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Chapter Four
The Rise and Fall of Public Participation?
Broadcast Media Policy and the Australian
Broadcasting Tribunal 1972-1982
This chapter looks at the early years of the Australian Broadcasting Tribunal
(ABT), established in 1977 with an explicit remit to promote greater public
participation in Australian broadcast media policy. The chapter focuses upon the
ABTs first public inquiry into media self-regulation, which led to the Self-
Regulation for Broadcasters report (ABT 1977), and on the capacity of
subsequent the licence renewal hearing process to promote public participation as
a means of realising citizenship goals in relation to broadcast media.
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
largely seen by policy activists as failing to open up commercial media to greater
public participation and scrutiny, even though it undertook major reforms into the
structure of Australian media, particularly in strengthening Australian content
regulations and promoting community broadcasting. By contrast, the early period
of the Fraser Liberal-County Party government established the discursive and
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institutional conditions for promoting public participation, particularly through
the 1976 Green Report and the establishment of the Australian Broadcasting
Tribunal in 1977.
The ABTs Self-Regulation Inquiry in 1977 engaged a wide cross-section
of individuals, organisations and groups, and led to the establishment of public
licence renewal hearings for commercial broadcasters as the principal mechanism
for direct public accountability between the broadcasters and the wider
community. It was hoped that such enhanced public participation would improve
Australian commercial broadcasting by opening it up to greater public scrutiny. It
was also hoped that such mechanisms could also reduce the need for direct state
regulation of commercial broadcasters, allowing the ABT as a regulatory agency
to play the role of nightwatchman in a more directly open and participatory
regulatory framework.
The subsequent history of licence renewal hearings revealed the
limitations of this political utopianism, as the hearings came to be increasingly
characterised by legalistic formalism, the exclusion of all but a few organised
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
to some degree an inevitable consequence of unrealistic expectations placed upon
public participation as a panacea to the problems of institutional power. Such a
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conclusion would, however, lose sight of the extent to which the creation of
opportunities to participate in broadcast media policy formation led to the
emergence of organised interest groups capable of a more sustained and ongoing
engagement with the policy process, as well as a greater focus upon the
relationship between specific policy occasions, such as licence renewal hearings,
and broader policy formation and regulatory processes.
A False Dawn: The Whitlam Labor Government and the
Department of the Media
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
government support to develop a local film industry, the emergence of media
reform campaigns in the wake of the 1963-64 Vincent Report, and a wider
political and intellectual climate where there were demands for greater
participation and openness in political decision-making, combined with a renewed
cultural nationalism. The election of the Whitlam Labor government in December
1972, after 23 years of conservative governments, was both a reflection of these
changes and a further impetus for change.
The new government established, for the first time in Australian history, a
Department of the Media. This Department was established on 19 December
1972, and Senator Doug McClelland was Australias 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
the importance of Australian content quotas in television, and accountability on
the part of commercial broadcasters on the basis of their holding of licences
(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
of its rights in relation to broadcast media, and establishing an Australian look
for all aspects of the media.
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
Australian content in areas such as drama on commercial television, and the
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,
audiovisual media and public broadcasting, and produced a series of Working
Papers on the Australian media, on topics such as ownership and control, audience
involvement with programs, employment in the film and TV industries, public
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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inquiry upon: how to promote greater public participation in broadcast media
policy; the associated need for professional and independent research into
Australias media; the need for a focus on social considerations in broadcasting
policy; and the need to promote structural diversity as the basis for pluralism in
programming (Commonwealth of Australia 1974).
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
Liberal-Country Party government. The broadcasting industry, accustomed to a
history of much more cordial dealings with the ABCB, perceived the new
Department to be hostile to it. David Hall, General Manager of Channel 0
(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
Melbourne Ages 1975 assessment of the Department of the Media as a
regrettable error (quoted in Wiltshire and Stokes 1976: 15).
