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Chapter Four
This chapter looks at the early years of the Australian Broadcasting Tribunal
participation in Australian broadcast media policy. The chapter focuses upon the
ABT’s first public inquiry into media self-regulation, which led to the Self-
The 1970s saw the forces demanding change in Australian media policy
gradually gain political ascendancy, albeit with interesting twists and turns. In
particular, the period of the Whitlam Labor government from 1972 to 1975 was
public participation and scrutiny, even though it undertook major reforms into the
the 1976 Green Report and the establishment of the Australian Broadcasting
Tribunal in 1977.
for direct public accountability between the broadcasters and the wider
community. It was hoped that such enhanced public participation would improve
was also hoped that such mechanisms could also reduce the need for direct state
regulatory framework.
interest groups from participation, and a growing gap between the formal right of
the ABT to revoke or suspend broadcast licences and their actual tendency to
renew the licences with minimal conditions attached. This negative outcome was
conclusion would, however, lose sight of the extent to which the creation of
engagement with the policy process, as well as a greater focus upon the
By the early 1970s, there were a number of forces for change in media policy in
Australia. These included the politically bipartisan acceptance of the need for
reform campaigns in the wake of the 1963-64 Vincent Report, and a wider
political and intellectual climate where there were demands for greater
The new government established, for the first time in Australian history, a
1972, and Senator Doug McClelland was Australia’s first Minister for the Media.
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Prior to becoming Minister, Doug McClelland had been a member of the Vincent
Committee and the Australian Mass Communications Council, and had stressed
(McClelland 1972). The first Head of the Department of the Media, James Oswin,
saw its most important tasks as being information gathering, informing the public
In their study of the Department of the Media, Wiltshire and Stokes (1976)
note that its principal activities included the establishment of a points system for
granting of new radio licences to public broadcasters, such as ethnic radio, fine
music and public access stations. It also organised seminars on film, television,
Papers on the Australian media, on topics such as ownership and control, audience
access and public broadcasting. The foci of the Department of the Media were
upon promoting diversity, access and pluralism in Australian media. They were
similar to the central issues that were emerging from the Senate Standing
Committee on Education, Science and the Arts in its inquiry into Australian
broadcasting, which was established in 1972 (prior to the election of the Whitlam
Labor government). The Senate Select Committee had come to focus in its
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policy; the associated need for professional and independent research into
policy; and the need to promote structural diversity as the basis for pluralism in
The Department of the Media was subject to criticism from many sides
during its brief period of existence, before being abolished in 1976 by the Fraser
history of much more cordial dealings with the ABCB, perceived the new
(Melbourne) argued that ‘the Department of the Media had made our lives more
difficult than they ever were before, unnecessarily so. They are constantly
questioning what we are doing. We have to justify ourselves and our existence
and virtually everything we do’ (quoted in Wiltshire and Stokes 1976: 13). Such
an account of the new Department from within the media is similar to the
What needs more explanation is the discontent with its performance that
existed among media reformers, and the left more generally. An article from an
observed that the Department staff lacked ‘a working knowledge of public service
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Journalist 1976: 22). Patricia Edgar, a prominent media reform activist, critiqued
Doug McClelland left his ministry in June 1975 without altering policies
monopolies which had dominated our film industry for years, the
monopoly control over the press, radio and television. He made no move
towards public licence renewal hearings; he did not act to investigate the
incongruous, given the amount of change which occurred during its three years in
the development of new ABC programming and services such as 2JJ in Sydney
and 3ZZ in Melbourne (the latter was closed down in 1977). Such changes were
considerably greater than the amount of change that had occurred under 23 years
reformers of the Whitlam period generally a negative one, with the era seen as a
The answer may lie in part with the rise in the non-Labor left in this
period, who saw the modest reformism of the Whitlam Labor Government as
would presume, however, that the non-Labor left had a well-defined set of
alternative media policies in this period, which they largely did not. It is also
worth noting that, during this period, the energies of many media reformers turned
link to a wider concern about the scope for public participation in decisions
concerning the media in Australia. One of the problems with the Department of
the Media was that, even if it delivered more of the outcomes that the media
to widen involvement in the policy process. Two ironies of media policy in the
period immediately following the fall of Labor in 1975 were that the most
persuasive arguments for participation came from a report that was the product of
minimal public participation, and that the report from which these arguments
Malcolm Fraser.
