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Tuesday, 3 December 1974
Page: 3023


Senator EVERETT (Tasmania) -I believe that few measures which have come before this Parliament in recent years have been the subject of such public misrepresentation and false comment as has the Broadcasting and Television Bill (No. 2). Significantly, most of that has come from certain vested interests. Perhaps that misrepresentation reached its height in an article in the Melbourne 'Age' on 16 October of this year, the heading of which was: 'Juggernaut to decide TV Wrongs and Reichs'. That has been the theme of a lot of the Press and general media treatment of this legislation. I believe that it has affected the Opposition's attitude to a Bill which I suggest- and I will endeavour to show by examining the existing provisions of the present law- only has essentially a clarifying role from a legal point of view.

As the Minister explained in his second reading speech, it has 2 basic purposes, the first of which is to give the new authority the legal power to perform a function which this Parliament- with the 1946-49 Government, through 23 years of Liberal-Country Party rule and now through this Government- has always believed was a proper function of the broadcasting and television control authority irrespective of its name. That function is expressed, as Senator Guilfoyle has said- and I will examine it in detail later- in existing section 16(l)(c). The second purpose of the Bill- I do not suggest this is by any means the really important purpose of the Bill- is to alter the period for which licences may be renewed. We are at issue only to the extent of 6 months on that and I will come to that point later. Despite its comparatively simple objects I do not believe that the importance of this Bill should be overlooked. It applies to radio. We are now 5 1 years from the time the first radio station was opened in Australia- in New South Wales in November 1923. It applies to television. We have now had some 16 years of television in this nation. In that time, television has developed in this country as indeed it has in all other parts of the world, into the most effective, the most important and in some respects the most devastating medium of mass communication that the world has ever known. That being so, I suggest that it behoves this Parliament to ensure that the public interest is properly served by the type and extent of control that is exercised over that medium in the public interest.

The second reason I suggest this legislation is important and that the whole review of the control of radio and television is important is that there has been no diminution, as I understand it, from the trend that was apparent 20 years ago, prior to the introduction of television, to combine in the one hand the ownership and control of Press, radio and television media. The fact is that throughout this nation there is a tight tripartite control over the media often by one man or by one company. That point was adverted to very forcibly by the then Leader of the Australian Labor Party, Dr Evatt, in 1956 when a significant amendment to the existing legislation was introduced and was debated. He sought, by an amendment, to direct attention to this matter and he used these words:

The fact that all existing television licences in 2 States have been granted by the Government to corporations constituting, in effect, combines of newspaper, radio broadcasting and associated interests which already monopolise to a large extent mass communication of information to the people of Australia . . .

Dr Evattdirected attention in his motion to the danger to the public interest and true freedom of expression being caused by newspaper concerns further extending their control over mass communication, including radio broadcasting and television. I suggest that the words that he used and which were embraced within his motion nearly 20 years ago are just as true today as they were then. It is a fact, I suggest, that this Senate ought to bear in mind when it is considering the totality of the control which it is appropriate to exercise over these 2 particular media. It may well be that the provisions of the Trade Practices Act relating to monopolisation, which came into force on 1 October of this year, ought to be very seriously considered in relation to those combines of which Dr Evatt spoke and which, as I have said, are still a cause of real concern today. The tendency for particular proprietors to extend their sphere of influence- I am not referring in any way to profit now but to their sphere of influence- over all 3 media is a tendency which, I believe, is growing but which certainly has not been abated and which, I suggest, is of real concern to the people of this nation.

The Opposition's attitude to this Bill, as expressed in another place and as expressed in this place today by Senator Guilfoyle, is to me difficult to understand when the history of this legislation, going back over more than a quarter of a century, is considered. It seems to me that the Opposition has 2 standards in relation to this matter and that its attitude expresses 2 standards. It has one standard when in Opposition and another standard when it is in Government. I think that is proved by the fact that in 1948 when the Broadcasting Control Board was established by amending legislation in that year, the cry of nationalisation was raised by the then Liberal-Country Party Opposition. That word was specifically used in the debates. In the 1956 Bill, however, a different attitude was expressed because the present Opposition was then in government. The need for control was very clearly recognised by the Postmaster-General of that day. I think that his speech is worth quoting from for the purpose of showing that that is so. In dealing with the 1956 Bill, he said:

Clause 40 also prescribed in Division 4 of Part III, the conditions to be observed by the licensees of commercial stationsboth television and broadcasting- in relation to their programs. I invite the attention of the House especially to the latter provisions because ever since there has been talk of the introduction of television into Australia, genuine fear has been expressed by large sections of the community that the introduction of television would have unfortunate effects on some sections of the population, particularly on children.

