THE Public Service Broadcasting Bill is constitutionally flawed in a number of respects, says the SOS – Supporting Public Broadcasting Coalition in a media release, and there should be thorough policy review process before such radical change to the broadcasting sector should be attempted.

The SOS media release reads:

The SOS: Supporting Public Broadcasting Coalition, representing unions, media NGOs, independent producers and academics, has completed a substantive final draft of its submission on the Public Service Broadcasting Bill. The deadline for final submission was Friday 15 January 2010.

The Coalition wishes to recognise and applaud the Department of Communications and the Minister of Communications for trying to act swiftly in bringing about much-needed legislative reform. The Coalition welcomes the sense of urgency and energy behind the Proposed Bill. That said, the Coalition is also of the view that while the Bill has a number of positive elements which we certainly support, there are unfortunately a number of problems with it as currently drafted which, if not addressed, will result in the latter not being able to be passed by Parliament.

Overall the Coalition argues that the Bill is premature and that it needs to be proceeded by a substantive policy review process.

The Coalition believes that there are a number of Constitutional problems with the Bill – both procedurally and substantively. Further we note that some of the provisions of the Bill are internally inconsistent and contradictory.
In terms of procedural issues we note that the Proposed Bill is a “money bill” because it calls for amendments to the Tax Act. (It calls for a dedicated broadcasting tax.)  We note that “money bills” need to deal mainly with money issues but the Public Service Broadcasting Bill deals with a myriad of other issues. Also we note that “money bills” need to be tabled in Parliament by the Minister of Finance. We note that it appears that the Minister of Communications intends to table the Bill. Further, to this we note that the Minister of Finance has in fact rejected the idea of a dedicated broadcasting tax. We thus seek clarity as to the status of the Bill since this key funding proposal has been rejected.

In terms of substantive Constitutional issues the Coalition notes that the Bill undermines the SABC’s freedom of expression rights (e.g. by specifying that the SABC’s international services must be subject to the “Republic’s foreign policy” and that the Minster should approve the SABC’s editorial policies). It undermines the community media’s freedom of association rights by insisting that community stations “forge relationships with municipalities”. Further, the Bill contravenes the Constitution’s requirement to “ensure independent regulation of broadcasting by a single Regulator”. The proposed Public Service Broadcasting Fund potentially impinges on the role of the Regulator through its operations in all three tiers of the media, its massive financial muscle and the scope of its powers.

In terms of inconsistencies and contradictions we note a number of problems that have arisen due to the fact that the Bill includes two Charters – an SABC Charter and Community Media Charter. It is not entirely clear what the legal status is of these Charters. Further, these Charters and the Bill often contradict one another.

Finally, we make the case for a major policy review process. We argue that it remains a puzzle to the Coalition that the Department appears to be missing the opportunity with a new ANC leadership, a new Parliament, a new Portfolio Committee, A new Minister and a new Director General to make new, fresh, bold policy initiatives. We argue that significant debate needs to be held as regards a host of topics including the Bill’s linking of broadcasting to the “developmental state” and its total reconceptualisation of the role of community media. Further we discuss, in some detail, the issue of funding. For instance we note the Bill presents only one funding option the dedicated broadcasting tax which has now been rejected by National Treasury.

We argue that a policy review process would allow for a number of governance and funding options to be researched, debated and discussed which would certainly be to the long term benefit of public broadcasting.

For more information please contact:

Ms. Kate Skinner: 082 926-6404