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Tuesday, 3 December 1974
Page: 3017


Senator GUILFOYLE (Victoria) - There are 2 Bills related to the Broadcasting and Television Bill (No. 2) 1974 which has been introduced by the Government. These are the Broadcasting Stations Licence Fees Bill and the Television Stations Licence Fees Bill. These Bills will need to be dealt with as consequential Bills to the Broadcasting and Television Bill (No. 2). I shall now debate the Broadcasting and Television Bill (No. 2) as the action that we take may result in a certain course of action to be taken with regard to the other 2 Bills. This Bill, when it was before the House of Representatives on 12 November, was dealt with by the honourable member for Moreton (Mr Killen). I wish to quote what he said when expressing the Opposition's attitude to this Bill. He drew attention to the fact that the Bill was introduced into the House of Representatives and pointed out that the Minister for the Media, Senator Douglas McClelland, had the ultimate control and responsibility for the Bill. He expressed the thought that the Minister would have been the logical person to present the Bill to Parliament. He went on to say that because of the numbers in the House of Representatives the Bill would be passed in that House and would then go on its way to the Senate. He said:

If it there meets what I would encourage honourable gentlemen to accept as being a proper fate, the Bill will be defeated and will come back into this chamber at some time in the future.

The Bill has now come into the Senate and I am dealing with it on behalf of the Opposition parties.

My colleague, the honourable member for Moreton, foreshadowed that the Bill will be defeated in the Senate. I think it is fair to traverse the ground that has been covered since the Bill was introduced into the House of Representatives on 3 October. There has simply been a sense of outrage by the public, the community at large and the mass media since the Government's intentions were unfolded in the amendments which it introduced. I say this because it was only after the concept was understood with regard to the amendments that opinions were able to be formed. The second reading speech of the Minister for the Environment and Conservation (Dr Cass) representing the Minister for the Media, stated that the amendments gave 2 new powers to the Australian Broadcasting Control Board which the general public had always thought the Board had. The Minister said:

While amending section 16, the opportunity is also being taken -

The Minister went on to quote other things for which the opportunity was being used. What emerged from the use of that opportunity was that the Government proposed a series of amendments which resulted in total control of radio and television in Australia by the broadcasting control authority. We believe that the control is unlimited, undefined and permitted discrimination between stations.

I wish to refer specifically to some items to which the Opposition has the strongest objection. I am confident that the public does not believe that the Board had such powers nor would it have been accepted in Australian society that such an infringement of the freedom of the Press would be tolerated. The proposed amendments were not about power to determine rules and standards, they were simply about total power and the use of power itself. To suggest that the amendments which were introduced clarified existing powers of the Board or those powers which were thought to exist is to overlook the intrusion which would now be possible into every function of a licensee of broadcasting and television.

I am glad to say that the community reaction to the amendments which were proposed was such that the Minister had an amendment moved in the House of Representatives which achieved 2 objectives. The first objective was to remove the possibility of discrimination between stations, and we considered that to be an important amendment which was understood by the Government when it was introduced by us. The other objective was to make a minimum licence period of 6 months instead of 3 months. We considered that that was an acknowledgement of the quality of 3 months as the minimum licence period, but in no way did it overcome our objections to attitudes in regard to licence renewals. So we have been dealing with amendments, and perhaps we have been diluting amendments or the intention of amendments since the Government first gave its proposals to the House of Representatives. We begin again with a new second reading speech from the Minister for the Media, which was presented on 14 November last. The Minister said:

These intentions have been the subject of some misunderstanding, to say the least, in recent weeks. The Government, by this legislation, basically is seeking to remove any legal doubt about whether or not the Australian Broadcasting Control Board has power to carry out its functions and to exercise its powers under the existing Act.

I think it is fair to say that the Opposition in another place, through the form of amendments it moved to this Bill, has indicated an awareness that it is universally accepted practice throughout the world that the privileges granted to licensees of radio and television stations are subject to regulation by Government or Government bodies in the public interest. Certainly that practice has been accepted in this country ever since the establishment of the Australian Broadcasting Control Board in 1948.