What needs more explanation is the discontent with its performance that
existed among media reformers, and the left more generally. An article from an
anonymous former Department member, published in New Journalist in 1976,
observed that the Department staff lacked a working knowledge of public service
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management, and seemed to make little progress in developing policy (New
Journalist1976: 22). Patricia Edgar, a prominent media reform activist, critiqued
Doug McClellands performance as Minister for the Media in these terms:
Doug McClelland left his ministry in June 1975 without altering policies
he had denounced for many years as an opposition Senator: the foreign
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
feasibility of Labors proposed newspaper commission; he left no coherent
broadcasting policy and in fact resisted its development because of
political and departmental infighting. (Edgar 1979: 220)
Such negative assessments of the Whitlam Labor government seem to be
incongruous, given the amount of change which occurred during its three years in
office, including: stronger Australian content regulations; establishment of FM
radio licences; promotion of public/community radio and ethnic broadcasting; and
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
of Liberal-Country Party governments. Why, then, is the assessment of media
reformers of the Whitlam period generally a negative one, with the era seen as a
time of missed opportunities?
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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
inadequate in light of possibilities for more radical political transformation. 1This
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
away from changing the commercial broadcasting sector to developing the
emergent third sector of community broadcasting. But both strands of critique
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
reformers wanted, it was nonetheless seen as a top-down institution not willing
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
came was initiated by the Liberal-Country Party Coalition government, led by
Malcolm Fraser.
The Green Report: Two Philosophies of Regulation?
On 13 April 1976 the Minister for Posts and Telecommunications, Eric Robinson,
announced an inquiry into the broadcasting and television industry, to be chaired
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by the permanent head of the Department of Post and Telecommunications, Fred
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
centre of its approach to issues related to broadcasting: a growing focus upon
social and cultural goals; the resulting need for a much higher level of public
participation and involvement in policy formation and implementation; the need
to distinguish the technical, structural and operational aspects of broadcasting
from those functions relating to programming and content; and the view that
matters relating to programming and content should be removed from the direct
influence of the Government (Parliament of Commonwealth of Australia 1976: 1-
6).
In articulating a philosophy for the Australian broadcasting system, the
Green Report established structural diversity as a central principle, alongside
freedom to communicate, a system that informs and educates as well as entertains
and the promotion of local programming. It related diversity of interests and
opinions in the community to the necessity for a diversity of broadcasting types,
and it strongly emphasised the role which community or public broadcasting
could play in promoting such diversity:
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The effectiveness and value of a broadcasting system rests in its
programming output. Insofar as Australian society is diverse, and
encompasses a wide variety of interests, tastes and needs, so the
broadcasting system should attempt to provide, within the framework of
economic feasibility, a diversity of services to satisfy the requirements of
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
national, commercial and public sectors, and a diversity of both ownership
and funding methods within those sectors. (Parliament of the
Commonwealth of Australia 1976: 38, 39)
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
grant a broadcasting licence is to bestow a privilege. This privilege carries
with it an obligation to provide the public with programs which meet the
standards it expects (Parliament of the Commonwealth of Australia, 1976: 44-
emphasis added).
One implication of this philosophy of broadcasting was that the licensing
process should be a fair and open one, amenable to public participation and public
scrutiny. To this end, it recommended that the Australian Broadcasting Tribunal be
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
to grant, renew, suspend or revoke licences, as well as impose penalties upon
licensees as provided in the Broadcasting and Television Act. The Tribunal would
be a quasi-judicial body, independent of the Minister and responsible to
Parliament as the communitys representative. While the quasi-judicial nature of
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
legalism while simultaneously establishing a regulatory agency which would
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.
The Green Report distinguished between licensing and the setting of
minimum standards, particularly in the areas of Australian content and
advertising, which would be administered by the ABT and subject to public
participation, and program standards generally, where it favoured industry self-
regulation. The Report argued for devolving powers over program standards away
from government and towards industry. It preferred industry self-regulation in the
area of program standards on the grounds that, since Australia is a diverse society
with no singular or homogeneous set of values and allegiances, it would
therefore be appropriate, especially in an area so crucial to the formation and
dissemination of ideas as broadcasting, to fashion procedures for regulating the
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behaviour of broadcasters which maximise freedom of choice (Parliament of the
Commonwealth of Australia 1976: 83). Moreover, self-regulation had the
potential to reduce administrative costs and complexity, and encourage more
responsible behaviour on the part of broadcasters. The Green Report also noted
that self-regulation was also the preferred option of organisations representing the
national, commercial and public broadcasting sectors.
