01 June 2021


I rise to speak on the Broadcasting Legislation Amendment (2021 Measures No. 1) Bill 2021, which proposes to amend the Broadcasting Services Act 1992 to reduce the expenditure required by subscription television broadcasting licensees on new eligible drama expenditure from 10 per cent to five per cent, provide for subscription television captioning rules to be made by legislative instrument, remove the requirement that all frequency channels allotted or reserved in a digital radio channel plan be within the same frequency band, provide that a regional commercial radio broadcasting licensee does not breach a licence condition if it is only as a result of the Australian Communications and Media Authority making a new licence area population determination and extend the time frame for the ACMA to make grants under the Regional and Small Publishers Innovation Fund beyond 30 June 2021.

Once again this government presents piecemeal tinkering to the Broadcasting Services Act 1992 when what we need is holistic reform. More fundamentally, this bill puts the incompetence of this coalition government and the Minister for Communications, Urban Infrastructure, Cities and the Arts up in lights, and it's not simply because the minister introduced this bill, on 25 March 2021, with an incorrect second reading speech—something I have never seen in my 11 years in this parliament—which necessitated a correction by the minister, who came back into the chamber two hours later. He can't even get a second reading speech right. It's not simply because this minister didn't appear to even know what his own bill did when he introduced it. More fundamentally, this bill highlights the government's ongoing policy failure and delay when it comes to securing the future of Australian stories on our screens, their ongoing failure and delay when it comes to ensuring timely support for public interest journalism in regional Australia and their ongoing failure to get long-term media reform right. I note this bill has been referred to the Senate Environment and Communications Legislation Committee for inquiry and report by 17 June, and I welcome the scrutiny that process will afford. Likewise, I welcome the constructive suggestions of the Standing Committee for the Scrutiny of Bills and encourage the minister to address these satisfactorily.

Labor will not stand in the way of minor regulatory housekeeping, which is much of what this bill presents, but we will not be a part of this government's attempt to dismantle bit by bit the Australian screen content rules without anything new being put in their place. Labor will not stand in the way of the changes to captioning rules, changes to digital radio channel plans, changes affecting regional commercial radio licensees or the extension of the time frame for the ACMA to make grants for original journalism. These measures may not be perfect, but Labor won't stand in their way. But Labor will not support the halving of Foxtel's Australian screen content obligation in the absence of new requirements to support the screening of stories on our screens. That is why Labor will move the amendment which has been circulated in my name, to omit schedule 1 from this bill. This amendment would excise the provisions relating to the new eligible drama expenditure scheme and allow the balance of the measures in the bill to pass with Labor's support. To be clear, Labor is prepared to pass all the measures in this bill save for the halving of Foxtel's Australian content obligation.

The Australian screen content rules are the reason we have an Australian screen industry telling Australian stories to Australians and to the world. Content obligations have been a central driver of the production of Australian stories for years, but this government is watering them down bit by bit. The government has indeed been reviewing the Australian screen content rules—since 2017. That is how slow they have been, and they still haven't presented a full package of reforms to the parliament. On 6 May 2017, then Minister Fifield announced what he called a broad-ranging and comprehensive review of Australian and children's content. He said:

The review will identify sustainable policies to ensure the ongoing availability of Australian and children's content to domestic and international audiences, regardless of platform.

After all this time, there is still nothing to modernise Australian content obligations for the contemporary media environment, which now includes multiple streaming video platforms.

It is now well over two years ago that Labor committed to Make it Australian. The Make It Australian campaign goes back 50 years, almost as long as this government has been reviewing the rules. With its most recent push, it reminds us that in the 1960s there was no government support for an Australian film and television industry, because there was no Australian film and television industry. In 1961, guess how much drama on Australian television was Australian? It was just one per cent. Admittedly, that was only a few years after the introduction of television, but unfortunately the imbalance persisted. In the 1970s, in response to a lack of Australian stories on Australian screens, the industry united under the banner Make It Australian to demand action on local content. This prompted a response in Canberra that saw things improve.

The Australian screen sector, of which we are all so proud, didn't just grow out of nothing. It is not a naturally occurring thing. For all the deserved praise of Australia's world-class screen industry, the fact is that its success is underpinned by an enabling framework that includes subsidies, content quotas and other incentives. The modern-day Make It Australian campaign was launched by the screen sector in response to the growth of new platforms, services and technologies—new services which aren't captured by the policy and regulatory framework, but whose growth and uptake cannot be ignored. In 2012, the final report of the Convergence review, which was commissioned by the previous Labor government, noted this trend and recommended that significant media enterprises be drawn into a new policy and regulatory framework. The review proposed a new uniformed content scheme to apply to all content service enterprises that provide professional drama, documentary or children's content and that meet certain scale and service criteria. This:

… reflects the view that those enterprises that stand to make the most from the Australian market should make the greatest contribution to the achievement of public policy outcomes.