But it is important to quote further from the Minister's speech, in particular this part:

Unfortunately, however, the advice tendered to the Government, and also tendered to the previous Government, is that the instrument by which this regulatory process was initiated- that is, the Broadcasting and Television Actcontains several defects of major significance. The major purpose of this legislation is simply to remedy these defects.

There is no talk there about an extension of power or an unlimited power or an undefined power. The Minister then recognised one of our objections, which related to the possible abuse of power, and foreshadowed that he would move an amendment to place under the scrutiny of Parliament the rules and standards which could be determined by the Australian Broadcasting Control Board, or the Australian Broadcasting Authority as it is to be known. Those matters are important in the way in which they have outlined attitudes of government and changes of attitude by government, but as I will proceed to develop our approach to the Bill it will be seen that they do not overcome our objections.

Perhaps the principal clause of the amending Bill is clause 6 which seeks to amend section 16 of the Act, and it is the one to which we have given a great deal of consideration. In general terms clause 6 (a) of the Bill will give the Authority power. to do all such things as are necessary for the effective exercise of the functions of the Authority. We believe that this must be read in conjunction with sub-clause (d) which gives power to determine rules to be observed by licensees in relation to the televising of programs, including rules with respect to the nature and content of programs. We believe that sub-clause (a) must also be read having regard to section 16 ( 1 ) (c) of the Act which concerns the functions of the Authority, as it will be known, to ensure that adequate and comprehensive programs are provided. We believe that 'adequate' means sufficient and suitable and that 'comprehensive' means comprising much of large content or scope. The use of these words gives unlimited scope to the Authority to make rules which usurp not only the functions of the board of a commercial station but the day-to-day management of the station as well.

As an instance of the manner in which the Authority could use the amended section, it would enable the Authority to make a rule to be observed by a licensee in relation to the televising of programs to the effect that the licensee shall televise only such programs as shall in each case be approved by the Authority and, to facilitate the implementation of the rule, require the licensee to submit every program to the Authority before televising it. Moreover it would enable the Authority to deal with each program on its own and it would enable the Authority, especially when read in conjunction with other proposed amendments, to have the power to make a rule to require a licensee to insert particular material, even particular words, in any program which the licensee proposed to televise.

Concerning clause 6 (d) of the Bill, which seeks to insert a new sub-section 16 (3) (e) in the Act, the rule-making power with respect to the nature and content of programs could give rise to a rule, to give one of many possible examples, that the content of, say, a current affairs program which had in the opinion of the Minister any matter derogatory to the Government be not televised. A rule could also provide, for instance, that such a program contain no comment on matters currently before the Parliament or, for that matter, currently before the Cabinet. The rule-making power is such that it could be used to impose censorship of a general nature. We believe that they are important matters and we have given a great deal of consideration to the application of the power which is sought in the proposed amendments.

I mentioned earlier the fact that the Government had reviewed its approach to the renewal of licences and the minimum period for which licence renewal could be granted. This power is given in clause 11 of the Bill, which seeks to amend section 84 of the Act to grant a renewal of a licence for a period as short as 6 months. We believe that this power could give the Minister or the Authority a power to require a station to carry out at all times whatever requests were made under the threat of a renewal for this limited period of only 6 months. The Act provides no criterion as to what matters the Minister must take into account in determining the matter of the renewal of a licence. So it would be open to the Minister to give as a ground under section 85 of the Act that a station had not strictly complied with a rule and that for this reason a renewal was granted for only the minimum period of 6 months.

A most important feature of the rule-making power about which we are talking is that it can be invoked at a moment's notice or without notice. I suggest that a rule could require that a current affairs program which is scheduled for, say, today must contain certain material and that notice of this rule could be received with instant request to the station concerned. A rule could result from wrong information, insufficient information or insufficient consideration of the matters involved, which could result in pressure on a station to observe particular requirements. Clause 6 (e) provides under proposed section 16 (3a) that rules determined by the Authority in pursuance of paragraph (e) of proposed subsection (3) may include requirements approved by the Minister with respect to programs of Australian origin. Here we see again the intrusion of the approval of the Minister in relation to the actions of a statutory authority which has its own functions to observe. We have no objection with regard to the development of programs of Australian origin but we do have objection to the fact that they shall be approved by the Minister concerned. I believe that it is fair to say that the establishment of a points system by the present Government has been accepted by commercial television in this country and that co-operation has been shown in the introduction of this system for the development of programs of Australian content.

