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.

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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

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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 liberal-

pluralist 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
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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-to-

day 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 non-

government organisations, which develop mechanisms for negotiated co-

ordination 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-

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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 self-

regulation 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

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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

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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

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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
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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.