The review thought it appropriate to set a high bar for regulation in order to exclude small and emerging content providers as well as user generated content. Based on the information available to the review at the time, it was considered that a revenue threshold of $200 million and an audience threshold of half a million was consistent with sustainable investment in Australian content. At that time, there were no comparable enterprises to the traditional free-to-air and subscription broadcasters of sufficient scale to qualify for the scheme. But the review noted:

In the future it is realistic to expect that this group of services will be joined by non-broadcast services as those services continue to expand in line with shifts in consumer preferences.

How true that has become.

Where are we now, some eight years later? Australians continue to love broadcast television but are embracing online, catch-up TV and, for those who can afford and access it, subscription services as well. Of course, nowadays subscription services include streaming, video-on-demand services as well as broadcasting services. On 15 February 2021, the department's Bureau of Communications, Arts and Regional Research released analysis that shows subscription video on demand services continue to boom. The analysis states:

… Australians are continuing to subscribe to subscription video on demand (SVOD) services, like Stan, Netflix and Amazon Prime in record numbers.

Over 70 per cent of Australians are now accessing SVOD services. Netflix remains the most popular platform, with over 13 million accessing the service by June 2020.

That is to say, services regarded as small or emerging at the time of the Convergence Review have grown and firmly established themselves. Australians have a broader range of choices at their fingertips, and now creatives have an expanded range of opportunities. It is great news that these new platforms are sites where Australian content can be found and can be used to take Australian content to the world, but what is concerning is that the policy and regulatory framework has not kept pace.

This government has wasted a lot of time and resources on the question of updating the regulatory framework to address the rise of streaming services. Since May 2017 the government has run repeated consultation rounds on these issues yet still has not resolved the question. The department, the ACMA and Screen Australia have been raking over these issues for years, and stakeholders have been living with the anticipation and uncertainty of multiple consultation rounds the whole time. The minister's green paper is the most recent consultation process to be conducted on the question, to which submissions have only just closed. While the government continues to balk at regulating streaming services, which other jurisdictions around the world have already done, the government removes existing regulation.

Schedule 1 to the bill amends the Broadcasting Services Act to reduce the expenditure required by subscription television broadcasting licensees on new eligible drama from 10 per cent to five per cent. The explanatory memorandum notes that this measure would have a 'modest positive impact' for subscription broadcasters by reducing content expenditure, regulatory burden and levelling the playing feel with unregulated online streaming services. However, importantly, it also notes it will have 'a moderate negative impact on the production sector' as current expenditure could drop from around $25 million to $12½ million. The bill proposes to halve Foxtel's Australian screen content obligation without putting anything in its place, such as requirements for streaming services like Netflix to produce Australian content. This comes on top of the government's recent decision to water down Australian screen content rules for commercial free-to-air television broadcasters.

On 30 September 2020, the minister announced changes to the drama, documentary and children's content subquota under the Australian content rules for broadcasters. At the time, Labor said that these changes would mean fewer Australian stories on our television screens and fewer job opportunities for local creators. In response to this announcement, children's television producers wrote to the minister, saying they had been left 'stranded' by the changes. They wrote to the minister as follows:

As children's content producers, we are businesses that move with the times. We recognise that our audiences have shifted their viewing to include VOD platforms like Netflix, Amazon, Disney+ and Apple and welcome the opportunities this shift provides. We strongly support a progressive outlook for Australian children's content in an evolving on-demand world and we agree with the Federal Government on the need for policy change that supports a market driven approach to the sector.

But in abolishing the Free To Air quotas for children's content, with no corresponding legislation in place for the streamers or other adjustments, the Federal government has left the sector stranded.

Remember, these are businesses. In many cases, these are small businesses. Supposedly a core constituency of those opposite like to refer to them as the 'engine room' of the Australian economy. Well, these people are the engine room of the Australian content sector, and they say they have been left 'stranded' by this hapless minister and this government.

Ultimately, these changes did not come before parliament but were affected by the ACMA by standard, not subject to disallowance at the direction of the minister. These were the same subquotas that were suspended in 2020 as an emergency COVID-19 measure and then re-introduced in a watered-down form from 1 January 2021.