Sitting suspended from 1 to 2.15 p.m.


Senator GUILFOYLE - Prior to the suspension of the sitting I was talking about clause 6 (e) of the Bill and referring to the points system with regard to the Australian content of programming. I make the point that in the past 1 8 years of the activities of television stations it is fair to say that there has been co-operation between the licensees and the Australian Broadcasting Control Board concerning any requirements that it has exerted. During the past 18 years there have been only 3 occasions when doubt was thrown on the Australian Broadcasting Control Board's standards. Apart from those 3 instances which are related, the stations have abided by the Control Board's determinations, including the introduction of the points system with regard to Australian content. The Opposition does not question the power or authority of the Board with regard to the introduction of a system that has developed Australian content in programming, but we do question whether such a system would need the approval of the Minister as far as the Board's authority is concerned. We would want to place on record also that we have strong support for Australian content in the programming and the work that is done.

I wish to refer to clause 6 (f) of the Bill which refers also to section 16 of the principal Act. That Part of the Act states that in exercising its functions and powers under this section in relation to commercial broadcasting and commercial television stations the Board shall consult representatives of those stations. The amendment that has been introduced is to give effect to a new requirement and to add the words 'and such other persons as the Authority considers appropriate'. We have an objection to the introduction of that concept. We see a relationship between the licensees and the Australian Broadcasting Control Board and the necessity for consultation between the 2 parties. We have not been given any sound reason as to why there should be consultation with any other persons who may be considered appropriate. When questioned on this matter, the Minister stated that the other persons would include such bodies as the trade union movement in this country. We feel concern that matters that ought to be matters of consideration between the licensees and the Board could become complex and unnecessarily complicated by a requirement that any 'such other persons as the Authority considers appropriate' must also be consulted. For this reason the Opposition has stated in the other place its objections to that amendment.

Clause 1 1 of the Bill refers to the duration of licences. We are not convinced that the 6 months minimum period would meet the requirements as we see them for the duration of licences and their renewal. We believe there is already substantial power and control over licensees in the existing Act under section 86 (2). There is power in that section to suspend licences with not less than 3 days' notice for a period of not more than 7 days. We consider that this is a substantial sanction which can be exercised by the Board under the existing Act and is a power that can be exercised from which there is no right of appeal. We consider that it is unrealistic in the commercial sense that there ought then to be a period of 6 months as a minimum for which licences can be granted. The Minister may also revoke licences. Although there are requirements for the Board to hold an inquiry and appeals can be made to the Australian Industrial Court for the revocation of licences, we consider that there is a strong power already existing in the hands of the Board in this matter. Our basic objections to the new proposal with regard to the varying period of licences could perhaps be summarised by stating that we understand in the commercial sense the need to be able to make forward commitments. Indeed, in an industry such as the radio and television industry, where capital requirements are extensive, it would seem to us that to have no security of tenure beyond a period of 6 months for renewal would place in jeopardy commercial decisions that need to be taken.

I believe it would be understood that the need for capital expenditure planning for equipment and the functions of the station would require several years in the way in which it would be developed. We believe also that arrangements that need to be made for programs would require some time to be developed in the way in which any commercial decision should be taken. The Minister has written to me in response to an inquiry from me. He stated that after a one-year establishment period the overwhelming majority of licences would be renewed for a 3-year period. We ask in those terms: Why write a clause so that a variable period ranging from 6 months to 3 years is in the hands of the Board and the Minister to determine, without any security being given to the licensees who are seeking renewal? It was pointed out to me, and I have noted, that in his second reading speech in March 1972 my colleague Senator Greenwood recommended a 3-year period and stated that there was merit in getting rid of the one-year renewal period that is in the existing Act. Senator Greenwood spoke of technical breaches of the Act and the advantage of renewal for a short period on the condition that the omissions were repaired. We accept that that was the position of the then Government, but we do not accept that the proposed wording of the amendment relates to a technical breach, but rather that the Authority could have power to discriminate in licence renewals either as a sanction to ensure compliance or as an instrument to destroy the commercial decisionmaking functions of the licensees themselves. We believe that any arrangement that needed to be made in the terms of the letter that the Minister has sent, that it would be customary for all licensees to receive a 3-year licence, could be dealt with in a different way from the amendment that is proposed. 1 state shortly that we oppose also clause 13. That opposition is consistent with our attitude to clause 6 (b) regarding the control of programs. I state quite firmly that we oppose clause 14. This relates to advertising on the commercial stations. I believe the power that is sought with regard to control of this function is very serious, because it will be recognised that the income side of the transactions of a commercial radio and television station is very much a matter of the advertising revenue which can be gained. The unlimited power that would exist in the Act because of the amendment, which is to place in the hands of the Authority all matters relating to advertising, would appear to us to be an unnecessary infringement on the commercial decisions that should again be taken by those who have been granted a licence.

