John Murphy (Lowe, Australian Labor Party, Parliamentary Secretary to the Leader of the Opposition) Share this | Hansard source

The Trade Practices Amendment (National Access Regime) Bill 2005 is one of a range of bills introduced by the government which make fundamental amendments to the Trade Practices Act 1974. As members of this House well know, other bills before the House that would seek to amend the principal act include the Trade Practices Legislation Amendment Bill (No. 1) 2005 and the Trade Practices Amendment (Personal Injuries and Death) Bill 2004. I specifically refer to the Trade Practices Legislation Amendment Bill (No. 1) 2005, which I will refer to as the TPA1 bill. This bill was introduced into the House on 17 February last year and was passed on 10 March last year. Also on 10 March 2005 the TPA1 bill was introduced into the Senate, where the bill remained until returning to this House late last year.

The reason I bring this legislative history to the House’s attention this morning is that, for reasons which I hope will become clear in a moment, there is a direct and fundamental policy connection between the national access regime bill and the TPA1 Bill. What is the purpose of the national access regime bill? The Parliamentary Library’s Bills Digest No. 186 of 2004-05 notes that the purpose of the national access regime bill is to amend:

Part IIIA of the (TPA) to implement many of the recommendations that were made by the Productivity Commission in its 2001 Review of the National Access Regime.

As members of the House are aware, the recommendations in the Productivity Commission’s 2001 review concern part IIIA of the Trade Practices Act, which was a new part of the act inserted as a result of the Hilmer report. The Hilmer report, in turn, deals with the access by consumers to what are described as essential services in those markets which operate under what is called ‘conditions of natural monopoly’.

The bill before the House this morning deals with the Commonwealth government’s commitment to participate in honouring the recommendations of the Hilmer report. In particular, the reforms deal, culminating in the competition principles agreement, and the CPA in turn prescribe the principles of the national access regime. It is an open question as to what industries operate as a ‘natural monopoly’. Examples that readily spring to mind and that are cited in the Bills Digest No. 186 include essential facilities such as:

electricity transmission grids, telecommunication networks, rail tracks, major pipelines, ports and airports ...

I note in passing the sale of telecommunications and other airport facilities and the disastrous manner in which the Howard government has administered these sales to the eternal detriment of the Australian consumer, the taxpayer, and, more importantly, the people I represent in my electorate of Lowe.

Highly profitable cash flow entities such as Telstra and the designated international airports of Australia have been flogged, with no attempt to solve the environmental and/or service problems, such as regional telephony services in the case of Telstra or, dare I mention it, aircraft noise, expansion and environmental problems in the case of Sydney airport. You have heard me speak on this issue ad nauseam since I was elected to this House more than seven years ago. It is scandalous that, at this very moment, Sydney airport is being developed as a great shopping centre and a car park. I do not know how often I have said it but, as an airport, it operates very well as a shopping centre and a car park. It is outrageous that this comes at the expense of the people that I represent in that every day they are bombarded with aircraft noise and that the government has not honoured its commitments in relation to the long-term operating plan to get fair noise distribution over the inner west of Sydney and to do something to make sure that the second airport for Sydney is built in the foreseeable future to take the pressure off Kingsford Smith airport.

Sydney airport, Sydney’s Ml motorway, M4 motorway, M5 motorway and a host of other infrastructure entities are all owned either directly by Macquarie Bank or by one of its subsidiaries or consortium partners. I question how a national access regime may operate at all in such a profit only and dividend driven psychosis that pervades every decision of the big end of town, which Macquarie Bank represents. I question how the Australian Competition and Consumer Commission may ever administer the national access regime where the god of profit dictates with an iron fist against each and every other responsibility—duty to environmental protection, duty to provide equitable services for all Australians, metropolitan or country, the hearing impaired or people with financial or distance limited access issues. These are the forgotten and marginalised people in the tyranny of utilitarianism.

The issue of marginalisation brings me to the connection I referred to at the beginning of this speech between this national access bill and the Trade Practices Legislation Amendment Bill (No. 1) 2005. The connection is most readily seen in an industry which gets no mention in the context of the national access regime, nor any mention at all. The real politic of this silence is due not to its irrelevance but to the fear that is struck into the hearts of others in this House who dare to mention this forbidden topic. What is the forbidden topic that I refer to? I have mentioned it on more than one occasion, and I notice the Chief Opposition Whip, the member for Chifley, is here to hear this contribution and he has heard me on this topic before. It is the industry domination of two media companies who have a stranglehold on commercial media ownership in Australia. I am obviously referring to PBL and News Ltd. I have spoken many times about this and my concerns in relation to the government’s agenda to concentrate media ownership in Australia.

Let me be under no illusion. Media ownership in Australia is already heavily concentrated. The influence of Australia’s two biggest media companies is such that no government or opposition would win an election with both companies campaigning against it. That is a fact. Some might ask what this has to do with the bill before the House today. I will tell you: the answer is everything. The national access regime is designed to supplement commercial negotiation where an individual or body corporate is effectively denied access to a declared service. What happens when the media is so monopolised by one or two companies that competition is for all intents and purposes effectively denied?

Much has been written in recent times about the increased influence of the internet as the sole or primary source of news and information available to the Australian public. Last year I read comments which were published in the Australian Financial Review attributed to the ACCC Chairman, Mr Graeme Samuel. I will read you inter alia what Mr Samuel said in a speech:

... “increasing competition in news outlets—including web log sites—could allay fears that diversity of news and information could be harmed in media deregulation.” He cited Rupert Murdoch’s comment that “young Americans now looked first to the Internet for news, second to cable TV, third to free-to-air television, and only fourth to newspapers.”

“As this occurs and you have a multiplicity of news and information, the prospect of domination by a duopoly in Australia may diminish”.

