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Chapter Four

The Rise and Fall of Public Participation?

Broadcast Media Policy and the Australian

Broadcasting Tribunal 1972-1982

This chapter looks at the early years of the Australian Broadcasting Tribunal

(ABT), established in 1977 with an explicit remit to promote greater public

participation in Australian broadcast media policy. The chapter focuses upon the

ABTs first public inquiry into media self-regulation, which led to the Self-

Regulation for Broadcasters report (ABT 1977), and on the capacity of

subsequent the licence renewal hearing process to promote public participation as

a means of realising citizenship goals in relation to broadcast media.

The 1970s saw the forces demanding change in Australian media policy

gradually gain political ascendancy, albeit with interesting twists and turns. In

particular, the period of the Whitlam Labor government from 1972 to 1975 was

largely seen by policy activists as failing to open up commercial media to greater

public participation and scrutiny, even though it undertook major reforms into the

structure of Australian media, particularly in strengthening Australian content

regulations and promoting community broadcasting. By contrast, the early period

of the Fraser Liberal-County Party government established the discursive and

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institutional conditions for promoting public participation, particularly through

the 1976 Green Report and the establishment of the Australian Broadcasting

Tribunal in 1977.

The ABTs Self-Regulation Inquiry in 1977 engaged a wide cross-section

of individuals, organisations and groups, and led to the establishment of public

licence renewal hearings for commercial broadcasters as the principal mechanism

for direct public accountability between the broadcasters and the wider

community. It was hoped that such enhanced public participation would improve

Australian commercial broadcasting by opening it up to greater public scrutiny. It

was also hoped that such mechanisms could also reduce the need for direct state

regulation of commercial broadcasters, allowing the ABT as a regulatory agency

to play the role of nightwatchman in a more directly open and participatory

regulatory framework.

The subsequent history of licence renewal hearings revealed the

limitations of this political utopianism, as the hearings came to be increasingly

characterised by legalistic formalism, the exclusion of all but a few organised

interest groups from participation, and a growing gap between the formal right of

the ABT to revoke or suspend broadcast licences and their actual tendency to

renew the licences with minimal conditions attached. This negative outcome was

to some degree an inevitable consequence of unrealistic expectations placed upon

public participation as a panacea to the problems of institutional power. Such a

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conclusion would, however, lose sight of the extent to which the creation of

opportunities to participate in broadcast media policy formation led to the

emergence of organised interest groups capable of a more sustained and ongoing

engagement with the policy process, as well as a greater focus upon the

relationship between specific policy occasions, such as licence renewal hearings,

and broader policy formation and regulatory processes.

A False Dawn: The Whitlam Labor Government and the

Department of the Media

By the early 1970s, there were a number of forces for change in media policy in

Australia. These included the politically bipartisan acceptance of the need for

government support to develop a local film industry, the emergence of media

reform campaigns in the wake of the 1963-64 Vincent Report, and a wider

political and intellectual climate where there were demands for greater

participation and openness in political decision-making, combined with a renewed

cultural nationalism. The election of the Whitlam Labor government in December

1972, after 23 years of conservative governments, was both a reflection of these

changes and a further impetus for change.

The new government established, for the first time in Australian history, a

Department of the Media. This Department was established on 19 December

1972, and Senator Doug McClelland was Australias first Minister for the Media.

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Prior to becoming Minister, Doug McClelland had been a member of the Vincent

Committee and the Australian Mass Communications Council, and had stressed

the importance of Australian content quotas in television, and accountability on

the part of commercial broadcasters on the basis of their holding of licences

(McClelland 1972). The first Head of the Department of the Media, James Oswin,

saw its most important tasks as being information gathering, informing the public

of its rights in relation to broadcast media, and establishing an Australian look

for all aspects of the media.

In their study of the Department of the Media, Wiltshire and Stokes (1976)

note that its principal activities included the establishment of a points system for

Australian content in areas such as drama on commercial television, and the

granting of new radio licences to public broadcasters, such as ethnic radio, fine

music and public access stations. It also organised seminars on film, television,

audiovisual media and public broadcasting, and produced a series of Working

Papers on the Australian media, on topics such as ownership and control, audience

involvement with programs, employment in the film and TV industries, public

access and public broadcasting. The foci of the Department of the Media were

upon promoting diversity, access and pluralism in Australian media. They were

similar to the central issues that were emerging from the Senate Standing

Committee on Education, Science and the Arts in its inquiry into Australian

broadcasting, which was established in 1972 (prior to the election of the Whitlam

Labor government). The Senate Select Committee had come to focus in its

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inquiry upon: how to promote greater public participation in broadcast media

policy; the associated need for professional and independent research into

Australias media; the need for a focus on social considerations in broadcasting

policy; and the need to promote structural diversity as the basis for pluralism in

programming (Commonwealth of Australia 1974).

The Department of the Media was subject to criticism from many sides

during its brief period of existence, before being abolished in 1976 by the Fraser

Liberal-Country Party government. The broadcasting industry, accustomed to a

history of much more cordial dealings with the ABCB, perceived the new

Department to be hostile to it. David Hall, General Manager of Channel 0

(Melbourne) argued that the Department of the Media had made our lives more

difficult than they ever were before, unnecessarily so. They are constantly

questioning what we are doing. We have to justify ourselves and our existence

and virtually everything we do (quoted in Wiltshire and Stokes 1976: 13). Such

an account of the new Department from within the media is similar to the

Melbourne Ages 1975 assessment of the Department of the Media as a

regrettable error (quoted in Wiltshire and Stokes 1976: 15).

