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Chapter Five Content Regulation and Cultural Policy: The ABT’s Australian Content Inquiry 1983-1989

Background to the ABT Australian Content Inquiry

The idea that Australian broadcast media should contain Australian content has existed for as long as the media themselves. As communications technologies with considerable public reach and cultural significance, it has been a widely held view that Australian broadcast media - and Australian television in particular should utilise local creative talent, be under predominantly Australian ownership and control, and contribute to the development of national culture. In the case of commercial broadcasters, this has required the regulatory intervention of government to secure these goals, as part of the public trust obligations involved in granting private institutions the right to the means of public communication. Australian content regulations have been the responsibility of the Australian Broadcasting Control Board (ABCB) (1948-1976), the Australian Broadcasting Tribunal (ABT) (1977-1992), and the Australian Broadcasting Authority (ABA) from 1993. The Australian content requirements have involved a mix of overall

197 levels of Australian content (also known as transmission quotas) and requirements for the broadcast of particular program types, most notably drama and children’s programs. There have also been particular requirements of Australian content in the evening ‘prime time’ schedule, on the basis that this is the period with the largest audience, and thus when locally produced material may have the widest cultural impact.

In contrast to the weak commitments to political citizenship in Australian broadcasting policy, indicated by the patchy history of commitments to public participation in broadcast media policy formation, the commitment to national citizenship found in the Australian content regulations for commercial television has been relatively consistent, although the levels, forms and objectives of regulation have varied over time. The goal of promoting Australian content has been enshrined in the conditions of operation of both the national broadcasting service (ABC) and the commercial broadcasters from their inception. The Broadcasting Act 1942 enshrined Australian content provision as a condition of holding a broadcasting licence, for commercial as well as public service broadcasters, in Section 114 (1) of the Act:

The [Australian Broadcasting] Corporation and licensees shall, as far as possible, use the services of Australians in the production and presentation of radio and television programs.

198 The Broadcasting Services Act 1992 states in the Objects of the Act the necessity of ‘facilitating the development of a broadcasting industry in Australia’ (s. 3 (b)), ensuring ‘that Australians have effective control of the more influential broadcasting services’ (s. 3 (d)) and promoting ‘the role of broadcasting services in developing and reflecting a sense of Australian identity, character and cultural diversity’ (s. 3 (e)).

The argument that quota-setting by regulatory bodies was a necessary condition for achieving appropriate levels of Australian content on commercial television had been a long-standing one. The basic arguments have had majority support among industry participants since the decision in 1960 to set a 40 per cent Australian content quota (increased to 45 per cent in 1962 and 50 per cent in 1965). Groups representing the audiovisual production industry had argued, since the 1963 Vincent Report, that local content requirements placed upon commercial broadcasters were inadequate in light of both the profitability of the commercial broadcasters and the cultural dimensions of the medium. The ABT’s SelfRegulation for Broadcasters inquiry in 1977 argued that ‘a distinctively Australian look for television’ was a desirable ideal, but Tribunal members disagreed on the appropriateness of Australian content quotas as a means of achieving this goal (ABT 1977: 29). Even the commercial broadcasters themselves, while rhetorically opposed to quotas per se, have accepted their existence as a performance condition, with the important proviso that restrictions

199 on the entry of new competitors are recognised as a quid pro quo for meeting such ‘pro-social’ content regulations.

The politics of local content regulation, and media content regulation generally, are different to those surrounding other areas of media policy such as media ownership, for two important reasons. First, the ceding of responsibility for policy development, as well as regulatory oversight, from the government of the day to the regulatory agency is indicative of the lack of an investment by government in the outcomes of such processes. There has been considerable political bipartisanship on the issue of local content regulations, which has also created the potential for considerable flexibility and autonomy in the policy process on the part of the responsible regulatory agency. Such autonomy on the part of regulatory agencies can be contrasted with the approach taken by governments from both major political parties to media ownership issues. Media ownership laws in Australia have been characterised by what Anna Yeatman has termed executive models of policy, where the scope for policy activism outside of government, narrowly conceived as the Minister and their Department, is minimised. By contrast, laws governing media content have, since the early 1970s, been more open to what Yeatman describes as a policy process, where ‘policy is conceived as a complex, multi-layered process involving a whole host of different actors [and] policy activism of various kinds is invoked into being’ (Yeatman 1998: 17). Such bureaucratic autonomy arises at a cost, however, since policies concerned with infrastructure, ownership, service provision and market

200 development have been privileged as the primary concerns of Australian communications policy, while policies relating to content, users, diversity, quality and access have been treated as ‘second-order’ policy problems (Spurgeon 1997).

The other significant element with regard to media content regulations in Australia is that they have been developed in the context of the social contract in broadcasting. The social contract has been defined as a policy settlement where high profits for commercial broadcasters arising from oligopolistic market structures are seen as providing a surplus able to be ‘traded off’ for pro-social content regulations in areas such as Australian content and children’s programming. Such a policy trade off occurs in a context where the ‘public trust’ obligations of commercial broadcasters legitimate citizen involvement in broadcast policy-making, as mediated through regulatory agencies and relevant interest groups. As a result, the coalition of interests supporting Australian content regulations is typically a broad one, involving an alliance between the production industry, public interest and advocacy groups and, in most instances, the regulatory agency itself.