The Royal Commission on Television considered that selfregulation would not be sufficient to secure that commercial television programs would be of suitable standards to satisfy the public.

I pause there to say that the Opposition has obviously changed its mind. The Postmaster-General in 1956 continued:

The Commission recommended a reserve of authority to ensure 'that commercial programs will, in the broadest sense, serve the public interest'. With those considerations in mind, the Government proposes, . . . that a licensee should bc required to provide programs which comply with standards determined by the Board and to vary his programs, if so directed by the Board, so that they shall conform with those standards . . . it is essential to ensure that television programs are of a proper standard. I do not want to leave any possibility of misunderstanding here. The responsibility for ensuring that television programs are of a proper standard is being imposed on the Australian Broadcasting Control Board, which recently was strengthened with this objective in mind. The Government expects the Board to discharge its duties in this field fearlessly. 1 wish to make it clear that the Government will stand behind the Board in its administration and will not tolerate any abuse of the new medium by licensees or advertisers or anyone else. This is a matter of vital importance which I know has caused considerable public concern. I give an unqualified assurance that every effort will bc made to ensure not only that television will not cause any harm to the people of Australia but that it will as far as practicable be a positive benefit.

Those words have been rejected today by the Liberal-Country Party Opposition. Yet they were the words of those parties in 1956. I ask why it is that the Opposition has changed its attitude from that expressed in the extract from the speech that I have just read. Following that line, the curious thing is that for more than a quarter of a century one of the prime functions of the Board as expressed in section 16(1) (c) of the present Act has been, and the words are important, 'to ensure that adequate and comprehensive programs are provided to serve the best interests of the general public'. The emphasis has been placed on 'the best interests of the general public'. The words to qualify the noun 'programs' are extremely wide- 'adequate and comprehensive'- and although in 1948 the then Liberal-Country Party Opposition opposed the establishment of the Board that was set up by the legislation of that year, in 23 years of government it did nothing whatsoever to alter the power that was given by the 1948 Act. During that period of 23 years it introduced 21 amendments to the legislation, and one can search the record of debates in relation to those 2 1 Bills and one will not find, I suggest, any assertion that the powers conferred by the 1948 legislation had been abused or were not necessary. So 1 feel 1 am justified in saying that the Opposition has double standards, one when it is in opposition and one when it is in government.

I would suggest in a broad approach to this legislation that the Opposition's attitude is based on a misconception. It is interesting to note that when the Opposition's attitude to this legislation was being stated in another place the gravamen of the attack on it was that the powers that were given by section 16, as it would read if these amendments were agreed to, were not subject to parliamentary scrutiny. That was the beginning of the attack by the honourable member for Moreton (Mr Killen). It was repeated more than once in the course of his speech. Now when the Government yields on that matter and proposes, as the Minister for the Media has said will be done, that in committee, if this Bill reaches the committee stage, to insert a provision that the basic regulatory powers of the authority be subject to scrutiny by Parliament in the same manner as regulations are, the Opposition virtually dismisses that by a reference of a few words and ignores it. It seeks to put its opposition on a much broader basis and in doing so I suggest that it is succumbing to the hysterical outbursts of some vested interests a few months ago who thought they saw in this legislation a means for the Government, not for the Authority, to exercise improper control over, in particular, the television medium.

Are we by this legislation doing anything more than other countries have found to be desirable? I suggest not and one only has to look at the position in England and in Canada to see that the powers given by this legislation, which are really powers to clarify legal doubts that have arisen, are in no way different from what is considered proper elsewhere. I refer to the English Act which imposes a duty on the authority in Great Britain in these terms: . . to ensure that the programs broadcast by the authority in each area maintain a high general standard in all respects and, in particular, in respect of their content and quality and a proper balance and wide range in their subject matter, having regard both to the programs as a whole and also to the days of the week on which and the times of the week at which the programs are broadcast.

