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Friday, 29 November 1985
Page: 2622


Senator PUPLICK(4.09) —I move:

After new clause 19, add the following clause:

Broadcasting or televising of political matter or controversial matter

``20. Section 116 of the Principal Act is amended by omitting sub-section (2).''.

Rather than speak to this amendment, I have spoken to the Minister for Industry, Technology and Commerce (Senator Button) and obtained his permission to incorporate in Hansard several short documents. One is a brief statement of the history of this piece of legislation and the others are a couple of paragraphs from the Joint Select Committee on Electoral Reform report which actually advocates making this change, and Mr Duffy's Press statement of 24 July 1985. These documents have previously been shown to Senator Button. I seek leave to have these incorporated because they establish the case that supports our amendment.

Leave granted.

The documents read as follows-

History of Legislation

Dramatisation. Section 116 (2) prohibits the broadcasting of: ``a dramatisation of any political matter which is then current or was current at any time during the last five preceding years.'' This ban of dramatisation was prompted by a 1940 radio advertisement in which a man with a German accent (assumed at the time to represent Hitler) urged electors to help Germany by voting Labor at the forthcoming election: Gibson Committee Evidence at 56. The ban was cast into its current form as a result of the ``John Henry Austral'' radio series of the 1940s which portrayed Labor Cabinet Ministers and others making outrageous remarks, some of them actual quotations: Cth Parl Debs vol 199 at 2482; vol 200 at 3556-8. Section 116 (2) was copied from a Canadian provision which has since been repealed, although the CRTC retains a power to make regulations about the use of dramatisation in political broadcasts: Broadcasting Act 1968 (Can) s 16(1)(iv). Some years ago the Broadcasting Control Board issued a definition of ``dramatisation'' after consultation with the Attorney-General's Department: TV Prog Std 24. This definition said that the term includes:

(a) a representation by means of characters . . . of a past or imaginary event, speech or conversation, whether the characters portrayed are real or imaginary people; and

(b) any statement, address or dialogue containing simulated voices.

It suggested that the expression did not include dialogue between actual persons or the use of quotations or factual pictures. The meaning of s 116 (2) has been considered, but not pronounced upon, in two decisions of the courts. In Fraser v Combe NSW Ct of Appeal 10 December 1975 (unreported) the Prime Minister unsuccessfully sought ex parte to obtain an injunction to prevent the broadcasting of a Labor Party election advertisement. The advertisement involved a ``clip'' of a statement by Mr Fraser about the right to govern of the Party holding the majority in the House of Representatives. The clip was embodied into an imaginary interview with an actor, in such a manner that the statements of Mr Fraser apparently contrasted with the course he had followed to become Prime Minister. Street C. J., Moffitt P. and Samuels J. A., the three members of the court, were all inclined to think that the advertisement would be a dramatisation of political matter. They refused an injunction because the application was made only hours before the advertisement was to be transmitted, because the defendants had not been served, because the impending ``blackout'' under s 116 (4) [526] would make their decision in effect a final decision of the case, and because in such a sensitive area as electoral broadcasting a person was not lightly to be injoined from expressing his opinion when only one side of the case had been heard. The judges did not purport to give final or fully considered decisions on the dramatisation issue in these circumstances. In fact, the stations nevertheless refused to transmit the advertisement. Samuels J. A. said that ``dramatisation'' must be given a fairly broad meaning and that the advertisement was ``exactly the kind of material which the sub-section is designed to exclude''. Street C. J. and Moffitt P. were less confident about what broadcasts come within the sub-section. Furthermore, they were uncertain about whether any individual, such as Mr Fraser in this case, was given any private right by s 116 (2) to obtain an injunction: see also [715]. Moffitt P. said at 1-2 of his judgment:

The proposed telecast and broadcast is of a dialogue by an actor with the applicant, Mr Fraser which, as a whole, is a dramatic representation of an announcement by Mr Fraser as leader of the Opposition in April of this year. The fact that the dramatisation is a false representation of what occurred, does not prevent it from being a dramatisation. The fact that what was represented as being said by Mr Fraser on three occasions in the proposed telecast and broadcast was in fact said by him, albeit on one occasion, does not alter the nature of the proposed publication. The subject matter of the dramatisation was, as I have indicated, an announcement earlier made by Mr Fraser. The subject matter of his announcement at that time was a political matter, and the public announcement of Mr Fraser's attitude as leader of the Opposition itself was a political matter within s 116 (2). The proposed publication is a dramatisation of that last mentioned political matter. It seems to me that this is the type of conduct against which s 116 (2) is directed.

