Broadcasting Bill 2008 [Seanad Bill amended by the Dáil]: Report and Final Stages.

This is a Seanad Bill which has been amended by the Dáil. In accordance with Standing Order 103, it is deemed to have passed its First, Second and Third Stages in the Seanad and is placed on the Order Paper for Report Stage. On the question "That the Bill be received for final consideration", the Minister may explain the purpose of the amendments made by the Dáil. This is looked upon as the report of the Dáil amendments to the Seanad. For Senators' convenience, I have arranged for the printing and circulation of the amendments.

There is one amendment, proposed by Senators O'Toole and Quinn, to page 171 of the Bill. For the convenience of the House, I propose to allow the Minister to first explain the changes made by the Dáil and when this is completed, the House will deal with the amendment. Is that agreed? Agreed. I suggest 23 groupings of amendments based on the subject matter of the 297 amendments made by the Dáil to the Bill. The Minister will deal separately with each group. Each Senator may speak once on each grouping. I remind Senators that the only matters that may be discussed are the amendments made by the Dáil.

Question proposed: "That the Bill be received for final consideration."

I am pleased to return to the Seanad to discuss the Bill which was initiated here. I will deal with each grouping of amendments. My contribution will be long and detailed and I ask Members to bear with me.

Group 1 amendments relate principally to the core definitions in section 2 of the Bill. Amendment No. 1 deals with the definition of broadcasting service to bring it into line with the concepts set out in the new audiovisual media services directive. This directive, which must be fully transposed by December 2009, draws a distinction between traditional linear broadcasting services and newer, video on demand or non-linear services. The amendment makes it clear that broadcasting services, as well as having many other characteristics, are only those of a linear nature and non-linear audio services are excluded from the definition of broadcasting services within the Bill. The regime for non-linear services will be set out when the directive is transposed by regulation next year.

Amendments Nos. 4, 106, 107 and 121 clarify that IPTV is a network on which services carried are deemed to be broadcasting services. Amendment No. 6 broadens the definition of media literacy to reflect the reality that media can include that created by an individual or community as well as the more traditional creations of media. Amendments Nos 7, 8, 197 and 198 bring the spelling of "radio" into its Irish format for the purposes of identifying Raidió Teilifís Éireann. Amendment No. 9 inserts in section 2 a definition of the word "sectoral", which is used in a number of sections in the Bill.

Senators may wish to contribute on group 1 amendments. There are no contributions so I invite the Minister to continue.

Group 2 amendments consist of a large number of amendments but these are all minor drafting amendments which are necessary to improve clarity and in turn the consistency of the text of the Bill and to excise errors and omissions.

The group 3 amendments primarily address the issue of a new appointments mechanism proposed by the boards of the BAI, RTE and TG4. Amendments Nos. 11 and 132, in particular, provide clarity of the roles of the Minister and the Oireachtas joint committee, including requiring the Minister to indicate to the joint committee the relevant experience and expertise of the persons he or she proposes to appoint. Amendment No. 16, precludes a person who has an interest in a newspaper from membership of the BAI or its statutory committees. Amendments Nos. 17 and 160 provide that meetings of the board of the BAI, RTE and TG4 may be conducted by phone or videoconference if required.

I welcome the Minister to the House. It was encouraging and important that the Bill was initiated in this House, and it was addressed very well at that stage.

I welcome the requirement of the Minister to identify the qualifications and suitability of candidates for nomination to the board and to indicate those suitabilities to the joint committee andvice versa. However, I still believe there is an omission in the section to the extent that the Minister did not accept our idea of a public hearing by the joint committee on the board members. While the committee can recommend names, the Minister selects the candidates. The merit of a hearing would be that it would ensure transparency and accountability and that it is not a case of party personnel being appointed for the sake of it. Given that public moneys are involved and that high competency levels are required, this is an important consideration and there was an opportunity to include it. I register my happiness that certain amendments allow for the Minister to declare competencies but I am unhappy with the fact that there will not be full hearings as these could have avoided anything extraneous to their competency for membership of the board. This is a missed opportunity as it would have gone a long way to allay public cynicism and alienation which sometimes exist towards the process of politics and government. It was important to display that we do not appoint party hacks. The Minister was given a great opportunity with a revolutionary concept in an Irish context and it is regrettable he did not take it. I do not know if procedures allow the Minister to rethink that decision.

I welcome the Minister and congratulate him on the Bill, which is fine legislation that will have a significant impact. I rise to discuss the same issues raised by my colleague, Senator O'Reilly. I have a few searching questions and I would appreciate the Minister taking the time to give a correct answer. I note the amendment put forward by Deputy Simon Coveney in the other House and I note the Minister rejected it. He did not accept the Fine Gael amendment that there would be a public hearing. With regard to those appointed following the nomination of the committee, I take it there would be nothing wrong or contrary to the law were the committee to decide as part of its process to have a public hearing with some of the people whom it intends to nominate. This is crucial information.

There are three members of the communications committee present. I would like to hear the Minister's view on whether we, as a committee, could decide that as part of the process of coming up with names, there would be a public hearing. I am not talking about a grand inquisitorial hearing but a place where the people to be recommended would come before the committee.

That is a specific point, but on a broader aspect I spoke to the chairman of the committee, Deputy M. J. Nolan, on a number of occasions and the committee has had a number of private discussions on how we would approach this issue, and there is a general consensus that at a time when politics has never been under such close public scrutiny and issues of transparency, accountability and so on are trotted out, often in a meaningless way — people use them without giving them thought — the Minister, as a Green Party Minister, should take the opportunity to plough what is a virgin furrow. The Minister can correct me if I am wrong but I do not recall a committee of the Houses effectively nominating people to the committee. I am aware that, strictly speaking, the names are presented to the Minister and the Minister nominates, but that is the normal procedure for everything. It might be the ICTU or IBEC, and that is the normal process, but effectively this is new and for that reason it will attract public scrutiny, which we should welcome. A committee decision has not been taken on this but I get the view from the members of the committee on both sides — there is no division on this matter — that we should be seen to do this business openly, unquestionably and in an unchallengeable way.

I said to the committee that in dealing with this issue we have an opportunity to show politics at its best. We should plan carefully and take time to put in place a process which would be as transparent as possible and above reproach in terms of fairness and balance and which would be sound in the event of a challenge to it. Above all else it should win the trust and confidence of the public, which I believe the Minister would want too. There is nothing in what I am saying here that any of my colleagues in any party or in government, including the Minister, would work against. I am not sure whether the Minister will be before the committee tomorrow morning but this is one of the issues that will arise and I would appreciate hearing the Minister's views on it on record.

To make it happen it is crucial that the committee goes through a process as rigorous as an appointment. In other words, before we make choices and recommendations to the Minister we, as members of the committee, should go through a process as rigorous as an appointment. The Minister knows what will happen. Regardless of who he appoints people will make some connections, and Ireland is a small country. People do not know their second cousins but the media will find out who are their second cousins. They will find out that they drank with the Minister one night 20 years ago in Rosslare, and immediately we have a headline. We can take it as read that something like that will arise.

I cannot tell the Minister what to do. I agree with Senator O'Reilly it is regrettable the Minister did not opt for some form of public hearing, not a place where people are turned upside down like the American system but where they are given the opportunity of showing their experience, expertise and knowledge in a calm environment. It should not be a place where people would be marked on that but where people would simply get over the line, in other words, the members of the committee or the public would say that the people they have seen know what they are talking about.

We must agree on the principles that will inform the process, but the Minister has not done that. There are two ways of looking at it. The Minister could rightly reply that it is the committee's business and the Minister should not be telling it how to do its business. On the other hand, it might reflect certain views of the Minister were he to insist that there must be certain principles informing the process of the recommendations of the committee on deciding how, for instance, advertising will be done or the way a job description will be developed and to determine the essential and desirable criteria.

The Minister should remember that all members of the committee have received communications and letters from people expressing an interest. There is nothing wrong with honest people reading the legislation and indicating that they would like to be considered. There should be a way of dealing with people who want to offer themselves and we must then go through a fair process to select but what I do not want to see happen under any circumstances is committee votes on nominations that come without any process. That would be madness and it would not do the Minister any good. I am sure it is not what he would intend but it could easily happen.

I would like to hear the Minister say on record that there will be a clear job description and a list of essential and desirable criteria which must be developed and a process which would include short listing, marking, interview selection, interview procedure, interview board composition and post interview committee approval. The post interview committee approval is the approach where we could make manifest the suggestions by Senator O'Reilly in that people could come before the committee but not to be marked. The selection board or the sub-committee of the committee, whatever way we decide to do it, would come up with three names, say, Joe O'Reilly, Joe O'Toole and Jim Walsh. They would come before the committee not to be questioned, harassed or embarrassed in any way but to outline the reasons they believe they are suitable people for the job. The persons would simply outline their backgrounds etc. Somebody else might do the job equally good but at least the committee would be assured those are people we can comfortably recommend for consideration.

That is the type of approach we must take. In my reading of the legislation there is nothing to prevent the committee, as part of one of its stages, bringing the people before the committee in public session in a controlled environment. It would not be done to control or embarrass them but to allow them display their expertise, knowledge, background, suitability and whatever else we talk about for the public.