Without going into the detail of the situation in Canada, I simply quote one section from the Canadian Broadcasting Act 1968 which states:

The programming provided by the Canadian broadcasting system should be varied and comprehensive and should provide reasonable balanced opportunity for the expression of different views on matters of public concern and the programming provided by each broadcaster should be of high standard using predominantly Canadian creative and other resources.

I ask the Opposition: In what way does section 1 6, as it would be amended if these amendments were agreed to, go beyond powers which in those 2 countries at least have been considered appropriate? ls the Opposition's attitude consistent, having regard to the existing provisions of the Act? Senator Guilfoyle referred to section 1 7 of the Act which gives the Board power in these terms: In exercising its powers and functions under the Act to make such orders, give such directions and do all such things as it thinks fit. That has been the position since 1948. It is true, as I understand it, that section 17 has seldom been used but it does seem to me that if the Opposition succeeds in defeating the second reading of this Bill it will be necessary for the Board, as it would remain, to consider exercising those powers. I also ask the Opposition: Why does it ignore section 99 of the present Act which states:

A licensee shall provide programmes and shall supervise the broadcasting or televising of programmes from his station in such manner as to ensure, as far as practicable, that the programmes are in accordance with standards determined by the Board.

Of course, it is pursuant to that power that certain standards have been laid down. I regret to have to say this, but the Opposition does not appear to me to be sincere in its attitude in relation to this measure because when it was in government in 1972 it was advised that there were legal difficulties and doubts in relation to the exercise of its functions. There can be no doubt that it was given such advice, and as a result of that advice Senator Cotton, in the Ministerial office that he then occupied, made public statements to the effect that the then Governmentthat is, in 1972- would rectify that position. He made 2 such statements, the first on 8 December 197 1 in answer to a question by Senator Douglas McClelland. Following difficulties with one station, he made a second statement on 7 April 1972 that the then government would introduce legislation to overcome the legal difficulties that had arisen. He made a similar statement on 28 April 1972. Senator Douglas McClelland directed a question on 16 May 1972 in this Senate to the Minister representing the Postmaster-General and the same answer was given. I quote from Senator Greenwood 's reply:

My colleague, Senator Cotton, when Acting PostmasterGeneral, indicated that it was the Government's intention to bring down legislation to clarify the law.

If- I say 'if; I should perhaps say 'since'- the Government by a number of clear pronouncements in late 1971 and early 1972 stated its intention to legislate to obviate the legal difficulties that had arisen, is the Opposition now suggesting that it would have done so in a way which fell short of the method that is provided for in this Bill especially if one adds to it in accordance with the Minister's undertaking the inclusion of a provision that determinations of the Authority in a very wide area would be subject to parliamentary scrutiny as are regulations. I question therefore the sincerity of the Opposition because- I think this is absolutely vital to judging its attitude- for over a quarter of a century the Board has had power and it has had the statutory function of ensuring that adequate and comprehensive programs are provided to serve the best interests of the general public. It has had power to make orders to give effect to those powers and functions and, under section 99, it has had a direct control over standards. If you add all those together where is the room for the public criticism that this was going to become controlled by a juggernaut- I earlier referred to the newspaper headline in which that description was used- and where is the room for the Opposition 's criticism which enabled Senator Guilfoyle when she spoke earlier today to use such emotive expressions as 'an outrage' so far as the public and the mass media were concerned? Another of her expressions was 'total control, unlimited and undefined'. A third expression was infringement of freedom of the Press'. A fourth expression was 'intrusion into every function of radio and television media'. I suggest that the Opposition cannot be judged to be genuine in its decision to oppose the second reading of this Bill because when in Opposition before 1949 and while in government for 23 years and now, it is faced with a situation in which whatever protestations it made against the so-called nationalisation- I have referred to the speech of the Postmaster-General in 1956- it has accepted a situation in which there ought to be pretty strict control over such an important medium as television. The Opposition's attitude as expressed by Senator Guilfoyle this afternoon just does not bear up to any logical scrutiny.