What needs more explanation is the discontent with its performance that

existed among media reformers, and the left more generally. An article from an

anonymous former Department member, published in New Journalist in 1976,

observed that the Department staff lacked a working knowledge of public service

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management, and seemed to make little progress in developing policy (New

Journalist1976: 22). Patricia Edgar, a prominent media reform activist, critiqued

Doug McClellands performance as Minister for the Media in these terms:

Doug McClelland left his ministry in June 1975 without altering policies

he had denounced for many years as an opposition Senator: the foreign

monopolies which had dominated our film industry for years, the

monopoly control over the press, radio and television. He made no move

towards public licence renewal hearings; he did not act to investigate the

feasibility of Labors proposed newspaper commission; he left no coherent

broadcasting policy and in fact resisted its development because of

political and departmental infighting. (Edgar 1979: 220)

Such negative assessments of the Whitlam Labor government seem to be

incongruous, given the amount of change which occurred during its three years in

office, including: stronger Australian content regulations; establishment of FM

radio licences; promotion of public/community radio and ethnic broadcasting; and

the development of new ABC programming and services such as 2JJ in Sydney

and 3ZZ in Melbourne (the latter was closed down in 1977). Such changes were

considerably greater than the amount of change that had occurred under 23 years

of Liberal-Country Party governments. Why, then, is the assessment of media

reformers of the Whitlam period generally a negative one, with the era seen as a

time of missed opportunities?

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The answer may lie in part with the rise in the non-Labor left in this

period, who saw the modest reformism of the Whitlam Labor Government as

inadequate in light of possibilities for more radical political transformation. 1This

would presume, however, that the non-Labor left had a well-defined set of

alternative media policies in this period, which they largely did not. It is also

worth noting that, during this period, the energies of many media reformers turned

away from changing the commercial broadcasting sector to developing the

emergent third sector of community broadcasting. But both strands of critique

link to a wider concern about the scope for public participation in decisions

concerning the media in Australia. One of the problems with the Department of

the Media was that, even if it delivered more of the outcomes that the media

reformers wanted, it was nonetheless seen as a top-down institution not willing

to widen involvement in the policy process. Two ironies of media policy in the

period immediately following the fall of Labor in 1975 were that the most

persuasive arguments for participation came from a report that was the product of

minimal public participation, and that the report from which these arguments

came was initiated by the Liberal-Country Party Coalition government, led by

Malcolm Fraser.

The Green Report: Two Philosophies of Regulation?

On 13 April 1976 the Minister for Posts and Telecommunications, Eric Robinson,

announced an inquiry into the broadcasting and television industry, to be chaired

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by the permanent head of the Department of Post and Telecommunications, Fred

Green. While some believed that the Green Report was established primarily to

redress the Whitlam years (New Journalist 1976: 15), the Green Report was

evaluated more favourably upon its release, with media critics observing that it

was the most original and best integrated analysis of our broadcasting system

ever produced (Armstrong 1977a: 40). The Green Report placed four issues at the

centre of its approach to issues related to broadcasting: a growing focus upon

social and cultural goals; the resulting need for a much higher level of public

participation and involvement in policy formation and implementation; the need

to distinguish the technical, structural and operational aspects of broadcasting

from those functions relating to programming and content; and the view that

matters relating to programming and content should be removed from the direct

influence of the Government (Parliament of Commonwealth of Australia 1976: 1-

6).

In articulating a philosophy for the Australian broadcasting system, the

Green Report established structural diversity as a central principle, alongside

freedom to communicate, a system that informs and educates as well as entertains

and the promotion of local programming. It related diversity of interests and

opinions in the community to the necessity for a diversity of broadcasting types,

and it strongly emphasised the role which community or public broadcasting

could play in promoting such diversity:

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The effectiveness and value of a broadcasting system rests in its

programming output. Insofar as Australian society is diverse, and

encompasses a wide variety of interests, tastes and needs, so the

broadcasting system should attempt to provide, within the framework of

economic feasibility, a diversity of services to satisfy the requirements of

special interest and minority groups as well as those of the mass audiences

... This implies diversity of outlets in terms of stations operating within the

national, commercial and public sectors, and a diversity of both ownership

and funding methods within those sectors. (Parliament of the

Commonwealth of Australia 1976: 38, 39)

The Green Report argued that the rationale for government regulation of

broadcasting arose from the fact that the public owns the airwaves, and that

since frequencies are scarce, and the broadcast media are influential, to

grant a broadcasting licence is to bestow a privilege. This privilege carries

with it an obligation to provide the public with programs which meet the

standards it expects (Parliament of the Commonwealth of Australia, 1976: 44-

emphasis added).

One implication of this philosophy of broadcasting was that the licensing

process should be a fair and open one, amenable to public participation and public

scrutiny. To this end, it recommended that the Australian Broadcasting Tribunal be

established, which would hold public inquiries into the granting and renewal of

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licences, setting minimum standards for programming, and would have the power

to grant, renew, suspend or revoke licences, as well as impose penalties upon

licensees as provided in the Broadcasting and Television Act. The Tribunal would

be a quasi-judicial body, independent of the Minister and responsible to

Parliament as the communitys representative. While the quasi-judicial nature of

the proposed ABT loomed as a complex issue, the Green Report recommended

that the Tribunal should err on the side of generosity in granting access to its

proceedings, and should minimise legalism and formality in the conduct of its

hearings. The question of legal standing, and the possibility of maintaining soft

legalism while simultaneously establishing a regulatory agency which would

have teeth in its dealing with broadcast licensees, would prove to be a sticking

point two years later when the ABT conducted its first licence renewal hearings.