Whatever way the committee does its work, it must be done in an open way. In other words, everything must be challengeable and accessible subsequently to ensure that disappointed candidates can say that they put their names forward and that the person who got it, say, Joe O'Toole, does not come near their level of expertise, knowledge or whatever. The marking system must be in place. People can disagree with it but it is all on the record. That is what happens with any appointment in the public service. If it is done by the Public Service Appointments Commission or whatever it must list the candidates and order them in priority. They must give a first, second and third and it all should be on the record. Apart from anything else it is an absolute protection for members of the committee because regardless of who we put forward we will be told we did it for all the wrong reasons, we had vested interests, we were pushing particular candidates and we had a private agenda.

For the sake of accountability and openness, the Minister's reputation, politics being seen to work, the public sector operating best practice and committee members being protected from their own procedures, that is the way we should go about this at committee level. I do not believe it is open to me to say that is the way we should proceed at ministerial level but I would like the Minister to put on record how he believes the committee should go ahead with that process. It is not binding but the Minister's views would be helpful to all of us in discussing this issue. When the process is over it would be a fine thing for a Minister to have left his mark as being the first Minister to put in place a process of appointment to boards which is open, transparent, challengeable, understandable and comprehensive.

That could be done another way. I am not proposing it in this situation but I refer to the fact that the Minister's party supported the recommendations of the Sub-Committee on Seanad Reform. One of its recommendations was that the Seanad would have a role in the approval of people being appointed to certain positions. I do not say it anticipated what we are talking about today but it shows there is a political view that we need to have political involvement which is open and transparent. That is our best protection.

As the Minister said, a number of boards will be established. There is a 90-day limit on the period the committee can take to do its business. That is why we should do some of the work beforehand. We are already marginally compromised by the fact that certain people have written to us expressing an interest. It could be argued we should not have seen that correspondence before we developed a job description or essential criteria. We should now be working on this matter in conjunction with the Minister and his officials.

The Bill states: "the Minister in respect of an appointment...shall provide a statement to the Joint Oireachtas Committee indicating the relevant experience and expertise of the persons or person nominated by the Minister for appointment". I presume that refers to the group appointed by the Minister. The Bill goes on to say, "the Joint Oireachtas Committee shall within a period of 90 days...advise the Minister of the names of the persons or name of the person it proposes that the Minister should nominate...giving reasons, such as relevant experience and expertise, in relation to the proposed named persons". I have no opposition to that whatever. However, it should go slightly further. The Minister should write to the joint committee saying that in his view certain matters should be taken into consideration. One does not want a board of communicators or media people. Obviously, one needs a certain number with a media background but one wants a balance of people with experience of the media, business and the public and private sectors. The Minister needs to give guidelines. The committee can then decide which road it wants to travel. It would be helpful if the committee worked in tune with the Minister. It is bad politics if a committee does work and does not realise until it is too late that it is moving in a direction different from the Minister's thinking. The Minister should take some influential control. There is nothing in the Bill to prevent him from doing that.

The Minister should write to the committee asking it to bear in mind the need for a balance of board membership along certain stated lines. Ministers do not have difficulty in requiring boards to have a gender balance. When the Minister has stated those guidelines, the committee can then develop the job description and the principles towards which it will work and how it will establish openness and transparency. The committee will then go through the process, presumably having appointed a sub-committee or sought outside help to carry out the process. The whole committee can hardly be involved in all the stages but the whole committee will have to approve the appointment. If the whole committee must approve a name, then at some stage the whole committee must have some engagement with that person. I am sure it is intended that the appointment would be more than a paper operation.

When the sub-committee or outside group selects two or three names, the committee must exercise discretion in order that its decision should not be challengeable. Recent case law is clear in stating that where people have discretion, they are required to show they have exercised it. There must be a reason for each member of the committee to approve the appointment of, say, Jim Walsh, Joe O'Reilly and Joe O'Toole. Therefore, each member of the committee must have some engagement with those people. The best way to do that is to have the process explained to the committee in great detail, the steps to be gone through outlined and the three people brought before the committee to explain their backgrounds and what they each have to offer.

Am I right in saying the committee could do all that? The members of the joint committee feel they will be under a magnifying glass in carrying out this process and the political system will be scrutinised. Will the Minister indicate how we should progress in that matter?

Cuirim fáilte roimh an Aire. We have had a comprehensive debate on the Bill and there has been a general welcome for its provisions, which have been amended and improved in the Dáil. Some of those amendments reflect comments made in this House.

For the first time an Oireachtas joint committee is invited to have an input into the composition of such statutory boards. This is to be welcomed. It is important we do not find ourselves at cross-purposes with the Minister and the Department with regard to nominees. That is the essential issue.

However, Senator O'Toole may go too far. If the Minister and the Department become overly prescriptive, some of the independence will be removed from the joint committee's evaluation. A process is required and it is important it works effectively because it may provide a template for future appointments. All the members of the joint committee are anxious to get this right and to do justice to the initiative which the Minister has taken in giving a joint committee a say in what has always been the prerogative of the Minister and the Department. The initiative is progressive and welcome.

I would like to see the joint committee bringing forward a list of criteria and, perhaps, fine-tuning the criteria in consultation with the Minister and the Department. Rather than being presented with a complete menu of the expertise the boards will require, could the joint committee not compile such a menu, present it to the Minister and have him make the appointment? The sequence in which things are done is important to the functioning of the process. Some thought should be given to this area. Members of the joint committee discussed the question of gender balance, which is the only requirement stated in the Bill. There is also a need to have a range of expertise.

We should not become too concerned about this matter. We are capable of meeting the challenge before us. We should accept it in a constructive way. I agree with Senator O'Toole that some fine tuning is required to ensure the joint committee and the Minister do not end up at cross-purposes. The worst possible outcome would be for the joint committee to recommend four names and for the Minister to accept one and appoint three other people. That would leave us all with egg on our faces. We must focus our attention on avoiding that.

I note that the objectives of the BAI were amended in the Dáil. I support some of the amendments. According to the note I received, the regulatory environment will be required to sustain independent and impartial journalism. I am not sure if the word "sustain" is accurate. It might be the case that it might engender independent and impartial journalism. I am not simply referring to the national broadcasters, although I could comment on them, but also to those at local level. I am aware of a current affairs programme whose main presenter has no difficulty saying the Government is appalling and that he is totally opposed to what it does. He injects his own opinion. I do not mind this broadcaster having a guest on the show who makes these points, but I am not sure that the presenter should make them, particularly when he is from a particular political background. It jaundices the matter. There is a need not for sustaining but for ensuring independent and impartial journalism. In that regard, if the BAI intends to operate like the Broadcasting Complaints Commission, BCC, it will tend to be reactive. When one brings something to the attention of the BCC, it will say it is not its job to monitor. Unless some citizens are sufficiently energised to make a comment or complaint, these issues are not examined. I wonder if that is correct and whether it justifies the expenditure we make on these regulatory authorities.

There is also a need to sustain compliance with applicable employment law.

Which amendment is that? I am a little confused.

There is only one amendment before us, as I understand it.

We are dealing with group 3.

Is section 25 included in that?

No, that is under group 4.

We are dealing with the subject matter of amendments Nos. 11 to 17, inclusive, No. 24, Nos. 132 to 134, inclusive, and Nos. 138, 143 and 160.

I apologise for interrupting the Senator but I believe that issue is dealt with in the next group.

It is section 25.

That is dealt with in group 4.

Fair enough. I will deal with it when we are discussing that group.

The Oireachtas committee has an interesting and new task in proposing members to the RTE broadcasting authority and TG4. The power to propose rather than oppose is a significant power and I hope it works.

Senator Joe O'Toole made points about setting out the type of process. I would not disagree with the sentiment he set out in his comments, that it would be better to try to get consensus on this rather than it being a vote mechanism. With regard to the job description, the Bill contains the actual job description. The role of the agency is set out in detail so if I was offering a job description, I would photocopy the relevant sections and give them to any candidates. That is what the Bill does.

As regards the ministerial direction, it was inserted so the members of the committee would be assisted in their deliberation on the mix. Everybody knows the type of mix we will be seeking. It is a mixture of legal, financial, employment and possibly disability interests. I do not wish to be specific but there should be a mix of the different interests involved. Hopefully, the process for doing that should be easier given the staged way provided for, whereby the Minister indicates to the committee the appointments he or she intends to make first, and the committee can propose the people to fill the remaining vacancies to provide for a balanced board.

As to whether there are public or private sessions, that is a matter for the committee. There is a case for having people who will hold such positions answer questions and set out their vision in a public forum. That would be an interesting and welcome addition. However, the details of that are a matter for the committee. It will have to be reasonably quick because once the Bill is signed by the President the time lines begin. There are very serious broadcasting issues at present. It is a very difficult time in the broadcasting sector with commercial revenue decreasing, the development of the web and so forth. There is a range of serious issues that require consideration so this board must be in place and working very quickly. I did not hear anything today with which I would disagree in terms of proposed mechanisms and I look forward to addressing the Oireachtas joint committee directly as we go through the process.

Group 4 deals with the objects, functions and duties of the Broadcasting Authority of Ireland. The amendments are Nos. 25 to 27, inclusive, No. 29, and Nos. 34 to 36, inclusive.