The government continues to kick the question of regulation of the streaming platforms down the road, failing to follow the lead of other countries by requiring them to invest in local content and create local jobs, including for local small businesses. The minister has failed to make it Australian. He has failed the creators and small businesses that comprise the screen sector. He has failed Australians who want more Australian stories, and he's even failed his own test.

The minister previously announced that he would harmonise the regulatory framework and address the disparity in regulation between broadcasters and online streaming services. The minister himself noted that the French, German and Canadian governments are moving to require platforms like Netflix and Amazon to invest in local content, but he has failed to utilise parliament's time to deliver on this today in this bill.

Bit by bit, the Morrison government is dismantling the Australian content rules, again, I say, without putting anything new in place. The government has cut ABC funding, which has reduced the funding available for the ABC to invest in Australian content. The government has watered down Australian-content obligations for commercial television broadcasters, and now, as I said, with this bill, they want to halve Foxtel's expenditure obligation. Again, for streaming providers, there are no regulatory obligations at all.

Similar to the sector, Labor is realistic and pragmatic. We recognise the need to modernise the screen content rules. We have consistently advised industry stakeholders since May 2017 that greater flexibility and modernisation are acceptable but that there must be something in its place. Labor will not be part of the dismantling of Australian content rules into a regulatory void. Labor acknowledges the challenging market conditions and the regulatory disparity between broadcasters and streaming services, but I tell you what: this bill is not the answer.

Labor is prepared to reconsider its position on the proposed halving of the new eligible drama expenditure requirement if and when—and we're not holding our breath—the Morrison government finally gets its act together and introduces legislation to regulate streaming services. For this reason, Labor will move to amend the bill to omit schedule 1 relating to subscription broadcasters during consideration in detail on this bill.

I now wish to turn to the Regional and Small Publishers Innovation Fund. On 14 September 2017, the government first announced the Regional and Publishers Innovation Fund. The media release heralded a new era for Australia's media, claiming:

The government is strengthening Australia's media industry, enhancing media diversity and securing local journalism jobs, particularly in regional areas.

At the time Labor warned that the fund was ill conceived, ideological and inadequate and that it would be too little, too late for many media organisations. Fast forward to today and it is indeed clear that this fund was poorly conceived and inadequate. Scores of newspapers have closed. Hundreds of journalism jobs have been lost.

This fund has had a very chequered history. It has been underspent, it remains underspent and it is expected to be underspent. The eligibility requirements have been altered as the government has made this intervention up as it went along. When the fund was originally introduced, departmental officials made it clear that they had not been involved in drafting the eligibility criteria, which were tainted with ideology. Later the fund was examined as part of the ACCC's digital platforms inquiry, which reported in June 2019. The ACCC found:

… many stakeholders were unsatisfied with Round 1 of the Innovation Fund grants, which allocated only AU$3.6 million of the AU$12.4 million available for the round. Publishers expressed concerns that:

the eligibility criteria were politicised and designed to exclude certain publishers

the application and assessment process was too complex and not suitably targeted to small and regional publishers without the organisational expertise and resources to successfully apply

the grants focused on 'innovative' technology-based projects rather than on securing the sustainability of struggling small and regional publishers.

The ACCC ultimately recommended that the fund be repurposed. The fund was majority underspent when in April 2020 the government repurposed around $36 million of it and re-announced it as the $50 million Public Interest News Gathering, or PING, fund, which has since been allocated to regional publishers as well as regional broadcasters.

Overall, the repurposing of the Regional and Small Publishers Innovation Fund into the PING reduced the amount available to publishers. In the 2018 round of funding, only $3.6 million was allocated. In the 2019 round of funding, $9 million was allocated. Then, in 2020, $5 million was set aside for grants to regional and metropolitan publishers and content service providers of public interest journalism.

At Senate estimates last week, the ACMA confirmed that it anticipates the 2020 funding round will too be underspent. On 27 May, the chair of the ACMA stated: 'There is $3.7 million yet to be committed, but we expect a small underspend as well, particularly in cases where grantees have asked to withdraw from the grant for various reasons of their own.' The chair then clarified that the small underspend would be under a million dollars. The failure to get this fund out the door in a timely manner is an indictment on this government and its failure to support regional media. It is a travesty that taxpayer funds intended for a sector in desperate need have not been put to work in supporting public interest journalism in our democracy. What's more, even if the amounts for this fund and the PING were combined, the total amount announced to support the media sector with direct funding grants is in fact less than what the ACCC recommended in the digital platforms inquiry. The ACCC concluded that $150 million over three years would be required before the program is reviewed in addition to stable and adequate funding for the public broadcasters. Labor considers that the minister should announce further funding in accordance with the ACCC recommendations to ensure that direct grants reach the media outlets in need.