The Green Report distinguished between licensing and the setting of

minimum standards, particularly in the areas of Australian content and

advertising, which would be administered by the ABT and subject to public

participation, and program standards generally, where it favoured industry self-

regulation. The Report argued for devolving powers over program standards away

from government and towards industry. It preferred industry self-regulation in the

area of program standards on the grounds that, since Australia is a diverse society

with no singular or homogeneous set of values and allegiances, it would

therefore be appropriate, especially in an area so crucial to the formation and

dissemination of ideas as broadcasting, to fashion procedures for regulating the

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behaviour of broadcasters which maximise freedom of choice (Parliament of the

Commonwealth of Australia 1976: 83). Moreover, self-regulation had the

potential to reduce administrative costs and complexity, and encourage more

responsible behaviour on the part of broadcasters. The Green Report also noted

that self-regulation was also the preferred option of organisations representing the

national, commercial and public broadcasting sectors.

In the Green Report, we find arguments for two very different approaches

to the regulation of television program content. It presents one of the strongest

arguments found in Australian broadcasting policy for the collective public

ownership of the airwaves, and the resulting necessity of making commercial

broadcasters accountable through open processes of public participation. The

purpose of the Inquiry was seen as establishing:

how the people of Australia can best participate in and achieve a

satisfactory degree of collective control over broadcasting on the basis that

such participation is seen as a means of preserving and strengthening the

social, economic and political fabric of Australia (Parliament of the

Commonwealth of Australia 1976: 1).

Such statements exist alongside arguments for the value and necessity of

minimising government control over broadcast media, and claims that market

relations can in fact be most consonant with the recognition of diversity, pluralism

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and individual choice. In the Report, the two arguments are applied to different

domains of regulation, with the former applied primarily to the principles of

ownership of broadcasting licences, and the latter applied to the regulation of

program content. The ability to demarcate between these areas was shared by

some commentators, such as the New Journalist, which favoured self-regulation

on matters of taste and strong regulation in the area of Australian content (New

Journalist 1977). But the subsequent inquiry by the ABT into the issue of self-

regulation for broadcasters, recommended by the Green Report, would show that

it was difficult to hold simultaneously to these two philosophies, particularly

when combined with a belief that governments should get out of detailed

regulation and leave outcomes to competing parties.

The 1977 ABT Self-Regulation Inquiry

The Australian Broadcasting Tribunal was established on 1 January 1977,

replacing the Australian Broadcasting Control Board. Its first public inquiry was

into the regulation of broadcasting, with particular reference to the question of

self-regulation (Australian Broadcasting Tribunal 1977). The Terms of Reference

of the Inquiry required it to look into whether broadcasters themselves should be

responsible for setting and maintaining standards in areas such as advertising,

Australian content, the use of Australian creative personnel, childrens

programming, and programs dealing with religious and political issues. The

Inquiry received 539 written submissions, and the three Tribunal members,

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Chairman Bruce Gyngell, Vice-Chairman James Oswin and member Janet

Strickland, conducted public hearings in every Australian capital city over a four

month period. The Tribunal chose not to cross-examine the 292 witnesses who

appeared before it, believing that the public inquiry process could tap directly into

public opinion, unfiltered through bureaucracy.

What became apparent during the Inquiry was that industry self-regulation

was supported almost exclusively by the bodies representing the broadcasting

industry, with virtually all community, church, political, trade union and

educational groups, as well as almost all individual submissions, opposing self-

regulation. This created a difficulty for Tribunal members, and certainly for the

Chair, Bruce Gyngell, who had an in principle predisposition towards supporting

industry self-regulation in the area of program standards. The ABT expressed

concern that, in many submissions, self-regulation was seen as synonymous with

no regulation, and that there was a fear that the ABT was canvassing the

possibility of abolishing all rules for broadcasters (Australian Broadcasting

Tribunal 1977: 7). Defending itself from such an allegation, the Tribunals Final

Report argued that total self-regulation for the broadcasting industry is a

worthwhile and attainable goal, but pointed out that:

the majority of the Tribunal do not believe that the broadcasting industry

has shown itself, either through its past performances, or in its current

submissions to us, capable of grasping the whole nettle of self-regulation

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at once. We do not believe that they have convinced the public that they

are yet willing to put the public interest above their self-interest at all

times. In other words, we are not persuaded that the broadcasters will

always act in accordance with the concept of the public good, if, by so

doing, they cut across their own interests and diminish their profits.

