not apply to a national broadcaster. 

I should probably at this point remind the minister that we heard his comments on this right back at the beginning, and I at least am well aware of them. 

However, I do not agree with them. 

My amendment would put the responsibility for dealing with datacasting laws back to the ABC and SBS boards. 

I know it is a fact that the ABC Act and—I am pretty sure, but I have not looked it up—the SBS Act require the boards to carry out the functions and the duties of the corporations and ensure that they are performed efficiently and with maximum benefit to the people of Australia. 

Those boards also have duties to maintain the independence and integrity of the corporations, and to provide accurate and impartial news and information services and ensure that they comply with legal requirements. 

The boards are accountable to the people of Australia through parliament— parliamentary committee inquiries and individual members of parliament—and they are also required to meet legislative requirements under a number of other acts. 

If datacasting were inserted into the ABS and the SBS acts, as proposed by this amendment that we are discussing now, the ABC and SBS boards would have a duty to follow the datacasting regulations that we have already defined in the Broadcasting Services Act. 

The way it works at the moment is that the ABC Act—and I think it is the same with the SBS Act— requires the ABC to provide its code of practice to the ABA. 

Complaints about the ABC can be made to the ABA after completion of the ABC’s internal complaints procedure. 

The ABA can recommend how the ABC should respond, but the ABC is not required to comply. 

The ABA may report the matter to parliament, which may act on that report. 

The fact is that that is what happens now, so this would not be a huge difference from what happens now; in fact, it would be almost the same as happens now. 

If datacasting were inserted into those acts, that would be covered in exactly the same way, by exactly the same procedures, as currently happens with complaints. 

That approach does not mean that either the ABC or SBS is free of regulation or oversight but that the ABC and the SBS are answerable, as they always have been, to the parliament and not necessarily to the ABA. 

It gets to the ABA eventually, and so would my amendment get it to the ABA eventually, but until that point it would be covered exactly the same way as the complaints procedures are covered now within the ABC and SBS acts. 

So it is not a huge change to the way things are dealt with now. 

In fact, the huge change in the way things are dealt with now would be if we disagree with my amendment No. 41. 

Senator MARK BISHOP (Western Australia) (11.35 a.m.)—As always, I have listened carefully to Senator Bourne but, with all due respect, again we would rather these matters be considered in a detailed provision over time, so we will oppose the amendment. 

Senator BROWN (Tasmania) (11.35 a.m.)—As with the last amendment, I support Senator Bourne’s amendment. 

Senator BOURNE (New South Wales) (11.36 a.m.)—I have one comment. 

I take Senator Bishop’s point, but if he thinks it should be dealt with in a detailed way over time, can he tell me when he thinks that will happen? Senator ALSTON (Victoria—Deputy Leader of the Government in the Senate) (11.36 a.m.)—I think what Senator Bishop is referring to is the undertakings that I have already given in relation to the last matter to ensure that these matters are dealt with in a coherent and consistent manner. 

When I reflected on the changes that Senator Bourne proposes to make to the Broadcasting Services Act, it seemed to me that by amending the definition of national broadcasters in section 13 you would then include them under a regime which is entirely exempt. 

If you bring datacasting into section 13, then subsection (5) says that they are not governed by the BSA regime, and that is not how we think datacasting should operate. 

We do not believe there should be different obligations on the ABC and SBS compared to other datacasters. 

But the general review and the undertakings we have given I think will enable us to deal with them in a much more effective way, rather than simply allowing SBS and the ABC to regulate their own datacasting. 

There would be a risk that those boards might apply different interpretations, which would lead to uncertainty about the scope of the regime. 

It is all very well to say, ‘Yes, you can come back into the parliament and complain about it.’ We all know the constraints that are involved in that. 

You are not likely to get up in question time and raise the matter. 

You might put something on notice. 

It becomes a sort of lowgrade irritant. 

The industry, quite understandably, is concerned about people going off on frolics of their own. 

In addition, the amendment would have a major technical flaw, as consequential changes are not made to the relevant transmitter licence provisions in the Radiocommunications Act, which require the national broadcasters to hold a BSA datacasting licence before the transmitters can be used to transmit a datacasting service. 