On 13 April 1976 the Minister for Posts and Telecommunications, Eric Robinson,
Green. While some believed that the Green Report was established primarily ‘to
redress the Whitlam years’ (New Journalist 1976: 15), the Green Report was
evaluated more favourably upon its release, with media critics observing that it
was ‘the most original and best integrated analysis of our broadcasting system
ever produced’ (Armstrong 1977a: 40). The Green Report placed four issues at the
social and cultural goals; the resulting need for ‘a much higher level of public
from those functions relating to programming and content; and the view that
matters relating to programming and content should ‘be removed from the direct
6).
special interest and minority groups as well as those of the mass audiences
... This implies diversity of outlets in terms of stations operating within the
The Green Report argued that the rationale for government regulation of
broadcasting arose from the fact that ‘the public owns the airwaves’, and that
‘since frequencies are scarce, and the broadcast media are influential, to
with it an obligation to provide the public with programs which meet the
emphasis added).
process should be a fair and open one, amenable to public participation and public
established, which would hold public inquiries into the granting and renewal of
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licences, setting minimum standards for programming, and would have the power
licensees as provided in the Broadcasting and Television Act. The Tribunal would
the proposed ABT loomed as a complex issue, the Green Report recommended
that the Tribunal should ‘err on the side of generosity in granting access to its
proceedings’, and should minimise legalism and formality in the conduct of its
hearings. The question of legal standing, and the possibility of maintaining ‘soft
have ‘teeth’ in its dealing with broadcast licensees, would prove to be a sticking
point two years later when the ABT conducted its first licence renewal hearings.
regulation. The Report argued for devolving powers over program standards away
area of program standards on the grounds that, since Australia is a diverse society
responsible behaviour on the part of broadcasters. The Green Report also noted
that self-regulation was also the preferred option of organisations representing the
In the Green Report, we find arguments for two very different approaches
Such statements exist alongside arguments for the value and necessity of
minimising government control over broadcast media, and claims that market
relations can in fact be most consonant with the recognition of diversity, pluralism
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and individual choice. In the Report, the two arguments are applied to different
program content. The ability to demarcate between these areas was shared by
on ‘matters of taste’ and strong regulation in the area of Australian content (New
Journalist 1977). But the subsequent inquiry by the ABT into the issue of self-
regulation for broadcasters, recommended by the Green Report, would show that
when combined with a belief that governments should get out of detailed
replacing the Australian Broadcasting Control Board. Its first public inquiry was
programming, and programs dealing with religious and political issues. The
Inquiry received 539 written submissions, and the three Tribunal members,
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Strickland, conducted public hearings in every Australian capital city over a four
month period. The Tribunal chose not to cross-examine the 292 witnesses who
appeared before it, believing that the public inquiry process could tap directly into
What became apparent during the Inquiry was that industry self-regulation
industry, with virtually all community, church, political, trade union and
regulation. This created a difficulty for Tribunal members, and certainly for the
Chair, Bruce Gyngell, who had an ‘in principle’ predisposition towards supporting
no regulation, and that there was a fear that the ABT was ‘canvassing the
Tribunal 1977: 7). Defending itself from such an allegation, the Tribunal’s Final
the majority of the Tribunal do not believe that the broadcasting industry
has shown itself, either through its past performances, or in its current
at once. We do not believe that they have convinced the public that they
are yet willing to put the public interest above their self-interest at all
times. In other words, we are not persuaded that the broadcasters will
always act in accordance with the concept of the ‘public good’, if, by so
doing, they cut across their own interests and diminish their profits.