(Australian Broadcasting Tribunal 1977: 9-10)

The Tribunal proposed public participation, or the philosophy of direct

public accountability, as the way of dealing with this tension:

The philosophy of direct public accountability is the basis of our approach

to the regulation of broadcasting. There will, of course, always be a role

for an official agency to control the grant and renewal of licences and

maintain a power of ultimate sanction over broadcasters who betray the

public trust. The Tribunal also considers that it has an obligation, at least

as an interim measure, to assist the public, and broadcasters, to develop

and maintain mechanisms to encourage the exercise of a system of

accountability. (Australian Broadcasting Tribunal 1977: 17)

The hope that the government regulator might wither away over time,

allowing for direct dialogue between broadcasters and public interest advocates,

was testimony to the inherent value placed upon dialogue and the power of moral

exhortation characteristic of the Australian Broadcasting Tribunal in its early

years. In a later interview, Bruce Gyngell argued that the idea behind the concept

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of licence renewal was to encourage people to lift their sights philosophically

(The Gyngell Tapes 1984). What is notable about the Tribunals advocacy of

public licence renewal hearings for commercial broadcasters is the extent to

which the Tribunal had come to value process, almost regardless of outcomes, as

expression of the popular will. In his closing statement to the Inquiry, ABT Chair

Bruce Gyngell stated:

Regardless of the content of our report or the nature of its reception by

the Government, the fact that the industry has been directly confronted

with the publics view is in some ways a sufficient reward. We feel that

no matter what structure is finally devised for the regulation of

broadcasting, there will be a need for regular, general public inquiries of

this nature to maintain the accountability of broadcasters to the public.

(Gyngell 1977)

Arguments For and Against Self-Regulation at the ABT Inquiry

The airwaves belong to the people. Station managements are loaned the

airwaves to enter our homes as our guests. For this privilege the stations

are required by law to abide by a set of regulations. (Australian Festival of

Light 1977)

Television frequencies are a publicly owned asset. Their utilisation is

licensed by the Government, on behalf of the community, to organisations

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who automatically and statutorially assume the responsibility of ensuring

that the best interests of Australians are served. In recompense for

assuming this responsibility, licensees enjoy an absolute barrier to entry

into their industry and the consequential restrictions on competition. (TV:

Make It Australian Committee 1977)

The large (539) number of submissions to the ABT Self-Regulation Inquiry can be

seen as indicative of frustration with the closed nature of the ABCBs decision-

making processes. Although the Inquirys Terms of Reference sought to limit

submissions to the question of self-regulation, the issues raised in the submissions

ranged far and wide. Nonetheless, a recurring theme of submissions was that of

opposition to industry self-regulation. Virtually all community, religious, political,

trade union and educational groups opposed self-regulation, and implicit in such

opposition was what has been described in this thesis as the social contract

argument: the nature of the airwaves as a public asset, held in public trust by

private licensees, makes broadcasters legitimately subject to the controlling

influences of the public and its representative organisations. For some, such as the

Socialist Party of Australia (Brown and Harris 1977) and the NSW Branch of the

Australian Telecommunications Employees Association (Cooper 1977), the

principle of establishing collective control over broadcasting, as described in the

Green Report, was extended to an argument for the nationalisation of the

commercial television services. Lest the Green Report be understood as an

unlikely socialist Trojan horse, such sentiments were shared by groups as diverse

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as the Australian Festival of Light, the Victorian Branch of the Australian Labor

Party (ALP 1977), the Church of England Diocese of Sydney (Church of England

1977), and ten Victorian Liberal MLCs (Guest 1977).

Industry self-regulation was favoured by representatives of the commercial

broadcasters, advertisers, program distributors and the Australian Journalists

Association (AJA 1977). The Federation of Australian Commercial Television

Stations (FACTS) argued that self-regulation would not lead to less regulation, but

rather to better regulation, since the best forms of regulation would be developed

when there was a direct relationship between broadcasters and the community,

rather than through government third parties (FACTS 1977: 4). FACTS proposed

that when codes are the outcome of a process developed by the industry itself, in

consultation with the ABT as the guarantor of code compliance, then a

responsible broadcaster ... [will] feel that if he complies with the industry codes,

he can be confident that he is also meeting the Tribunals definition of a

responsible licensee (FACTS 1977: 19-20). While these arguments were not to

prevail at the 1977 ABT Inquiry, similar arguments would form the basis for the

development of self-regulatory codes fifteen years later, under the Broadcasting

Services Act1992.

A significant critique of self-regulation was presented by the Australian

Consumers Association, which put forward four arguments against industry self-

regulation (ACA 1977). First, the ACA believed that any standards developed on a

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consensus basis within the industry would be at the lowest level acceptable to all

industry participants. Second, sanctions applied by such a body would tend to be

more notional than real. Third, enforcement or adjudication of standards would

necessarily involve a conflict of interest within the industry, as complaints are

made against the same group of people who were required to adjudicate on the

complaint. Fourth, consumer representation on such bodies was likely to be

minimal in terms of decision-making and absent in terms of policy-making. The

ACA used the Australian Press Council as a case study in the failure of industry

self-regulation, arguing that it had provided for no redress ... to consumers and no

sanctions imposed for breaches of the Councils Statement of Principles,

except for the possibility of some publicity being given to the Councils findings

(ACA 1977: 4). Such criticisms echoed later arguments by OMalley about the

Australian Press Council, that it had functioned less as a regulatory agency than as

a pseudo-regulatory agency, presenting the appearance of mechanisms for

complaint and redress but without a willingness or capacity to exercise punitive

action in cases of adverse findings, or as a counter-regulatory agency, acting as a

barrier to significant action in the policy sphere (OMalley 1987).