Having stated then our attitude to the clauses I have mentioned, I would like to make some general comments about our approach to the BUI itself. I want to use as a starting point the control of programs because this has been dealt with in various ways from the time that the amendments were first proposed. Fundamentally we accept the Australian Broadcasting Control Board, or the Authority, as it is to be termed, as the regulatory body for standards of broadcasting and television. I am speaking of technical standards and community standards. To accept control of programs to the unlimited extent that is proposed by the amendments leads us to question the motives. For instance, there seems to be an unprecedented interest in news content at present, both by the Board and by the Government. I treat carefully the proceedings of the news inquiry presently being conducted by the Board but that does not prevent my questioning one of the terms of reference of the inquiry. I speak of the term of reference which sought information on 'whether further conditions should be imposed on commercial television licences to ensure adequate and comprehensive news programs'. I also question who would be making the decision as to what further conditions should be imposed.

This inquiry is being held by the Broadcasting Control Board. Persons have come before the inquiry to give evidence and to state opinions, but I wonder on what basis the conclusions will be reached as to whether further conditions should be imposed on news programs. The Minister for the Media has left us no doubt that he thinks they should be imposed. In recent statements he and his colleagues have given an impression that they would like to impose Government control on all news. I do not know the impetus behind the present news inquiry but I would like to say briefly that having been a member of the Joint Committee on Prices, the Committee from which this matter originated, I have to place in question the impartiality of both the Minister and the Board for the events which have developed and have resulted in the present news inquiry.

While speaking of news I want to refer to the attitude of the Australian Journalists' Association. I take this opportunity to express attitudes which have been expressed by that body to the Minister. Some impression has been given that the AJA is totally in favour of the amendments written by the Minister. That may have been the attitude expressed by the Federal Executive of that body but it is only fair to say that there are State districts of the AJA which have expressed disquiet and concern about this matter. I want to place on record one message of which I am aware which was communicated from the Western Australian district of the AJA. It was a message to the Minister in these terms:

Following the decision of the Federal Council of the Australian Journalists' Association 'that to remove any doubts on the amended Act being able to be used to stifle freedom of expression in news and current affairs programs, the Act contains a clause affirming the principle of a right to freedom of expression in news and current affairs programs', can you--

That is the Minister- categorically state that this request will be acceded to by the Federal Government.

The message went on to ask the Minister:

If so, what is the exact wording of the protection clause? In view of the opinion that there is sufficient doubt concerning the interpretation of the wording of section 16 of the amendments in respect to possible control by any government over news and or current affairs programs, and that this doubt is generally conceded by the AJA, can you state why such a clause should not bc included in the Act?

The response from the Minister was to request the body concerned to indicate which clause it referred to. He said that he did not know of any clause of the proposed Bill which would have the effect to which it referred. We question whether the effect of the Bill as amended would have the effect suggested by the Western Australian District of the AJA. I think the Minister should have a good hard look at the Bill to be able to deny categorically that there would be an infringment of freedom of expression if this power were exercised by the proposed Authority.

I want to speak briefly about standards because this is another matter referred to most vocally in the community. I think there is an assertion by the community that there ought to be standards which are observed. Television program standards have been developed by the Broadcasting Control Board and have been accepted by the industry. There is a whole booklet of them. They are guidelines and standards which have been determined and which have enabled the television industry to present programs within the program standards. The standards also cover advertising, personal messages, hours of service and a great variety of matters associated with programming and the quality of the programs which are presented. What is the new undefined power needed by the Board to enable it to deal with standards? I think it is important to refer to this matter. I do not question the sincerity of the people who have written to me about the need to pass the amendments so that the Board has the authority to ensure that community standards are upheld, particularly in television. I speak particularly of people who have mentioned children's programming. A good deal of work is being done by the Australian Children's Television Action Committee. It is respected by members of the Opposition parties.