I am not sure how we are doing our business. We have now finished group 3 but we have not agreed them.

We do not agree them until the end.

Then we go through all of them again.

This is only information on them.

What are the rules of this debate?

Members can make one contribution on each group of amendments.

One input on each group. When we go back over the amendments can people start talking again? We will be here all night.

We are not discussing each amendment, we are only discussing the subject matter. We will proceed to group 4.

The amendments in group 4 address the objects, functions and duties of the BAI. The amendments require the BAI to take what steps it can to ensure the sector provides sustainable quality employment for journalists, to protect the interests of children, particularly in respect of commercialisation, and to ensure that in setting the regulatory environment for broadcasting such environment is conducive to and supportive of compliance with employment law. They also require the BAI to have a more proactive role in respect of the development of Irish language programming. Amendment No. 26 is intended to fulfil a commitment given to Senator O'Toole in the course of the Seanad debate. The amendments also address the treatment by the BAI of the commercially sensitive information received from broadcasters in the course of its regulatory functions.

As I said earlier when I rambled from group 3 to group 4, sustaining independent and impartial journalism is an important point. Politics needs a free press; it is important that it is open to scrutiny and criticism. However, people plying certain personal agendas brings the entire system into disrepute. There is a little of that taking place at present. The problem is that if it goes unchecked, the tendency in society is to gravitate to the lowest common denominator. I have genuine concerns in that regard. How to deal with that without at the same time interfering with the necessity for freedom of the press to comment is the challenge. We have seen examples, some of which have ended up in court but most of which have not, where there is a real tendency in this regard. I do not know if it is due to competition but it was felt, in recent years, that perhaps competition from English tabloids was driving it, and it probably was. The downturn in the economy is exacerbating the situation. We should collectively consider how we can ensure that the necessity for freedom of speech and the enhancement it brings to our democratic processes do not undermine the overall intention, and how we can ensure that it is both independent and impartial. I have no ready-made sparks of wisdom that can direct us how to do that but we should certainly examine it. The BAI has a role to play. I do not believe that is a reactionary force. I imagine that people in such positions are probably reasonably well paid. It should not be beyond them to consider monitoring this, perhaps on anad hoc or spot basis, and forming their own independent views without waiting for people to complain. In general, people do not complain but shrug their shoulders and carry on.

The second point I wish to raise in that regard is the objective to sustain compliance with applicable employment law. I wonder why we would place an onus on a broadcasting authority to enter an area which usually is regulated between the employer and employees. There may be an employees' union. Concerning foreign direct investment coming into Ireland, some of which has union representation although most has not, there has been a very good enlightened approach to industrial relations and to the application of employment law. I wonder, therefore, why this step is necessary. A number of other agencies, such as the National Employment Rights Authority, NERA, and the Health and Safety Authority, have become very proactive in this area since the onset of the recession, far more so than they were in the good times. I raise that question.

I agree with the other inclusions, such as protection of the interests of children, the vulnerability of children to undue commercial exploitation and also the measure to stimulate Irish language programming. I believe we all subscribe to this.

I wish to comment further on broadcasting content standards which I believe to be particular to group 7 of the amendments. I shall wait until they are being dealt with.

In broad observation, I have no issue with the principle set out by Senator Walsh — if I understood him correctly — that there should be a high standard of political impartiality and a high ethical standard in the way news and analysis are presented. I have no difficulty with that. I do not propose to comment on the bona fides of Senator Walsh or his observations but in my view RTE and TG4 are discharging their function as public service broadcasters in an exemplary fashion. I am on the road a great deal at night because of meetings, as are all of us who are political practitioners. We are away much of the time and do not see many broadcasts. Perhaps I am missing some programmes that are to the contrary but the impression I have is of a high objective standard. I wish to state that, to be fair. There are times, of course, when we might look on this matter differently. It depends on the programme or the context.

I shall leave it at that for now because I do not wish to delay proceedings unnecessarily.

I thank the Minister for responding to my worries about taking the interests of children into account. I deeply appreciate his doing that. It raises an issue that perhaps he might answer. First, it is hugely important that the interests and vulnerability of children and their exposure to undue commercial exploitation are taken into account. It is really important that this can now be dealt with on a legal basis. The gain is that the broadcasting authority can now consider it from the point of view of all broadcasters. Until now, if one broadcaster decided to take a moral stand it would simply be undercut by another broadcaster which would see money available.

If the Minister has had a chance to look at his post today, he will have received, like the rest of us, a nice glossy publication from the tobacco industry telling us how bad things are. It does not mention health or anything like that, only how badly we are looking after the industry. It is very important that people take a strong stand against that kind of disinformation. I do not say it is misinformation but there is a lack of understanding. I heard a man on the radio yesterday blaming the Green Party for the collapse in the car industry, which I thought was a bit rich. He sounded quite plausible as he made his case. It is the same with the tobacco industry, which tells us about the cost of cigarettes without bothering to tell us the cost in terms of health.

Is the situation now such that the authority can take a decision to exclude all drink advertising before the watershed time of 9 p.m.? As I understand it, it seems able to do so under section 25(f). Is that a clear understanding? I have been arguing about this publicly for quite a while and so far my argument has been based on the fact that there needed to be a legislative base to exclude tobacco or drink advertising to children. There is a voluntary code at present and the drinks industry has dealt with the matter by excluding drinks advertising between 6 a.m. and 10 a.m. That gives some indication of how likely we are to make progress if matters are left to a voluntary code. A voluntary code makes proper action impossible. If one considers a large sporting body, for example, it cannot take action on its own because that would leave the market open to its chief rival in competition. I very much welcome this measure. It gives a legislative basis for a decision to be taken. The broadcasting authority could decide to protect children from undue commercial exploitation, taking into account their vulnerability. I do not say it would or will or can do this but it seems it now has a legislative basis to do so. I ask the Minister to respond to this point.

These are all very positive changes in respect of the functions of the authority. They are very helpful. I like the idea of the right to reply but I wonder how it will be treated. I agree completely with Senator O'Reilly that as a public service broadcaster RTE has been extraordinarily balanced. In any of its news programmes, from "Morning Ireland" to "News at One", it may give us a hard time in terms of an interview. That is its job and nobody can complain about it.

However, I make one point in this regard. In my 22 years in the Seanad, Members have been given a fair, hard time from the media now and again by way of interview. On such occasions they might say they did not get the best outing or had a tough time. Twice in the past year, I felt there was consensus in this House. I do not believe Members articulated this outside because it sounded like whingeing. I refer to the two "Late Late Shows", one on the Seanad, the other on the Dáil. People felt the presentation was mishandled and did not give a balanced view. I do not wish to go into the details but offer this example only by way of explanation. I agree with Senator O'Reilly. Normally, one does not come across a problem in news programmes because presenters simply follow a line of questioning, putting forward hard questions and demanding answers. That is what politicians are elected for, to be able to deal with that. It is not an issue. People might have views one way or another. However, the non-news programme also needs to be balanced. It can go wrong along the way.

I thank the Minister again for dealing with the issue of children being vulnerable to commercial exploitation and remind him of the need to keep that in mind. I am interested in hearing his answer.

I shall address those three issues. Regarding the first, impartiality, the reason section 42 contains a specific provision that "broadcast treatment of current affairs, including matters which are either of public controversy or the subject of current public debate, is fair to all interests concerned and that the broadcast matter is presented in an objective and impartial manner and without an expression of the broadcaster's own views" is to try to ensure that those high standards apply.

The second point concerned employment issues and obviously the key role is for NERA or other employment bodies to be taken into account. I wanted to include this as an amendment to signal the concern that it is important there should be high standards and high wages. We cannot have a broadcasting industry which, because of commercial pressures, might rely for staff on a large number of part-time, freelance or younger people. The specifics of employment law depend on other agencies and legislation, but it is important to signal that we want a proper industry in which people have long-term career prospects and resources are deployed in such a way as to allow people to conduct investigative research and to ask good questions.

I wish to confirm to Senator O'Toole the provision in respect of children. If the broadcasting authority takes into account evidence of what children are watching and what the main audiences are, it can introduce stricter codes that could exclude such advertising in the times mentioned by the Senator.

Group 5 concerns community broadcasting, which is the subject matter of amendments Nos. 28, 97, 98, 109, 111, 112, 114, 119, 126 and 127.

These amendments add to the criteria of what constitutes a community broadcaster by including terms such as "account to the community" and "seeking to provide a social benefit to, the community concerned". The amendments also require the broadcasting authority of Ireland, BAI, to consider the specific needs of community broadcasters in respect of the licensing of digital services. Amendment No. 126 empowers the BAI to specify that a community channel should be carried on an analogue or digital network maintained by a network provider.

Group 6 concerns the ability of the Irish film channel to advertise, which is the subject matter of amendments Nos. 30, 31, 76, 123 and 224.

These amendments provide that the Irish film channel may carry advertisements subject to certain restrictions and approval and adds the Houses of the Oireachtas and Irish film channels to the list of must-carry services on digital networks.

As I did on Second and Committee Stages, I wish to put on record my strong welcome for the Irish film channel. I am sure that colleagues also feel this way. It is an excellent development and the fact that the Irish Film Board will be intimately involved is important.