The Inquiry saw the further development of a coalition of interests

supporting Australian content quotas. The Actors and Announcers Equity

Association of Australia, the TV - Make It Australian group, and the Film and

Television Producers Association of Australia all argued for the phased

introduction of a 75 per cent local content quota for commercial television, and

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immediate increases in drama and childrens drama quotas, to be enforced by law.

Underpinning these claims was the argument that broadcast frequencies are

publicly owned assets, that commercial broadcasters benefit from the barriers to

entry associated with spectrum scarcity, and that in the absence of strong

regulation, these broadcasters will systematically undersupply locally produced

material, particularly in higher-cost areas such as drama, in order to maximise

monopoly profits. The Film and Television Production Association of Australia

put the argument in these terms:

The economic interests of the television stations are inevitably against the

production of Australian programmes and of Australian content generally

and, in particular, of drama content because they can make more money

by buying overseas programmes. Therefore, unless there are stringent

standards set down for minimum Australian content in all areas, but

particularly in the drama and high-cost variety areas, then the stations will

inevitably downgrade the amount of time given to Australian content and

upgrade the amount given to overseas content. (Film and Television

Production Association of Australia 1977)

Assessing the ABT Self-Regulation Report

The ABTs Final Report found that Australias commercial broadcasters did not

possess sufficient public trust to be expected to act in the public interest and that,

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as a result, there was a need for ongoing broadcasting regulation in the public

interest. The majority of Tribunal members concluded that in the most

contentious and difficult areas of broadcasting - childrens programs, Australian

content and advertising binding obligations should continue to be placed upon

broadcasters (Australian Broadcasting Tribunal 1977: 10).2 Nonetheless, in a

manner similar to the Green Report, the ABT Final Report expressed the hope that

industry self-regulation would, over time, develop as an effective alternative to

direct government regulation.

The way in which the Tribunal sought to resolve this apparent tension was

through promoting the concept of direct public accountability, through the

mechanism of public licence renewal hearings. Under such a framework, the

broadcasting industry would be regularly and directly confronted with the views

of those whom it serves (Australian Broadcasting Tribunal 1977: 17). The role of

the Tribunal in such a schema would be less that of a regulator and more of a

facilitator of ongoing engagements between the broadcasters and the public.

While the Tribunal sought to be empowered to conduct public hearings into

broadcasting, and to have the capacity to grant, suspend or revoke licences

following public hearings, it expressed the hope that its role may wither away

over time, and that it may play the nightwatchman role in a more directly open

and participatory regulatory framework.

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The stress upon public participation as the means of both democratising

and improving Australian commercial television was not, however, matched by

clarity in defining either the practicalities of public participation or the scope for

its operations in determining broadcaster performance. Kate Harrison observed

that while the Reports stress upon public accountability was seen as a victory for

the broadcasting reform groups, there was a notable lack of thinking through the

practicalities of the process. In particular, Harrison notes that the promise of

performance was unclear in terms of what it would include and the degree of

specificity with which the licensees intentions would be presented (Harrison

1986: 60).

In promoting a participatory framework and a non-legalistic ethos to

inform public licence renewal hearings, the Tribunal had given little consideration

to procedural issues such as legal representation, cross-examination and legal

standing. As a result, in Harrisons view, unrealistic expectations were created

about the scope for public intervention in the conduct of commercial broadcasters

that was made possible by the licence renewal process. In spite of the rhetorical

commitment to the devolution of power, or what Dunleavy and OLeary describe

as the cipher image of state agencies as a passive mechanism controlled from

outside the formal political sphere (Dunleavy and OLeary, 1987: 327-328), the

Tribunal would in fact hold considerable power in determining the extent of

public participation, through its interpretation of the legal and procedural issues

posed in the licence renewal process. These concerns were raised when the Report

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was released for public comment. The South Australian Council for Childrens

Films and Television expressed concern about the extent to which the proposed

system places too much onus on the public to maintain acceptable program and

advertising standards (South Australian Council for Childrens Films and

Television 1977). The Federation of Australian Radio Broadcasters (FARB)

pointed to contradictions between the juridical formalism of Tribunal procedures

and the legally binding nature of its decisions, and the refusal to implement

standard juridical procedure in its processes in order to facilitate maximum levels

of public participation (FARB 1977). In particular, FARB pointed to three

problems with the Inquiry process from a legal point of view: the inability to

cross-examine witnesses; the fact that most submissions were not presented as

sworn evidence; and the limit placed upon the number of witnesses appearing on

behalf of the industry. A turn to legalism was thus always implicit in the public

licence renewal process, even if the Tribunal did not adequately address its

implications until licence renewals commenced.

Licence Renewals 1978-1982

Legislative changes to the Broadcasting and Television Actarising from the

recommendations of the ABTs Self-Regulation Inquiry were enacted in 1977,

with the two principal changes being the transfer of licensing powers from the

Minister to the Tribunal, and the decision to grant broad discretionary powers to

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the Tribunal in its decisions on licence renewal. ABT Chair Bruce Gyngell

indicated that, through the licence renewal process, the public will be able to

directly confront the broadcasters with their wishes at public hearings (Gyngell,

1978: 10). Commenting on the legislation, Mark Armstrong observed that:

If the Tribunal chooses to champion the public interest then it will

obviously have ample powers and procedures to do so ... If the Tribunal is

unsympathetic to community requirements, it will have ample opportunity

to frustrate them through the exercise of its discretion (Armstrong 1977b,

quoted in Hawke 1993: 23).