for an official agency to control the grant and renewal of licences and
public trust. The Tribunal also considers that it has an obligation, at least
The hope that the government regulator might wither away over time,
allowing for direct dialogue between broadcasters and public interest advocates,
was testimony to the inherent value placed upon dialogue and the power of moral
years. In a later interview, Bruce Gyngell argued that the idea behind the concept
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(The Gyngell Tapes 1984). What is notable about the Tribunal’s advocacy of
which the Tribunal had come to value process, almost regardless of outcomes, as
expression of the popular will. In his closing statement to the Inquiry, ABT Chair
the Government, the fact that the industry has been directly confronted
with the public’s view is in some ways a sufficient reward. We feel that
(Gyngell 1977)
The airwaves belong to the people. Station managements are loaned the
airwaves to enter our homes as our guests. For this privilege the stations
Light 1977)
The large (539) number of submissions to the ABT Self-Regulation Inquiry can be
seen as indicative of frustration with the closed nature of the ABCB’s decision-
ranged far and wide. Nonetheless, a recurring theme of submissions was that of
trade union and educational groups opposed self-regulation, and implicit in such
opposition was what has been described in this thesis as the social contract
argument: the nature of the airwaves as a public asset, held in public trust by
influences of the public and its representative organisations. For some, such as the
Socialist Party of Australia (Brown and Harris 1977) and the NSW Branch of the
unlikely socialist Trojan horse, such sentiments were shared by groups as diverse
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as the Australian Festival of Light, the Victorian Branch of the Australian Labor
Party (ALP 1977), the Church of England Diocese of Sydney (Church of England
Stations (FACTS) argued that self-regulation would not lead to less regulation, but
rather to better regulation, since the best forms of regulation would be developed
when there was a direct relationship between broadcasters and the community,
rather than through government third parties (FACTS 1977: 4). FACTS proposed
that when codes are the outcome of a process developed by the industry itself, in
responsible broadcaster ... [will] feel that if he complies with the industry codes,
responsible licensee’ (FACTS 1977: 19-20). While these arguments were not to
prevail at the 1977 ABT Inquiry, similar arguments would form the basis for the
Consumers Association, which put forward four arguments against industry self-
regulation (ACA 1977). First, the ACA believed that any standards developed on a
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consensus basis within the industry would be at the lowest level acceptable to all
made against the same group of people who were required to adjudicate on the
ACA used the Australian Press Council as a case study in the failure of industry
self-regulation, arguing that it had provided for ‘no redress ... to consumers and no
except for the possibility of some publicity being given to the Council’s findings’
(ACA 1977: 4). Such criticisms echoed later arguments by O’Malley about the
Australian Press Council, that it had functioned less as a regulatory agency than as
Association of Australia, the TV - Make It Australian group, and the Film and
introduction of a 75 per cent local content quota for commercial television, and
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Underpinning these claims was the argument that broadcast frequencies are
publicly owned assets, that commercial broadcasters benefit from the barriers to
entry associated with spectrum scarcity, and that in the absence of strong
The economic interests of the television stations are inevitably against the
and, in particular, of drama content because they can make more money
standards set down for minimum Australian content in all areas, but
particularly in the drama and high-cost variety areas, then the stations will
The ABT’s Final Report found that Australia’s commercial broadcasters did not
possess sufficient public trust to be expected to act in the public interest and that,
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as a result, there was a need for ongoing broadcasting regulation in the public
interest. The majority of Tribunal members concluded that ‘in the most
manner similar to the Green Report, the ABT Final Report expressed the hope that
The way in which the Tribunal sought to resolve this apparent tension was
broadcasting industry would be ‘regularly and directly confronted with the views
of those whom it serves’ (Australian Broadcasting Tribunal 1977: 17). The role of
the Tribunal in such a schema would be less that of a regulator and more of a
following public hearings, it expressed the hope that its role may wither away
over time, and that it may play the ‘nightwatchman’ role in a more directly open
clarity in defining either the practicalities of public participation or the scope for
that while the Report’s stress upon public accountability was seen as a victory for
the broadcasting reform groups, there was a notable lack of thinking through the
performance was … unclear in terms of what it would include and the degree of
1986: 60).
inform public licence renewal hearings, the Tribunal had given little consideration
about the scope for public intervention in the conduct of commercial broadcasters
that was made possible by the licence renewal process. In spite of the rhetorical
outside the formal political sphere’ (Dunleavy and O’Leary, 1987: 327-328), the
public participation, through its interpretation of the legal and procedural issues
posed in the licence renewal process. These concerns were raised when the Report
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was released for public comment. The South Australian Council for Children’s
Films and Television expressed concern about the extent to which ‘the proposed
system places too much onus on the public to maintain acceptable program and
and the legally binding nature of its decisions, and the refusal to implement
problems with the Inquiry process from a legal point of view: the inability to
cross-examine witnesses; the fact that most submissions were not presented as
sworn evidence; and the limit placed upon the number of witnesses appearing on
behalf of the industry. A ‘turn to legalism’ was thus always implicit in the public
licence renewal process, even if the Tribunal did not adequately address its
Legislative changes to the Broadcasting and Television Act arising from the
with the two principal changes being the transfer of licensing powers from the
Minister to the Tribunal, and the decision to grant broad discretionary powers to
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the Tribunal in its decisions on licence renewal. ABT Chair Bruce Gyngell
indicated that, through the licence renewal process, ‘the public will be able to
directly confront the broadcasters with their wishes at public hearings’ (Gyngell,
generally argues that they were a failure. Hawke (1993) argues that the 1978
magnificent moment’, but that the Sydney hearings of 1979 marked the ‘turn to
legalism’ which would prove fatal to the vision of licence renewal hearings as the
(Harrison 1986: 6)
Others involved in the hearings believe that the movement for public
participation never recovered from the turn to legalism. Julie James Bailey
believes that ‘the lawyers took it over in 1978’, with the result being that ‘the
general public got fed up’.3 Mark Armstrong has also noted that legalism was not
the only problem, since ‘an unseen factor was the hostility of the major
see this process not working’. Armstrong also observed that ‘non-lawyers get
more legalistic than lawyers when they're put in a situation where there's some
in public … not an adversarial process with a judgement, but with the people who
were making decisions sitting there listening to those affected and then making
their decisions’.4
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Adelaide in 1978, at short notice for licensees and other participants, and were
57 written public submissions were regarded as ‘relevant’ under the Act, and all
48 applicants to give evidence were considered to have an ‘interest’ under the Act,
even though only four submissions specifically addressed the performance of the
Adelaide licensees under review (Hawke 1993: 26-27). In spite of the Tribunal’s
hearings, three problems became apparent in the course of the 1978 Adelaide
hearings that would ultimately lead to the breakdown of the process. First, there
quasi-judicial status of the Tribunal as the licensing authority and its attempts to
notes that Gyngell frequently sought to substitute his own charismatic authority
for legal authority, noting that he ‘never behaved remotely like a judge, but more
like a compere of a large social gathering’, and that often ‘he answered questions
for the stations, instead of requiring them to answer’ (Harrison 1986: 162).