I welcome the Minister's acceptance of Deputy Coveney's amendment in the Dáil to allow advertising to fund the new channel. Given the times we are in, the amendment and its acceptance made common sense. The normal standards of timing, ethics and content will apply to those advertisements, which is welcome. I also welcome the Oireachtas channel, which will be worthwhile and important. How will it be funded, given the funding crisis in RTE, which one understands will run the channel? In terms of funding, we must congratulate RTE's unions and staff on their initiative in recent weeks in taking wage reductions, their restraint and their commitment to the public good. They must be saluted, as they have been extraordinary and have shown remarkable patriotism, courage and generosity.

What is the timeframe for getting these channels, particularly the Oireachtas channel, up and running? That channel will be important in establishing the connect between people and the Legislature. As I stated on Second and Committee Stages, local government should be included in broadcasting at appropriate times, as highlighting local government assemblies would be important. The broadcasts should also include the European Parliament. It could bring the whole democratic apparatus into people's homes, thereby establishing transparency. Would it not be great if the serious manner in which we are taking the Bill could be made visible to people through an Oireachtas channel?

I concur with the Senator fully. Reverting to a previous point, the channel will be a way through which to communicate with people directly. Many people watch Question Time in the Dáil when it is broadcast and comment to us afterwards. Where a message is dressed up and mixed with other matters when presented to the public through the general media, it is important that people see the debates and hear what is stated at first hand and are exposed to what is occurring at local government level. Undermining democracy would have serious consequences for society. During the past six months or longer, Senator O'Toole spoke eloquently, strongly and passionately in this regard. As participants, it is easy for us to be seen as protecting our own patches, but a healthy democracy that is subject to all necessary scrutiny while not being undermined for commercial or personal reasons is essential for society. The more direct exposure that people get, the more they can form independent opinions.

I thank Senators for their support for the Oireachtas and Irish film channels, which will have difficult births in these economic circumstances. The former is a matter for the Houses of the Oireachtas Commission, which has been considering which mechanism to use to put the channel together and to transmit it. Whether RTE will transmit the channel is not certain. Understandably, a number of people have been arguing that they might be able to process and manage the system, but the mechanism is yet to be decided.

The discussions to date have been to the effect that the funding would need to come from the budget of the Oireachtas. This poses a difficulty, since our budgets have been cut. However, we should rise to the challenge because being transparent, open and available would be of more interest than anything else. It would benefit our work and provide a good service to the people with relatively little expense. Given that we already have cameras and a sound system, the costs would be low and we could bring in many feeds from other parliaments, including the European Parliament, European Council meetings and so on. A stream of information on political meetings is available for broadcast at a low cost compared with other programming. This point should drive us to deliver the channel now that we have provided for it legislatively.

The film channel should be equally as cheap in terms of its transmission and editing process, although not in its quality. A large archive of digitally recorded material is available to us and, at a low cost, we could tap into a range of international and Irish films and broadcast them in a way that would build an audience. My initial instinct was not to include advertising, but I wanted to keep it as an option, given our commercial difficulties and the tightness in the budget of the Department of Arts, Sport and Tourism, from which the channel's money would come. I did not want a lack of advertising to block the station's establishment. We will need to determine whether this would be possible in the budgetary process but, if necessary, the channel will carry advertising to cover its budget.

Group 7 concerns broadcasting content standards, the subject matter of amendments Nos. 32, 43 to 45, inclusive, and 63.

These amendments address the issue of broadcasting content standards. Amendments Nos. 43, 45 and 63 replace the phrase "taste or decency" with the less subjective term "harm or offence". Amendment No. 44 also allows the BAI to adopt a more flexible approach in respect of religious advertising. Amendment No. 32 requires the Minister for Communications, Energy and Natural Resources to lay before the Houses of the Oireachtas reports received from the compliance committee in respect of compliance with Irish broadcasting codes of broadcasts targeted at Irish audiences by broadcasters located in other EU member states.

I certainly welcome the changes, particularly those to sections 43 and 44 to allow for religious broadcasting. Not allowing it was a case of liberalism gone too far in the wrong direction. Tolerance should be the issue. I have never seen the democratic process or free will undermined by allowing religious advertising. Not allowing it was a step too far. If a church wants to spread its message through the media, it should be allowed to do so. I might not like the message but that is not my call.

While I am glad "offending good taste or decency" is being replaced by "causing harm or offence", which change is very welcome, I would hate to be the judge of what causes offence. The question is like that which arose in the blasphemy debate. On Second Stage and Committee Stage, I felt content that causing offence must be calculated to incite hatred.

Causing offence is very much a passive process. While I agree that people who set out to cause offence should be made answerable, I believe there is a difference between doing so and causing offence inadvertently. If somebody tells me I offended them greatly, which happens to me regularly, I apologise immediately if I did not intend to cause offence. It would not matter if there were no intention to cause offence because, if I actually caused offence, I would have a civilised duty to deal with the matter. It is not difficult to apologise and state one did not wish to cause offence. On the other hand, people can be overly sensitive about taking offence when it was never intended in the first instance.

How will the Minister decide what is offensive and what is not? It is like the debate on what constitutes blasphemy. We have heard various views on what might offend followers of Allah or others. In Ireland, making certain remarks about the Moslem religion would cause offence but the Catholic religion would be regarded as fair game. There is some justification to this contention because there is a lack of balance in our approach. I am not putting up a staunch defence on behalf of the Catholic church because it can do its business without me. It is an Irish phenomenon that it seems to be okay to have a go at that church but not at others. As a disinterested observer, I must say that. I have seen this occur time and again and have often got into arguments over it. Perhaps it is a case of familiarity breeding contempt – I do not know – but am using this as an example of the difficulty in determining what causes offence. Perhaps the Minister has no answer.

The provision is not a bad idea in that nobody can say it is not fair enough for the Minister to say he does not want people to cause offence. However, if somebody says he was offended, is his saying so enough to point to an offence? Must one prove it or must we do so? How do we get to that point? The provision is not implementable. It is like motherhood and apple pie in that it is hard to speak against it. However, I welcome the other changes. The changes have improved the Bill but we will have difficulty with the provision on causing offence. I am worried an authority will spend years trying to sort out small complaints.

I second Senator O'Toole's remarks on religious advertising. The change in this regard is very good and enhances legislation we fundamentally welcome in its totality. There is no reason a religious event or charitable auction, for example, that is contributing to a good cause should not be advertised. The same standards should apply to religious advertising as to any other form. The measure in this regard is positive and Senator O'Toole summed it up very well in saying its contrary would be liberalism gone made and taking things too far. There is no efficacious reason to prevent religious advertising.

I take Senator O'Toole's point on it being difficult to identify what is offensive and contrary to good taste. Of course it is subjective but there are certain objective criteria one could establish, one of which would pertain to the mockery of people with physical disabilities or any exaggeration of their condition in a comedy show. This would be offensive but we will not debate the matter in detail now because we could have something of a student debate that could last until midnight.

I welcome the right of reply, which was in the legislation before its amendment in the Dáil. I welcome the right of reply for those to whom an injustice has been done or who have been defamed or lied about. I subscribe strongly to the view expressed by Deputy Coveney in the other House on when somebody is defamed in a very transparent way, as was the Lawlor family after the tragic death of Mr. Liam Lawlor. It was suggested that he was travelling with a lady other than a PR lady on the night in question. The article containing this suggestion, which does not merit repeating, was in the Sunday newspapers the day after the accident. When such circumstances occur, it can be tremendously traumatic for a family, including the wife and children. Any of us could be the subject of defamation in the broadcast media today. We could be killed in a car accident – God forbid – on the way home, thereby technically removing the right of reply for our families.

I know the Minister has good will on these matters and I do not believe we should be at odds. However, it is regrettable he did not accept the amendment in this regard in the Dáil. Will he respond on how he would cope with a clear and obvious injustice? There are four elected Members in this room, one of whom could be the subject of defamation tonight. The Member could die shortly afterwards and his family would suffer extraordinary trauma. This is a real issue and the case of Mr. Lawlor highlights it in its most dramatic form. There are myriad other cases but it would not be fruitful for me to begin citing them. However, it is fruitful to bring the matter to the attention of the Minister again in this Assembly, where we are covered by privilege. The matter is serious and I am not engaging in polemics or wasting time. I am very serious because the next person affected could be the Minister, me or another Member. Who knows that it will not? It is a terrible thing to happen to a family.

I largely concur with Senator O'Reilly's last point. The right of reply, which is provided for and which we very much welcome, enables the High Court to have the flexibility to use an expert assessor in making a decision. How might that be perceived to work in practice? Might it dilute the ability to exercise the right to reply? Will the Minister comment on this important question?

I welcome the greater flexibility for religious advertising. We debated some amendments on this point. It might have gone further, for example, there is no strong reason why religious orders could not advertise for vocations which are a problem for many of them but they are barred from doing so.