Arguments for Australian content regulations are characteristically framed around a metanarrative of cultural nationalism, whereby Australia realises itself as a culture through the development of local drama and other forms of television content, and the growing self-awareness and self-recognition of the Australian national community that results from exposure to national cultural forms. In 1968,

201 Mungo MacCallum argued that ‘drama … reflects us to ourselves, helps us to know ourselves, and passes on the information to the rest of the world. A community without drama is undeveloped’ (MacCallum 1968: 67). Similarly, in the late 1980s, Gil Appleton would argue that that ‘the shock of self-recognition ... had been the key to the success of Australian programs’ (Appleton 1988: 203). While the development of a local audiovisual production industry is clearly a significant outcome of such regulations, this is generally downplayed in contrast to the cultural dimension. Moreover, in spite of their characteristically ‘principled’ opposition to program quotas on the basis of their adverse effects on public choice, requirements such as the Australian content quota have their uses for the commercial broadcasters, as they can be presented as a potential casualty of any moves to increase the amount of competition in the broadcasting industry through permitting new entrants or the development of new services.

Arguments for Australian Content Regulations for Commercial Television Broadcasters

Five sets of arguments have been put forward in favour of Australian content regulations for Australian commercial television broadcasters. First, there is the argument for such regulations on the basis of the large cost differential between producing local programs and importing programs from overseas. It has been estimated that the average cost of imported programs is in the range of 10-30 per

202 cent of the cost of the equivalent locally produced material (BTCE 1991: 124126), and that, in the absence of regulation to guarantee minimum levels of local production, profit-maximising commercial television stations will primarily purchase and screen imported material. There is the additional but related concern that the world market for television products provides unfair benefits to television program producers from the United States, who can export programs at low marginal costs (close to marginal cost of reproduction), due to the size of their domestic market, dominance of international distribution, and the fact that successful product realises its costs in the North American television market prior to its export (Hoskins and Mirus 1988; Collins 1990a; O’Regan 1992).

Second, there are arguments for local content regulations in order to promote the development of a local audiovisual production industry able to provide regular employment for Australian creative personnel in both on- and offscreen roles. It had become apparent by the early 1960s that employment regulations for the use of Australians would only be implemented if local production took place across a range of sectors. For such local film and television production to occur, however, there needed to be trained local personnel, in order to develop the linkages between the television industry and a series of other industries, and thus promote a national cultural infrastructure in the audiovisual sector (Cunningham 1992; cf. Moran 1985). In this light, arguably the first major local content decision in Australia came in 1960 with the requirement (later to be codified as Television Production Standards (TPS) 18 and 19) that no more than

203 20 per cent of material in any advertisement screened on Australian television may be produced outside of Australia, unless Australian creative personnel were used. This effective prohibition on the importation of television advertisements as an explicit industry and employment protection policy, which remained in place until 1990, played a very important role in underwriting all forms of audiovisual production in Australia, as Cunningham pointed out when he argued that ‘television drama production in Australian could not have developed its present scope and depth without the industrial infrastructure of the advertising industry’ (Cunningham 1992: 72).

The promotion of diversity and innovation in the production and scheduling of Australian programs on Australian commercial television is a third principle underpinning Australian content regulations. This principle was part of the reasoning behind the introduction of a ‘points system’ in 1973 to allocate different amounts of points to different program categories, and require commercial stations to meet the points targets as well as transmission quotas. The intention has been to ensure that local production is encouraged in areas which are under-represented in current program schedules, are deemed to be of higher ‘quality’ or to have cultural significance, or which are costlier and/or riskier than other program types. The flip side has been a desire to minimise reliance upon televised sport, quiz and game shows, or low-cost studio-based programs in order to meet the Australian content quota.

204 The promotion of Australian national culture has been the fourth, and most significant, force behind calls for Australian content regulations. The view that locally produced television, and particularly local drama, contributed to Australian audiences’ ‘shock of self-recognition’ and greater self-awareness of their own culture, had been put in a number of statements since the 1960s, and has usually been tied to the development of local content quotas for drama. By the 1980s, the Australian Broadcasting Tribunal was arguing that greater national cultural self-awareness had been achieved in Australia, in part because of the success of Australian content regulations, which have forced the commercial stations to meet the demand of local audiences for local programming (Appleton 1988). Moreover, this ‘cultural’ argument for Australian content regulations came to be associated with the proposition that Australian television should have a recognisably Australian ‘look’, as part of its role in promoting a distinctively Australian national culture. This latter development would prove to be controversial.

Finally, Australian content quotas were seen as a measure of the willingness of Australian governments and policy-makers to oppose ‘cultural domination’ and ‘cultural imperialism’. This argument for Australian content regulation has strong links to arguments about the role of culture in developing national citizenship and identity, and the cultural nationalist belief that an independent Australian society - in the political, economic and cultural spheres was the condition for social justice and societal development (Turner 1979).

205 Cultural nationalists believed that the lack of a local film and television production industry prevented the cultivation of a distinctive national imaginary, and linked this to concerns about American ‘cultural imperialism’ and the ‘dependency’ theory of Australian capitalist development, arguing that in the absence of protectionist economic policies, Australia was simply a ‘client state’ of multinational capitalism (Crough and Wheelwright 1983; Rohdie 1987).