The extensive literature that exists on the licence renewal hearings

generally argues that they were a failure. Hawke (1993) argues that the 1978

public licence renewal hearings in Adelaide constituted participations

magnificent moment, but that the Sydney hearings of 1979 marked the turn to

legalism which would prove fatal to the vision of licence renewal hearings as the

mechanism to make broadcasters directly accountable to the public. In the most

comprehensive survey of the history of the public licence renewal hearings,

Harrison argues that the licence renewal process:

began with open-ended promises of public participation and moved to

quite restrictive determinations of who had a legal right to take part. It

began as an informal procedure aiming for dialogue and discussion and

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moved to a very court-like process dominated by lawyers. It began with a

broad view of its scope of inquiry, looking at standards of programming

and encouraging improvement, but moved to a very legalistic concern

with technical breaches of minor prohibitions. Questions of procedure

dominated the process throughout, at the expense of questions of

substance about the quality of performance of commercial television.

(Harrison 1986: 6)

Others involved in the hearings believe that the movement for public

participation never recovered from the turn to legalism. Julie James Bailey

believes that the lawyers took it over in 1978, with the result being that the

general public got fed up.3 Mark Armstrong has also noted that legalism was not

the only problem, since an unseen factor was the hostility of the major

government departments, who weren't interested in seeing any area, particularly a

sensitive one, being in an uninhibited public process, so there was a desire to

see this process not working. Armstrong also observed that non-lawyers get

more legalistic than lawyers when they're put in a situation where there's some

kind of hearing, which subverted an ideal of public administration conducted

in public not an adversarial process with a judgement, but with the people who

were making decisions sitting there listening to those affected and then making

their decisions.4

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The first commercial television licence renewal inquiries were conducted in

Adelaide in 1978, at short notice for licensees and other participants, and were

characterised by a strong emphasis upon openness, flexibility and informality. All

57 written public submissions were regarded as relevant under the Act, and all

48 applicants to give evidence were considered to have an interest under the Act,

even though only four submissions specifically addressed the performance of the

Adelaide licensees under review (Hawke 1993: 26-27). In spite of the Tribunals

emphasis upon its mediatory and consensus-building role in the Adelaide

hearings, three problems became apparent in the course of the 1978 Adelaide

hearings that would ultimately lead to the breakdown of the process. First, there

was an absence of adequate information about the licensees, particularly

potentially sensitive financial information. Second, contradictions between the

quasi-judicial status of the Tribunal as the licensing authority and its attempts to

conduct hearings in a non-judicial manner became apparent, which were

accentuated by the perceived arbitrariness of the Tribunals procedures. Harrison

notes that Gyngell frequently sought to substitute his own charismatic authority

for legal authority, noting that he never behaved remotely like a judge, but more

like a compere of a large social gathering, and that often he answered questions

for the stations, instead of requiring them to answer (Harrison 1986: 162).

Finally, there was the reluctance of licensees to address concerns not

specifically related to their performance as a station, such as concerns about

violence, sexism in advertising, concentration of ownership or other broader

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media policy issues. They took the view that such criticisms were of television

or the industry as such, rather than the licensee under review, and therefore felt

no obligation to address them. Harrisons assessment of the Tribunals approach to

the Adelaide inquiries found that they lacked clarity in a number of respects, most

notably a lack of prior planning, failure to set standards for the assessment of

licensee performance prior to the inquiry, and a reluctance to define what forms of

evidence would be seen as relevant to a licence renewal (Harrison 1986: 192-

195).

While public participants and interest groups had concerns about the

conduct and outcomes of the Adelaide hearings, their overall view was that the

value of the process lay more in the opportunities to present concerns about

programming directly to the broadcasters than in the likelihood of the Tribunal

imposing sanctions upon the relevant licensees, with the role of the Tribunal being

less that of a judge and more that of a facilitator or mediator in a public forum

(Harrison 1986: 181-191). By contrast, the commercial broadcasters came away

from the Adelaide hearings with a strong view that the Tribunal was against

them. Tony Branigan, who later became the Chair of FACTS, believed that the

process was confrontational, and a fairly sterile, time wasting exercise, which

didnt really further any significant regulatory or public interest objective, other

than that of generating an enormous amount of paper and chewing up a lot of

everyones time, and providing the illusion that public groups were having a

significant say.5

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The Sydney licence renewal hearings of 1979 saw the collapse of the open,

non-judicial and informal approach to commercial television licence renewals.

Tensions between the public trust and private property aspects of broadcast

licenses came to a head, with both the licensees and some public interest groups

choosing to be represented by Queens Counsel, thereby confirming the quasi-

legal nature of the process. The drama of the hearings was further heightened by

police action against public participants, and the resignation of Janet Strickland

from the Tribunal. From the public interest perspective, divisions were emerging

between those who were associated with umbrella groups such as Actors Equity

and the Australian Commercial Law Association, and those who were not, as well

as between those who were seeking formal legal representation at the hearings

and those who lacked the funding and resources to be involved on an ongoing

basis.