In the Green Report, we find arguments for two very different approaches
to the regulation of television program content. It presents one of the strongest
arguments found in Australian broadcasting policy for the collective public
ownership of the airwaves, and the resulting necessity of making commercial
broadcasters accountable through open processes of public participation. The
purpose of the Inquiry was seen as establishing:
how the people of Australia can best participate in and achieve a
satisfactory degree of collective control over broadcasting on the basis that
such participation is seen as a means of preserving and strengthening the
social, economic and political fabric of Australia (Parliament of the
Commonwealth of Australia 1976: 1).
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
domains of regulation, with the former applied primarily to the principles of
ownership of broadcasting licences, and the latter applied to the regulation of
program content. The ability to demarcate between these areas was shared by
some commentators, such as the New Journalist, which favoured self-regulation
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
it was difficult to hold simultaneously to these two philosophies, particularly
when combined with a belief that governments should get out of detailed
regulation and leave outcomes to competing parties.
The 1977 ABT Self-Regulation Inquiry
The Australian Broadcasting Tribunal was established on 1 January 1977,
replacing the Australian Broadcasting Control Board. Its first public inquiry was
into the regulation of broadcasting, with particular reference to the question of
self-regulation (Australian Broadcasting Tribunal 1977). The Terms of Reference
of the Inquiry required it to look into whether broadcasters themselves should be
responsible for setting and maintaining standards in areas such as advertising,
Australian content, the use of Australian creative personnel, childrens
programming, and programs dealing with religious and political issues. The
Inquiry received 539 written submissions, and the three Tribunal members,
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Chairman Bruce Gyngell, Vice-Chairman James Oswin and member Janet
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
public opinion, unfiltered through bureaucracy.
What became apparent during the Inquiry was that industry self-regulation
was supported almost exclusively by the bodies representing the broadcasting
industry, with virtually all community, church, political, trade union and
educational groups, as well as almost all individual submissions, opposing self-
regulation. This created a difficulty for Tribunal members, and certainly for the
Chair, Bruce Gyngell, who had an in principle predisposition towards supporting
industry self-regulation in the area of program standards. The ABT expressed
concern that, in many submissions, self-regulation was seen as synonymous with
no regulation, and that there was a fear that the ABT was canvassing the
possibility of abolishing all rules for broadcasters (Australian Broadcasting
Tribunal 1977: 7). Defending itself from such an allegation, the Tribunals Final
Report argued that total self-regulation for the broadcasting industry is a
worthwhile and attainable goal, but pointed out that:
the majority of the Tribunal do not believe that the broadcasting industry
has shown itself, either through its past performances, or in its current
submissions to us, capable of grasping the whole nettle of self-regulation
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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.
(Australian Broadcasting Tribunal 1977: 9-10)
The Tribunal proposed public participation, or the philosophy of direct
public accountability, as the way of dealing with this tension:
The philosophy of direct public accountability is the basis of our approach
to the regulation of broadcasting. There will, of course, always be a role
for an official agency to control the grant and renewal of licences and
maintain a power of ultimate sanction over broadcasters who betray the
public trust. The Tribunal also considers that it has an obligation, at least
as an interim measure, to assist the public, and broadcasters, to develop
and maintain mechanisms to encourage the exercise of a system of
accountability. (Australian Broadcasting Tribunal 1977: 17)
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
exhortation characteristic of the Australian Broadcasting Tribunal in its early
years. In a later interview, Bruce Gyngell argued that the idea behind the concept
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of licence renewal was to encourage people to lift their sights philosophically
(The Gyngell Tapes 1984). What is notable about the Tribunals advocacy of
public licence renewal hearings for commercial broadcasters is the extent to
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
Bruce Gyngell stated:
Regardless of the content of our report or the nature of its reception by
the Government, the fact that the industry has been directly confronted
with the publics view is in some ways a sufficient reward. We feel that
no matter what structure is finally devised for the regulation of
broadcasting, there will be a need for regular, general public inquiries of
this nature to maintain the accountability of broadcasters to the public.