Australian Content: Industry Policy and Cultural Policy

The first three arguments listed above for Australian content regulations comparative cost disadvantage, industry development and diversity of product can be classified as economic or industry policy goals, with only the latter two development of national culture, and resistance to cultural domination - having an explicitly cultural remit. In spite of the significance of economic factors in providing a rationale for Australian content regulations, the stress has characteristically been upon their cultural significance. Over the course of the 1980s, however, economic arguments would acquire a growing significance in the framing of public policy in Australia, and this had an impact on the Australian Content inquiry.

Economic analysis has been used to evaluate Australian commercial broadcast television content regulation, most notably by Papandrea (1997), but also by Brown and Cave (1992), Burgin and Molloy (1993) and the Bureau of

206 Transport and Communications Economics (1991). Brown and Cave distinguish between economic regulation, involving government intervention to compensate for market failure, and social regulation, involving the pursuit by government of ‘public interest’ objectives through intervention, such as protection from unsuitable material or the development of national culture. They note that Australian content rules ‘have both the economic function of protecting domestic industry, and the social functions of promoting national pride and cultural values’ (Brown and Cave 1992: 379). Franco Papandrea (1997) draws upon the growing body of literature dealing with the economics of art and culture, to identify four areas of ‘market failure’ that form the basis of content-based government intervention in broadcasting markets:

1. public good arguments, which propose that the there are collective benefits to a community from the availability of artistic and cultural goods and services; 2. merit good arguments, which propose that collective benefits may be derived from the availability of artistic and cultural goods and services that are inadequately registered under current consumption decisions, due to a lack of awareness of the value of artistic and cultural goods and services in the community; 3. option value or existence value arguments, which propose that the community as a whole values the existence of artistic and cultural goods and services, in order that they can be consumed at a later point in time, or

207 because the good or service is seen to add to the collective well-being of the community, even if particular individuals do not use or consume it. 4. externality arguments, which stress the benefits of artistic and cultural goods and services being available to the community as a whole, including enhancement of local or national tourism industries, benefits to the local or national economy from an economically viable arts and cultural industries sector, the educative role of the arts and culture, and the movement of creative personnel between the ‘subsidised’ and ‘commercial’ sectors as part of their lifetime employment trajectories.

Economic policy discourse and cultural policy discourse work from different frames of reference, which in turn influence their understanding of policies such as Australian content regulation. Economists have tended, in the majority of cases, to be sceptical of traditional arguments for public support for the arts and cultural industries, being particularly concerned that ‘market failure’ arguments for public support of the arts and cultural industries may entail a combination of paternalism and special pleading to use public revenue for the benefit of particular well-organised interests (Peacock 1997; Norton 1996; Court 1994). For its critics, which include some economists, the analytical bases of cultural economics in methodological individualism, consumer sovereignty and rational choice theory are seen as generating an inherent bias against ‘culture’, since it is a concept that is inherently intangible in form and content, collective in orientation, and difficult to measure in terms of outcomes (Throsby 1997). By

208 contrast, cultural nationalist perspectives typically take the society or the nation, rather than the individual, as their analytical point of reference, and frame cultural policy in terms of serving social collectivities rather than individual consumers. In the course of the 1980s and 1990s, the debate over Australian content regulations for commercial television increasingly became a competition between these two forms of policy discourse, their associated debate cultures and their distinctive understandings of cultural citizenship.

The Australian Broadcasting Tribunal’s Australian Content Inquiry 1983-1989

The Australian Broadcasting Tribunal announced in March 1983 that it would be undertaking an inquiry to determine program standards in respect of the Australian content of television programs and advertisements, as part of its overall revision of television program standards. Announcement of the initial inquiry was accompanied by the release of a Discussion Paper and a Background Paper. These papers argued that the introduction of the points system for Australian content in 1973 had led to an increase in the amount of local programming broadcast, an increase in the prime-time broadcast of locally produced drama, and an increase in the percentage of revenues spent by the commercial networks on locally produced material from 68 per cent in 1973-74 to 78 per cent in 1980-81 (ABT 1991a: 136-137). These findings indicated that, in general terms, Australian

209 content regulations were achieving policy objectives. Nonetheless, there was a concern that the points system had set compliance levels below those which were desirable or achievable by the commercial stations, in terms of quantity of Australian programs, and particularly in terms of diversity of program types. This conclusion echoed Kate Harrison’s influential critique of the points system as constituting a form of ‘symbolic policy’, where the regulator was seen to enforce a set of outcomes which would in fact have been achieved in the absence of regulation, as an alternative to greater public scrutiny or more rigorous regulation of broadcaster conduct (Harrison 1980).

One consistent feature of the ABT’s conduct of the inquiry was the strong emphasis placed upon the wide dissemination of detailed information on matters relevant to the inquiry. A second, and related, feature of the Australian Content Inquiry was that the ABT had considerable scope to direct the timing of its process and the direction of its findings, as governmental scrutiny was not high. Julie James Bailey, who joined the ABT in 1983 when the inquiry commenced, was of the view that the inquiry would involve a ‘long learning process’ for Tribunal members, and that a priority was ‘to get a lot of Background Papers, because what you could do at the Tribunal was to get a lot of information out’.1 The inquiry was deferred in November 1984 by the appeal by the multinational advertising organisation Saatchi & Saatchi, challenging the power of the Tribunal to conduct an inquiry into Australian content standards for advertisements, which led to an amendment to the Broadcasting and Television Act in July 1985 that

210 ensured the Tribunal was able to set and administer advertising standards as well as program standards.