Senator BOURNE (New South Wales) (11.38 a.m.)—I have just one comment on that. 

It occurs to me that with a lot of the things we have gone through in this bill there has been a bit of confusion—it is a bit of a confusing and complex bill; I have to admit that—and what we have ended up doing in pretty well every case is being conservative about what we end up voting on. 

I have not really got a problem with that. 

If there is confusion, you are probably better off doing that. 

But what that has led to is—and I think this is the third case of this—the minister giving undertakings to do things, which I am sure he will do. 

That is good, but there is no legislative basis for him doing them. 

More to the point: if, by some strange quirk of fate, he is not the minister after the next election the next minister may or may not do those things. 

I am sure if the next minister is a member of the coalition, then they would take up what he is doing. 

If I am the next minister I will certainly take up what he is doing—and, boy, will it be interesting. 

Senator Brown interjecting— Senator BOURNE—Thank you, Senator Brown. 

I imagine that Senator Bishop is in favour of all of these reviews—in fact, I think he has said that he is. 

It just strikes me that we are taking an awful lot on faith. 

We are being very conservative in what we do, because we are not really sure of what is going on. 

I just wanted to make that point. 

I will take it on faith. 

I think I am absolutely right; I cannot see why you are not voting for it. 

But I will assume that the government and the opposition—or the Democrats, or perhaps the Greens; who knows?—will carry through all of these undertakings when the time comes. 

I just wanted to put that point on record. 

Senator ALSTON (Victoria—Minister for Communications, Information Technology and the Arts) (11.40 a.m.)—Can I just say we do not make undertakings lightly. 

Mine are not expressed in a personal form; they are on behalf of the government. 

In the extraordinarily unlikely eventuality of the other side ever coming to power, I am sure I am authorised on behalf of Mr Smith—and all of those others contenders who parade in this chamber and elsewhere who might like to be in his shoes—that they will have the same honourable approach. 

Senator MARK BISHOP (Western Australia) (11.41 a.m.)—I thank the minister for those comments. 

Did the minister give an undertaking on when that process would be concluded, prior to the commencement of the digital broadcasting? Senator ALSTON (Victoria—Minister for Communications, Information Technology and the Arts) (11.41 a.m.)—I am advised that there is a very good prospect we will be able to bring legislation forward in the next sitting. 

Amendment agreed to. 

Senator Alston—May I say we don’t expect a change of government in that time. 

The TEMPORARY CHAIRMAN (Senator Murphy)—When you get the call, Minister, you can make some comment. 

We are now dealing with opposition amendments Nos 1 to 4 on revised sheet 1860. 

Senator MARK BISHOP (Western Australia) (11.41 a.m.)—by leave—I move opposition amendments Nos 1 to 4: (1) Schedule 1, item 140, page 68 (after line 6), after clause 20, insert: 20A Genre conditions do not apply to certain content copied from the Internet (1) The conditions set out in clauses 14 and 16 do not apply to the transmission of matter if: (a) the matter is content that has been copied from the Internet; and (b) the content is selected by the datacasting licensee concerned; and (c) there is in force an exemption order under subclause 27A(1) in relation to the transmission of the matter. 

(2) In determining the meaning of the expressions television or television program, when used in a provision of this Act, subclause (1) is to be disregarded. 

(2) Schedule 1, item 140, page 69 (after line 9), at the end of clause 21, add: Condition does not apply to certain content copied from the Internet (10) The condition set out in subclause (1) does not apply to the transmission of matter if: (a) the matter is content that has been copied from the Internet; and (b) the content is selected by the datacasting licensee concerned; and (c) there is in force an exemption order under subclause 27A(1) in relation to the transmission of the matter. 

