Broadcasting Legislation Amendment (2021 Measures No 1) Bill 2021 - Commentary on Ministerial Responses [2021] AUSStaCSBSD 96 (12 May 2021)

• Broadcasting Legislation Amendment (2021 Measures No. 1) Bill 2021
• Significant matters in delegated legislation1
• Minister's response3
• Committee comment
• Incorporation of external materials existing from time to time4

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Broadcasting Legislation Amendment (2021 Measures No. 1) Bill 2021

Purpose	This bill seeks amend the Broadcasting Services Act 1992 and the Radiocommunications Act 1992 to improve the operation of services in the broadcasting sector and simplify regulation by removing redundant and otherwise unnecessary provisions
Portfolio	Communications
Introduced	House of Representatives on 25 March 2021
Bill status	Before the House of Representatives

Significant matters in delegated legislation^[1]

2.2 In Scrutiny Digest 6 of 2021 the committee requested the minister's advice as to:

• why it is considered necessary and appropriate to leave the prescription of the 'subscription television captioning scheme' to delegated legislation; and

• whether the bill can be amended to include at least high-level guidance regarding the 'subscription television captioning scheme' on the face of the primary legislation.^[2]

Minister's response^[3]

2.3 The minister advised:

The core objectives of the proposed reforms to the captioning requirements for subscription television (STV) licensees are maximising flexibility, simplicity and transparency, while aiming to ensure that the most popular programming attracts the most captioning.
Reform in this area is necessary for the following reasons:

• the existing rules are highly complex to administer and comply with and are opaque to viewers that rely on captions;

• consultations have been conducted in relation to the existing captioning regime and the STV industry, consumer representatives and the regulator (the Australian Communications and Media Authority) all support a more simplified and transparent framework;

• The industry has changed significantly as a result of digital disruption since the current arrangements in the Broadcasting Services Act 1992, which were introduced in 2012. The introduction of subscription video on demand services (such as Netflix, Stan, Amazon Prime, Disney Plus, Binge and Optus Sport) has led to significantly reduced audiences and revenue for licensed subscription TV services. It is expected that the industry will continue to rapidly evolve; and

• The size and complexity of the existing framework is arguably excessive for an industry sector in decline.

The power to make a legislative instrument for the STV captioning scheme allows flexibility to consult on and respond in a timely and efficient way to new and emerging issues associated with, or changes affecting, subscription TV and the needs and interests of viewers who rely on captions.
Prescription of the scheme though primary legislation could not provide the same level of flexibility and may result in captioning requirements no longer remaining fit for purpose or becoming out of date as time progresses. The delegated legislation approach adopted in the Bill is consistent with good regulatory practice as it will help ensure the scheme remains proportionate to the STV industry's role and remains adaptable to the needs of captioning users.
It is noted that the scheme would be a legislative instrument for the purposes of the Legislation Act 2003, and therefore subject to parliamentary scrutiny and the disallowance regime of that Act.
The Bill already sets out at proposed subsection 130ZV(l) a non-exhaustive list of the matters likely to be covered by an STV captioning scheme established by Ministerial determination. The list comprises matters which are familiar elements of the current regime:

• annual captioning targets for subscription television services, including methods for working out the targets;

• applications for partial or total exemptions from annual captioning targets, including who may make such applications, the information or documents that must accompany applications and the making of decisions in relation to applications;

• reporting and record-keeping obligations of subscription television licensees; and

• the publication of information relating to the scheme, including decisions made under the scheme.

Given the objectives for the reforms (which includes flexibility), proposed subsection 130ZV(l) and the scrutiny and disallowance safeguards under the Legislation Act, at this time, I do not consider it necessary to amend the Bill to include guidance regarding the scheme.
I intend to undertake consultation to determine whether the existing annual captioning targets for different categories of content remain appropriate or should be simplified, including whether captioning targets should be subject to annual increases or paused at current levels. I also intend to consult on the introduction of more objective grounds for exemptions, based on audience share for channels and exemptions for racing channels.
Finally, I intend to consult in relation to appropriate measures to ensure customers are able to access information about captioning levels in a more timely way.

Committee comment

2.4 The committee thanks the minister for this response. The committee notes the minister's advice that the power to make a legislative instrument for the subscription television (STV) captioning scheme allows flexibility to consult on, and respond in a timely and efficient way to, new and emerging issues associated with, or changes affecting, STV and the needs and interests of viewers who rely on captions.

2.5 The committee notes that the STV captioning scheme would be a legislative instrument for the purposes of the Legislation Act 2003, and therefore subject to parliamentary scrutiny and the disallowance regime of that Act.