The Saatchi & Saatchi appeal provides an interesting case study in how the media policy activism of the 1970s had transformed the behaviour of the ABT as a regulatory agency. As media policy activists such as Julie James Bailey, Mark Armstrong and Ray Watterson came to be Tribunal members in the 1980s, they brought with them a strong sense of the dangers of regulatory capture by the broadcasting industry, and a willingness to ‘tilt the playing field’ towards the interest groups as a means of promoting countervailing power. Bailey provides an interesting example of how Tribunal members could develop a ‘public interest’ orientation in areas which required adjudication through the courts, in the case of the 1984 Saatchi & Saatchi appeal about the ABT’s powers to set advertising standards:

The Saatchi & Saatchi appeal ... was all about standards and regulation, and it went all the way up to the High Court, and it turned out the Tribunal did not have the power. Now Mark [Armstrong] had always said that he wasn't sure, and ... he said there was a 60/40 chance the Tribunal did not have the power, so in fact he was vindicated. Part of the reason [why] there were, if you look at that period with the Tribunal, far more [legal] challenges ... is that you would always have two opinions. You'll have the commercial licensee’s lawyers’ opinion, in their favour, and you'll have a

211 public interest opinion. We made a decision, I did, and Mark and Ray [Watterson] did, that we would always take the public interest opinion, because the commercial stations could always afford to take us to court, and we could get the thing ironed out in the court. But if you took the reverse, which the [Australian Broadcasting] Control Board had always done, then the public can never challenge it in the courts. So you never get legally clear indications of where the law stands. So it was very much a decision, and that is why there was so much litigation in that period.2

When the Australian Content Inquiry resumed in January 1986, a call for submissions led to the receipt of 570 public submissions and 61 industry submissions by August 1986. In addition, the Tribunal circulated a pamphlet, titled ‘Seen anything good on telly lately?’, and also placed an advertisement in several capital city newspapers titled ‘What do you think of Australian programs on commercial television?’, inviting people to comment on Australian TV programs currently screening, their likes and dislikes, and whether they would like to see more - and less - of particular program types. By early 1987, the Tribunal had received 653 responses through this community outreach campaign. By 1987, a bifurcation in the Tribunal’s approach to evidence could be seen, between the public submissions, which increasingly constituted empirical data to assist the Tribunal in its deliberations, and the submissions of industry organisations and interest groups with an ongoing interest in policy in the area of Australian content rules. In contrast to the difficulties faced by the ABT in the

212 licence renewal hearings to effectively integrate its findings and decisions in individual licence renewal hearings with its overarching administrative, regulatory and policy-making roles, the ABT was now developing a more ongoing and consistent approach to its dealings with the broad range of interest groups and industry organisations who were stakeholders in Australian broadcasting policy, that included a stress upon information provision and promoting opportunities for dialogue between competing interests. The Tribunal’s conduct of the Australian Content Inquiry offered considerable opportunity for organised groups with an ongoing interest in media reform to participate in the policy formation process, giving those participant groups involved the opportunity to develop their organisational, informational and lobbying skills in media policy.

Industry and Interest Group Positions

The ABT’s Australian Content Inquiry had seen the consolidation of a pattern that had emerged in the 1960s, where the production industry representatives and the variety of media interest and advocacy groups formed a coalition of interests around support for strengthening Australian content requirements for commercial television, in opposition to the commercial networks and FACTS as their representative body. The preferences of the production industry/media interest groups were also largely consistent with those of the Tribunal. They saw the primary objective of Australian content standards as cultural, and shared with the ABT the virtuous circle argument that forms of cultural regulation such as

213 program quotas had brought forth a supply of local television program production, which had in turn proved popular with local audiences and thus contributed to the development of national culture and national self-awareness. The development of a local television production industry was, in this analysis, a happy by-product of this cultural policy (Appleton 1988).

While it is difficult to generalise on the perspective of the production industry, given the diversity of roles and interests and the differing size and influence of individuals and organisations in the sector, there was a consistent position put forward by organisations and individuals representing the film and television production industry to the Australian Content Inquiry. The preferences of the production industry were for: a strengthening of overall local content requirements; intensified focus upon particular program formats, such as drama and children’s programming; use of regulation to achieve greater quality and diversity of local content; and a stress upon ‘prime time’ (6.00 pm to 10.00 pm) as the period in which the operation of effective quotas was most important. Some submissions placed a greater emphasis upon the promotion of particular program formats, such as SPAA’s response to the Tribunal’s paper on documentary, which called for a quota of 104 hours of first-release, independently produced documentary for all Australian commercial stations, comparable to the drama quota under the points system (Broad 1987). Others, such as the Film and Television Institute (WA), the Australian Writers Guild (WA) and the Australian Writers Guild (Queensland) called for regional as well as national quotas, in