(Gyngell 1977)
Arguments For and Against Self-Regulation at the ABT Inquiry
The airwaves belong to the people. Station managements are loaned the
airwaves to enter our homes as our guests. For this privilege the stations
are required by law to abide by a set of regulations. (Australian Festival of
Light 1977)
Television frequencies are a publicly owned asset. Their utilisation is
licensed by the Government, on behalf of the community, to organisations
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who automatically and statutorially assume the responsibility of ensuring
that the best interests of Australians are served. In recompense for
assuming this responsibility, licensees enjoy an absolute barrier to entry
into their industry and the consequential restrictions on competition. (TV:
Make It Australian Committee 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 ABCBs decision-
making processes. Although the Inquirys Terms of Reference sought to limit
submissions to the question of self-regulation, the issues raised in the submissions
ranged far and wide. Nonetheless, a recurring theme of submissions was that of
opposition to industry self-regulation. Virtually all community, religious, political,
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
private licensees, makes broadcasters legitimately subject to the controlling
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
Australian Telecommunications Employees Association (Cooper 1977), the
principle of establishing collective control over broadcasting, as described in the
Green Report, was extended to an argument for the nationalisation of the
commercial television services. Lest the Green Report be understood as an
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
1977), and ten Victorian Liberal MLCs (Guest 1977).
Industry self-regulation was favoured by representatives of the commercial
broadcasters, advertisers, program distributors and the Australian Journalists
Association (AJA 1977). The Federation of Australian Commercial Television
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
consultation with the ABT as the guarantor of code compliance, then a
responsible broadcaster ... [will] feel that if he complies with the industry codes,
he can be confident that he is also meeting the Tribunals definition of a
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
development of self-regulatory codes fifteen years later, under the Broadcasting
Services Act1992.
A significant critique of self-regulation was presented by the Australian
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
industry participants. Second, sanctions applied by such a body would tend to be
more notional than real. Third, enforcement or adjudication of standards would
necessarily involve a conflict of interest within the industry, as complaints are
made against the same group of people who were required to adjudicate on the
complaint. Fourth, consumer representation on such bodies was likely to be
minimal in terms of decision-making and absent in terms of policy-making. 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
sanctions imposed for breaches of the Councils Statement of Principles,
except for the possibility of some publicity being given to the Councils findings
(ACA 1977: 4). Such criticisms echoed later arguments by OMalley about the
Australian Press Council, that it had functioned less as a regulatory agency than as
a pseudo-regulatory agency, presenting the appearance of mechanisms for
complaint and redress but without a willingness or capacity to exercise punitive
action in cases of adverse findings, or as a counter-regulatory agency, acting as a
barrier to significant action in the policy sphere (OMalley 1987).
The Inquiry saw the further development of a coalition of interests
supporting Australian content quotas. The Actors and Announcers Equity
Association of Australia, the TV - Make It Australian group, and the Film and
Television Producers Association of Australia all argued for the phased
introduction of a 75 per cent local content quota for commercial television, and
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immediate increases in drama and childrens drama quotas, to be enforced by law.
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
regulation, these broadcasters will systematically undersupply locally produced
material, particularly in higher-cost areas such as drama, in order to maximise
monopoly profits. The Film and Television Production Association of Australia
put the argument in these terms:
The economic interests of the television stations are inevitably against the
production of Australian programmes and of Australian content generally
and, in particular, of drama content because they can make more money
by buying overseas programmes. Therefore, unless there are stringent
standards set down for minimum Australian content in all areas, but
particularly in the drama and high-cost variety areas, then the stations will
inevitably downgrade the amount of time given to Australian content and
upgrade the amount given to overseas content. (Film and Television
Production Association of Australia 1977)
Assessing the ABT Self-Regulation Report
The ABTs Final Report found that Australias 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
contentious and difficult areas of broadcasting - childrens programs, Australian
content and advertising binding obligations should continue to be placed upon
broadcasters (Australian Broadcasting Tribunal 1977: 10).2 Nonetheless, in a
manner similar to the Green Report, the ABT Final Report expressed the hope that
industry self-regulation would, over time, develop as an effective alternative to
direct government regulation.
The way in which the Tribunal sought to resolve this apparent tension was
through promoting the concept of direct public accountability, through the
mechanism of public licence renewal hearings. Under such a framework, the
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
facilitator of ongoing engagements between the broadcasters and the public.
While the Tribunal sought to be empowered to conduct public hearings into
broadcasting, and to have the capacity to grant, suspend or revoke licences
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
and participatory regulatory framework.