Senator Guilfoylealso dismissed, I thought somewhat ungraciously, the attitude of the Australian Children's Television Action Committee. I will quote from one of its publications of which most honourable members will be aware. In the issue of October 1974 it pointed out something that I believe it is appropriate should be borne in mind specifically when it is realised that the Opposition is about to kill this Bill. It said:

Society has recognised that its most precious resource is its children and that it has a responsibility for undertaking a positive program of environment directed to meet the particular needs and interests of children. It is hardly necessary for us to point out that in the case of television this has not happened. The Broadcasting Control Board has excellent standards, but because it has no power to enforce them they are tragically largely ignored. There is more than sufficient evidence to show that television plays a large part in the lives and development of Australian children, that the entertainment programs provided now and any time during the 18 years of Australian television have not, except in rare and isolated cases, been of a quality to advantageously influence children's development in any area. Children are not only continually exploited by seductive and misleading advertising, but are bombarded with a massive amount of violence which increasing amounts of research show to be detrimental to a child 's mental health.

One would ask the Opposition: Does it dispute that general proposition? If not, why is it not more anxious to ensure that the principle which it recognised for 23 years in government is given practical effect by the amendments which are sought in this Bill before the Senate? I have said that the essential purpose of this Bill is to clothe the Authority with a power commensurate with its functions. I have referred to section 17 of the existing Act. Why is the Opposition not prepared to have the Authority given the broad general power which is contained in paragraph (a) of clause 6 of the Bill before the Senate? That clause was criticised in another place and it is worth reading to see what validity the criticism has. It says: . . The Authority shall have power to do all such things as are necessary for the effective exercise of the functions of the Authority and, in particular, but without limiting the generality of the foregoing, the Authority shall have power;

Various paragraphs then set out the scheme of the present Act. The matter has been treated publicly and in another place on the basis that that provision which I have just read confers some magic power, some stealthy power to use an expression used earlier this afternoon by Senator Guilfoyle, to do something that it was never intended the Board should have power to do. I point out that when it is analysed it is simply an enabling provision which has its counterpart in numerous statutes of this Parliament. It is usual when an Authority is given certain functions to give it a power to carry out those functions. If not, why should the Parliament impose the function or state the function or declare the function in the first place? To mention examples of statutes in which a similar power is contained in order to permit the function to be carried out, I need mention only the Australian National Airlines Act, the Australian Tourist Commission Act, the Australian Shipping Commission Act and the Australian Wool Corporation Act, all of which have general powers identical with that contained in clause 6 (a) of this Bill and none of which has ever been suggested as an unnecessary or an excessive power. I submit to the Senate that there is just no substance in the claim that that power is an unnecessary power or an excessively wide power. The proposal in the Bill before the Senate to remedy the defect which the present

Opposition when in government in 1972 was formally and legally advised did exist, is a proposal which really can be split into 4 parts. Firstly- I have already dealt with this-that contained in clause 6 (a); secondly, that contained in clause 6 (b) which simply adds to the existing function of the Board the words 'or programs containing matter of any class or character specified in the determination'. I do not doubt that violence would be a matter which would attract the attention of the Authority primarily hi relation to that power. Is the Opposition prepared to be judged on the basis that it rejects to the Authority the power to control violence in a proper way? That is the effect of the Opposition's attitude. The third provision, designed to remedy the existing defects, is contained in clause 6 (d). I shall read that clause because I feel that the failure to read and to understand it probably is the reason why there has been so much misinformed comment on this Bill. It inserts the following new paragraph to section 16(3):

(e)   to determine rules and standards to be observed by licensees -

This is in relation to broadcasting and television programs-

.   . including rules or standards with respect to the nature and content of programs;

Apart from the fact that that provision puts in proper legal perspective the powers of the Authority to carry out its functions, I ask: Wherein does it differ from the existing power in section 99 of the present Act? As I have said, that section gives a power to the Board to determine standards and to require those standards to be observed by the proprietors of broadcasting and television stations and an ultimate power of direction by the Board. Wherein is there a difference? If there is no difference wherein lies the justification for the Opposition's attitude to this Bill?

I said that there were 4 basic ways in which the present defects were sought to be remedied. I have dealt with three of them. The point I wish to make is that in none of those three new provisions is there any question of ministerial interference. This Bill has been presented by some members of the media, pursuing their 'right' to have freedom to write what they like, as a Bill which was brimful of ministerial control- 'the Juggernaut', as the 'Age' writer described it. In none of the 3 provisions so far that I have considered is there any question of ministerial control. It is a gratuitous insult to the Authority which the Bill proposes to set up in place of the present Board to suggest that it would permit itself to be subject to any ministerial dictation or control.