214 response to the perceived decline in ‘localism’ in programming since national networking had been introduced (FTI (WA Branch) 1986; AWG (WA Branch) 1986; AWG (Qld Branch) 1986). A consistent feature of the production industry submissions and contributions was an abiding discontent with the conduct of the Australian commercial networks, who were perceived as pushing all program development costs on to independent producers, being narrow in their perception of what was acceptable programming for Australian TV audiences, and even their ability to threaten the livelihood of producers who gave detailed evidence to the Tribunal.3

The Australian Content Inquiry triggered the re-emergence of older media interest and advocacy groups, such as the ‘TV - Make it Australian’ Committee, and the emergence of relatively new organisations such as the Communications Law Centre (CLC). There was a lot of overlap and crossover between these interest groups, as indicated by the role played by Actors Equity in re-establishing ‘TV - Make it Australian’,4 and the Communications Law Centre’s role in preparing its submission. The case for Australian content regulations made in the CLC and ‘TV - Make It Australian’ submissions emphasised the ‘public trust’ nature of television licences and how it legitimated such regulations in exchange for private access to scarce spectrum space; the significant social and cultural role played by Australian television in reflecting Australia for Australians; the importance of Australian TV program production to development of the arts and Australian cultural life, given the importance of the sector as an employer of

215 creative personnel and its reach to large audiences; and the need for regulation to provide the stability necessary to build a strong local production industry in the context of structural and regulatory change (Spurgeon 1987).

As the major institutional agents in a structure of regulated oligopoly, the statements of commercial television broadcasters in public inquiries typically have both a moral or normative dimension, alongside a more pragmatic or strategic set of arguments. The Federation of Australian Commercial Television Stations (FACTS) argued against revising the current Australian content standards on the basis that the commercial TV networks were in fact meeting the revealed preference of Australian TV viewers for local content, and that the failure of the Tribunal to update Australian content standards has in fact been ‘a benign neglect which has served to show that competition, rather than regulatory intervention, is best qualified to provide the quantity, range and quality of programs that best accord with the tastes and preferences of the public’ (FACTS 1988: 85). The FACTS submission also argued that the commercial TV industry was currently operating at full capacity and at what economists would call ‘normal’ profit levels, so that there would be a ‘zero-sum’ logic to any increase in Australian content quotas, with an increase in quantity leading to a reduction in quality or in the number of locally produced programs in unregulated areas. Finally, the FACTS submission contained what may be described as a ‘fall-back’ position, where it indicated that should a strengthened Australian drama quota be introduced anyway, its members’ preference was for one which maximised network

216 flexibility in commissioning, producing and scheduling Australian drama programs, and which gave an enhanced weighting to more expensive drama formats or to ‘one-off’ drama programs.

The FACTS submission raises a perennial issue in this debate, which is whether commercial networks would have commissioned new Australian programming, particularly in higher-cost areas such as drama where import competition is strongest, in the absence of regulations requiring them to. The answer given by FACTS is that they would have been responsive to consumer preferences for such material. The counter-argument, put by the interest groups, was that they failed to broadcast such material until forced to, at which point consumer preference for such material was revealed. Another issue raised is the extent to which broadcasters can increase the amount of local programs in their schedule and reduce the amount of imported programs, or change the mix of programs within local and import categories, without there being such an adverse impact upon profits that it inhibits future investment decisions. This raised the issue for the Tribunal of acquiring reliable information on the relative costs of different programming types, both domestic and imported. Sandra Alexander’s consultant’s report for the Tribunal, released in November 1987, was a detailed attempt to develop data on the person-hours involved in production of Australian programs across the range of program types, based upon questionnaires and faceto-face interviews with 200 program production personnel (ABT 1991). The results are shown in Table 5.1:

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Table 5.1 Average Person Hours Per Hour of Screen Time of Various Program Types 1987

Studio only (eg. chat shows) Sport outside broadcast News Studio game show Studio drama Documentary Major outside broadcast Telemovie Miniseries Feature film

124.2 183.9 202.9 874.9 4452.4 6250.8 6543.4 12133.3 14836.1 29140.5

Source: ABT 1991: 98-99.

Constituting Public Process in Media Policy: Institutional Pluralism and the Professionalisation of Media Activism

Media policy formation has been assessed not only in terms of its outcomes, but also through the extent to which policy processes are open to participation, intervention and formal scrutiny. While the Whitlam Labor government (1972-75) delivered on its promises in terms of policy outcomes such as strengthened local content requirements, critics pointed to its failure to reform and open up the institutions of media policy formation and regulation to greater public participation and external scrutiny. By contrast, the Australian Broadcasting

218 Tribunal was founded with a strong commitment to open and inclusive processes of decision-making through licence renewal processes. It had, however, come to be characterised by uncertainty about its objectives, performance criteria and anticipated outcomes in these activities, and was unable to articulate its adjudications toward individual broadcasting licensees to a broader set of policy formation principles. By the time of the Australian Content Inquiry, the Tribunal was being criticised as ineffectual, not just by the broadcasting industry and government, but also by the constituency of media reformers and activist organisations that had emerged since the 1960s, which drew upon ‘public interest’ or ‘consumer rights’ discourses to lobby for media reform.

The ABT had sought to fashion a role for itself in facilitating and promoting the participation of community-based and ‘public interest’ groups, as well as other industry groups such as the film and TV production sector, or industry unions. This can be seen as part of a conscious process by Tribunal members to make the agency less of what Dunleavy and O’Leary (1987) have termed a ‘cipher’, or an advocate of broadcasting industry interests by default in the absence of countervailing interests, more of a ‘broker’ of competing interests and a ‘guardian’ of the ‘public interest’, operationalised through forms of selective assistance in order to strengthen the role of non-dominant interests.