I cannot accept the premise, however, that if these amendments proposed by the Government are not passed children's programs will be in jeopardy. As I said earlier, there has been cooperation by the commercial industry with the Board in the development and acceptance of program standards and in the improvement of programs. I see this as a matter of consultation, co-operation and forward thinking in the planning that needs to be undertaken in the future to ensure that the excellence and quality of children's programming is developed as we believe it should be. I have no more reason to believe that a government-appointed authority will be the body that would uphold standards that I would choose than I have in accepting that a variety and diversity of commercial management of television industry could also do so. The simplistic attitude that a commercial motive, a profit motive, is less responsible than an authoritarian one is something that I cannot accept and I do not think that the people in the community who are asserting the childern's programs should have excellence need take that point of view.

I want to talk again about Australian content because I have had notice and I think the Minister has made points about this subject. There was a release from the Minister on 1 1 November warning workers in the media industries that their jobs could be on the line if the Opposition's attitude to the proposed changes in the Broadcasting and Television Act continued. The Minister was speaking at the opening of the annual conference of the Professional Musicians Union of Australia at Newcastle. He said that the changes proposed in the Act concerned the Australian Broadcasting Control Board and Australian content. He said also that the Government was concerned about the power of the Board to impose rules or standards to apply to programs and advertisements. He went on to talk of the success of Australian programming and the way in which it had dominated the top 10 programs in this country. He went on to say that if we did not support the amendments the jobs of Australian musicians and others would be placed in jeopardy.

We commit the Opposition to the continuance of the development of Australian content in programming. We want to see the continuation of a system which has given opportunity for the creative and performing artists in our community to use their talents in our programs. I think we should remind everyone interested in this Bill that the co-operation of the industry has resulted in a great deal of Australian content being successful. I would like to think that at some time in the future not only was Australian content acceptable in this country but that increasingly it was acceptable in other parts of the world as an expression of the national identity of this country and the creative people who are able to work here and to have their work seen. I think it timely to warn the professions involved that if the continuation of attitude expressed by the Minister is upheld, perhaps their jobs would be in jeopardy. As we have seen with policies of the present Government, there has developed a situation that business does not work if it cannot work at a profit.

If we are to place in jeopardy the commercial identity of Australian television we are surely to place limitations on the future occupations of and the opportunities for our Australian performers and creative people, because if we create instability in the television industry through the imposition of unrealistic standards by the Broadcasting Authority, and if we place in the hands of the Authority the power to control the whole of programming, advertising and other commercial decisions which should be taken, I think it is fair to assume that in common with other policies which have been adopted by this Government the industry itself could be endangered and diminished.

In the present Australian economic climate, if we are to suggest that all television in this country should be a matter of government responsibility, I have to pose the question: What priority should be given, in terms of economic management, to a development of expenditure on television, resulting in diminished expenditure available for other services which we are required to provide, such as education, hospitals, schools and so forth? If advertising is to suffer the attitudes which seem to be expressed so firmly by this Government, then the income side of the television industry and the broadcasting industry will be unable to offer job opportunities to creative people in this country who are so able to enrich the programming that we can undertake.

That is the message that I have for those people who have been saying to us that we must pass these amendments in their entirety. I am talking about the superb writers, artists, creative people, script writers and film makers, all of whom would have enormous potential in a healthy television industry but who would have very seriously diminished opportunities in an industry which is entirely controlled by a broadcasting authority.

It is of interest to me that the major developments which have taken place in radio and television in the past 2 years have been directed towards Australian Broadcasting Commission activities. The Government has set up 5 new national broadcasting stations and 22 national television stations or repeater stations since gaining office in 1972. We are aware of other plans for Australian Broadcasting Commission developments. The extension which has been given to this side of a 2-stream policy that had been developed in this country perhaps places out of balance the need for development in the commercial sense, because if there is commercial activity in this industry there is a great deal more opportunity for expenses to be shared through advertising, through profit, through those things which are developed other than through direct Government expenditure into something which could be questioned as a national priority.