Will the Minister explain the reason behind the change from "taste and decency" to "harm and offence"? I was foolhardy enough to raise at the Oireachtas Joint Committee on Communications, Energy and Natural Resources an issue about something I saw late at night. I think Senator O'Reilly was present and Senator O'Toole certainly was. Without using the wording, it connected one part of a person's anatomy with another part of a person's anatomy in very graphic terms which crossed the threshold of an obligation under the terms of taste and decency. The Broadcasting Complaints Commission, BCC, decided that it did not breach the taste and decency threshold and I respect its decision. It did say, however, that it was borderline and brought to the attention of the offending broadcaster that this was the second occasion on which it had gone to the outer limits. That was in line with the response of the broadcaster. The incident would not breach the terms of harm and offence but it was a significant breach of taste and decency. Based on that interpretation this amendment is a significant dilution of the barrier for the broadcaster.

It seems that after the watershed time, which is now 9 p.m., anything goes. In my complaint I said that if the incident did not breach the broadcasting obligation I could not envisage what might breach it. We have an expensive apparatus to adjudicate on it which begs the question whether we should have criteria and if we have, how we interpret them. I realise they are subjective. Nine o'clock is probably far too early for the watershed. I asked the BCC for its views on whether it should be extended to 10 o'clock. Between 9 p.m. and 10 p.m. is a borderline for children, particularly for young adolescents who may not be in bed and may still be watching television, perhaps in their rooms. That should be considered either in the context of this Bill or in another context because it deals with children's access to material which probably is not in their interests.

On a point of clarification, when I spoke about a deceased person I gave the example of a public representative but the point applies to every citizen who can be equally defamed or slandered.

I take the Senator's point that it applies across the board. We must also, however, take the defamation legislation into account because where there is a real slight and recourse to justice on that point it does not extend to those who are deceased. While the right of reply provisions are separate and different there are certain similarities and that is why we followed the precept that it does not open a right of reply to someone who is deceased. I understand the arguments raised.

The use of "harm and offence" instead of "taste and decency" is an attempt to be more specific. One can be subjective about taste or what is decent but what is harmful and offensive is more specific and easy to determine. It is not seen as a diminution of the standard but an attempt to have crisper, more accurate language that makes the broadcasting code and policies more specific.

Does the public know that?

The code will set the guidelines. It is the job of the broadcasting authority to implement them. We had a long and interesting debate on religious advertising at various stages in the drafting and amendment of the Bill. Concerns could arise if there was no restriction because some religious groups by dint of having large resources could advertise for members. I would find that problematic. It is a strange area in which one has to recognise that there are restrictions. The changes we have made allow the authority greater flexibility in assessing advertising. We have recently seen some high profile cases in which the codes that were in place provided too inflexible a regime. The BCC and some of the people involved in those cases said that the solution we have found should work because it is more flexible. It is up to the new authority to apply it in a sensible and respectful way.

It is for the High Court to appoint and decide how the expert assessor works. There is legal provision for it now and I am confident the High Court will apply this appropriately.

Group 8 deals with amendments Nos. 38 to 40, inclusive, which deal with the levy to fund the operation of the Broadcasting Authority of Ireland, BAI.

The amendments in group 8 provide that the Broadcasting Authority of Ireland will be required to prepare and, with the consent of the Minister and the Minister for Finance, publish, three year Estimates of expenditure which is intended to allow broadcasters subject to the BAI levy an indication of the likely financial impact on them in future years.

I raised this matter when the Bill was before the House. I have some concerns about public bodies which have untrammeled control over their finances, particularly where this applies on an income and expenditure basis. Cost controls and cost-effectiveness are often not applied as diligently as they might be. Despite what we said earlier about salaries in many of the bodies that come under the remit of Government and these Houses they are excessive. Unfortunately, that applies across the public and private sectors and is a significant part of our overall economic difficulty and our challenge is to overcome it.

The International Monetary Fund spoke recently about the need to restore competitiveness. We do not have the control to devalue our currency which means there will be pain in respect of pay and salaries. I am concerned that there is no system of checks and balances within the BAI to ensure that costs are controlled properly and that it functions as a normal competitive commercial enterprise. Will the Minister examine where levies can be applied to the bodies being overseen? I am concerned that this can lead to a level of incestuousness within the system which is not good and to some extent makes blunt some of the independence of these bodies in the administration of their functions. Perhaps that is a general comment rather than being specific to this body. It is probably more applicable to other State bodies from the point of view of its implications for effective policing in areas that are fundamental to public policy.

I am not sure whether Senator Walsh attended a recent meeting of the Joint Committee on Communications, Energy and Natural Resources when Mr. Cathal Goan gave a perfect example of how to do it properly. He simply stated that income had dropped by €70 million and presented the business plan for the year. In other words, he balanced the books and that is what it is about. There are three ways this can be done. The State can run it entirely, the State can be semi-detached as at RTE, or it can use the version in New Zealand, where there are crown companies which effectively must be run as private sector operations and work independently but are owned by the state, which has a type of golden vote or a golden share.

It would be remiss of me, having listened to and questioned very closely the RTE Authority in recent times, not to point to the trust and confidence it created by stating its income. It did it so well that members of the committee kept asking the witnesses how they would deal with having negative books. They did not understand that a drop in income is involved and not a charge on the Exchequer or the returning of a report of minus €70 million. It is a drop in income from advertising or whatever and it is being dealt with. It is a perfect example of doing what Senator Walsh discussed. That is the way it is done and it is happening very well in RTE at present. I am not discussing issues of waste because I do not know anything about them. I am stating that in terms of the business plan and balancing the books, what is required by amendment No. 38 is being done at present.

I agree that we must keep tight control on spending. This amendment will give at least a form whereby the broadcasting authority has to justify and set out a budget and plans so it is not allowed to creep in an unscrutinised manner. When it comes to regulators, where they are funded by the industry, as in this case and we have a similar context in telecoms and energy regulation, it is a model that works. A good regulatory system leads to a better business environment. It is in the interests of the people in the industry to have a fair referee. It is like paying for the referees in a junior league where everyone chips in. Payment for the referee is not on a competitive basis in terms of one team or another haggling to bring down the price.

The main cost is employees, which is subject to the approval of the Ministers for Finance and Communications, Energy and Natural Resources, and that oversight is subject to that approval. Far from excessive costs, my main concern is that it will be difficult for the new authority's employees in these times of the embargo on the recruitment of public sector workers because they will have to be incredibly productive to meet the range of tasks we are asking of them.

The experience of the performance of the Broadcasting Commission of Ireland is that while people in the industry may originally have been nervous and reluctant about the cost, they would say that the setting and policing of standards and the independent allocation of licensing is the most important element in their business environment because it gives them certainty and fairness and that justifies the inevitable cost.

Group 9 is concerned with the subject matter of amendments Nos. 42, 101, 103 and 246, which is the maximum term of contract extensions for radio stations.

Group 9 addresses the issue of contract extensions for commercial radio stations. The amendments respond to concerns raised by Senators and Deputies by increasing the maximum period of any contract extension the BAI may grant under the fast-track procedure outlined in section 67 from seven to ten years and by increasing from four to six years the maximum period of any contract extension the BAI may grant under section 134 in respect of an FM radio licence to a station which is willing to simulcast its services on a digital radio multiplex.

Group 10 addresses the subject matter of amendment No. 53, which is self-regulation mechanisms.

Amendment No. 53 in group 10 will enable the broadcasting authority of Ireland to co-operate and engage with persons or groups in the development by them of codes and standards and the establishment of self-regulatory systems. This recognises the role that self-regulation and self-regulatory bodies such as the Advertising Standards Authority of Ireland have and can play in the future to complement statutory regulatory mechanisms, especially in addressing the challenges posed by cross-jurisdictional services and by non-linear media services.

Group 11 is concerned with the subject matter of amendments Nos. 54 to 60, inclusive, and 67, which is audience redress.

The amendments in group 11 relate to Part 4 and primarily arise from discussions with the Broadcasting Complaints Commission regarding the practical implementation of the redress mechanisms proposed in sections 48 and 49 with a specific focus on the discretion of the compliance committees on timelines for decision making and how much time a broadcaster, employee of the broadcaster, independent producer or advertiser is afforded to comment on a complaint.

Group 12 is concerned with the subject matter of amendments Nos. 69 to 75, inclusive, 81 and 86, which is enforcement mechanisms.

Group 12 relates to the enforcement provisions contained in Part 5. Amendment No. 74 in this group provides clarity that the financial sanctions mechanism proposed only applies to significant or continuing breaches of broadcasting standards. Amendments Nos. 69 to 73, inclusive, clarify the respective roles of the BAI and the Commission for Communications Regulation with regard to responsibility for investigating interference with the frequency spectrum utilised by commercial and community broadcasters.

Group 13 deals with the subject matter of amendments Nos. 88, 90 and 92 to 96, inclusive, which is emergencies and illegal broadcasting.

The amendments in group 13 relate to sections 61 and 62. Section 61 empowers the BAI to require a broadcasting contractor to allocate broadcasting time for announcements for and on behalf of any Minister of the Government in the event of a major emergency. The amendments to section 61 extend this requirement to networks located in the State which distribute, transmit or retransmit broadcasting services to the public, for example, cable systems.

Section 62 precludes persons who have been convicted of an offence in respect of illegal broadcasting under wireless telegraphy legislation from being awarded a sound broadcasting contract for a set period. The amendment to section 62 addresses the concerns that the exclusion period of five years is too long and may act as a disincentive for a pirate operator to regularise his or her position. In that regard the amendment reduces the exclusion period to 12 months.