media policy issues. They took the view that such criticisms were of ‘television’
or ‘the industry’ as such, rather than the licensee under review, and therefore felt
the Adelaide inquiries found that they lacked clarity in a number of respects, most
notably a lack of prior planning, failure to set standards for the assessment of
licensee performance prior to the inquiry, and a reluctance to define what forms of
195).
While public participants and interest groups had concerns about the
conduct and outcomes of the Adelaide hearings, their overall view was that the
value of the process lay more in the opportunities to present concerns about
imposing sanctions upon the relevant licensees, with the role of the Tribunal being
less that of a judge and more that of a facilitator or mediator in a public forum
from the Adelaide hearings with a strong view that the Tribunal was ‘against’
them. Tony Branigan, who later became the Chair of FACTS, believed that the
process was ‘confrontational’, and ‘a fairly sterile, time wasting exercise, which
didn’t really further any significant regulatory or public interest objective’, other
everyone’s time, and providing the illusion that public groups were having a
significant say’.5
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The Sydney licence renewal hearings of 1979 saw the collapse of the open,
Tensions between the ‘public trust’ and ‘private property’ aspects of broadcast
licenses came to a head, with both the licensees and some public interest groups
legal nature of the process. The drama of the hearings was further heightened by
police action against public participants, and the resignation of Janet Strickland
from the Tribunal. From the public interest perspective, divisions were emerging
between those who were associated with umbrella groups such as Actors’ Equity
and the Australian Commercial Law Association, and those who were not, as well
as between those who were seeking formal legal representation at the hearings
and those who lacked the funding and resources to be involved on an ongoing
basis.
renewal hearings into the three Sydney commercial stations were the scope of the
‘interested parties’. The broad definition of ‘interest’ which had been allowed to
operate at the Adelaide hearings was progressively narrowed, with the number of
applicants accepted at the TEN-10 hearing (Harrison 1986: 221, 224, 243, 247,
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263). Hawke notes that the groups accepted as interested parties at the TCN-9 and
TEN-10 inquiries, such as the Parents’ and Citizens’ Committee, the Festival of
Light, the Australian Labor Party and Freedom from Hunger, had drawn upon
legal advice, and were perceived by the Tribunal to ‘clearly represent mainstream
social and moral values’ and to constitute ‘representative interests’ (Hawke 1993:
35).
By the early 1980s, licence renewal hearings were seen by media reformers
as ‘gripe sessions’, ‘a ritual,’ and ‘just another clogged and prevaricating filter
between the public and the stations’ (quoted in Harrison 1986: 410). Further, the
government that ‘the Tribunal was a “lost” regulator, unsure of quite what it was
looking at, or for, in its review of the stations’ performance’ (Harrison 1986: 276).
