Introduction To Part Two_phd_terry Flew

Part Two

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Introduction to Part Two

Part One of this thesis was primarily concerned with the why of broadcast media policy. It was argued that an understanding of the institutional and discursive structures of broadcast media and the resultant policy settlements developed over time in national broadcast media systems, was essential to understanding broadcasting practice and program content. Part Two of the thesis will focus upon the how of media governance through content regulation. This focus will be developed through four case studies in Australian broadcast media policy: the development of the Australian Broadcasting Tribunal in the late 1970s, and the demand for greater public participation through the broadcast licence renewal process; the Australian Content Inquiry of the 1980s conducted by the ABT; the reform of broadcasting policy arising from the Broadcasting Services Act 1992, and its moves towards ‘light-touch’ and ‘pro-competitive’ forms of media regulation; and the relationship between national media policy formation and international trade agreements, emerging through the impact of trade agreements such as the General Agreement on Trade in Services (GATS) and the Closer Economic Relation (CER) between Australia and New Zealand.

151 In one sense, this involves a movement from the abstract to the concrete, or from theoretical to more applied forms of knowledge. But what we find through this empirical work on Australian broadcast media policy is a wider set of underlying issues concerning the public regulation of culture through institutions of government. One concerns the relationship between state agencies and the wider social institutions and structures through which they operate. Patrick Dunleavy and Brendan O’Leary (1987) have developed a typology of relationships between state agencies and their external environment. They present three models: the cipher state, where state actions are largely shaped by forces external to them, such as voters or powerful business interests; the guardian state, where state agencies are a semi-autonomous institutional force able to reshape the external environment, possibly to strengthen non-dominant or less organised interests; and the partisan state, where state agencies are social agents operating to maximise their own interests.

The phenomenon of regulatory agencies being ‘captured’ by the industries they are intended to regulate, and the resulting engagement in ‘symbolic policy’ that gives the appearance of openness and inclusiveness but in fact demobilises oppositional voices, is an instance of state agencies becoming ‘ciphers’ of powerful business and/or government interests. Robert Horwitz (1989) has noted that while regulatory agencies appear powerful on the basis of their combination of policy development and enforcement functions, and their ability to operate in a more open-ended and discretionary fashion than more traditional government

152 institutions, such open-endedness has rendered them particularly vulnerable to regulatory ‘capture’. Open-ended mandates promote informal decision-making and a policy culture based around consensus and minimal external scrutiny of operations, which intersects with the political economy of broadcasting, such as the commercial industry’s control over investment and employment decisions, as well as over information flows. It marks an instance of what political scientist Charles Lindblom has described as the ‘privileged position of business’ in liberalpluralist societies, since government officials sought:

to remove from politics those highly divisive issues on which businessmen would be loath to yield. Since theirs is the task of seeing to it that business performs, they do not want the fundamentals of private enterprise to become lively political issues (Lindblom 1977: 205).

The likelihood of regulatory agencies avoiding capture by those whom they regulate is strongly dependent upon their ability to promote countervailing forms of institutional power that are able to exert influence over the policy process. This thesis tracks three approaches to this question in Australian broadcast media policy. In the 1970s, the Australian Broadcasting Tribunal sought to institute a policy of direct accountability of the broadcasters to the public, through regular and quasi-judicial licence renewal hearings, where commercial broadcasters would have to answer directly to members of the public about their use of the airwaves. By the 1980s, the ABT had developed a more formalised

153 process of acting as a broker of competing interests, encouraging the organisation and professionalisation of media reformers, and at times providing selective assistance to advocacy and public interest groups, in order to better facilitate their participation alongside the powerful commercial broadcasting networks. By the 1990s, there was a turn away from focusing upon institutional conduct, and towards establishing legal and policy settings that would enable structural regulation, or regulation of market power through development of a more competitive environment. For its advocates, a structural approach to regulation presented the possibility of allowing regulators to withdraw from detailed day-today scrutiny of the industry, and instead practice regulation by exception, only intervening when the system was not performing as required.

Such shifts in the mode of engagement with interest groups by the ABT and its successor, the Australian Broadcasting Authority, can be understood as arising in part out of changing conceptions of the nature of governance. Governance is a concept used to interpret the network of formal and informal linkages and institutional arrangements between public, corporate and other nongovernment organisations, which develop mechanisms for negotiated coordination of economic and social activity. Writers such as Nikolas Rose, Graham Burchell and Peter Miller have identified a shift towards what they term ‘advanced liberal’ modes of governance, entailing governmental activism aimed at constructing the legal, institutional and cultural conditions that will promote an ‘enterprise culture’. Such governmental strategies to promote responsible self-

154 regulation are consistent with other policy developments, most notably national competition policy, with its shift in focus away from ‘public interest’ regulation designed to restrain corporate power, to removing regulatory obstacles to the operation of competitive markets.

