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Wednesday, 11 October 2006
Page: 20


Senator BRANDIS (10:52 AM) —I had the honour to substitute for my friend Senator Parry as a government member of the Senate Standing Committee on Environment, Communications, Information Technology and the Arts for its examination of the Broadcasting Services Amendment (Media Ownership) Bill 2006 and related bills. I participated in the hearings, along with my colleagues Senator Eggleston, the chair of the committee, Senator Ian Macdonald and Senator Ronaldson. The four of us constituted the four government members of that committee. As well, our colleagues Senator Nash and Senator Joyce attended some of the hearings—I think Senator Nash was there for all of them—as participating members of the committee. As a result, a report was tabled which I believe deals very thoroughly with the issues thrown up by this complex suite of bills.

Can I deal with something—to clarify it on the record—which was the subject of an exchange between Senator Conroy and me just before. Yes, it is true that this hearing was conducted in a relatively brief span of time, from quite early on a Thursday morning until well into that evening, after 9 pm I think, and for most of the following day. But it is also true that the scheduling of the hearing for those two days of the week before last was undertaken in order to meet the convenience of senators, including Senator Conroy. But for the unavailability of other senators, including Senator Conroy, on days earlier in that week there would have been the opportunity for the hearings to proceed for longer. That is not a criticism of Senator Conroy; it is merely a scheduling issue. It is not unusual, contrary to Senator Conroy’s assertion, for the government to announce an intention to introduce legislation into this chamber on a specified date, which is what the minister did and which meant in turn that the hearings which had not been able to occur earlier in the week before last had to be completed by this period of sittings. So to the extent to which there was a foreshortening it is a bit of a stretch to blame that on the government when the hearings could have been longer but were not in order to meet the convenience of others, including the opposition.

I listened with fascination to Senator Conroy seeking to beguile and charm and chastise and berate Senator Joyce over the fact that Senator Joyce has made a commitment to support these bills. I would have thought that if there were any member of the Senate who would understand the nature of a political decision arrived at by consensus—what might crudely be called a deal—then Senator Conroy would be at the forefront of those who would have that understanding of how political decisions are arrived at. Senator Joyce, who had strong opinions about various matters, as did Senator Nash, as did I and other members of the committee across a range of complex issues, discussed these matters. It is a matter of public record that they were discussed very exhaustively at the joint government parties’ meeting yesterday.

As a result of that, a consensus position was arrived at. Not only is that not unusual; that is the way all political decisions are ultimately arrived at when there is a diversity of views. How remarkable it is that we should have heard a speech from Senator Conroy in which he denounces legislation—which, with all due respect to him, he does not fully seem to understand—because it does not protect diversity and yet at the same time and in the next breath he denounces the fact that there has been a diversity of view within the government, which has arrived at a consensus position.

I am very comfortable with the manner in which the minister has handled these difficult issues. They are difficult issues technically, they are difficult issues of policy and they have been politically difficult because of the range of stakeholders involved. In the form of the legislation with the announced changes which the minister foreshadowed yesterday afternoon, I think, we have a package which will satisfy most interests and will be very much serviceable to the paramount interest—the public interest. But having said that, I could not help but notice the editorial in this morning’s Australian Financial Review. Let me read a few words from it onto the record. Referring to the views adopted by Senator Joyce and Senator Nash, the editorial writer said that their:

... notion of media diversity—limits on ownership of ‘traditional media’ and 12 ½ minutes of ‘local news’ a day on rural broadcasters—will inevitably be counterproductive, saddling regional players with costs they can’t recoup and compromising the very quality, diversity and independence the [National] party seeks to preserve.

This reflects an industrial age rather than a digital age understanding of the media landscape ...

As is plain from the Senate committee report, the local content issue was an issue on which the National Party senators and the Liberal senators did diverge. But that ultimately has been resolved by compromise among them. I am sorry to say that I could not help thinking when I heard Senator Joyce’s speech, which seemed to be more a speech about the National Party than about the public policy issues of this legislation, that it is always a pity and it is never in the interests of Australia when good public policy is hypothecated to parochial party advantage. Nevertheless, the package that has been ultimately arrived at is, as I have said, a package I believe to be overall in the best interests of the country.

I will deal now with a couple of issues on the particular topic of diversity. I was more than a little surprised to hear Senator Joyce tell the Senate a little while ago that the two out of three rule was a proposal that came from the National Party when it formed recommendation 4 of the majority report by Senator Eggleston, Senator Ian Macdonald, Senator Ronaldson and me. It was a proposal first mooted some years ago in this country by the then communications minister, former Senator Richard Alston, a Victorian Liberal senator. Its scope, according to press reports in this morning’s media—I am not going to reveal what happens in the privacy of the party room—was in fact very significantly expanded, from regional markets to capital city markets as well, in consequence, so it is reported, of an intervention by the Treasurer, Mr Costello, yesterday. So I was very surprised to hear the claim made that that proposal came from our coalition friends.