Group 14 is concerned with the subject matter of amendments Nos. 130 and 131, which is the "must offer" requirement on Irish television broadcasters.

Amendments Nos. 130 and 131 in group 14 require RTE, TV3 and TG4 to offer their service for carriage on any network which provides television broadcasting services in Ireland but that no extra charge for their presence can be sought from the public by that network provider. The objective is to ensure Irish public service channels are available on networks providing a broadcasting service in Ireland.

I spoke at length on this issue on Second and Committee Stages. I welcome this very much and it has been long in coming. People were trying to make the case that there were copyright reasons it could not be delivered whereas it can be delivered by set-top boxes or cards.

I live all of 17 miles from here and I do not have broadband in my house. The only way I can get it is through satellite. The satellite provider provides broadband from the Astra satellite which also broadcasts television. In Europe, one provider usually provides a combination of broadband, voice over Internet, telephone and television. Do they come under this restriction? Until now, the situation was that RTE had a particular agreement with Sky and unless one was a Sky account holder, one could not receive RTE through the Astra satellite. Even though one could see the signal was there, one could not receive it. The reason given for this was that the Astra satellite has a footprint all over western Europe and RTE would be breaching its copyright, which was buying it for the population of the State. I understand that.

However, in terms of what I described to the Minister, somebody receiving broadband from an Irish supplier to an Irish address for an Irish citizen in Ireland is not in any way breaching copyright, but have not been able to be supplied with RTE until now. I want to be assured that people in that situation will not be blocked. I am not saying I would prefer RTE to be free-to-air from the Astra satellite.

Where customers in an Irish household, with an Irish address, receiving a signal delivered from an Irish company which is supplying them with broadband and perhaps with voice over Internet telephone and television, RTE will now be required and must be offered as part of that deal from here on. It always wanted to offer it but it was not allowed to until now. I hope the question I am asking is clear to the Minister. I do not think it is overly technical and it is straightforward. Can this be done? I have raised this matter with RTE on a number of occasions. It should be much broader than this but I do not want to go into that at this point.

I want to be clear that where providers are doing what is happening all over Europe, that is, providing television, VOIP and broadband, that RTE will be part of that package.

This is providing a must-offer obligation for RTE or other free-to-air programming to apply to network systems regulated in the State. Where an Irish broadcaster is using such satellite provisions, there is the ability for it to carry Irish free-to-air channels such as RTE. There is a slight technical difference when one is using voice or broadband connection in that it is one-to-one transmission, whereas the satellite broadcasting signal thrown is one-to-many. Otherwise, the Senator's interpretation is correct.

Group 15 concerns the subject matter of amendments Nos. 163, 166 to 180, inclusive, and 220, 222, 225 and 226.

The amendments in group 15 develop and clarify the planning and performance measurement framework for public service broadcasters proposed in sections 99, 101, 102 and 124 of the Bill. Amendment No. 177 also requires RTE and TG4 to set out, up front, their programming proposals to meet the social and cultural needs and interests of children in Ireland, including animation and children's programming in the Irish language, that is, their Irish stories for Irish children.

Group 16 concerns the subject matter of amendments Nos. 181, 186 and 187.

The amendments in group 16 relate to the commercial activities of public service broadcasters. Amendment No. 181 proposes that, following consultation with the broadcasting authority of Ireland, the Minister for Communications, Energy and Natural Resources will set the daily time for broadcasting advertisements by RTE and TG4. Amendment No. 186 requires RTE and TG4 to conduct transactions between their commercial and public service objects on an arms length and commercial terms basis.

Group 17 concerns the subject matter of amendment Nos. 190, 219 and 221.

The amendments in group 17 aim to address the concerns raised by Deputies and Senators in respect of the need for a multi-annual perspective in the public funding of TG4. Amendment No. 190 allows public service broadcasters to enter into arrangements among themselves to share archive material at cost in pursuit of their public service objectives, a measure that may prove to be of particular benefit to TG4.

Luaigh mé an rud seo go minic cheana nuair a bhí an t-ábhar seo á phlé sa Seanad. Tá mé an-sásta go bhfuil seo curtha isteach sa Bhille seo mar tá daingniú ann go bhfuil jab ar leith le déanamh ag TG4. An rud is tábhachtaí ná go mbeidh tuiscint ag daoine go bhfuil i bhfad níos mó ag baint le TG4 seachas broadcasting alone agus go bhfuil morán comharsanachtaí timpeall na tíre ag brath ar TG4 chun fostaíochta a chruthú agus rudaí marsin.

Certainly, the creative energy of the Gaeltacht and the development of Gaeltacht jobs and businesses is very much dependent on TG4. It was never set up to make money in the first place, but when people criticise the support level for it, the Minster's Department should be another voice indicating that this is part of our culture and supporting Gaeltachtaí na tíre seo agus chomh tábhachtach agus atá sé go mbeadh fostaíocht agus cruthaíocht iontu agus go mbeadh dul chun cinn ó thaobh drámaíochta agus tionscalaíochta de and even independent broadcasting. That should all be there.

This is a major issue and it is about more than supporting broadcasting, as stated in the Bill. It is important to recognise that the reason this was raised and so willingly accepted by the Minister when it was before the Seanad was that it concerned support for Gaeilge. I was very pleased with that and I do not question the Minister's motives. I congratulate him on being so open. It is very important to put on the record the fact that when Deputies and Senators in both Houses and from all parties supported this measure, we were discussing an Irish cultural gem which needs protection, is part of us and is important. It is far more important than simply providing a number of hours of broadcasting in the course of an evening.

Ba mhaith liom aontú lena bhfuil ráite ag an Seanadóir Ó Tuathail. Tá seo iontach tábhachtach agus tá sár-jab déanta ag TG4 chun oidhreachta na tíre agus an teanga a fhorbairt agus a choimeád beo. Aontaím go mór le seo. Tá TG4 tábhachtach do ghach duine sa tír. Ainneoin cén chaoi ina bhfuil cúrsaí airgid, tá sé tábhachtach go mbeadh tacaíocht ann an t-am go léir don stáisiún iontach seo atá ag tabhairt fostaíochta do dhaoine. Freisin, coimeádann TG4 oidhreacht na tíre agus an teanga beo agus tugann sé sult agus taitneamh do chuid mhaith dúinn. Is iontach an stáisiún é agus táimid go léir bródúil as.

Aontaím go hiomlán leis an méid atá ráite ag an Seanadóir Ó Tuathail agus an Seanadóir O'Reilly. Mar adúirt an Seanadóir, tá sár-obair á dhéanamh ag TG4 chun na Gaeilge a chur chun cinn. D'fhéadfaimís craolachán náisiúnta a thabhairt ar chraolachán TG4 as ucht na oibre atá á dhéanamh aige. Molaim an t-Aire as ucht an dul chun cinn agus an feabhas a chuir sé ar an scéal seo.

I thank the Senators for their comments and support for TG4, which I also want to give. The archiving amendment is important so it has flexibility and can continue to tell stories of our nation from archive as well as modern material. There are real issues concerning budget difficulties at the current time and we will have to work with TG4 to see how we can continue such funding or what structures we put in place to give it security in very difficult times. It will be a priority for me in my ongoing work with the Department.

Group 18 concerns the subject matter of amendment Nos. 192 to 196, inclusive, and 208, 209, 212 and 213.

The amendments in group 18 require RTE and TG4 to address in any code of fair trading practice developed under section 112 of the Bill the issue of the duration and exclusivity of rights that they propose to acquire when commissioning programme material from independent producers. Amendment No. 192 reduces from 18 months to 15 months the timeframe for RTE and TG4 to develop their codes.

Amendment No. 196 requires RTE to co-operate with independent producers in the marketing of programmes commissioned by RTE outside Ireland.

Amendments Nos. 208, 209 and 212 address the issue raised by Deputies in the Dáil in respect of RTE's ability to take up and fund part completed programmes which it did not originally commission, within the context of the independent programme account in section 116. In essence these amendments revive the original wording used in section 4 of the Broadcasting Authority (Amendment) Act 1993.

It is important to ensure that independent productions are not victims of financial shortage. They provide important employment and are an important indigenous industry in their own right. They offer an employment opportunity for our graduates and this has a spin-off effect for the country. They also provide excellent objective material and contribute to our social and cultural heritage. We should not make them the victims of a financial shortage. RTE support for independent production must remain at a premium. I understand there is a floor figure, but we should go beyond that in expenditure on independent productions, particularly with regard to indigenous material.

I agree with the Senator's comments. RTE has signalled that intent and we hope to see it carried out in the budgets.

Group 19 deals with wireless telegraphy related legislation. The amendments are Nos. 227, 234 to 236, inclusive, 238, 240 to 242, inclusive, 281, 290 and 292 to 297, inclusive.

The amendments in group 19 relate to wireless telegraphy matters. Amendment No. 281, as advised by Parliamentary Counsel, creates two collective citations which allow for the referencing in the Bill and in future legislation, in a single phrase, of (a) wireless telegraphy legislation and (b) broadcasting offences legislation. Amendments Nos. 227, 234 to 236, inclusive, 238 and 240 to 242, inclusive, then apply that collective referencing throughout the Bill.