I ask members of the Opposition whether they will also answer this question: In the 23 years in which the Opposition parties were in government was there any instance in which it could fairly be claimed, and perhaps the Government blamed for it, that there had been an improper exercise of the powers of the Board as those powers were spelled out in the 1948 legislation? The second question I ask the Opposition is: Is there any instance in the past quarter of a century or more, since the 1948 Act right up to the present, in which it can be suggested that there has been any improper ministerial attempt to influence the Board? If the answer to each of those 2 questions is no, and I believe that would be the truthful answer, wherein is there any place for the Opposition's criticism of this Bill? It is simply, in my submission to the Senate, a case of the Opposition's parroting the attitude that it took in 1948 when, in the debates in the House of Representatives, the word 'nationalisation' was intruded to a nauseous degree. It is not a question of nationalisation. It was not a question of nationalisation in 1948. The suggestion that it is, as I have said, does an extreme disservice to a board which I suggest has been an adornment to the radio and television industries for a very long period. I should have thought that the Opposition, knowing that its attitude may result in the destruction of this legislation at the second reading stage, would have been at pains in fairness to mention at least some of the safeguards in relation to the exercise of these newly arranged powers of the Authority. But it did not do so.

I have not overlooked the fourth manner in which the defects are proposed to be remedied. I will come to that later. I want to mention the question of safeguards now. In the first place the Government has met the main objection of the Opposition in another place, namely that the powers of the Authority would not be subject to parliamentary scrutiny. As I have said that concession received scant mention in Senator Guilfoyle 's speech on behalf of the Opposition. Secondly, proposed new sub-section (3b) which is contained in clause 6 (e) meets another Opposition objection in another place because it provides

Rules and standards determined by the Authority under paragraph (e) of sub-section (3) shall be of general application and shall not be expressed to apply to a particular commercial broadcasting station ... or particular commercial television station . . .

There is no question of any station being singled out for some special treatment of an adverse or prejudicial character to its programming. The Authority, when it made a determination of this sort, would know that its determination would be subject to the scrutiny of this Parliament and to disallowance by either House in the same way as a regulation is subject to disallowance.

Again I suggest that it would be a complete insult to the Authority to suggest that it would capriciously, arbitrarily or wrongly exercise a power which will be expressed, if the Minister's amendment had a chance to be considered and passed by this Senate, so carefully by this proposed amendment. In other words every determination of the Authority of the type of which we are speaking can come before this Parliament and be openly debated and if the Parliament considers it wrong it is disallowed. That, I suggest, is a completely democratic approach. Indeed, reading the speeches made in the House of Representatives on this Bill reveals that it was really a basic amendment which the Opposition then wanted. It has got its amendment and now it shifts its ground. By that it ought to be judged.

I said that there were 4 prime ways in which the present difficulties were sought to be rectified. I have dealt with three of them. I have emphasised that with respect to those three, there is no question of any ministerial power or control over the Authority. The fourth is contained in proposed new sub-section (3 a) which is inserted by clause 6 (e). It deals with programs of Australian origin. I point out 2 things because I think they are important in judging the Opposition's stance. The first is that for the first time in these amendments the Minister is mentioned so far as powers are concerned. But the approval of the Minister can only be an approval of requirements which have been considered and thought desirable by the Authority. The Minister has no power of unilateral action. He can only, under the clear words of proposed new subsection (3a), give his approval to or withhold it from proposals which are made by the Authority itself. It is not a question of the Minister's suddenly emerging one day and for some ulterior, stealthy motive deciding that he will act under proposed new sub-section (3a). He cannot do so.

The second point I want to make is that even if this Bill is defeated and even if proposed new sub-section (3a) therefore does not become law it would still in my submission be the very clear duty of the Minister to take every possible step to ensure that there was a proper content of programs of Australian origin. That, as I have said, is specifically written into the Canadian legislation. Any Minister who permitted a situation to arise in which, in particular, television stations could ignore the present points system and the principle which is contained in proposed new sub-section (3a) would be in dereliction of his duty. Otherwise, the public would be exposed to a situation in which some channels- I do not say all- would saturate the public with nonAustralian origin material acquired cheaply and, I suggest, not to the edification of the Australian public.