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The stress upon public participation as the means of both democratising
and improving Australian commercial television was not, however, matched by
clarity in defining either the practicalities of public participation or the scope for
its operations in determining broadcaster performance. Kate Harrison observed
that while the Reports stress upon public accountability was seen as a victory for
the broadcasting reform groups, there was a notable lack of thinking through the
practicalities of the process. In particular, Harrison notes that the promise of
performance was unclear in terms of what it would include and the degree of
specificity with which the licensees intentions would be presented (Harrison
1986: 60).
In promoting a participatory framework and a non-legalistic ethos to
inform public licence renewal hearings, the Tribunal had given little consideration
to procedural issues such as legal representation, cross-examination and legal
standing. As a result, in Harrisons view, unrealistic expectations were created
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
commitment to the devolution of power, or what Dunleavy and OLeary describe
as the cipher image of state agencies as a passive mechanism controlled from
outside the formal political sphere (Dunleavy and OLeary, 1987: 327-328), the
Tribunal would in fact hold considerable power in determining the extent of
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 Childrens
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
advertising standards (South Australian Council for Childrens Films and
Television 1977). The Federation of Australian Radio Broadcasters (FARB)
pointed to contradictions between the juridical formalism of Tribunal procedures
and the legally binding nature of its decisions, and the refusal to implement
standard juridical procedure in its processes in order to facilitate maximum levels
of public participation (FARB 1977). In particular, FARB pointed to three
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
implications until licence renewals commenced.
Licence Renewals 1978-1982
Legislative changes to the Broadcasting and Television Actarising from the
recommendations of the ABTs Self-Regulation Inquiry were enacted in 1977,
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,
1978: 10). Commenting on the legislation, Mark Armstrong observed that:
If the Tribunal chooses to champion the public interest then it will
obviously have ample powers and procedures to do so ... If the Tribunal is
unsympathetic to community requirements, it will have ample opportunity
to frustrate them through the exercise of its discretion (Armstrong 1977b,
quoted in Hawke 1993: 23).
The extensive literature that exists on the licence renewal hearings
generally argues that they were a failure. Hawke (1993) argues that the 1978
public licence renewal hearings in Adelaide constituted participations
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
mechanism to make broadcasters directly accountable to the public. In the most
comprehensive survey of the history of the public licence renewal hearings,
Harrison argues that the licence renewal process:
began with open-ended promises of public participation and moved to
quite restrictive determinations of who had a legal right to take part. It
began as an informal procedure aiming for dialogue and discussion and
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moved to a very court-like process dominated by lawyers. It began with a
broad view of its scope of inquiry, looking at standards of programming
and encouraging improvement, but moved to a very legalistic concern
with technical breaches of minor prohibitions. Questions of procedure
dominated the process throughout, at the expense of questions of
substance about the quality of performance of commercial television.
(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
government departments, who weren't interested in seeing any area, particularly a
sensitive one, being in an uninhibited public process, so there was a desire to
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
kind of hearing, which subverted an ideal of public administration conducted
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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The first commercial television licence renewal inquiries were conducted in
Adelaide in 1978, at short notice for licensees and other participants, and were
characterised by a strong emphasis upon openness, flexibility and informality. All
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 Tribunals
emphasis upon its mediatory and consensus-building role in the Adelaide
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
was an absence of adequate information about the licensees, particularly
potentially sensitive financial information. Second, contradictions between the
quasi-judicial status of the Tribunal as the licensing authority and its attempts to
conduct hearings in a non-judicial manner became apparent, which were
accentuated by the perceived arbitrariness of the Tribunals procedures. Harrison
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).
Finally, there was the reluctance of licensees to address concerns not
specifically related to their performance as a station, such as concerns about
violence, sexism in advertising, concentration of ownership or other broader
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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
no obligation to address them. Harrisons assessment of the Tribunals approach to
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
evidence would be seen as relevant to a licence renewal (Harrison 1986: 192-
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
programming directly to the broadcasters than in the likelihood of the Tribunal
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
(Harrison 1986: 181-191). By contrast, the commercial broadcasters came away
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
didnt really further any significant regulatory or public interest objective, other
than that of generating an enormous amount of paper and chewing up a lot of
everyones 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,
non-judicial and informal approach to commercial television licence renewals.