Samuels J. A. considered that the relevant ``political matter'' might be either the fact that the statement was originally made by Mr Fraser or the nature of the principle involved in the statement itself. The nature of ``political matter'' in s 116 was considered by Waddell J. in Attorney-General (NSW) ex rel Clark v Publishing and Broadcasting Ltd [1977] 2 NSWLR 813. In the name of the Attorney-General of NSW an injunction was sought several days before the 1977 federal election to restrain the broadcasting of a programme entitled ``Uranium: Time for a Verdict''. The control of uranium mining was an issue in that election. The programme was cast in the form of a criminal trial. The accused was a scientist who advocated the peaceful use of nuclear power. Numerous witnesses were presented in support of nuclear power. The only evidence against took the form of film clips of an interview with Mr Ralph Nader. Waddell J. did not have to decide whether the programme contravened s 116 (2) because he held that the Attorney-General of a State did not have locus standi [715] to enforce a Commonwealth law. Nevertheless, he was inclined to think that the programme did not contravene. He said that ``political matter could have either a broad meaning or a narrow meaning'': at 815. The broad meaning would include political issues, as Moffitt P. and Samuels J. A. thought it would in Fraser v Combe. The narrow view would confine s 116 (2) to ``the dramatic representation of past or present political events exemplified in speech or action, or of pretended political events'' at 815. Waddell J. said that the sub-section was difficult to understand and that ``possibly it would be unfortunate if the broad view was correct'': at 817. He remarked that ``Parliament may well have expressed a fear in relation to the dramatisation of political matter by broadcasting and television akin to the fear of the Puritans to the playhouse'': at 816. Section 116 (2) has been much criticised in recent years, and the Self-Regulation Report of 1977 recommended its repeal: at 130. However, there has been no indication that repeal is likely.

Joint Select Committee on Electoral Reform-Transcript of Evidence and Committee Report


Senator Sir JOHN CARRICK —Does the Act at present prevent satire or ridicule?

Mr Grey (Australian Electoral Office)-Again, it just comes down to whether it is a dramatisation of any political matter that was current in the last five years. We have been asked, for example, whether Mike Carlton's puppets, which you may have seen, would constitute dramatisation of political matter. Without a great deal of confidence, I must say, we have said: `No, we do not think it does'.

CHAIRMAN-We were talking about that this morning. On what basis would you say that?

Mr Grey-In the appendices to this submission you see the Broadcasting Control Board gave an opinion some years ago as to what it thought would constitute dramatisation of political matter and you see that, perhaps if that were applied literally, situations such as the puppets would be caught. But in recent times, particularly since considering some advice from the Solicitor-General, the Tribunal has felt that the appropriate stance to take is a much narrower one where we are talking about something much more akin to dramatisation of a real event. We have taken that view recently. But I would have to say that if the matter came before a court it is by no means certain that a court would support that particular view.


Senator MACKLIN —But if it were deleted, the Tribunal would see no problems in its work arising from that?


Mr GREY —We are not able to see any at the moment.

Dramatization of Political Matter

3.18 The Broadcasting and Television Act 1942 (s.116(2)) prohibits the dramatization of ``any political matter which is then current or was current at any time during the last 5 preceding years''.

3.19 This section was opposed by witnesses representing media organisations, and by the Liberal Party. Mr C. J. Puplick, a member of the Federal Council of the Liberal Party of Australia, told the Committee that the ban on dramatisation was now outdated and unsupportable (transcript, p. 41). The argument for repeal of this provision is that it is an unwarranted interference with the public's right to information and views. The success and public interest in the recent television series ``The Dismissal'' demonstrates this. A series such as this could not have been shown within the 5 year period of 116 (2).