Amendment No. 283 is intended to facilitate a joint request from ComReg and the Department of Transport to amend section 2 of the Wireless Telegraphy Act 1926, as amended by the Communications Regulation (Amendment) Act 2007, to clarify the respective roles of ComReg and the Minister for Transport with regard to the regulation of shore-based wireless telegraphy apparatus associated with marine safety. In essence, the amendment clarifies that any shore-based apparatus is to be licensed by ComReg.

Amendments Nos. 290 and 297 amend and restate section 9 of the Wireless Telegraphy Act 1926, which permits the Minister for Transport, as the appropriate authority, to regulate maritime radio licences and maritime radio operators engaged on ships registered in the State. These amendments expand the regulatory provision to cover all vessels operating in Irish waters, registered ships and vessels, and those vessels navigating or operating within Irish waters.

In addition, amendment No. 297 updates the penalties for breach of regulations made under section 9. These amendments are required to satisfy Ireland's international obligations to provide maritime safety navigational services, marine emergency search and rescue response and marine pollution prevention functions. Amendments Nos. 290 and 297 also address a request received from ComReg to amend section 8 of the Wireless Telegraphy Act 1926 in respect of the legal position on the return of apparatus for wireless telegraphy seized by ComReg in the course of its duties. Amendment No. 297 restates and revises sections 5 to 9 of the Wireless Telegraphy Act 1926, as amended. Parliamentary Counsel has advised that these sections should be restated rather than amended piecemeal for statute law revision purposes. The Broadcasting Bill has provided an early opportunity to amend these aspects of wireless telegraphy legislation.

Group 20 deals with digital terrestrial television. The amendments are Nos. 229, 230, 232, 244, 248, 249 and 252 to 254, inclusive.

Amendment No. 230 in group 20 sets targets for RTE in respect of the timeline for the roll-out the public service DTT multiplexes. Amendment No. 253 empowers the Minister, by himself or in conjunction with others, to manage the analogue switch off process by promoting co-operation between key stakeholders in the switch off process, commissioning research regarding analogue switch off, promoting public awareness and providing appropriate help schemes for disadvantaged members of our society and, by order, may confer additional functions relating to analogue switch off on ComReg, RTE or the BCI.

It is important to ensure the roll-out of digital terrestrial television, DTT. The potential provider, the Boxer company, has pulled out of the process. It would have paid money to RTE, which has already spent €40 million on DTT roll-out, with a potential further spend of €60 million. I urge the Minister to move to get the next company in line and to ensure the roll-out continues. This is important for RTE's finances and is an important project in its own right.

I take a different view. I have the same view on digital terrestrial broadcasting as I had on phone masts in 1990 — it is utterly unnecessary. We should have been doing all this by satellite since then and we would not have all these rows about masts all over the country. A satellite system would also have been cheaper. With regard to the €40 million spent, we should write it off as a bad idea with the voting machines. We should just buy a couple of satellite channels and operate the whole system with one press of a switch. At least then the people in the Black Valley in Kerry would get reception with the rest of the country, which they will never get through DTT. I do not intend to oppose the section, however.

Senator O'Toole has made an interesting point. However, we do not have a satellite over which we have control. The reason we need the DTT multiplexes is to allow us switch off our analogue system but still retain control through our masts and transmission system for free to air and other programming. It is of strategic interest for the State to have such a transmission system and I am very keen it is introduced as soon as possible. There will be difficulty this summer as the British authorities start to switch off some of their analogue services and some of the spill-over we have will be lost. We need to replace this with a multi-channel offering, which we can do with DTT. However, this is not a matter over which I have direct control.

The BCI is responsible for the negotiations with the next consortium that is interested. I very much regret that the first contractual arrangements fell at a hurdle. I keep in regular contact with the BCI and hope to see progress on the alternative DTT platform and see it up and running. I am confident we will see progress and that it will provide a good public service. There is a certain urgency to the situation now and I look forward to the successful development of DTT here.

The subject matter of group 21 is the television licence. The amendments are Nos. 255 to 270, inclusive.

The amendments in group 21 relate to the television licence regime. Amendment No. 261 caters for the identification of licences which may have been issued via the new TV licence website, which was successfully launched by An Post this year, rather than being issued at a particular post office branch.

Amendment No. 267 is proposed to clarify the timelines with respect to which a fixed payment notice may be served. Amendments Nos. 264 and 266 are rewordings by Parliamentary Counsel to ensure greater clarity around the fixed payment notice process set out in section 149. Amendment No. 268 is a new section which is being introduced to avoid ambiguity as to when the term of a television licence begins in instances where the reminder notification process under section 149 has been utilised. Subsection (3) is intended to offer another alternative to criminal proceedings, that is that the television licence fee may be pursued by An Post as a civil debt rather than prosecuted as a criminal offence.

Fine Gael contends that the TV licence fee collection system is outdated and inefficient. It costs €12 million to collect €200 million, and that is too expensive. Many people now watch television programmes on their computers. Therefore, it is no longer valid simply to target television sets. There is also an issue that people who have a number of television sets have a liability for each. If they only declare two and have not paid a fee for another, could they be the victim of serious charges? Our suggestion to the Minister is that within the first year or 18 months of the broadcasting authority of Ireland's functioning, it would come up with alternative propositions on the funding of our public service broadcasting system, rather than the traditional licence system, which may be out of kilter with the new realities of how people access television programmes, the number of television sets in houses and even the collection methods, which are outmoded.

I agree the collection methods are outmoded. I ask the Minister, as I have many times, to take an example from most of Europe, which has the simple system of an audiovisual tax on every single house unless one opts out — anyone can opt out if he or she does not have a television or audiovisual equipment. The cost of collecting the licence fee constantly annoys me because it is inefficient. There should simply be an audiovisual tax. In countries such as France, property owners get a letter from the tax authorities at some stage during the course of the year and the letter states how much the audiovisual tax will be and gives the option of applying to opt out if required — one opts out rather than opting in. No one is left wondering whether there will be new excuses for not paying our television licence, or whatever the advertisement says.

I recently tried to work out the figures. I presume RTE is being paid some fee for carrying the advertising for the collection of television licence fees in order to keep RTE going. It is going around in a circle. This is not the most efficient way and the Minister should take a hand to it and sort it out. Every house should pay unless people opt out because they have no television.

There are inefficiencies or costs involved but it is successfully bringing in €200 million per year to help fund public service broadcasting. The public service broadcaster itself, when asked in committee whether it would great rid of it, ultimately said that, while it would be critical of some of the costs involved, it would not get rid of it. The fee provides a real and important connection so that the public service broadcaster recognises it is being paid directly by those households which pay the licence fees. They have a call on the public service broadcaster to perform and deliver a range of services because of that payment by those who effectively own and control the channels. While the system will no doubt evolve and the technological developments that occur will lead to change, they are not yet at a stage where it is clear to us how we can make an effective change, given the evolving nature of the situation. Let us watch this space. We will have to change, but not at this time.

Group 22 concerns the broadcasting fund, which is the subject matter of amendments Nos. 271 to 277, inclusive.

The amendments in group 22 amend the provisions of the broadcasting fund by increasing the percentage of net television licence income allocated to the broadcasting fund from 5% to 7%; providing that the broadcasting fund can fund new television or radio programmes which raise public awareness and understanding of global issues impacting on the State and countries other than the State; providing that the broadcasting fund can fund radio and television programmes which address the issue of media literacy; and providing that the broadcasting authority of Ireland in developing funding schemes may have regard to the developmental needs of community broadcasters.

I want to record my satisfaction with these amendments. I had made much reference to this issue and proposed amendments on Committee Stage in the Seanad, particularly to protect the independent radio production sector.

Group 23 concerns the amendment to the Copyright Act, which is the subject matter of amendment No. 291.

Amendment No. 291 in group 23 provides for change in copyright law to allow commercial DTT platform providers the same opportunities as cable, IPTV and MMDS operators and on similar terms with a view to ensuring the speedy rollout of a digital terrestrial television service in Ireland in the context of the switch-off of analogue television services in Ireland in the near future.

Is Senator O'Toole moving an amendment at this stage?

I want to clarify whether we are discussing group 23 plus my amendment.

I believe we are discussing amendment No. 291.

We can discuss that first and then decide about the other amendment. I do not understand what is happening in the case of amendment No. 291. While I could be completely wrong and will listen carefully to the Minister's response, and I will hold my amendment until we know the position, it seems this goes somewhat against the spirit of the EU. I will put a simple question. In terms of our copyright laws and in terms of the EU's definition of cable, satellite and digital, and the separation between them, is this in line with the EU position? Has the EU been in contact with the Department about it? I was getting messages that the EU was less than happy with what we were doing in this regard.

In section 180(1)(b), the Minister is effectively defining digital terrestrial retransmission as cable transmission. However, the EU directive seems to differentiate these and sets out that they are separate. That is my understanding of the position and, while I do not purport to be an expert in this area, I am seriously worried. This would seem to have effects on the income of film producers and the various rights that attach to copyright in this State.