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
choosing to be represented by Queens Counsel, thereby confirming the quasi-
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.
The issues which proved to be most contentious in the course of licence
renewal hearings into the three Sydney commercial stations were the scope of the
inquiry, the right to cross-examine witnesses and the right to standing as
interested parties. The broad definition of interest which had been allowed to
operate at the Adelaide hearings was progressively narrowed, with the number of
successful applications for standing falling from 16 out of 25 at the ATN-7
hearings, to three of 18 applicants accepted at the TCN-9 hearings, and four of 16
applicants accepted at the TEN-10 hearing (Harrison 1986: 221, 224, 243, 247,
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1978-79. The new ABT Chair, David Jones, had significantly reinterpreted the
Tribunals interpretation of the public interest to one that welcomed public
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
generally the stronger, better organised groups - the professional participants
(Harrison 1986: 419). Harrison concluded that the 1982 Sydney inquiries,
compared with those of 1979, were more formal, legalistic and streamlined in
their conduct. This pleased the industry participants, but significantly
disadvantaged public participants, and the inquiries were conducted in a manner
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 was biased towards the licensees (Harrison 1986: 485-486).
Was Participation Doomed to Fail?
It could be argued that the decline of commercial television licence renewal
hearings from public participation towards administrative and legal formalism,
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
participation as both a realisation of citizenship ideals and a guide to good policy-
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 Tribunals license renewal hearings in 1978-1979
was that there was a lack of attention to forms and procedures of participation in
policy-making institutions. There was also a reluctance to acknowledge power as
either a constraint on or a condition for effective participation, or to acknowledge
that one of the conditions for regulatory agencies to exercise soft legalism over
regulated industries had, in practice, been their tendency to protect these
corporations from effective public scrutiny, as well as from greater economic
competition.
Enthusiasm for participation as an alternative to bureaucracy stemmed in
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
entities outside of representative government, such as powerful corporations and
government bureaucracies, had in fact usurped the power of elected political
representatives, thereby rendering liberal democracy democratic in form only. The
push for public participation was intended to redress the balance of power
between citizens and government, and to enable citizens to determine their
collective fate in a more direct and transparent fashion, moving from passive to
active citizenship, and strong democracy.
In a critical overview of participation arguments in the 1970s, Leonie
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
Australia, Sandercock argues that:
Evidence of both overseas and Australian practice has shown that
participation is not a substitute for planning or for regular government: it
often leads to non-planning and semi-anarchic government. It is not an
effective means of radical social change: it often has the opposite effect.
And it is not an effective way of involving the have-nots in decision-
making: all the procedures of participation so far tried are biased towards
involving the middle class. (Sandercock 1983: 78)
In the rush to understand participation as a good thing, Sandercock believes that
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
disparate participants; and the varying purposes of participation processes, which
can include market research, involvement in decision-making, a way of co-opting
organised opposition, social therapy and grassroots radicalism. Sandercock
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
of campaigning for greater participation, in Sandercocks view, are secondary
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ones: guaranteeing better information flows; promoting greater honesty and
stronger ethical commitments within bureaucracies; mobilising potentially
interested parties; and keeping the door open on policy processes.
These arguments are relevant to understanding the limits of the ABTs
approach to public participation in licence renewal in a number of ways. The idea
that the ABT could use its legal authority to try to negate its regulatory power, by
devolving power to a direct exchange between the public and commercial
broadcasters, created a legal vacuum that was to become unacceptable to the
licensees and, since it created regulatory uncertainty, to the government. Further,
the ability to effectively participate in such processes assumed levels of
organisation, skills and resources among participants, as well as adequate
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
set performance criteria or to define in advance the objectives of the renewal
process, because open dialogue and debate were valued as sufficient in
themselves, would itself create uncertainty and, within a fairly short period,
disillusionment among the majority of participants. Harrison notes that the
Tribunal never adequately linked its policy and regulatory roles with its licensing
role, which accentuated the sense ofad hocery and idiosyncrasy in perceptions of
its conduct. Harrison also notes that the decline in participation after 1979 also led
to a lack of pressure to reform the renewal process, since:
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the absence of a wide range of groups and the involvement of only a
small core group of participant organisations made the renewal process
less like a broad public inquiry, hearing from a range of affected interests
in the community, and more like a lobbying process, where public
participants were largely professional interest groups (Harrison 1986:
612).