The issues which proved to be most contentious in the course of licence

renewal hearings into the three Sydney commercial stations were the scope of the

inquiry, the right to cross-examine witnesses and the right to standing as

interested parties. The broad definition of interest which had been allowed to

operate at the Adelaide hearings was progressively narrowed, with the number of

successful applications for standing falling from 16 out of 25 at the ATN-7

hearings, to three of 18 applicants accepted at the TCN-9 hearings, and four of 16

applicants accepted at the TEN-10 hearing (Harrison 1986: 221, 224, 243, 247,

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1978-79. The new ABT Chair, David Jones, had significantly reinterpreted the

Tribunals interpretation of the public interest to one that welcomed public

assistance but did not see the hearings as a forum for matters of social change or

for changes in regulation of television (Hawke 1993: 41). Harrison noted the

declining number of public participants, and said that those who remained were

generally the stronger, better organised groups - the professional participants

(Harrison 1986: 419). Harrison concluded that the 1982 Sydney inquiries,

compared with those of 1979, were more formal, legalistic and streamlined in

their conduct. This pleased the industry participants, but significantly

disadvantaged public participants, and the inquiries were conducted in a manner

in which the public participants were uniformly unhappy with the process

[and] felt the Tribunal was dismissive and not interested in what they had to say,

and was biased towards the licensees (Harrison 1986: 485-486).

Was Participation Doomed to Fail?

It could be argued that the decline of commercial television licence renewal

hearings from public participation towards administrative and legal formalism,

and the primacy of the commercial interests of the licensees, was an inevitable

rude awakening for those harbouring reformist illusions about public participation

in media policy in the 1970s. It could also be claimed that arguments for public

participation as both a realisation of citizenship ideals and a guide to good policy-

making were so flawed that any attempt to implement them was bound to end in

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tears. What was apparent in the Tribunals license renewal hearings in 1978-1979

was that there was a lack of attention to forms and procedures of participation in

policy-making institutions. There was also a reluctance to acknowledge power as

either a constraint on or a condition for effective participation, or to acknowledge

that one of the conditions for regulatory agencies to exercise soft legalism over

regulated industries had, in practice, been their tendency to protect these

corporations from effective public scrutiny, as well as from greater economic

competition.

Enthusiasm for participation as an alternative to bureaucracy stemmed in

part from the sense that modern forms of governance, based upon the deployment

of expert knowledge and instrumental reason. There was also the sense that

entities outside of representative government, such as powerful corporations and

government bureaucracies, had in fact usurped the power of elected political

representatives, thereby rendering liberal democracy democratic in form only. The

push for public participation was intended to redress the balance of power

between citizens and government, and to enable citizens to determine their

collective fate in a more direct and transparent fashion, moving from passive to

active citizenship, and strong democracy.

In a critical overview of participation arguments in the 1970s, Leonie

Sandercock interprets demands for participation as arising from the demand for

some say in decisions, particularly those decisions which affect the immediate

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environment (Sandercock 1983: 79-80). Observing that the demand for public

participation in planning has become the great populist red herring of the 1970s in

Australia, Sandercock argues that:

Evidence of both overseas and Australian practice has shown that

participation is not a substitute for planning or for regular government: it

often leads to non-planning and semi-anarchic government. It is not an

effective means of radical social change: it often has the opposite effect.

And it is not an effective way of involving the have-nots in decision-

making: all the procedures of participation so far tried are biased towards

involving the middle class. (Sandercock 1983: 78)

In the rush to understand participation as a good thing, Sandercock believes that

important points have been ignored, such as: the dependence of effective

participation upon some prior form of collective organisation; the different values

and material interests brought to bear upon such processes by their various

disparate participants; and the varying purposes of participation processes, which

can include market research, involvement in decision-making, a way of co-opting

organised opposition, social therapy and grassroots radicalism. Sandercock

concludes that the experience of participation initiatives shows that it is irrelevant

at the level of major policy issues and irrelevant to the struggle of the poor for

fairer shares... in this society (Sandercock 1983: 87-88). The principal purposes

of campaigning for greater participation, in Sandercocks view, are secondary

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ones: guaranteeing better information flows; promoting greater honesty and

stronger ethical commitments within bureaucracies; mobilising potentially

interested parties; and keeping the door open on policy processes.

These arguments are relevant to understanding the limits of the ABTs

approach to public participation in licence renewal in a number of ways. The idea

that the ABT could use its legal authority to try to negate its regulatory power, by

devolving power to a direct exchange between the public and commercial

broadcasters, created a legal vacuum that was to become unacceptable to the

licensees and, since it created regulatory uncertainty, to the government. Further,

the ability to effectively participate in such processes assumed levels of

organisation, skills and resources among participants, as well as adequate

information flows from the Tribunal about the licensees, which either did not exist

or failed to materialise for the early hearings. Finally, the failure of the Tribunal to

set performance criteria or to define in advance the objectives of the renewal

process, because open dialogue and debate were valued as sufficient in

themselves, would itself create uncertainty and, within a fairly short period,

disillusionment among the majority of participants. Harrison notes that the

Tribunal never adequately linked its policy and regulatory roles with its licensing

role, which accentuated the sense ofad hocery and idiosyncrasy in perceptions of

its conduct. Harrison also notes that the decline in participation after 1979 also led

to a lack of pressure to reform the renewal process, since:

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the absence of a wide range of groups and the involvement of only a

small core group of participant organisations made the renewal process

less like a broad public inquiry, hearing from a range of affected interests

in the community, and more like a lobbying process, where public

participants were largely professional interest groups (Harrison 1986:

612).