2.6 The committee also notes the minister's advice that the prescription of the scheme though primary legislation could not provide the same level of flexibility and may result in captioning requirements no longer remaining fit for purpose or becoming out of date as time progresses.

2.7 While noting this explanation, the committee has generally not accepted a desire for administrative flexibility to be a sufficient justification, of itself, for leaving significant matters to delegated legislation.

2.8 The committee welcomes the minister's advice that he intends to undertake consultation in relation to the annual captioning targets, exemptions, and appropriate access to information about captioning levels. However, the committee notes that this consultation could also be undertaken to inform the making of primary legislation.

2.9 The committee requests that an addendum to the explanatory memorandum containing the key information provided by the minister be tabled in the Parliament as soon as practicable, noting the importance of these explanatory materials as a point of access to understanding the law and, if needed, as extrinsic material to assist with interpretation (see section 15AB of the Acts Interpretation Act 1901).

2.10 The committee draws its scrutiny concerns to the attention of senators and leaves to the Senate as a whole the appropriateness of leaving the prescription of the 'subscription television captioning scheme' to delegated legislation.

2.11 The committee also draws this matter to the attention of the Senate Standing Committee for the Scrutiny of Delegated Legislation.

Incorporation of external materials existing from time to time^[4]

2.12 In Scrutiny Digest 6 of 2021 the committee requested the minister's advice as to:

• the type of documents that it is envisaged may be applied, adopted or incorporated by reference under proposed subsection 130ZV(5);

• whether these documents will be made freely available to all persons interested in the law; and

• why it is necessary to apply the documents as in force or existing from time to time, rather than when the instrument is first made.^[5]

Minister's response

2.13 The minister advised:

Proposed subsection 130XV(5), which would enable the incorporation of material as in force or existing from time-to-time, is necessary in my view. It will allow the scheme to include references to certain technical and industry specific matters that may change from time to time. For example, the proposed scheme could establish an exemption which had regard to a certain level of audience share as set out in particular written industry reports or data. An example of industry standard data for television audience share data is OzTAM data which is available both online and in bespoke reports which can be commissioned and purchased. However, industry arrangements for measuring audiences may change from time to time, and it would be important that these sources remain relevant if audience share becomes a criterion for captioning exemptions.
Should such information be incorporated into the scheme, I will explore mechanisms for making this material publicly and freely available (such as posted on a website). The mechanisms for making incorporated documents publicly available and publicly clarifying their legal status will be an area for consultation before the scheme is made.

Committee comment

2.14 The committee thanks the minister for this response. The committee notes the minister's advice that proposed subsection 130XV(5) will allow the scheme to include references to certain technical and industry specific matters that may change from time to time. In particular, the committee notes the example that the proposed scheme could establish an exemption which had regard to a certain level of audience share as set out in particular written industry reports or data, such as OzTAM data.

2.15 The committee also notes the minister's advice that industry arrangements for measuring audiences may change from time to time, and it would be important that these sources remain relevant if audience share becomes a criterion for captioning exemptions.

2.16 Finally, the committee notes the minister's advice that the minister will explore mechanisms for making any incorporated material publicly and freely available.

2.17 The committee considers that, as a matter of general principle, any member of the public should be able to freely and readily access the terms of the law. Therefore, the committee's consistent scrutiny view is that where material is incorporated by reference into the law it should be freely and readily available to all those who may be interested in the law.

2.18 The committee requests that an addendum to the explanatory memorandum containing the key information provided by the minister be tabled in the Parliament as soon as practicable, noting the importance of these explanatory materials as a point of access to understanding the law and, if needed, as extrinsic material to assist with interpretation (see section 15AB of the Acts Interpretation Act 1901).

2.19 In light of the information provided the committee makes no further comment on this matter.

2.20 The committee also draws this matter to the attention of the Senate Standing Committee for the Scrutiny of Delegated Legislation.

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[1] Schedule 2, item 9. The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(iv).

[2] Senate Scrutiny of Bills Committee, Scrutiny Digest 6 of 2021, pp. 6–7.

[3] The minister responded to the committee's comments in a letter dated 5 May 2021. A copy of the letter is available on the committee's website: see correspondence relating to Scrutiny Digest 7 of 2021 available at: www.aph.gov.au/senate_scrutiny_digest

[4] Schedule 2, item 9. The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(v).

[5] Senate Scrutiny of Bills Committee, Scrutiny Digest 6 of 2021, pp. 7–8.