(3) Schedule 1, item 140, page 74 (after line 19), at the end of Part 3, add: DIVISION 4—EXEMPTION ORDERS FOR CONTENT COPIED FROM THE INTERNET 27A Exemption orders in relation to content copied from the Internet (1) If the ABA is satisfied that: (a) matter is proposed to be transmitted by a datacasting licensee; and (b) the matter is content that is proposed to be copied from the Internet; and (c) the content is proposed to be selected by the datacasting licensee; and (d) if it were assumed that clause 20A and subclause 21(10) had not been enacted: (i) any breach of the conditions set out in clauses 14 and 16 and subclause 21(1) that would arise from the transmission of the matter would be of a minor, infrequent or incidental nature; or (ii) the transmission of the matter would not be contrary to the purpose of clauses 14, 16 and 21; the ABA may, by writing, make an exemption order in relation to the transmission of the matter. 

(2) If the ABA receives a request from a datacasting licensee to make an exemption order in relation to the transmission of matter by the licensee, the ABA must use its best endeavours to make that decision within 28 days after the request was made. 

(4) Schedule 1, item 140, page 93 (after table item 4), insert: 4A refusal to make an exemption order Clause 27B the licensee Opposition amendments Nos 1 to 4 go to ‘Genre conditions do not apply to certain content copied from the Internet’. 

Just briefly by way of introduction, the opposition is of the view that we need a system whereby datacasters intending to construct walled gardens must seek a determination from the ABA giving approval for the walled garden content, with the ABA to consider whether the content would represent a broadcasting service. 

It is a pre facto certification approval process that is outlined in the amendments. 

It ameliorates the government’s restrictive provision by allowing walled gardens where material would not represent a broadcasting service. 

It recognises that datacasters may provide Internet material via walled garden Internet services. 

We need a limited number of options whereby limited spectrum is used, otherwise there would be system overload, and reasonably anticipate the future of datacast services involving Internet, whilst maintaining undertakings previously given and understood for broadcasters. 

So the series of subclauses (1), (2), (3) and (4) go to the process whereby datacasters seek to establish walled gardens and copy content from the Internet and seek prior approval from the ABA that the material is appropriate for datacast and is not broadcast material. 

This, we believe, is a worthwhile amendment to the government’s regime. 

Senator ALSTON (Victoria—Minister for Communications, Information Technology and the Arts) (11.44 a.m.)—I want to just say I understand that the Democrats will support this as well. 

All that I would add is that we will obviously be monitoring the process. 

We understand this has a limited effect but, if it turns out to be much wider than any of us expect, then we would be prepared to come back to the parliament at short notice. 

Senator BOURNE (New South Wales) (11.44 a.m.)—The Democrats will be supporting this, with a couple of amendments that the opposition has made. 

It does go a little way towards broadening what will be available, and I think that is good. 

I can only say that, if the opposition has thought better about voting for my amendment to their proposition, please bring it back—we will do it. 

If not, this is an interesting extension on what we have got. 

So, yes, we will be voting for it. 

Amendments agreed to. 

Senator ALSTON (Victoria—Minister for Communications, Information Technology and the Arts) (11.45 a.m.)—by leave—I move government amendments Nos 1 to 4 on sheet EK217: (1) Schedule 1, item 69A, subclause (2B), omit “or a datacasting licensee”. 

(2) Schedule 1, page 19 (before line 21), before item 70, insert: 69B Before subclause 7(3) of Schedule 2 Insert: (2C) Each commercial television broadcasting licence is also subject to the condition that the licensee will provide information to a national broadcaster (within the meaning of Schedule 4): (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 national broadcaster for the purpose of compiling information for an electronic program guide. 

(2D) For the purposes of the application of subclause (2B) to information provided to a commercial television broadcasting licensee, electronic program guide has the same meaning as in subclause 6(24) of Schedule 4. 

(2E) For the purposes of the application of subclause (2C) to information provided to a national broadcaster, electronic program guide has the same meaning as in subclause 19(24) of Schedule 4. 

(3) Schedule 1, page 38 (after line 10), after item 123, insert: 123A Before clause 36 of Schedule 4 Insert: 35A Provision of electronic program guide information (1) Each national broadcaster must provide information to a commercial 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 licensee for the purpose of compiling information for an electronic program guide. 