It is, however, ultimately incorrect to see the outcome of participation as

only a form of information scanning, and a way of keeping public authorities

more honest and humane (Sandercock 1983: 88). Hawke observes that, by the

time of the 1984 licence renewal hearings, some of those who had been involved

in such processes as media reform activists, such as Mark Armstrong, Julie James

Bailey and Ray Watterson, were now Tribunal members. This in turn led to a

refocusing of licence renewal hearings away from an administrative focus on

minor programming breaches to a broad examination of the ways in which

programming decisions were reached (Hawke 1993: 46). There was also growing

recognition of the links between licence renewal hearings and broader policy

formation and regulatory process, as well as a streamlining of processes, which

could be said to reflect awareness among past participants of the limits of the

earlier Tribunal procedures. This had been mirrored by the professionalisation of

participation, as:

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The groups which remained involved in the process have developed skills

and broadened their involvement in media policy issues ... an indirect

benefit to them has been the increase in experience, political expertise, and

organisation which has enabled them to press broadcasting reform issues

in other forums. (Harrison 1986: 616)

If it is recognised that participation in policy processes is necessarily a

political act, and that goals are best achieved through collective forms of

organisation and the cultivation of necessary skills and resources, then this can be

seen as a positive outcome of the public licence renewal inquiry process. The fact

that it required the disenchanting of assumptions about active citizenship and

heroic individualism was a lesson learnt by the mid-1980s, a point testified to by

Harrisons own conclusion:

A significant lesson for the reformers from the renewal process would be

that they should frame future reform demands in more specific and

quantifiable terms. If the reformers had pushed for changes which were

clear-cut and measurable, they may have been more successful. While a

more bureaucratic approach to reform lacked the excitement and the

public profile of the early licence renewal inquiries, it may have achieved

more substantial reforms in the long run. The open-ended nature of the

renewal process too easily obscured whether or not anything had really

changed. (Harrison 1986: 616)6

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Conclusion

The 1970s saw citizenship discourses linked to broadcast media policy

through campaigns based on the assumption that the airwaves were a form of

public property that was made available to commercial broadcasters on a public

trust basis, and viewed such an entitlement as necessitating a reciprocal

obligation for broadcast licensees to be open and responsive to the expectations of

the public as citizens about appropriate uses of such public property. The 1976

Green Report and the 1977 Self-Regulation Inquiry held by the newly established

Australian Broadcasting Tribunal attempted to flesh out these principles into

implementable policies, while at the same time seeking to promote responsible

self-regulation in areas such as program standards and complaints procedures. For

the ABT, the key to the philosophy of direct public accountability of

broadcasters to the community lay in open licence renewal hearings, whereby

broadcasters would be confronted directly by the opinions of the public, and

obliged through a quasi-judicial process to respond appropriately in order to retain

their access to the airwaves as a public resource.

In the process of applying these participatory principles to broadcast

media, which are reflective of broader concerns about the gap between formal

citizenship rights and the practicalities of governance in liberal-democratic

societies, three problems became apparent. First, by seeking to give the public a

real voice in the regulatory process, the ABT was breaking with the traditional

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practice of regulatory authorities in using their powers of soft legalism over

socially significant and economically powerful industries such as broadcasting.

The policy process had evolved in these sectors usually entailed minimal external

scrutiny over the regulated industry, aside from occasional instances of what has

been termed in the United States context as regulation-by-raised eyebrow, and a

policy culture had developed where regulatory agencies and private institutions

developed a shared interest in a depoliticised consensus that largely preserved the

status quo. The ABT challenged this to some degree, but probably underestimated

the entrenched nature of such a policy culture. Second, insofar as the ABT was

committed to challenging regulatory capture, its capacity to achieve significant

change through public processes such as licence renewal hearings was limited by

the tendency to assume that the public could constitute an entity able to be

mobilised through public processes. An implicit, and flawed, assumption was that

the regulatory agency could play a passive, brokering role in the engagement of

broadcasters with public opinion in its various forms in open and public

deliberative processes. Finally, the attempts by ABT Chair Bruce Gyngell to

conduct licence renewal hearings in a non-legalistic and informal manner resulted

in allegations on all sides of arbitrariness in the conduct of hearings, and led

within two years of hearings commencing to a turn to legalism whose principal

consequence was to exclude all but well-organised interest groups from the

licence renewal process.

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1 Left perspectives on the Whitlam government are discussed in Higgins (1974); Duncan (1978); and Beilharz

(1994).2 Reference to the majority of the Tribunal is made at several points in the Introduction to the Final Report (eg.

pp. 9, 10). One area of disagreement concerned the dissent of the Chairman, Bruce Gyngell, from proposals for an

Australian content quota for commercial television, which is recorded in the Report (p. 11).3 Interview with Julie James Bailey, 10 July 1995.4 Interview with Mark Armstrong, 11 April 1996.5 Interview with Tony Branigan, Chairman, Federation of Australian Commercial Television Stations (FACTS), 13

November 1997. Antipathy towards licence renewal hearings among commercial broadcasters remains strong to this day. Ata seminar on Convergence and Regulation held in Sydney in August 2000, Bob Campbell, former Managing Director of

the Seven Network, pleaded that there not be a return to public licence renewal hearings.6 Subsequent to writing her thesis, Kate Harrison became in 1988 the first Director of the Communications Law

Centre, the first Australian public interest advocacy organisation specialising in media and communications issues.

Chapter Four_PhD_Terry Flew

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