It is, however, ultimately incorrect to see the outcome of participation as
only a form of information scanning, and a way of keeping public authorities
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
refocusing of licence renewal hearings away from an administrative focus on
minor programming breaches to a broad examination of the ways in which
programming decisions were reached (Hawke 1993: 46). There was also growing
recognition of the links between licence renewal hearings and broader policy
formation and regulatory process, as well as a streamlining of processes, which
could be said to reflect awareness among past participants of the limits of the
earlier Tribunal procedures. This had been mirrored by the professionalisation of
participation, as:
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The groups which remained involved in the process have developed skills
and broadened their involvement in media policy issues ... an indirect
benefit to them has been the increase in experience, political expertise, and
organisation which has enabled them to press broadcasting reform issues
in other forums. (Harrison 1986: 616)
If it is recognised that participation in policy processes is necessarily a
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
that it required the disenchanting of assumptions about active citizenship and
heroic individualism was a lesson learnt by the mid-1980s, a point testified to by
Harrisons own conclusion:
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
more bureaucratic approach to reform lacked the excitement and the
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
changed. (Harrison 1986: 616)6
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Conclusion
The 1970s saw citizenship discourses linked to broadcast media policy
through campaigns based on the assumption that the airwaves were a form of
public property that was made available to commercial broadcasters on a public
trust basis, and viewed such an entitlement as necessitating a reciprocal
obligation for broadcast licensees to be open and responsive to the expectations 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
Australian Broadcasting Tribunal attempted to flesh out these principles into
implementable policies, while at the same time seeking to promote responsible
self-regulation in areas such as program standards and complaints procedures. For
the ABT, the key to the philosophy of direct public accountability of
broadcasters to the community lay in open licence renewal hearings, whereby
broadcasters would be confronted directly by the opinions of the public, and
obliged through a quasi-judicial process to respond appropriately in order to retain
their access to the airwaves as a public resource.
In the process of applying these participatory principles to broadcast
media, which are reflective of broader concerns about the gap between formal
citizenship rights and the practicalities of governance in liberal-democratic
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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practice of regulatory authorities in using their powers of soft legalism over
socially significant and economically powerful industries such as broadcasting.
The policy process had evolved in these sectors usually entailed minimal external
scrutiny over the regulated industry, aside from occasional instances of what has
been termed in the United States context as regulation-by-raised eyebrow, and a
policy culture had developed where regulatory agencies and private institutions
developed a shared interest in a depoliticised consensus that largely preserved the
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
committed to challenging regulatory capture, its capacity to achieve significant
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
deliberative processes. Finally, the attempts by ABT Chair Bruce Gyngell to
conduct licence renewal hearings in a non-legalistic and informal manner resulted
in allegations on all sides of arbitrariness in the conduct of hearings, and led
within two years of hearings commencing to a turn to legalism whose principal
consequence was to exclude all but well-organised interest groups from the
licence renewal process.
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1 Left perspectives on the Whitlam government are discussed in Higgins (1974); Duncan (1978); and Beilharz
(1994).2 Reference to the majority of the Tribunal is made at several points in the Introduction to the Final Report (eg.
pp. 9, 10). One area of disagreement concerned the dissent of the Chairman, Bruce Gyngell, from proposals for an
Australian content quota for commercial television, which is recorded in the Report (p. 11).3 Interview with Julie James Bailey, 10 July 1995.4 Interview with Mark Armstrong, 11 April 1996.5 Interview with Tony Branigan, Chairman, Federation of Australian Commercial Television Stations (FACTS), 13
November 1997. Antipathy towards licence renewal hearings among commercial broadcasters remains strong to this day. Ata seminar on Convergence and Regulation held in Sydney in August 2000, Bob Campbell, former Managing Director of
the Seven Network, pleaded that there not be a return to public licence renewal hearings.6 Subsequent to writing her thesis, Kate Harrison became in 1988 the first Director of the Communications Law
Centre, the first Australian public interest advocacy organisation specialising in media and communications issues.