The development of ‘insider’ policy activism in the Tribunal through the Australian Content Inquiry arose out of a number of related factors. One was the

219 role played by the Tribunal’s licence renewal inquiries. While they were largely ineffectual in modifying broadcaster performance, their existence had meant that the groups that chose to remain involved in such processes had developed political lobbying skills and broadened their involvement in media policy issues. The Australian Content Inquiry also marked a continuation of the process of professionalisation of research and policy participation functions within media organisations and their representative agencies. Responsibility for contributing to policy formation processes had, in the 1980s, gradually been shifting from organisation directors and board members, full-time activists and freelance academics to a professional cadre of research and policy professionals, who could be employed on a full-time basis to monitor and contribute to policy formation on behalf of their organisations. An indicator of this trend can be seen at the Tribunal’s The Price of Being Australian (ABT 1988) where, of the 178 conference registrants, 11 (6 per cent) were there on the basis of their research and/or policy roles within their organisations. For Anne Britton, former National Secretary of the Media, Entertainment and Arts Alliance (MEAA), such involvement in policy processes is ‘good self-interest’. Britton observed that Actors’ Equity had in the late 1980s a principle of ‘spending about 40 per cent of our resources on policy, or so-called job creation issues’, as part of serving its members’ interests, since ‘it’s good that actors are interested in working in their own country, because that translates into a national audiovisual policy’. 5

220 The Communications Law Centre provides an important case study in the development of an organisation that sought to systematically engage with the policy process from a ‘public interest’ perspective. The CLC was established in 1988, as a result of the sustained involvement of the Public Interest Advocacy Centre (PIAC) in media-related activities through the licence renewal process. Its establishment was driven by the desire of its founding director, Kate Harrison, to develop a Centre that could have sustained involvement as activists in policy on a ‘public interest’ basis. The CLC could do this by linking on the one hand with the legal sector and the movements which sought to bring legal advice to the community, and on the other with the university sector, which could provide a relatively strong and stable institutional affiliation for activist organisations. Working across a range of communications media, from telecommunications to broadcasting to film, and on issues ranging from ownership to content to privacy and copyright laws, the CLC developed into an organisation which could develop a ‘bureaucratic’ response to the issues raised in media policy activism. Christina Spurgeon, a researcher at the CLC from 1988 to 1995, observed that the CLC was seen as ‘professionalising [the] public interest’ when it was launched, since it had to address the nuts-and-bolts of ‘how we might go about getting concerns like access and equity … to register in a meaningful sort of way with … bureaucratic systems and structures.’6 In order to do this effectively, Spurgeon argues, ‘you need to have the resources ... the time and skills base to go out and talk to people, and to convince various bureaucracies that it was worth their while to spend time with you.’ 7 For Spurgeon, the Australian Content Inquiry was an occasion where

221 the commitment of the ABT to undertaking research, and providing information which could be used by all parties, meant that ‘we actually had an intelligent debate, rather than opposition camps just throwing rhetoric at each other, and then some kind of political decision being handed down, which is how it could have gone.’ It marked a significant moment in the ‘professionalisation of the public inquiry process’ and, for an organisation such as the CLC, a ‘scaling up’ of their involvement.

The other trend which emerged in the late 1980s was the involvement of academics as participants in policy processes, acting on behalf of organised constituencies rather than in an ‘unattached’ and freelance intellectual capacity. Stuart Cunningham was a central figure in this debate, linking engagement with the ‘cultural policy debate’ in Australian cultural studies with involvement in policy debates such as the Australian Content Inquiry (Cunningham 1992, 1993, 1994). Graeme Turner observed that signs of a sea-change in cultural, media and communications studies were beginning to occur in Australia during this period, as research and advisory centres linked universities to stakeholders in government and the media industries. Such Centres included the Institute for Cultural Policy Studies (ICPS), established at Griffith University in 1989, and the Australian Key Centre for Cultural and Media Policy, funded by the Australian Research Council as a National Key Centre for Teaching and Research in 1995. For Turner, such developments ‘move cultural studies away from pure theory to a field of

222 cooperative … relationships’, enabling cultural studies academics ‘to intervene in cultural production at the level of policy and planning’ (Turner 1989: 5).

(Mis)Representing Australianness: The ‘Australian Look’ Controversy and the Australian Content Standard

One area in which cultural analysis had influence, albeit indirectly, was in debates about the use of ‘on-screen indicators’ for Australian content, or the ‘Australian Look’ controversy. When the ABT released its Draft Proposal for an Australian Content standard for commercial television on 9 December 1988, it argued that the need to regulate for Australian content emanated from the need to preserve an Australian Look, ensure Australian drama, encourage quality productions, and encourage diversity of program types (ABT 1991b). The Draft Proposal put forward a minimum overall quota of 50 per cent of Australian programs to be broadcast between 6.00 am and midnight over the period of a year, commencing 1 July 1989, with the intention to increase this quota to 60 per cent by 1 July 1994, with a comparable quota to apply during ‘prime time’, between 6.00 pm and midnight. In order to encourage quality and diversity of Australian programming, as well as promoting local drama, the Tribunal proposed a minimum score for adult drama, children’s drama and diversity programs (which included variety series, variety specials, social documentary, arts programs and new concepts). The

223 aims of the quota and minimum score systems were to encourage programs that were:

(a) recognisably Australian in theme, perspective, language and character; (b) designed specifically for Australians; (c) relevant to Australians; (d) under Australian creative and financial control, and which ‘showcase Australian talent on-screen and behind the camera’ (‘on-screen indicators’); (e) acknowledge the diverse backgrounds which make up the Australian people.

