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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 ABT’s first public inquiry into media self-regulation, which led to the SelfRegulation 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

160 institutional conditions for promoting public participation, particularly through the 1976 Green Report and the establishment of the Australian Broadcasting Tribunal in 1977.

The ABT’s 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

161 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 Australia’s first Minister for the Media.

162 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

163 inquiry upon: how to promote greater public participation in broadcast media policy; the associated need for professional and independent research into Australia’s 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 Age’s 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

164 management’, and ‘seemed to make little progress in developing policy’ (New Journalist 1976: 22). Patricia Edgar, a prominent media reform activist, critiqued Doug McClelland’s 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 Labor’s 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?

165 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.1 This 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

166 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: 16).

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:

167 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: 44emphasis 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

168 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 community’s 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 selfregulation. 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

169 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

170 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 selfregulation 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, children’s programming, and programs dealing with religious and political issues. The Inquiry received 539 written submissions, and the three Tribunal members,

171 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 selfregulation. 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 Tribunal’s 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

172 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

173 of licence renewal was to ‘encourage people to lift their sights philosophically’ (The Gyngell Tapes 1984). What is notable about the Tribunal’s 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 public’s 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

174 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 ABCB’s decisionmaking processes. Although the Inquiry’s 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

175 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 Tribunal’s 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 Act 1992.

A significant critique of self-regulation was presented by the Australian Consumers Association, which put forward four arguments against industry selfregulation (ACA 1977). First, the ACA believed that any standards developed on a

176 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 Council’s Statement of Principles, except for the possibility of some publicity being given to the Council’s findings’ (ACA 1977: 4). Such criticisms echoed later arguments by O’Malley about the Australian Press Council, that it had functioned less as a regulatory agency than as 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 (O’Malley 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

177 immediate increases in drama and children’s 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 ABT’s Final Report found that Australia’s commercial broadcasters did not possess sufficient public trust to be expected to act in the public interest and that,

178 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 - children’s 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.

179 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 Report’s stress upon public accountability was seen as a victory for the broadcasting reform groups, there was a notable lack of thinking through the 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 Harrison’s 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 O’Leary describe as the ‘cipher image’ of state agencies as ‘a passive mechanism controlled from outside the formal political sphere’ (Dunleavy and O’Leary, 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

180 was released for public comment. The South Australian Council for Children’s Films and Television expressed concern about the extent to which ‘the proposed system places too much onus on the public to maintain acceptable program and advertising standards’ (South Australian Council for Children’s 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 Act arising from the recommendations of the ABT’s 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

181 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 ‘participation’s 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

182 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

183 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 Tribunal’s 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 Tribunal’s 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

184 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. Harrison’s assessment of the Tribunal’s 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: 192195).

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 didn’t 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 everyone’s time, and providing the illusion that public groups were having a significant say’.5

185

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 Queen’s Counsel, thereby confirming the quasilegal 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,

186 263). Hawke notes that the groups accepted as interested parties at the TCN-9 and TEN-10 inquiries, such as the Parents’ and Citizens’ Committee, the Festival of Light, the Australian Labor Party and Freedom from Hunger, had drawn upon legal advice, and were perceived by the Tribunal to ‘clearly represent mainstream social and moral values’ and to constitute ‘representative interests’ (Hawke 1993: 35).

By the early 1980s, licence renewal hearings were seen by media reformers as ‘gripe sessions’, ‘a ritual,’ and ‘just another clogged and prevaricating filter between the public and the stations’ (quoted in Harrison 1986: 410). Further, the conduct of the 1979 Sydney Licence Renewal hearings led to considerable criticism of the Tribunal in Federal Parliament, and there was a view in government that ‘the Tribunal was a “lost” regulator, unsure of quite what it was looking at, or for, in its review of the stations’ performance’ (Harrison 1986: 276). The Administrative Review Council’s inquiry into ABT procedures in 1980 pointed to major problems with the way in which the Tribunal had conducted hearings, including: lack of judicial experience of Tribunal members; uncertainty over the ability of the Tribunal to promote general broadcasting standards; insufficiently defined procedures; unclear rights of participation; and a lack of clarity in the distinction between issues relevant to an individual licensee and more general issues of standards or media policies. In short, there was pressure on the Tribunal to be seen to get its procedures right. After 1980, the ABT adopted a less erratic and more legalistic approach to proceedings than had been the case in

187 1978-79. The new ABT Chair, David Jones, had significantly reinterpreted the Tribunal’s 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 policymaking were so flawed that any attempt to implement them was bound to end in

188 tears. What was apparent in the Tribunal’s license renewal hearings in 1978-1979 was that there was a lack of attention to forms and procedures of participation in 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

189 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 decisionmaking: 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 Sandercock’s view, are secondary

190 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 ABT’s 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 of ad 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:

191 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:

192 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 Harrison’s 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

193

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

194 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.

195 While the rise and fall of public participation in broadcast media policy formation through public licence renewal hearings was at one level a failure, one of its important legacies was to promote a greater degree of self-organisation among those with an ongoing interest in the filed. Valuable skills in participation were acquired by those involved in the hearings, and, as the focus of the ABT shifted in the 1980s from an emphasis on participation per se, to more ongoing brokering of engagement among interested parties around particular issues, those involved in the licence renewal hearings of the 1970s and early 1980s would play a significant role in Australian broadcast media policy. The Australian content inquiry of the 1980s would provide a significant watershed in such institutionalised public participation.

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. At a 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.