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  Issue No 57 Official Organ of LaborNet 09 June 2000  

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Politics

Extracting the Digit

from Hansard, June 6, 2000

Labor's federal communications spokesman Stehpen Smith outlines the Party's position on the controversial datacasting legislation currently before Parliament.

 
 

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As the advisers box is flooded with officials from the department and various agencies, I rise on behalf of the opposition to lead the debate in this House on the government's Broadcasting Services Amendment (Digital Television and Datacasting) Bill 2000. I indicate to the House that I have had prepared a second reading amendment which reflects the opposition's views at this point in the cycle. I am quite happy for that to be circulated in my name at the appropriate stage, and before the conclusion of my remarks I will formally move that amendment.

The Broadcasting Services Amendment (Digital Television and Datacasting) Bill arises from the government's framework legislation, which was enacted by the parliament in 1998. That legislation--the conversion to digital television legislation--set the framework for Australia's television broadcasting industry, both commercial free-to-air broadcasters and our national public broadcasters, to make the conversion from analog to digital. The short rationale for conversion to digital is that digital is inherently more efficient than analog in its use of the terrestrial spectrum and it potentially provides a far greater range of services for a consumer. Parliament agreed to the government's framework legislation almost exactly two years ago, in June 1998, and at that point in time the Labor opposition pursued two amendments to that legislation. One amendment was to reduce the government's proposed moratorium period for commercial free-to-air broadcasting licences by two years to 1 July 2007 and the second aspect of the Labor Party's thrust, in the course of the debate on the framework legislation, was to require a series of reviews to report back to the parliament rather than the government's then recommended model, which was a series of disallowable regulations.

As a result of those reviews the government made a series of policy decisions in late December last year and now seeks to effect those decisions with this legislation under the umbrella of the 1998 framework legislation. Without going into exhaustive detail, that framework established, as I have indicated, the moratorium period for commercial free-to-air broadcasting licences until 1 January 2007; it effected a loan of spectrum to commercial free-to-air broadcast licence holders to make the conversion to digital broadcasting, in particular higher definition digital television, HDTV; it required a simulcast analog and digital broadcast until 1 January 2009 and, on the expiration of analog broadcasting, the return of the analog spectrum to the Commonwealth; it envisaged a new provider of information services--datacasters--who were not to provide services which were broadcasting services; it ensured that commercial free-to-air broadcasting licence holders were not able to become subscription television industry players but provided that commercial free-to-air broadcasting licence holders could use some of the spectrum made available to them for the purposes of what is described in the legislation as `enhanced services', but not for multichannelling; and, depending upon your point of view, it left open the question or tilted the parliamentary lever in favour of whether the ABC and SBS, the two national public broadcasters, ought to be able to multichannel.

In the course of the various reviews, a range of these issues have been considered, in particular whether the definition of datacasting ought to be amended in any way--a definition of datacasting being contained in the 1998 digital conversion legislation and effectively defining a datacasting service as not being a broadcasting service--what the nature and extent of enhanced services should be and the issue I have referred to, the question of whether the ABC and SBS ought to be able to multichannel. The government announced some policy decisions in late December 1999. It was not quite as we anticipated with Richard. It was not quite Christmas Eve, but it was getting there. It was enough to disturb the Christmas Eve shopping nonetheless. On 21 December, the government, through the Minister for Communications, Information Technology and the Arts, Senator Alston, made a number of public policy announcements which this legislation seeks to effect. Amongst those was a decision by the government that it require that there be a broadcast of not just high definition TV but standard definition TV and that there be a simulcast requirement for high definition TV and standard definition TV. When you add to that simulcast requirement the requirement that analog continue to be broadcast or simulcast, you have in effect a triplecast. In response to that decision, on the same day, 21 December, I indicated on behalf of the opposition that, given that this decision was made on the grounds of accessibility and affordability for consumers, we would not oppose that part of the government's decision. The legislation which is before the House effects that public policy decision.

The second of the decisions was a detailed indication as to a definition of datacasting. The government indicated that that definition would be content based, that it would be based upon content or program distinctions. It also indicated some details as far as enhanced services were concerned but was silent on the question of whether the ABC and SBS would be able to multichannel, the decision in respect of the ABC and SBS not being announced until the legislation was presented. From memory, that was on 10 May, a couple of weeks ago.