The most contentious elements of the Tribunal’s Draft Proposal were those that depended upon an ‘Australian Look’ criteria, and its use of ‘on-screen indicators’ to determine the ‘Australianness’ of a program. The ‘Australian Look’ was a concept that had its origins in the 1977 ABT Self-Regulation Inquiry, defined in terms of a series of ‘on-screen indicators’ based around:

•theme (content and topic); •perspective (an Australian viewpoint); •language (Australian speech, including idiom and accents); •character (incorporating scenes and costumes, character portrayal, interpretation of material and accurate casting).

224

Critical responses to the ABT’s Draft Proposal were submitted by industry organisations such as the Australian Writers Guild, the Australian Film Commission, the Australian Film Finance Corporation, the Communications Law Centre, Film Australia, the Grundy Organisation, Crawfords Productions and the Screen Producers Association of Australia. Moran (1989) and Given (1989) also published critiques of the ‘Australian Look’ in academic journals. The criticisms were that the ‘Australian Look’ concept and its indicators were based upon flawed and backward-looking assumptions about Australian culture; were subjective in their application; were likely to discourage investment; failed to recognise the growing importance of foreign investment in Australian productions, and the need to be able to export higher-cost local productions; and were a constraint upon creativity. It was also argued that the test was incompatible with tests of ‘Australianness’ applied by other funding bodies such as the Australian Film Finance Corporation and the Australian Film Commission, or the Income Taxation Act’s 10BA Certification Requirement for Film (CLC 1989).

In light of the extent of consultation by the Tribunal with the range of interested parties on Australian content, who had also traditionally been its allies and supporters, the question remains as to why the ABT produced a Draft Proposal based upon a test that was so at odds with so many of these interests. Jock Given has noted that a recurring contextual issue was the fear of the ‘runaway production’, or material made in Australian by US interests without

225 regard for local context. The New Mission: Impossible, produced in Brisbane and on the Gold Coast was, for Given, the touchstone of these anxieties about global television:

To me, Mission Impossible was the touchstone of the whole inquiry. People looked at it and said that this is what we don’t want to happen. It’s very difficult to describe, but we’ve got something very concrete in front of us, this is not an Australian program.8

Bailey argued that the problem lay to some degree with the unwillingness of ‘academics working in Australian cultural studies and film studies to have come forward and alerted the Tribunal to the debates about defining “Australian” and participated in the drafting of the final standards’ (Bailey 1994: 70). Bailey’s argument is, however, disingenuous for three reasons. First, the major critics of the proposal were not academics at the ‘margins’, but the production industry and public interest groups that the Tribunal had been in consistent liaison with throughout the inquiry. Given recalls how, when he commenced with the AFC after previously working with DOTAC, he ‘walked in … to a strange environment where the Broadcasting Tribunal, which I thought would be much lauded by the film and television production industry, was being reviled for the craziness of this proposal’.9 Second, the proposal had its critics within the Tribunal itself. Debra Richards noted that the ‘Australian Look’ proposal came from an attempt by the Tribunal to prioritise cultural issues, but that:

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When we went out with the ‘Australian look’ - and I must say it was probably a lot of us who didn’t want to go out with the ‘Australian look’, particularly among the staff ... our main priority was the ‘cultural argument’ and trying to put that as our main priority ... So, in an effort, I think, to push the cultural side of it, there was this proposal for ‘Australian look’. We had been trying to walk away from that from the time it went out there, frankly ... there are all the problems that go with that … how do you determine the ‘Australian look’ of a program that is science fiction, or fantasy, or …does the ‘Australian look’ have to have two kangaroos, three koalas and gum trees? 10

Finally, insofar as academic work had been relevant to the Australian Content inquiry, it had questioned the assumptions and underlying premises of cultural nationalism that had informed media reform and other related campaigns in the 1960s and 1970s. Bailey’s claim that academic research in this area was not accessible or relevant is tendentious, given the accessible nature of writing of many of the key texts putting these arguments (eg. White 1981; Rowse 1985; Castles et. al. 1988). The very public debates about multiculturalism and Australian identity in the late 1980s should also have given the Tribunal more pause than they did about attempting to legislate for an ‘Australian Look’ in commercial television. Since the ‘Australian Look’ proposal was generated without reference to any of the key stakeholders in the inquiry, in spite of

227 extensive consultations with them over a long period of time, it is unlikely that, contrary to Bailey’s assumptions, more submissions from academics would have swayed the Tribunal from cultural nationalism. Rather, cultural nationalism had become an ingrained policy discourse among those addressing the issue of Australian content regulations from a cultural perspective.

