If SBS were a commercial or community broadcaster, the law would require it consult the public and provide adequate opportunity for community comment before changing its Code of Practice. Established under an Act of Parliament SBS does not hold a commercial licence however that should hardly matter as since 2010 the broadcaster has had a social inclusion policy and stakeholders are consulted from time to time on various matters.
Back in June, SBS amended its Code of Practice to include an interim NITV Code from 1 July, the date SBS took over the Indigenous broadcaster. The former and current SBS Code of Practice includes reference to Indigenous Australians (at section 1.3.1) stating that SBS will provide "programming which caters for the diverse and changing needs of all Indigenous Australians. . . " SBS’s 2012 Code now adds an Appendix A (at page 26) titled: NITV Codes of Practice.
Some matters within the NITV Code are subject to the same ‘rules’ that apply to the SBS Code. These are classification, advertising, community information, comments and complaints. But the NITV Code contains a stand alone section that specifically deals with NITV programming matters which begins by stating that "advertisements delivered on NITV will be consistent with standards acceptable to the NITV audience". This is intended to avert any inappropriate and offensively placed advertisements. As such, the Code could prevent SBS from hacking into NITV programs with ads (as occurs on SBS television) – unless the NITV audience found that acceptable. Only a few years ago SBS had a taste of the offence that could have been caused when Rolf de Heer’s film, Ten Canoes, set in two time periods about Indigenous peoples in Arnhem Land, was aired on SBS. Due to contractual reasons the film was not allowed to be interrupted for commercial breaks. Under the NITV Code, SBS will find it difficult to dismiss (NITV) audience concerns about advertising. The same does not apply to SBS television ONE & TWO.
NITV carries some ads but unlike SBS, the emphasis of NITV has not been to broadcast advertisements ad-nauseam and certainly not force in-program ad breaks. On a typical nights viewing (26/7/12), only four programs contained in-program ad breaks out of the 13 programs screened. Unlike SBS-TV, none of the in-program breaks were forced. Only programs that were scripted for breaks contained them, evidenced when the presenter said, "coming up after the break. . . " (Barefoot Sport, Hunting Aotearona, NITV News and Indigenous Insight). Except for these four programs all the ads, community service announcements and promos on NITV were between programs only. Consistent with past NITV format, films and ‘non-commercial’ programs were free of interruption. There were no screaming Harvey Norman type spots, just ‘informational’ government ads (Household Assistance Package & Indigenous Land Corporation) and an advert for the Aboriginal & Torres Strait Islander Newspaper, the Koori Mail – a contra deal arrangement between the newspaper and the broadcaster.
In future SBS will want NITV to bring in more advertising dollars.
No doubt the commercially driven arm of SBS will argue that the newly amended SBS Codes with the NITV Appendix, do not the restrict the type of ad nor prevent NITV programs from being disrupted. But SBS will probably steer clear of that argument simply by amending their Codes as they see fit. SBS has the power to do just that.
Eventually the NITV Code will disappear as an Appendix and the SBS Codes will be updated to apply equally to NITV and SBS. The acquisition of NITV by SBS means that NITV is no longer a broadcaster in its own right – just a department within SBS.
Section 123 of the Broadcasting Services Act 1992 requires that each broadcaster must consult industry groups and the community in developing its Codes of Practice. Once the Australian Communication & Media Authority (ACMA) is satisfied that the community and industry groups have been properly consulted, ACMA will register a Code and may then handle unresolved complaints about any possible breaches of a Code. But SBS (and the ABC) are exempt from this process of community consultation. Now that SBS has taken ownership of NITV, SBS will further amend their Codes. In this sense there are no safe guards for the audience of NITV. Nothing requires SBS to consult the audience before amending a Code.
In updating the Code, SBS could of course take the lead from the NITV Code and incorporate into the advertising section of the SBS Code a limitation that would only allow an advertisement to be broadcast if it meets the standards acceptable to the (SBS) audience. But SBS won’t do that for fear its audience won’t find any advertisement acceptable – at least not in-program ads.
Section 45 of the Special Broadcasting Service Act 1991 provides that SBS may broadcast advertisements before programs commence, after programs end or during natural program breaks. Although the Act does not define a natural program break, until 2006 SBS’s Code gave a reasonable definition which was based on the intent of the legislators.
The last major change to the SBS Codes of Practice was made in 2006. The advertising code (in section 5) removed the 2005 (and earlier years) definition (from section 4) of a "natural program break". Until 2006, SBS’s Code defined a natural program break as a pause during coverage of an event such as the rest period in a sports event, for example, half time at a soccer match. Against the intent of the Parliament and without any community consultation, SBS removed that narrow definition to allow it to commence in-program advertising – in all programs. It created a new broad definition – separate from the Code – in the Guidelines for the Placement of Breaks in SBS Television Programs. These advertising guidelines remain current. ACMA has no power to resolve complaints about a guideline. Following the enormous and on-going public backlash over SBS’s 2006 re-interpretation of natural breaks to allow in-program advertising, in 2008 SBS removed all reference to "natural program breaks" from its Codes (section 5) – but not to pander to community concerns. The 2008 amendment was specifically intended by SBS to prevent a person succeeding in a formal complaint that it had breached its Code by forcing breaks in TV programs and that in-program breaks were not natural. As the 2008 amendment no longer contained any references to "natural program breaks" a complaint that SBS was in breach of its Code, could never get off the ground. A person concerned that SBS had forced breaks into a TV program might allege to ACMA that SBS was in breach of section 45 of the SBS Act instead but this would do no good as ACMA has no power to consider such allegation. The regulator is only authorised to investigate a breach of a Code, not an alleged breach of an Act of Parliament.
It is not known if SBS’s current interpretation of a natural break, which often amounts to forcing breaks into programs, is illegal as it has never been tested in a Court. It is also not known if SBS intends to disrupt Indigenous programs to the same extent that every program is interrupted on SBS-TV and if future amendments to the Codes will involve community consultation or if SBS will adopt the sly and heavy handed approach that occurred in amendments during and since 2006.
Each Code change of the last six years, including the 2010 and 2012 amendments has not been signed by the current SBS Chairman, Joseph Skrzynski. Every Code since 2005 has retained a Forward by "Carla Zampatti, Chairman" – who retired from that position and SBS in 2009.
Since 2005, SBS has changed or amended its Code of Practice five times. The public has never been consulted. In this matter SBS’s social inclusion policy has been absent.