I might digress from substance issues to the question of process and timetable. For the sake of industry certainty, it is obviously clearly desirable that this legislation be enacted by the parliament prior to the parliament rising for its winter recess on 29 June. Upon the introduction of the legislation into this place--it was introduced here together with the Datacasting Charge (Imposition) Amendment Bill 2000--the Senate under its processes automatically referred the legislation to the relevant Senate legislation committee to conduct an inquiry and to report to the Senate on Thursday, 8 June. Public hearings were held by the Senate committee on Wednesday and Thursday last week. The Senate committee was prevailed upon by all of the usual suspects and some new ones to examine the effect of the government's legislation. The Senate committee, which has had the task of a detailed examination of the legislation before the House, will not report until Thursday. On that basis, the House will not have the advantage and the benefit of the Senate committee's report in advance of its own deliberations on this bill. On that basis, the opposition propose to make some general points but to reserve our right to make detailed amendments, if any, to be pursued at the Senate stage.

On the process and timetable point, it was expected by industry and the opposition that, having made the 21 December 1999 decisions, the government would introduce legislation when the parliament resumed after the Christmas break and as early as February or March this year. In any event, that did not occur, and the government has now left the parliament in the seriously difficult position of being required to deal with detailed and complex legislation on a short timetable. All my entreaties to the minister to provide me with a copy of the draft bill in advance of its tabling fell upon deaf ears. We are doing our best to ensure that we are in a position not to delay consideration of this legislation, but the process has been less than ideal and the second reading amendment, which I will formally move later, reflects that.

I will return to the major issues that I think the Senate committee will be seized of and what may well be the focus and some of the key issues in this place. It is unquestionably the case that the proposed datacasting model or definition by the government is much too restrictive. It is content based, not service based. The ABA is effectively given the job of determining on a program by program basis whether a particular `genre' of content--to use the expression adopted by the government--is datacasting or broadcasting. I make two comments in that respect, both of which I have previously made publicly. In my view, as soon as you attempt to introduce into Commonwealth statutes a distinction based on French language, you run into trouble immediately. I will give just one modest example. The government has put the ABA in a position where it may well have to determine the distinction between things which are informative and educative but not lightly entertaining. So, Mr Deputy Speaker, it is an obligation on my part to inform you and educate you, but I dare not lightly entertain you. There are many things in life that I might want, but being a member of the ABA and determining that distinction is not one of them!

The second grave risk as far as the government's proposed datacasting restrictions are concerned is that you run the risk of stifling a new information service before it has had a chance to flourish, that you essentially kill it at birth and that the regime that you propose for it is much too restrictive and, as a consequence, it will not get off the ground.

The third point regarding restrictions on datacasting--and this is made adroitly by the Productivity Commission and made in this place, to the embarrassment of the Deputy Prime Minister and Leader of the National Party--is that it is clear that rural and regional Australia stand to suffer most as far as a restrictive definition of datacasting is concerned. As I indicated when the government made its initial policy announcement in December and consistently since then, on this side of the House we will be looking to a more general definition of datacasting, a definition of datacasting which more warmly embraces the future, which is not predicated on arcane distinctions and which might actually give a new information service industry the chance of flourishing.

As far as the ABC and SBS prohibition on multichannelling is concerned, on this side of the chamber we will pursue, here and in the Senate, the view that the national public broadcasters, the ABC and the SBS, ought not to be restricted from multichannelling. They do not come into direct competition with the commercial free-to-air broadcasters, they do not come into direct competition with the subscription broadcasting industry or the pay TV industry, but they perform essential public and national interest good, again particularly in rural and regional Australia. So the second reading amendment will reflect that the government's restriction on datacasting and the government's restriction on the ABC and SBS not being able to multichannel will do disproportionate harm to rural and regional Australia as those areas are deprived of what could be a flourishing new information industry and information services.

As far as enhanced services are concerned, there is a distinction in the legislation between multichannelling and enhanced services. The framework legislation is predicated on the basis that the commercial free-to-air broadcasting licence holders can engage in enhanced services but they cannot multichannel. When you look at the fine print between the government's announcement on 21 December and the legislation as introduced into the House, there are two areas which, on the surface, appear to take the boundary further out, as far as enhanced service is concerned. One is the overlap provision. The government's previously announced position indicated that overlap of a sporting program would be allowable if that abutted a scheduled news program--the six o'clock news being the obvious example. That definition of enhanced services will now apply if a sporting program abuts any scheduled program. The second provision is the notion of one sport, one venue--a new concept introduced into the legislation whereby, if the same sport is being played at the same venue, the enhanced service definition will apply. The obvious example there is the Australian Open or Wimbledon where you can have matches at the same venue - one on center court and one on one of the outer courts.

The fourth area where I think there will be a focus in the Senate committee and in this place is the abundance of reviews which the legislation suggests. Aficionados in this area may well recall that the 1998 legislation suggests a whole series of reviews which are already required by this parliament to be conducted. They are a series of reviews too many to commit to memory, so I am again indebted to Dr Pelling in the advisers box for providing me with a very neat summary which I will use for more than just today as an aide memoire. There are a series of reviews to be conducted before 31 December 2005--they arise out of the 1998 amendments--and a series of reviews proposed to have been conducted under this legislation before 1 January 2004. Those reviews, for example, go to a general review of the legislation, a review of the HDTV quota arrangements and a review of the datacasters' transmission licence holder licensing arrangements at the expiration of the free-to-air moratorium period on 1 January 2007.