It would seem that this allows UK broadcasters to broadcast in Irish territory without requiring Irish rights in certain situations because they will have a transmission right and will not need the primary rights, which will cause unnecessary hardship. I do not know where this is going. For example, as matters stand, if a UK broadcaster wants to show an Irish-produced programme in Ireland, it would need to acquire a right from the Irish producer. Under this Bill, if we change the definition of "cable", this will not be the case.

What I say about the UK would apply to any EU state but we would generally mean English-language broadcasting coming from the UK. I know the Minister has the same concerns as the rest of us, judging by what he said. He was quite rightly protective of the Irish independent production sector and, if I recall, increased support for it on Committee Stage. There is an ongoing battle with UK broadcasters in trying to make a distinction between Irish rights and UK rights but this is like giving over the pitch to the UK. What we are doing here will blur the distinction even further.

All sorts of issues arise. Does the constitutional issue of the right to private property arise? If somebody has copyright to something and we are now effectively giving them away, is there an issue involved? This seems to be going against the line the Minister would have articulated very strongly on Second Stage and Committee Stage with regard to the importance of the independent sector. We are trying here to redefine "cable" as "retransmission" when the EU directive on cable clearly sets out that they are two separate issues.

That is the issue and it is to deal with it that I drew up my amendment. Perhaps I am misinterpreting the position but, having spoken to a few people, this is what has come back to me. I await the Minister's response.

This amendment involves the complex interface between commercial DTT issues, copyright law and broadcasting policy. Accordingly, it was developed in close co-operation with the Department of Enterprise, Trade and Employment to ensure compatibility with copyright matters. While the amendment was withdrawn on Committee Stage in the Dáil, it was reintroduced on Report Stage as it is considered necessary to provide a fair environment for commercial DTT.

Cable and MMDS television services are closed service offerings which are only accessible to the subscribers of the service. In the same way the commercial digital terrestrial television, DTT, service will also be a subscription-based service accessible only to its subscribers. The amendment amends section 2 of the Copyright and Related Rights Act 2000 to ensure the rules governing the acquisition of copyright by DTT providers are the same as those which apply to cable, MMDS, multichannel multipoint distribution service, and internet protocol television, IPTV. While there are changes to the definitions of the Copyright and Related Rights Act, the effective change is to the existing section 174 of the Act by including DTT retransmission along with MMDS and cable in the definition of cable programme services. DTT retransmission is put on the same footing as MMDS and cable.

Section 174 reflects EU Directive 93/83/EEC, the cable and satellite directive, which requires member states to have such rules for cable and MMDS. DTT did not exist as a technology in 1993 and section 174 of the Copyright and Related Rights Act provides mechanisms for cable operators to retransmit channels from others jurisdictions without directly clearing rights with the rights holders. The law differentiates between the retransmission service offered by the cable operator and the broadcasting or transmission service operated by broadcasters. The cable service is a closed, subscriber-based service and is not accessible free-to-air to the public. Under these circumstances, retransmission rights may be required to provide the right to retransmit the programmes in a controlled manner to the subscriber base.

A copyright collection agency is responsible for managing the acquisition of cable retransmission rights between the rights holders and the cable operator for cable services. The amendment seeks to extend the legislation to provide a similar mechanism for the management of retransmission rights for subscriber-based DTT networks. This will mean when channels from other jurisdictions are broadcast under commercial subscription DTT platforms, the same collection agency approach will apply. This will help to ensure the development of DTT in Ireland and allow for a level playing fieldvis-à-vis the cable-MMDS multichannel offerings.

Having withdrawn the amendment on Committee Stage in the Dáil, my Department, in co-operation with the Department of Enterprise, Trade and Employment and its legal advisers, gave detailed further consideration to the issues. This consideration included examining the situation in other European countries in which such a legal regime exists. As Senators may be aware, certain Irish broadcasters expressed concern about the amendment tabled on Committee Stage. The concerns have been listened to and there is a significant change in the corresponding amendment tabled on Report Stage, that is, the stipulation that the services must be encrypted. This will draw a distinction between channels from other member states which may be retransmitted free-to-air and which may be encrypted because they are paid services. Where a channel from another member state is retransmitted free-to-air on DTT in Ireland, it cannot avail of the benefit of the amendment but where it is encrypted, it can do so. This draws the necessary distinction between broadcast rights for Irish free-to-air broadcasts and non-Irish free transmissions to meet the concerns raised. While I appreciate the Senator's concerns, I do not propose to accept his amendment to amendment No. 291.

I do not understand part of the Minister's reply. The Minister stated that digital terrestrial retransmission is included in cable. Does this apply for encrypted services? Is that correct?

That is correct. This service or any such programming will not be free-to-air. It is a subscription-based service which must be paid for and it is encrypted to ensure it is not accessible other than to those who have paid for it. The rights are paid for and collected in a similar manner to that which exists for similar closed systems.

I realise I am in breach of the rules but this will save us going through the matter again. Is the Minister saying for definite that the copyright people will be paid in a different way and that they will have sold their rights in some way, shape or form? Let us consider the position of a producer, director or owner of a film which happened to be broadcast in Ireland through a free broadcasting service. If the film is transmitted through the encrypted channel and people are paying for the service, then some of the money will flow back to the original people. Is this correct?

Obviously, we seek to abide by and fulfil the necessary copyright regulations but it is a matter of how that is organised. In this case we seek to do it in a way similar to that with which cable, MMDS and IPTV services were dealt.

That completes the debate on the groupings of amendments. Is the amendment being pressed?

I wish to put one more question. The Minister has answered most of the questions and I understand some of the points he made. Is the Minister's approach to copyright satisfactory in terms of EU directives on cable broadcasting?

We received various correspondence from the EU, some of which questioned the nature of the regulations made. However, we are confident there is a precedent for this measure in other European jurisdictions and that it is within the European legal framework. We examined the matter in detail because it was a contentious issue. We would not have proposed it if we did not believe it was important for the delivery of DTT services in the country nor would we have done so if we did not believe it was within the proper European and national legal framework.

Amendment No. 1 not moved.
Question put and agreed to.
Question proposed: "That the Bill do now pass".

I thank the Members. The Bill started in the Seanad with a good debate and amendments from Senators O'Reilly, O'Toole and others. It has been a rather long but fruitful process and one hopes it will lead to real benefits. It is an important area and the quality of our broadcasting is crucial to our democracy and to the republic. Sometimes it is difficult for politicians to intervene or to have a say on certain broadcasting matters but this is one of the few chances we have had to do so. I look forward to when the new broadcasting authority of Ireland translates our thoughts into real action and higher standards within Irish broadcasting. I also thank my officials for their endless work on this Bill. They have been exemplary.

I thank the Minister for his very refreshing, real and focused engagement with us on the issues raised, including the debate on the amendments tabled during the debate. We proposed a large number of amendments on Committee Stage and I acknowledge the Minister's role in facilitating us and the fact that several of those amendments, albeit in slightly modified form, have made their way into the final legislation.

I join the Minister in paying tribute to the officials who worked closely with him on the Bill. We held a good debate exemplified by the fact that we stayed so long this evening, just as we did on Committee Stage in the Seanad. It was good that the Bill was initiated in the House. It is seminal legislation in a very critical area and in an all-embracing part of our lives. It merited the level of discussion and teasing out we allocated. Anything else would have been negligent and I am pleased we maintained the integrity of the Seanad in the way in which we engaged with this important legislation.

I wish to add to the remarks made. In particular, I single out for mention the officials present and the other officials involved. This is very complex legislation in terms of the way in which it deals with very technical, social, political, financial and cultural matters. I hope we have found the balance. The Minister has listened to all the points of view and fairly met our arguments. He did not concede to all our points but accepted some of them and made amendments and changes. It is important to put as much on the record. That is the way legislation should work and the people should see that some Members put forward honest argument and a viewpoint, a response was then given and a positive movement made in that direction. The passage of the Bill has been classically well-handled by the Minister.

I am not happy with all the points I made but I am pleased that significant progress has been made and I believe the legislation can work in everyone's interests. I hope the people we put in place on the various boards and authorities will take the legislation in the spirit in which it has been put together and that it creates a new vision and creative outlet for the Irish industries to which it is relevant. I thank the Minister for being so accommodating and generous in his responses and I thank his officials.

I congratulate the Minister on the passing of this Bill and compliment his staff on the work they have put into it as it is clearly a complex and detailed document. We have all benefited from the Minister's presence in the House. I was here on a number of occasions when he was present and I pay tribute to his dedication and commitment to the Bill, which has my good wishes and those of my party.

This is very comprehensive legislation which was welcomed initially in this House. It was well debated and teased out in this House even though the fact that 300 amendments were subsequently passed in the Lower House seems to belie the comprehensive approach or in-depth debate held here. We should perhaps have a look at that.

The officials have done tremendous work in bringing forward what is very comprehensive legislation which impacts on the quality of life of many people who depend on the broadcasting community for much of their information and their entertainment. The Minister has displayed once again his grasp of the complex brief he holds. He is always impressive in this House and that has been acknowledged privately by others who observe his proficiency of approach to his brief and his in-depth knowledge of the various complex issues.

Question put and agreed to.

When is it proposed to sit again?

Tomorrow at 10.30 a.m.