(2) Each national broadcaster must provide information to the other national broadcaster: (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 national broadcaster for the purpose of compiling information for an electronic program guide. 

(3) For the purposes of the application of subclause (1) to information provided to a commercial television broadcasting licensee, electronic program guide has the same meaning as in subclause 6(24). 

(4) For the purposes of the application of subclause (2) to information provided to a national broadcaster, electronic program guide has the same meaning as in subclause 19(24) of Schedule 4. 

(4) Schedule 1, item 140, at the end of clause 20B, add: (2) Subclause (1) does not require a datacasting licensee to transmit information about programs transmitted by a commercial television broadcasting service unless the commercial television broadcasting licensee concerned has requested the datacasting licensee to transmit that information. 

(3) Subclause (1) does not require a datacasting licensee to transmit information about programs transmitted by a national television broadcasting service unless the national broadcaster concerned has requested the datacasting licensee to transmit that information. 

The purpose of these amendments is to revise the amendments made in relation to electronic program guides to require that each commercial television broadcaster will provide the national broadcaster, if required by that broadcaster, with information to enable it to compile an electronic program guide in a timely manner, at no cost, and in a reasonable form. 

The amendments also impose a converse obligation on national broadcasters to supply such information to commercial television broadcasters and to other national broadcasters if required to do so by the broadcasters. 

The amendments add an additional provision to those moved by the Democrats subsequent to the opposition amendment on EPGs being agreed. 

The amendments build on the obligations listed in the Democrats amendment, which require commercial television broadcasters to provide EPG information if required by another commercial television broadcaster or datacasting licensee. 

Amendment (2) requires commercial television broadcasters to provide such information to national broadcasters. 

Amendment (3) also imposes a converse obligation on national broadcasters to supply such information to commercial television broadcasters and to other national broadcasters if required to do so by the broadcasters. 

Amendment (4) makes it clear that datacasters are not obliged to transmit information in their EPGs about commercial television broadcasters’ programs or national broadcasters’ programs unless requested to do so by that broadcaster. 

Amendments agreed to. 

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

Senator ALSTON (Victoria—Minister for Communications, Information Technology and the Arts) (11.47 a.m.)—Before we get to that point, there are some other matters that I think require a bit more consideration. 

Therefore, I move: That the committee report progress. 

Senator BROWN (Tasmania) (11.47 a.m.)—I wonder if the minister would be good enough to acquaint the committee with what the other matters are. 

Senator ALSTON (Victoria—Minister for Communications, Information Technology and the Arts) (11.47 a.m.)—by leave—There are several matters arising which we want to reflect on. 

I do not particu larly want to canvass them all in the chamber, because we may not decide to go down particular paths. 

But I think it is always helpful if we can at least reflect on matters before we proceed. 

Obviously we will be talking to other parties if that is appropriate. 

Senator BOURNE (New South Wales) (11.48 a.m.)—by leave—I do not think I have ever been involved in a bill where this has happened. 

I find it a bit strange that there are other things to reflect on. 

I do not know what there is to reflect on. 

We have finished the bill as far as I can see, and we should just go to the third reading and be done with it. 

Senator ALSTON (Victoria—Minister for Communications, Information Technology and the Arts) (11.48 a.m.)—by leave—There is one matter that we dealt with quite recently in relation to the stay, where Senator Bourne expressed concern that, whilst she was conscious of the fact that this was moving away from normal natural justice provisions, there did not seem to be a middle way. 

I think there is a middle way— Senator Bourne—Why didn’t you tell us at the time? Senator ALSTON—Because I need to reflect on it, and I need to discuss it with some other people. 

So that is one matter that I think we would all benefit from if we had the opportunity to have a look at another form of words. 

Senator BROWN (Tasmania) (11.49 a.m.)—by leave—Just to clear the air, I wonder if the government could indicate when it would like the committee to reconvene and how long this consideration will be. 

Is it going to be today, or are we looking at August? Senator ALSTON (Victoria—Minister for Communications, Information Technology and the Arts) (11.49 a.m.)—As soon as possible. 

Question resolved in the affirmative.