When I mention the Australian public I return to the fact that for over a quarter of a century the present Opposition, which was in government for a very large part of that period, and the present Government have accepted it as proper that a prime function of the Board should be to control programs, from the point of view of their adequacy and comprehensiveness, to serve the best interests of the general public. It is the public interest which is the test, and I was therefore surprised to hear Senator Guilfoyle say this afternoon that the Opposition even opposed the extension of the duty of consultation which is contained in section 16 (4) of the Act. She suggested that it was sufficient for the Board to consult representatives of the stations- to use the expression used in section 16 (4). Surely that Opposition attitude is ignoring the fact that the persons with the principal interest in ensuring adequate and comprehensive programs are the members of the public themselves. This is not a matter to be decided over a glass of sherry by members of the Board and the television stations; this is a matter in which- and I go as far as to say this- trade unions, and certainly the whole mass of the public, have a very pertinent interest. For the Opposition to deny consultation so that that interest can find expression is to me incomprehensible. I have referred to the safeguards which the Opposition virtually ignored, and I have referred to the fact that the only personal ministerial power contained in these amendments relates to the approval of requirements in relation to Australian content, as it is briefly termed. Surely any person who has as open mind would say that that was a proper approach.

The second matter that is dealt with in this Bill, and which also attracted the Opposition's disapproval, relates to the period for which licences may be renewed. The Minister in his second reading speech explained the position with respect to the period. The Government has gone as far as to accept a change from 3 months to 6 months as the minimum period, yet the Opposition is not satisfied with that. One wonders, if all of the amendments proposed by the Opposition in another place had been accepted, what other argument would have been used by the Opposition to destroy this legislation- legislation which at least in principle I have explained to the Senate was in its contemplation as long ago as late 1971 and early 1972. Unless the independence of Tasmania's so-called independent senator asserts itself this afternoon in a manner which has not been very noticeable in recent months, it seems that this Bill is probably doomed. It is regrettable and it is a rather black day because I believe that the Opposition's attitude in this matter has been dictated by an emotional, hysterical and illogical response to this legislation by vested interests, and I believe that that is not the way in which this Parliament ought to consider legisation of a type such as this which has such an important bearing on the interests of the public.

It is noticeable that in almost parrot fashion the Opposition mouths such expressions as 'freedom of the Press', 'nationalisation' and other similar expressions. I say that the Opposition mouths these expressions because they come in this context originally from the interests that see in this legislation- but I suggest see falsely- a means whereby the Government, by some sleight of hand which does not appear in the legislation but which is attributed to it, will act in a manner which will stop the perpetuation of the empires of some of the media representatives. It is those representatives who wish to deny proper control, especially in the area of television, a control which has been considered appropriate, I repeat, for over a quarter of a century. It is those representatives who would deny to a responsible authority- I emphasise that it is a responsible authority- the right to scrutinise their programs. I believe that the media representatives who initiated the opposition to this legislation simply wish to bestride the communications industry and will not brook any interference in their licence, which I suggest is not just the statutory licence but a licence to do what they like.

Simply to bring the matter up to date, I believe from what has been said by members of the Labor Party over more than a quarter of a centuryand it was accepted by the Opposition when it was in government for nearly 23 yearsthat this Senate ought not tolerate that emotive and self-interested approach to legislation which is designed to give legal efficacy to provisions which have been considered proper for so long and to legislation which, if it is refused, will, I believe, lead to a renewal of the defiance which some of the stations have adopted towards the Board over a long period, a defiance which was recognised so clearly that when Senator Cotton and Senator Greenwood were in government they were able to say that the then Government would legislate in order to prevent that defiance. If the Opposition wishes it to go out to the public- and I believe that it cannot blame anyone but itself- that it is opposed to giving appropriate legal clothing to functions which have been accepted as proper for so long, the Opposition has no one but itself to blame if it is misunderstood. It is still not too late for the Opposition to invite sensible amendments to this legislation rather than to reject it out of hand, as Senator Guilfoyle has intimated is the present intention of the Opposition. I support the measure.







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