Negotiations in 1989 saw a retreat by the Tribunal from the Draft Proposal’s emphasis upon on-screen indicators of Australian content, or the ‘Australian Look’, towards a less prescriptive ‘Australian factor’ test, which emphasised off-screen indicators and the significance of Australian creative control. While some Tribunal members, such as Julie James-Bailey, expressed concern that the loss of rigorous on-screen indicators would mean the disappearance of ‘Australian ideas’ in expensive drama formats such as miniseries and telemovies,

11

most industry representatives welcomed the move towards less

prescriptive criteria. Kim Williams, Chairman of the Australian Film Finance Corporation, captured the spirit of these discussions in his view that they had led to ‘some degree of confidence that what Australians produce is, ipso facto, Australian’. 12

The late 1980s marked the period of what Tom O’Regan (1993) has termed the ‘rise and fall of entrepreneurial TV’, as debt-financed expansion undertaken by the Qintex, Bond and Westfield groups, who took over the Seven, Nine and Ten networks in 1987 in response to the changes in media ownership

228 laws in 1986-87, proved to be unsustainable in the wake of the stock market crash of November 1987. The situation was to worsen for the sector in 1990-91, as it was faced with continuing high debt levels, rising interest rates, and a sharp fall in the rate of growth in advertising revenues from 15 per cent to 6 per cent, leading to a sharp deterioration in the profitability of commercial television networks, as shown in Table 5.2:

Table 5.2 Rates of Return to Capital City Commercial Television Stations 1987/88-1990/91 (per cent) 1987-88 1988-89 1989-90 1990-91

3.9 0.3 -0.2 -2.6

Source: BTCE 1995: 81.

As a result of this deteriorating financial situation, the commercial networks demanded a phased introduction of the Australian content transmission quota to 50 per cent. The Final Draft Proposal retained the combined quota/point system, setting an Australian transmission quota of 35 per cent of broadcast time between 6.00 am and midnight in the first year of operation, to be incrementally increased to 50 per cent by the fourth year of operation, and to later increase to 60 per cent by the sixth year of operation. In spite of a dissenting view within the Tribunal presented by Julie James Bailey (Bailey in ABT 1991c: 38), the

229 Tribunal’s majority view was that industry profitability and viability were the primary concerns, and that the meeting of local content quotas was a positive spin-off from a profitable commercial broadcasting industry. At the end of perhaps the most penetrating inquiry into their conduct, the commercial free-to-air broadcasters were able to reach a familiar quid pro quo with the regulators, the production sector and interest groups: the delivery of prescribed levels of local content, in exchange for guaranteed long-term profitability, minimal scrutiny of internal decision-making, and restrictions upon competition.

Conclusion

The Australian Content Inquiry commenced by the ABT in 1983 took place in the context of some very significant shifts in how media reform movements organised around the policy process, as well as in the ways in which regulatory agencies facilitated their participation. In contrast to the diffuse nature of concerns raised in the licence renewal hearings, the Australian Content inquiry was focused around the particular issue of the amount of locally produced programming that commercial broadcasters could legitimately be expected to screen, with an emphasis upon particular program genres.

The participatory processes that came to develop in the course of the inquiry also supported the ongoing involvement of organised advocacy and public interest groups, and in this way contributed to what Christina Spurgeon (1997)

230 has described as the ‘professionalisation of the public interest’ in the 1980s, that was in turn facilitated by the ABT as a regulatory agency. The inquiry marks an important case study in what Anna Yeatman (1999) has referred to as ‘activism in the policy process’, particularly in the ways in which alliances developed between policy ‘insiders’ in the regulatory agencies and ‘outsiders’ in the advocacy and public interest groups.

A further development arising from this period concerned shifts in the debate cultures of media and cultural studies, as some Australian academics working in these fields sought to align their activism to the activities of policyoriented organisations, through a tailoring of their analysis and participation to mainstream policy discourses and the temporalities of current policy processes. Such influences became particularly relevant as the ABT presented its controversial recommendation in the 1988 Draft proposal that Australian television programs should possess an ‘Australian look’, as measured by a series of ‘on-screen indicators’.

1

Interview with Julie James Bailey, 10 July 1995. Ibid. 3 Record of meeting between the Australian Broadcasting Tribunal and representatives from industry organisations, Melbourne, 29 July 1987. See also SPAA, Submission DOC009, op. cit. 4 Britton observes that at this time ‘TV - Make it Australian’ was ‘largely spearheaded by Actors Equity’. Interview with Anne Britton, 28 September 1998. 5 Ibid. 6 Interview with Dr. Christina Spurgeon, Lecturer in Media Studies, Queensland University of Technology, 28 October 1997. 7 Ibid. 8 Interview with Jock Given, Director, Communications Law Centre, 18 November 1997. On The New Mission: Impossible, see Miller (1998). 9 Given ibid. 10 Interview with Debra Richards, Director, Program Services, Australian Broadcasting Tribunal, 19 November 1997. 11 Ms J. James-Bailey, Member, ABT. in Commonwealth of Australia, Australian Content Proposals for Commercial Television, Transcript of Proceedings, Perth, 8 February 1989. 12 Mr Kim Williams, Chairman, Australian Film Finance Corporation, in Commonwealth of Australia, Australian Content Proposals for Commercial Television, Transcript of Proceedings, Sydney, 9 February 1989. 2