As a general proposition, my own view is that all these reviews should be statutory, all these reviews should return to parliament and all these reviews should be timely, and some of them should be held sooner rather than later and earlier than currently suggested. There are also a couple of reviews which the government has suggested, either by way of press release or by way of second reading speech. The government, through the Minister for Communications, Information Technology and the Arts, Senator Alston, has indicated that at some point in the cycle it would be sensible or desirable for a review to be conducted in advance of the expiration of the free-to-air commercial broadcasters moratorium on 1 January 2007.

Given that there is a review suggested in the legislation for what consequences might flow to datacasting transmission licence holders at the expiration of that moratorium period, also having a review as to what general circumstances might apply at the expiration of the moratorium period might also be a sensible thing. So I think one can give serious consideration as to whether a review in advance of the expiration of the moratorium period would not be a sensible thing to do. That does run the risk that it opens it up to the argument that the moratorium period ought to be extended. This is not something I had in mind--just to calm the excitable listeners who may be taking note in this area.

The government has also suggested by way of a second reading speech given by the minister in this place that there be a review by the ABA of the question as to whether streaming video and audio is a broadcasting service or not, and it is suggested that this occur within the next 12 months or so. Again, because of the importance and relevance of that issue, it seems to me appropriate that that review be required to be a statutory review.

To summarise, I think there are four issues which need very serious attention in the Senate committee, in the Senate itself, in industry debate or in here. The first is the definition of datacasting and the too restrictive nature of that definition; secondly, the desirability of the ABC and SBS to be allowed to multichannel; thirdly, the question of enhanced services and whether the difference in the proposals between the government's policy announcement in December and now is significant and breaks the framework tone, which is that just as datacasters cannot be de facto broadcasters neither can enhanced services be de facto multichannelling; and, fourthly, the nature, extent and series of reviews. That is not to say that they are all the issues in play. Other issues have been discussed in the Senate committee and have been the subject of commentary in the various public submissions that have been made in respect of the legislation.

In addition to the usual array of HDTV versus SDTV, what the cost will be, what the take-up will be, how successful the triplecast will be and whether HDTV will ultimately be successful, and in addition to the datacasting definition, the question of enhanced services and the question of reviews, a range of interesting issues have been deliberated. One is the capacity of a datacaster to become effectively a one-click Internet service provider. When the government was giving consideration to its legislation, for one dreadful moment many of us thought the government would seek to impose the same content based restriction as it does on datacasters for the web site itself. The legislation envisages that a one-click entry by a datacaster customer to a web site will enable access to the web site. Fortunately, there is no great attempt at that same content distinction, if only on the basis that even the government by now would have learnt from its own online content legislation experience that that would be an impossible task.

There are two issues which will fall for consideration: firstly, the practical limitations that technically are placed on the capacity of people to have access to the Internet via a datacaster; and, secondly, whether or not a walled garden Internet site ought to be accessible via a datacaster. There is also the question of interoperability and standards, and the Senate committee hearings have seized on the question of whether the Dolby audio standard ought to be preferred to the MPEG standard. This is really one for the aficionados, but the question in public policy terms here is whether one adopts what is described as a proprietary standard or whether one adopts a platform which one might regard as being open and accessible. So attention needs to be given to that point.

A separate issue which has popped out of the legislation and has not previously been referred to in any great detail is the question of EPGs, electronic program guides. The open and accessible as compared to the closed, proprietary or restricted availability of electronic program guides will also fall for consideration.

The question of datacasting transmission licence holders has been the subject of commentary before the Senate committee. The legislation suggests that datacasting transmission licence holders will receive what is generally a standard 10 years plus five years option for a datacasting transmission licence under the Radiocommunications Act, or the Radcom Act. So one could envisage that, in 2000 or 2001, a person or a corporation may become the proud possessor, after a price allocated base system operated in the marketplace, of a 10 plus five year datacasting transmission licence.

The legislation envisages a review, in advance of the expiration of the moratorium period for free-to-air broadcasting commercial licences, of what regulatory and revenue arrangements might apply to that licence if it comes to pass that the datacasting transmission licence holder was in a position to transmit unencumbered or unrestricted broadcasting services content.

