Parliamentary Joint Committee on Human Rights

Recommendations

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Page 4 1.14 The statement of compatibility notes the overall capacity of the spectrum available for television broadcasting is limited and that ‘existing broadcasting services, including commercial television broadcasting services, already take up a large part of the available spectrum’. 4 It argues that it is important to retain part of the spectrum for other purposes, with the cap being: designed to ensure that the remaining capacity in the television broadcasting services bands is made available for other types of broadcasting services – including (but not limited to) community television broadcasting services – as well as being available to test new broadcasting technologies as they emerge. New and innovative content services and communications services that are attractive to consumers require testing and trialling before their introduction. The capacity to do this would be severely limited if no broadcasting services bands spectrum remained available. 5 1.15 The UN Human Rights <strong>Committee</strong> has recognised the challenges posed by restricted capacity and underlined the need for a fair allocation of the available resources among competing uses: Licensing regimes for broadcasting via media with limited capacity, such as audiovisual terrestrial and satellite services should provide for an equitable allocation of access and frequencies between public, commercial and community broadcasters. 6 1.16 The approach adopted by the bill is consistent with that recommended by the Convergence Review, which is referred to in the explanatory memorandum and the statement of compatibility. The Final Report of the Convergence Review gives some details of the types of use that might be made of the spectrum if it were not made available for use under additional commercial broadcasting licences. 7 1.17 The committee considers that the decision not to issue additional commercial broadcasting licences, but to make available unused spectrum for other purposes such as community broadcasting and the testing of innovative services, does not appear to be inconsistent with article 19 of the ICCPR. 4 Statement of compatibility, p 6. 5 Statement of compatibility, p 6. 6 Human Rights <strong>Committee</strong>, General Comment No 34 (2011), para 39. 7 See the discussion of this issue in Convergence Review: Final Report (March 2012) pp 94-96.
Australian content requirements: freedom of expression and right to participate in cultural life Page 5 1.18 The bill proposes a number of amendments to the Broadcasting Services Act 1992 which will impose Australian content transmission conditions on commercial broadcasting licensees. While a description of the nature and effect of these amendments appears in the explanatory memorandum, 8 no analysis of their human rights compatibility is provided. 1.19 Imposing a condition that a broadcaster include specific content in programs would appear to limit the broadcaster's right to freedom of expression and also arguably of the right of the audience to receive information and ideas. Such a limitation should be justified as being a necessary and proportionate means of pursuing one of the legitimate objectives set out set out in article 19(3) of the ICCPR. No justification is provided for in the statement of compatibility. 1.20 Stipulating Australian content standards may also be seen as a promotion of the right of everyone to take part in cultural life as guaranteed by article 15(1)(a) of the International Covenant on Economic, Social and Cultural Rights (ICESCR). 9 1.21 The committee intends to write to the Minister to seek clarification as to the human rights compatibility of the proposed Australian content standards and licence conditions, in particular their consistency with freedom of expression (article 19 of the ICCPR) and the right of everyone to participate in cultural life (article 15(1)(a) of the ICESCR). Equality and non-discrimination 1.22 The bill proposes amending section 17 of the Special Broadcasting Service Act 1991, which provides for the appointment of the non-executive Directors of the SBS Board. Subsection 17(2) provides that before a person is appointed as a nonexecutive Director, the Minister must have regard to a number of matters relating to the qualifications of individual members of the Board and to the overall composition of the Board. The bill seeks to require the Minister to have regard to an additional matter, namely that ‘at least one of the Directors is an Indigenous person.’ 10 1.23 The statement of compatibility notes that the stipulation that the Minister take into account a potential director’s Indigenous background as a criterion for appointment to the Board, engages the right to equality and non-discrimination as 8 Explanatory memorandum, pp 3, 12-18. 9 See generally UN <strong>Committee</strong> on Economic, Social and Cultural Rights, General Comment No 21 (2009). 10 Proposed new paragraph 17(2)(d).
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Part 2 Select legislative instrumen
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Parliamentary Joint Committee on Human Rights

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