3.20 The term ``dramatization'' is vague and subject to differing interpretations. Mr Grey was asked whether the use of puppets which are caricatures of public figures, would breach this section. The Australian Broadcasting Tribunal feels that they do not, but noted that this opinion was ``without a great deal of confidence''. Mr Grey acknowledged that if the section were applied literally, situations such as the puppets would be caught, and suggested that the ban could be removed (transcript, p. 58). If problems of misrepresentation of persons in public life occurred, this could best be tackled by fairness standards in broadcasting.

3.21 The problem which s. 116 (2) was directed at occurred some 40 years ago, when the ``John Henry Austral'' radio advertisements used actors whose voices mimicked Labor Party figures. A similar provision which existed in Canadian law has since been repealed, with no apparent difficulties, although the Canadian Radio-Television and Telecommunications Commission retains a power to make regulations about the use of dramatization in political broadcasts.

3.22 Mr McMullen said there was no great demand for change to s. 116 (2), and that its repeal would not lead to any identifiable benefit. In his view there is an opportunity for injustice to occur when candidates are represented in dramatizations in a way which may be politically unfair (transcript, p. 107). The Queensland and Victorian branches of the National Party of Australia also support the present ban, and submitted that the depiction of actual political events in advertising could cause severe problems.

3.23 No evidence was given to propose that the ban be restricted to political advertisements, or to the election period. Such a solution would allow the broadcast of a series such as ``The Dismissal'', within five years of the events depicted, but would retain the protection against misrepresentation during a campaign.

3.24 The Committee believes that there is no justification for retaining the ban on dramatization, even for political advertising and recommends that:

section 116 (2) of the Broadcasting and Television Act 1942 be repealed.

Press Statement

BAN ON RADIO/TELEVISION POLITICAL DRAMA TO END, MINISTER SAYS

A ban on radio and television stations dramatising political events occurring during the immediate preceding period of five years is to be lifted by the Federal Government.

The Minister for Communications, Mr Michael Duffy, announced today the Government's intention to introduce legislative amendments to the Broadcasting and Television Act providing for the ban to be lifted.

The action will implement one of the recommendations of the Second Report of the Joint Select Committee on Electoral Reform, recently accepted by the Government.

``The Government considers the prohibition to be an unwarranted restriction on the rights of stations to broadcast matters in the public interest,'' Mr Duffy said.

Legislative amendments planned to give effect to several Government decisions will be introduced in the forthcoming Budget session by the Special Minister of State, Mr Young.

One of these amendments, implementing another of the JSC recommendations, will require television broadcasters who currently maintain an audio recording of political or current affairs matters for six weeks, to also keep a visual recording.

The Government intends to have the B &T Act amended to give people the right of access to these records, which will include news reports, statements, commentaries and discussions.

``The amendment will provide that access be allowed to the public on payment of a reasonable amount to cover a broadcaster's costs in providing a copy,'' Mr Duffy said. The amount would be prescribed in regulations.

Talks would be held between his Department and the broadcasting industry to determine how the level of charges would be calculated.

On another issue, Mr Duffy said that at present both the Commonwealth Electoral Act and the B &T Act carried provisions concerning identification requirements for political matter broadcast on radio and television. In some cases these requirements differed.

``The Government intends to move to repeal these provisions in the Electoral Act and consolidate and rationalise those in the B &T Act. This will overcome any confusion caused by having different requirements in the two Acts.

Identification requirements included the name of the registered political party, association or corporation, the location of its principal office, and the name, address and occupation of the person responsible for authorising the broadcasting or televising of political matter.

``These changes will bring the relevant legislation into the 1980s and mean that viewers and listeners will be fully able to perceive the content of political current affairs programs broadcast in Australia,'' Mr Duffy added.

The Government planned to have the amendments come into effect during the forthcoming session of Parliament.

24 July 1985