A restricted datacasting licence is inherently not as valuable as an unrestricted broadcasting service licence. In my view there is clearly a need to pay serious attention to what competitive and regulatory arrangements might apply if that were to occur and what revenue might flow to the Commonwealth by way of a betterment tax, for example, if that enhancement or uplift does take place. That issue needs to be the subject of serious consideration. A datacasting transmission licence holder, under this legislation, can only be effectively guaranteed 10 plus five years of transmitting restricted datacasting content, however. So this legislation ultimately restricts that. The parliament should reserve to itself the public policy questions of competition, egulation and revenue to the Commonwealth if there is to be an uplift to essentially a broadcasting services content transmission licence.

A separate issue, which I have referred to, is whether streaming audio and video is a broadcasting service. There is also a question for the national broadcasters--the ABC and SBS--as to whether they can use their own streaming audio as part of a datacasting service if indeed they use some of their spectrum to be datacasters. The legislation envisages that, if the commercial free-to-air broadcasters use some spare spectrum to engage in datacasting, they pay a fee. How that fee is raised, struck or determined has not yet been designated. The ABC and SBS argue that there is no point in them paying a fee for the same purposes, on the basis of their distinction as national public broadcasters. That seems to me, frankly, a sensible argument because, with the ABC and the SBS, what the Commonwealth wins on the merry-go-round it generally loses on the slide. So, as an in-principle starting point, I cannot see the sense in requiring the ABC and SBS to pay a fee if and when they engage in datacasting.

To bring these issues to a conclusion: community broadcasters are not dealt with by the legislation. Community broadcasters, in particular, will remember--even if the government does not--that the government made a commitment when it first announced its proposals to effect a transition or conversion to digital broadcasting that community broadcasters would be guaranteed spectrum to effect that. They are still waiting. As I understand the evidence given by the community broadcasters, they are still waiting to get a reply from the minister, let alone a substantive decision. So there is an issue as to how community broadcasters will be managed or governed in this process.

Captioning has been the subject of three ranges of comment: firstly, by regional broadcasters, who say that the standards might be a bit too tough for them; secondly, by people interested in captioning, who say that the standards do not go far enough; and, thirdly, by the closed captioning industry, who essentially say that these are good proposals and much better than the current analog requirements. So far as regional broadcasters generally are concerned, in addition to captioning, there is the question of equalisation, a decision made by the government in the budget, and whether the timetable still remains appropriate for the transition of regional broadcasters to a digital framework.

These are some of the issues which no doubt will fall for further consideration when we get a chance to contemplate the Senate committee's deliberations and the various evidence and submissions made before it. This is unquestionably an area where the devil is very much in the detail. On that basis, as I have indicated publicly today, we will be reserving to ourselves the right, following the Senate committee report, to announce specific detailed amendments which we would seek to move in the Senate, reflecting some of those concerns and issues to which I have referred.

Well assisted by the Clerk, I now would like to formally move the second reading amendment, paragraphs 1 to 7, which has been circulated in my name. On the moving of that amendment, I indicate that we will now apply ourselves very much to the detail of the Senate committee deliberations, with a view to amendments that we would move in the Senate to ameliorate the mistakes that we believe the government has made. I move:

That all words after "That" be omitted with a view to substituting the following words:

"whilst not declining to give the bill a second reading, the House

(1)condemns the Government for the inordinate amount of time it has taken to introduce the bill, and the unacceptably short time now available for parliamentary consideration of the measure;

(2)regards the narrow approach taken to the definition of datacasting as much too restrictive and certain to risk stifling a new industry before it emerges;

(3)deplores the Government's failure to enhance the future potential in this area, as evidenced by its datacasting proposals;

(4)calls on the Government to allow the national public broadcasters, the ABC and SBS, to multichannel;

(5)believes that the restrictions on datacasting and the prohibition on the ABC and SBS from multichannelling will have particularly adverse consequences for rural and regional Australia;

(6)believes that the enhanced services provisions in the bill go further than previously anticipated and will require careful scrutiny; and

(7)believes that there will need to be careful, appropriately timed and statutorily based scrutiny through the review provisions proposed in the bill".


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*    View Labor's full Senate Committee Report

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In this issue
Features
*  Interview: Cocky Labor
On the eve of State Conference, Country Labor convenor Tony Kelly outlines how Labor is stealing the ground from under the National Party's feet.
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*  Economics: Millenium Work Ethics - A New Social Partnership?
The future of work in the twenty-first century will be both provocative and challenging, according to Professor Russell Lansbury.
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*  Politics: Extracting the Digit
Labor's federal communications spokesman Stehpen Smith outlines the Party's position on the controversial datacasting legislation currently before Parliament.
*
*  History: Hot Off the Press
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*  International: The East Timor of Africa
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*  Environment: MUA Snail Men Honoured
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*  Satire: Howard Says 'Sorry'
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*  Review: Front Stage and Pulp Fiction
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