I was even more surprised to hear the claim made that the vesting of ACMA with greater powers was also a proposal which emerged from our National Party friends when recommendation 3 of the report—that is, the majority report of the four Liberal senators—says:

2.76 The Committee recommends that ACMA be given broad powers, analogous to those in sections 80 and 81 of the TPA, to enforce the legislation by injunctions (including interlocutory injunctions) and divestiture orders, in appropriate cases.

That is a recommendation which the minister has accepted. The reason that I was particularly surprised to hear a claim of parentage of that proposal is that that particular part of the report was written by me. They say that failure is a lonely orphan and success has a thousand fathers, but I do not seem to remember anyone other than me writing that recommendation. Be that as it may—


Senator Sherry —Jeez, you’re modest, George. You’re so modest!


Senator BRANDIS —Senator Sherry, you came in halfway through my speech so you did not hear what I said before. I am merely seeking to set the record straight as to where these particular recommendations came from.

I will now address the issue of diversity. There is more diversity because there is a greater variety of platforms in the Australian media today than there was the last time this parliament had a go at media reform during the time of the Hawke government some 20 years ago. We all know that. We know it as a matter of common sense and practical everyday life. The current set of laws under which the media operates predate the digital age. I wonder how many in Australia appreciate that. The digital revolution has been one of the great factors that have changed Australia in the last two decades and yet today we operate under a set of laws that predates it. How can it be seriously maintained that those laws ought not to be reformed? Of course they must.

It is a common view on both sides of the chamber that there is an important public interest in protecting the diversity of media, which is what this legislation does through a series of safeguards now very significantly expanded, in particular as a result of the initiative of the Treasurer, Mr Costello, yesterday, by the expansion of the two out of three rule and what has been called the five-four voices test, which, I state again for those listening to this broadcast, provides that in regional centres there must be at least four different media voices and in capital city markets there must be at least five different media voices. The five-four voices test combined with the two out of three rule, which provides that no more than two out of three traditional media—that is, television, radio and newsprint—in the same market may be owned by the same proprietor, cements diversity into the market as a matter of law.

I want to address some observations Senator Conroy made about the role of the ACCC. This was a matter that was discussed between Senator Conroy and Mr Samuel, and between me and the gentleman, whose name escapes me, who was the spokesman for ACMA during the Senate committee hearing. Notwithstanding what Mr Samuel may have said in response to a question from Senator Conroy, it is not right to say that section 50 of the Trade Practices Act is a sufficient provision for protecting media diversity. It is not right to say that, in considering mergers under section 50 of the Trade Practices Act, the ACCC might have regard to broad concepts like the market for ideas, because, for the purposes of section 50 of the Trade Practices Act, a market is defined as a market in goods and services. The public interest that section 50 protects is the interest in maintaining a competitive market. The vice which section 50 prohibits is a merger which has the effect of substantially lessening competition. And the meaning of that expression ‘substantially lessening competition’ is defined by section 50 of the act purely according to economic criteria which are set out in subsection 3.

Diversity and competitiveness are quite different concepts. That is why the government senators on the committee—Senator Eggleston, Senator Ian Macdonald, Senator Ronaldson and me—recommended that, in this legislation, it was very important to ensure that the Australian Communications and Media Authority, the industry-specific regulator, be given the policing power to enforce the diversity test; not the ACCC, through its power to apply to the court to stop anticompetitive mergers under section 50 of the Trade Practices Act, but ACMA, applying the specific diversity considerations which embrace a much broader range of issues under the Broadcasting Services Act.

We made some recommendations, which I read to you before, in particular about empowering ACMA to have the same broad injunctive powers under its act as the ACCC has under section 80 of the Trade Practices Act. The government has accepted that recommendation. So, once again, it is a demonstration that, in the ultimate form in which it arrives in this chamber, having passed through the Senate committee process—relatively brief as it was—this legislation has been improved. I want to commend Senator Coonan, because that was an area in which I took a great interest, as you might know, in materially improving the legislation in that respect.

Can I finish on this point, because there seems to be a bit of a philosophical distance underlining this debate: there are some who say or seem to think that private, commercial media companies, which exist in a particular market to make a profit for their shareholders by providing a service that meets that market, ought by heavy-handed government regulation to be made some sort of generic social utility, irrespective of commercial considerations. The media sector in Australia has for too long suffered from the heavy-handedness of that approach, which seems to underlie what Senator Conroy said and seemed implicit in other contributions as well. That is not the role of governments, in my view, in this or any other industry—but particularly in this industry, where we have, at least in the electronic media, a large, expensive and, in my view, generally excellent social utility: the ABC, whose regional services in particular are relied upon, as those of us who know country people know very well, by country people pre-eminently as their source of local news in regional and rural Australia.

This is regulation that regulates the private sector but, to the extent to which the private sector, governed by commercial principles, is unable to fulfil that role, the ABC does and, in particular, in rural and regional Australia, does so excellently. It is the ABC that is the social utility, and that is not a role which ought to be imposed on private companies. (Time expired)