pointed to major problems with the way in which the Tribunal had conducted
more general issues of standards or media policies. In short, there was pressure on
the Tribunal to be seen to get its procedures right. After 1980, the ABT adopted a
less erratic and more legalistic approach to proceedings than had been the case in
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1978-79. The new ABT Chair, David Jones, had significantly reinterpreted the
“assistance” but did not see the hearings as a forum for matters of social change or
for changes in regulation of television’ (Hawke 1993: 41). Harrison noted the
declining number of public participants, and said that ‘those who remained were
(Harrison 1986: 419). Harrison concluded that the 1982 Sydney inquiries,
compared with those of 1979, were more formal, legalistic and ‘streamlined’ in
in which the public participants were ‘uniformly unhappy with the process …
[and] felt the Tribunal was dismissive and not interested in what they had to say,
and the primacy of the commercial interests of the licensees, was an inevitable
rude awakening for those harbouring reformist illusions about public participation
in media policy in the 1970s. It could also be claimed that arguments for public
making were so flawed that any attempt to implement them was bound to end in
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tears. What was apparent in the Tribunal’s license renewal hearings in 1978-1979
was that there was a lack of attention to forms and procedures of participation in
that one of the conditions for regulatory agencies to exercise ‘soft legalism’ over
competition.
part from the sense that modern forms of governance, based upon the deployment
of expert knowledge and instrumental reason. There was also the sense that
push for public participation was intended to redress the balance of power
collective fate in a more direct and transparent fashion, moving from ‘passive’ to
Sandercock interprets demands for participation as arising from ‘the demand for
some say in decisions, particularly those decisions which affect the immediate
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environment’ (Sandercock 1983: 79-80). Observing that ‘the demand for public
participation in planning has become the great populist red herring of the 1970s in
effective means of radical social change: it often has the opposite effect.
making: all the procedures of participation so far tried are biased towards
important points have been ignored, such as: the dependence of effective
participation upon some prior form of collective organisation; the different values
and material interests brought to bear upon such processes by their various
concludes that the experience of participation initiatives shows that ‘it is irrelevant
at the level of major policy issues’ and ‘irrelevant to the struggle of the poor for
fairer shares... in this society’ (Sandercock 1983: 87-88). The principal purposes
that the ABT could use its legal authority to try to negate its regulatory power, by
information flows from the Tribunal about the licensees, which either did not exist
or failed to materialise for the early hearings. Finally, the failure of the Tribunal to
themselves, would itself create uncertainty and, within a fairly short period,
Tribunal never adequately linked its policy and regulatory roles with its licensing
its conduct. Harrison also notes that the decline in participation after 1979 also led
less like a broad public inquiry, hearing from a range of affected interests
612).
‘more honest and humane’ (Sandercock 1983: 88). Hawke observes that, by the
time of the 1984 licence renewal hearings, some of those who had been involved
in such processes as media reform activists, such as Mark Armstrong, Julie James
Bailey and Ray Watterson, were now Tribunal members. This in turn led to a
programming decisions were reached’ (Hawke 1993: 46). There was also growing
recognition of the links between licence renewal hearings and broader policy
could be said to reflect awareness among past participants of the limits of the
participation, as:
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The groups which remained involved in the process have developed skills
benefit to them has been the increase in experience, political expertise, and
political act, and that goals are best achieved through collective forms of
organisation and the cultivation of necessary skills and resources, then this can be
seen as a positive outcome of the public licence renewal inquiry process. The fact
A significant lesson for the reformers from the renewal process would be
that they should frame future reform demands in more specific and
quantifiable terms. If the reformers had pushed for changes which were
clear-cut and measurable, they may have been more successful. While a
public profile of the early licence renewal inquiries, it may have achieved
more substantial reforms in the long run. The open-ended nature of the
renewal process too easily obscured whether or not anything had really
Conclusion
through campaigns based on the assumption that the airwaves were a form of
the public as citizens about appropriate uses of such public property. The 1976
Green Report and the 1977 Self-Regulation Inquiry held by the newly established
media, which are reflective of broader concerns about the gap between formal
societies, three problems became apparent. First, by seeking to give the public a
real voice in the regulatory process, the ABT was breaking with the traditional
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The policy process had evolved in these sectors usually entailed minimal external
scrutiny over the regulated industry, aside from occasional instances of what has
policy culture had developed where regulatory agencies and private institutions
status quo. The ABT challenged this to some degree, but probably underestimated
the entrenched nature of such a policy culture. Second, insofar as the ABT was
change through public processes such as licence renewal hearings was limited by
the tendency to assume that ‘the public’ could constitute an entity able to be
mobilised through public processes. An implicit, and flawed, assumption was that
the regulatory agency could play a passive, brokering role in the engagement of
broadcasters with ‘public opinion’ in its various forms in open and public
consequence was to exclude all but well-organised interest groups from the
While the rise and fall of public participation in broadcast media policy
formation through public licence renewal hearings was at one level a failure, one
among those with an ongoing interest in the filed. Valuable skills in participation
were acquired by those involved in the hearings, and, as the focus of the ABT
shifted in the 1980s from an emphasis on participation per se, to more ongoing
involved in the licence renewal hearings of the 1970s and early 1980s would play