The Broadcasting Services Act 1992 sought to develop a new mode of governance that was ‘light touch’, pro-competitive, enabled responsible selfregulation by the broadcasting industry and promoted the development of new technologies and new services. Central to this was the concept of co-regulation, or the idea that the ABA as regulatory authority could enable the various broadcasting sectors to better regulate their own relations with the public around areas such as program standards and complaints procedures. This would in turn allow the ABA to adopt a more forward-looking and flexible approach to policy and the scope to develop ‘partnerships’ with industry and other relevant stakeholders. The unresolved tension in such new arrangements is the extent to which regulatory agencies need to have an independent, ‘watchdog’ function in monitoring the public interest implications of the uses of private power. What is apparent in a historical overview of broadcasting regulation in Australia is that this is not a new issue, but rather reinvokes earlier concerns about regulatory capture.

While the Broadcasting Services Act appears to mark a decisive shift from citizenship discourses, and associated traditions of strong state regulation, towards

155 a more consumerist and market-based framework, an examination of key broadcast media policy areas in Australia in the 1990s reveals a more complex set of dynamics. While it is believed that the new arrangements improved the efficiency of regulation, critics have been concerned that this occurred as a result of media advocacy and public interest groups only being able to participate in media policy formation at the ABA’s discretion. The claims that the new legislation would promote greater competition and the development of new services are tempered by the protracted difficulties in introducing pay television into Australia. Arguments that have been made for the success of self-regulation and co-regulation have needed qualification in light of the ‘cash-for-comment’ scandal that arose in Australian commercial radio in 1999, where high profile radio announcers such as John Laws and Alan Jones were found to have been disguising statements made on behalf of their sponsors as news and editorial comment. Program classification marks out an area where the assumption that a more liberal approach to media content regulation would emerge in the new environment has been contradicted in the course of the 1990s by the activist role played by other areas of government in maintaining restrictions on violent or sexually explicit content on all areas of broadcast media, including pay TV.

One of the great debates of Australian public life in the 1990s, which has manifestations in broadcast media policy, was whether public policy-making was colonised by economic discourses in ways that had distorting effects upon the development of society and culture. While the ‘economic rationalism’ argument

156 that this claim draws upon is rejected in this thesis as being overly simplistic and historically misleading, it pointed nonetheless to a greater role being played by economic arguments in policy discourse in the 1980s and 1990s. Policies such as Australian content regulations for commercial television were increasingly to be assessed from the methodological standpoint of neo-classical cultural economics, rather than as part of the cultural mission of the nation-building state. Where some of these ‘economics-versus-culture’ debates have become sharpest since the early 1990s is in the growing significance of international trade agreements as setting the parameters for national media and cultural policy. The Uruguay Round of General Agreement on Tariffs and Trade (GATT) negotiations saw its trade liberalisation framework extended to services, leading to the GATS (General Agreement on Trade in Services) Agreement in 1994. The GATS negotiations are perhaps best known for the famous disagreement between the United States and the European Community about whether audiovisual services should be included in such an agreement, known as the ‘Cola versus Zola’ (Grainger 1997) or ‘“Jurassic” trade dispute’ (Grant 1994).

A strong policy and political consensus had developed in Australia since the early 1970s around the virtues of trade liberalisation, which was consolidated within the Federal Labor government by the ‘Banana Republic’ economic crisis of the mid-1980s. This informed Australia’s approach to the GATT negotiations as a nation that was strongly pro-free trade and a supporter of multilateral trade agreements. One of the difficulties of this discussion is that it had developed

157 around trade in goods, most notably agriculture and manufactured goods; the implications of extending this position to trade in services such as audiovisual media had not been given much thought prior to the early 1990s. The underlying assumption in the audiovisual sector was that Australia was uniquely exposed to import competition in television programs, and that some form of economic protection through quotas was a necessary condition for domestic audiovisual production and the development of a distinctive national culture. Moves to promote trade liberalisation in audiovisual services appeared to those in the local production sector to be reckless and contrary to the national interest.

The incoherence in Australian broadcast media policy became apparent in the 1990s when sections of the New Zealand audiovisual industry initiated action against the Australian Broadcasting Authority, on the basis of Australian content regulations being discriminatory against programs produced in New Zealand, and therefore being in contravention of the Closer Economic Relation (CER) between the two countries. The case, known as the Project Blue Sky case (after the name adopted by the New Zealand interests) was successfully pursued through the Australian courts. The reasons for the High Court’s judgement in favour of Project Blue Sky lay not only in the CER, but also in the decision to include in the Broadcasting Services Act a clause that required the ABA to perform its functions in a manner consistent with Australia’s obligations under agreements, treaties and conventions with other countries. In Australia, this decision has not been seen as a basis for regional consolidation and expanded markets in the face of international

158 competition, as the EC agreements in audiovisual services. Rather, the incorporation of audiovisual services into the CER has been seen by the Australian audiovisual production sector as the thin end of the wedge towards full content deregulation, in spite of what appears to be the limited impact of New Zealand programs in the Australian market. Such tensions between cultural sovereignty, industry viability, and the desire of Australian trade negotiators to establish Australia as a ‘best practice’ nation in progressive trade liberalisation, manifest themselves even more sharply in the context of the ‘Millennium Round’ of GATS negotiations, to be under the auspices of the World Trade Organisation (WTO) from 2000 onwards.