There are so many more things that could be said about the industry and about the Bill. Perhaps I should say that if a government is serious in stating that it simply wants to clarify the existing powers of the Board, why has it introduced amendments which so considerably extend the powers of the Board? Powers that will allow it to control program content and advertising seem to me to be not expressing the present powers; they are a considerable extension of them. I think in fairness to the statements made by the Government we should draw attention to these extended powers which are sought. For instance, in practice the Board does not make orders under section 1 7 or regulations under section 1 34 as regards any of the significant matters that are contemplated in the legislation. In practice it has relied on issuing directions and standards to cover not only matters of detail but also substantive matters. These things should be subject to parliamentary scrutiny. We were pleased to see that the Minister acknowledged that. However, it emphasises the absolute necessity to have a Bill which is able to be interpreted by the industry.

I wonder whether the Minister acknowledges that the Act as it stands and the Bill which seeks to amend it place in front of the industry the fact that it needs to work under a whole variety of terminology which is undefined. An industry which needs to accept rules, standards, determinations, directions, orders, conditions, regulations and requirements could undoubtedly become confused and power itself could become confused if this were the way in which the Act were to function. I can only suggest that if we are to have an Act which means something and if we are to clarify the authority of the Broadcasting Control Board, it would be in the interests of the industry, the Authority, and the Government to withdraw the Bill, to rewrite it, to define it and to clarify what it is that we are talking about and what authority it is we wish to impose. To have the confusion that stems from the variety of existing terminology is to place in our minds the doubt as to whether seeking to clarify the Board's powers would allow to occur through the Bill unlimited, undefined power in the hands of the government appointed Authority.

These are our basic objections to the Bill, and we felt that it was only fair that we should tell the Minister in advance what are our attitudes before we dealt with the Bill in the Senate. I notify the Senate that the Minister and the Opposition have exchanged letters. We have expressed our attitudes with regard to the proposed amendments. We asked the Minister to indicate whether he would be prepared to accept on behalf of the Government the Opposition's amendments. The Minister was not able to accept our amendments as they were moved by my colleague, the honourable member for Moreton, in the other House. Because we have reached this stage of being unable to have a concurrent point of view on the clarification of the power of the Authority without extending it, 1 regret to say that the amendments which have been proposed by the Government are unacceptable to the Opposition.

In recent days we have had the opportunity of meeting a guest from the United States of America, Mr Nicholas Johnson, who was brought to this country by the Department of the Media for a conference which it had arranged. 1 had the opportunity to meet briefly this representative of a consumer group in the United States. I was somewhat alarmed to hear the attitudes which he expressed in regard to Australian television and in regard to television in his own country. I was delighted also to have the opportunity of meeting Lord Willis who perhaps placed into balance some of the statements which were made by Mr Johnson. When one sees the headline ' Revolution- the Only Way to Get

Better Radio, TV, one wonders whether, in the terms of the man who was brought here as a guest of the Department, this will be the approach which will be taken by the Government to radio and television in this country. If we are talking about a revolution through mass communication, it would be advisable for members of the Australian community to recognise that this could occur under the amendments which the Government proposes to the Act.

It is a matter of placing by stealth an undefined, unlimited control in the hands of a government appointed authority and to pretend that this control is not an extension of the powers which already exist. To say, as the Minister did, that everyone thought these powers existed, I am sure overstates the situation and the way that people feel with regard to this important means of communication in this country. I am quite certain that the people of this country did not accept that the Broadcasting Control Board had a power which allowed it to intrude on programming, on content, on advertising- on all of the functions of the commercial stream of radio and television. If this were so I am quite sure that it would never be asserted by the Government that it had this power with regard to the Australian Broadcasting Commission. Indeed, the Government has always been expressing very strongly the view that there is complete independence in programming and in content by the Australian Broadcasting Commission. I have to place in question then what is the motive behind the absolute, undefined control which is being introduced into the Broadcasting Authority by the amendments which are proposed. For these reasons I indicate that at the conclusion of the second reading debate the Opposition will be dividing the Senate and voting against the amendments which have been proposed.







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