I now turn to the provisions impacting commercial radio licensees. Labor notes the concerns of the commercial radio industry with this bill. The nature of these concerns begs the question as to whether the sector was even properly consulted on this bill. Commercial radio has concerns regarding the proposed addition of a sunset clause in section 43C(4) with respect to local content and section 52 with respect to control of licences. The explanatory memorandum to the bill states that the addition of the sunset clause signals the government's commitment to undertaking a review of the exemptions, to look at whether they remain appropriate and relevant and how they affect the market, licensees and the community. However, Commercial Radio Australia has flagged that the protection offered by section 43C(4) and section 52 should be retained and should not be subject to review or sunset in five years' time. CRA states that commercial radio stations have no control over the determinations made by the ACMA under section 30 of the Broadcasting Services Act. They submit it would therefore be inequitable for radio stations to find themselves inadvertently in breach of the act and prescribed licence conditions simply because the ACMA varies a population determination. The Senate inquiry into the bill presents an opportunity for further consideration of these concerns, but I do note them here.

Turning to the changes to captioning obligations, schedule 2 on captioning obligations provides for subscription television captioning rules to be made by legislative instrument rather than statute. The explanatory memorandum notes the benefit is to allow for rules to be amended in a more timely and efficient manner in line with the changing circumstances of industry and the views of Australians for whom captioning enhances their access to broadcast television. It is expected that future legislative instruments will be made following public consultation in which the views of persons with a disability are expressly sought. I understand that the disability sector is disappointed this amendment answers industry calls for a reduction in regulatory burden but not calls from the disability sector for enhanced captioning quality. The Senate Standing Committee for the Scrutiny of Bills has sought and received further responses from the minister about these measures, as well as made constructive suggestions which we encourage the minister to address.

In conclusion, this government is now into its eighth year in power. In this time, they have had ample opportunity to effect holistic media reform. They have had the benefit of multiple reviews, inquiries and reports, each making recommendations for holistic reform, from the Convergence Review to the report of the Digital Platforms Inquiry. But the bill before us is yet more piecemeal tinkering from this government, and piecemeal tinkering has not served the media sector well. Tinkering with broken analog-era laws drafted decades ago simply doesn't cut it when what is necessary is an overhaul for the digital age.

When this government heralded a new era for Australia's media, back in 2017, Labor along with many others warned the government that its so-called media reforms were piecemeal and inadequate. We warned them that relying on secret deals with cross-bench senators to pass legislation, rather than on decent policy, wouldn't stand the test of time. Australia's media sector, particularly regional media, has weathered drought, cyclones, floods, bushfires, a mouse plague and digital disruption. In addition, government policy neglect left the sector exposed to external shocks, and it has been hard hit by COVID-19 and the recession. But one of the biggest obstacles facing regional media and the screen sector is this government, which feels no urgency to do its job to modernise and harmonise the regulatory framework.

In response to the hefty final report of the ACCC Digital Platforms Inquiry, the minister committed in 2019 to starting a staged process to reform media regulations, covering both online and offline media. He even released a so-called road map for action, something Labor had been calling for for years. But, I tell you what, it's a road to nowhere. The map is blank. It makes no mention of regional media reform and has no media reform processes or time frames beyond 2020, let alone any guiding principles or markers. In response, the industry has just made submissions to the minister's green-paper process, itself proposing a road map that has for so long been lacking. The minister did commit to reviewing content regulation but, sadly, has squibbed on that, leaving broadcasters with watered-down regulations for Australian and children's screen content, while letting global streaming services like Netflix off the hook.

As I have said, Labor will not be a party to the watering down of Australian content rules, and Labor urges the government to address the recommendations of the ACCC Digital Platforms Inquiry, including in relation to direct funding for regional media. To that end, I move the second reading amendment as circulated in my name. 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 notes:

(1) on 6 May 2017, the Coalition Government announced "a broad ranging and comprehensive review of Australian and children's content", yet over four years later there is still no sign of an Australian content obligation for streaming services;

(2) the Government has relaxed obligations on commercial free-to-air television broadcasters for Australian drama, documentary and children's programs;

(3) on 14 September 2017, the Coalition Government first announced the Regional and Small Publishers Innovation Fund, yet almost four years later some funding is still not allocated; and

(4) the ongoing delay and uncertainty in Government support and reform is undermining jobs and content in the screen sector and public interest journalism industry in Australia".