Mr Deputy Speaker, you know that is rubbish. I would like to restate the words of a letter that I wrote—one of a number of letters—to the Australian Financial Review. This one is dated 4 October, and I said:

Isn’t Mr Samuel aware that Internet penetration in Australia is low and that most Australians, overwhelmingly, still get their news and information from traditional media, that is, newspapers, television and radio stations?

I asked a further question in that letter:

Isn’t Mr Samuel aware that Mr Murdoch has a very great interest in any changes to Australia’s cross-media ownership laws?

Unlike other natural monopolies, regulating and protecting the public interest in the media duopoly is not simply governed by one law, nor even by one government agency. I fear that that split is deliberate. Media ownership laws that protect public interest items are prescribed in sections 38A, 51 and 53 to 56 of the Broadcasting Services Act 1992. These functions are performed not by the ACCC but by the newly formed Australian Communications and Media Authority, or ACMA, as I will refer to them. Foreign ownership regulations are prescribed in sections 60, 61 and 109. However, the ACCC does have a role in the regulation of the media industry in the field of merger provisions under section 50(1) of the TPA. Section 50 deals with the effect of a merger of any corporation, including media interests, which would have the effect of substantially lessening competition in a market. A non-exclusive list of factors for consideration in what may result in lessening competition is prescribed in section 50(3).

What is in issue here is the duopoly of commercial media ownership that exists in Australia. Current high-profile and very expensive litigation between Kerry Stokes’s Channel 7 and Telstra, News Ltd and PBL highlight at the moment what lengths of collusion and corporate warfare that duopoly is prepared to go through in order to control media in Australia. We saw this played out in public in the late 1990s, when News almost destroyed elite rugby league in Australia in its pursuit of owning a majority stake in the game in order to sell pay television subscriptions. To destroy Kerry Stokes and C7 you had to make sure the channel would not broadcast rugby league or AFL.

All this leads to the conclusion that there are at least two government agencies who have statutory responsibilities over the media duopoly that effectively operates within a monopolistic regime. Both the ACMA and the ACCC collectively have different but closely related responsibilities to ensure that any merger or other conduct by an Australian or foreign corporation will not lessen or substantially lessen competition and choice in media in Australia. That is the legislators intent with the original 1974 legislation, the Trade Practices Act—an act I am happy to say is one of the lasting legacies of the Whitlam Labor government. The wisdom of that legislation is only made more profound by the deliberate tampering we see here today by the government seeking to reduce the efficacy of this legislation.

It is disturbing to me, and I am sure to many Australians, to hear the words of the ACCC Chairman, Mr Samuel, who now acts in his new found role of salesperson for the big media moguls. Does the chairman think the public is stupid when he seriously suggests that internet media in Australia is more influential as a preferred choice of media than newspapers, radio and television? If that is the case, then I invite Mr James Packer and Mr Murdoch to sell some of their interests in traditional media—namely, newspapers, magazines and both free-to-air and monopoly pay television. What sophistry to purport that the game is up for these ‘old-iron’ media formats as the internet is sweeping us all away! That is nonsense.

I believe the ACCC needs to do its homework. It should be clear to the ACCC that, in Australia, PBL and News Ltd have a stranglehold on ownership and control of newspapers, magazines and free-to-air and pay television and will have for many decades to come. Indeed, independent media players providing news services on the internet will never match the mainstream influence of newspapers, radio and television. It is a fact that every day most Australians turn on a radio station, open a newspaper and watch a free-to-air television broadcast. That gives them the news and information that they need every day and, ultimately, will affect and influence the way they vote.

Whether old or new media prevails, media diversity relies on diversity of ownership. He who pays the piper calls the tune. So why is the government so hell-bent on concentrating media ownership in Australia as it proposes? The iron-fisted control over print and television exercised by our two biggest media companies is apparently still not enough. The companies will obviously try to extend their influence to dominate the new media sources such as news sites on the internet. I refer to a news article published in one of News Ltd’s newspapers, the Daily Telegraph, as late as 6 October 2005, entitled ‘News spreads its net wide’:

Rupert Murdoch’s global media giant News Corp has gathered up a group of websites attractive to young men worldwide as it pursues its goal to become a major force in cyberspace. Mr Murdoch, News Corps Chairman and Chief Executive Officer, is steaming ahead with plans to dominate the internet, with his full strategy for conquering cyberspace expected to be announced soon.

I say to Mr Samuel, the guardian of anticompetitive practices in Australia, that not even the internet will be spared total domination by our two biggest media companies. Mr Samuel, Australians will not go rushing to the internet to find an alternative view that has a real capacity to provide real competition to our two biggest media companies.

Outside the two biggest media companies, where do you turn for alternative views in our society? Thankfully, we have the public broadcaster, the ABC, but they continually get flogged by the government for allegedly being biased and are being starved of additional funds. It will be very interesting to see how the outgoing managing director of our public broadcaster, Mr Balding, goes in his latest triennial funding submission to the government. He will attempt to secure something like another $38 million for the ABC’s budget over the next three years—I would hate to be hanging by the eyebrows for that amount of money.

What confidence can we have in the watchdog of the public interest, the ACCC, that we will not have mergers or other corporate conduct that results in Australia’s media simply being further and further dominated by only two owners? Politically, this government is hell-bent on surrendering to the two biggest players. Worryingly, the ACCC would have us believe that the internet will save the day in terms of offering people real choice and real competition to those media giants. Real competition within Australia’s media industry is already nonexistent, as Mr Kerry Stokes of Channel 7 is discovering in the Federal Court at the moment.

If the government is serious about honouring the laws which exist only on paper regarding merger acquisition laws and the preservation of competition in all industries including media, then it will amend the Trade Practices Act and the Broadcasting Services Act to ensure that these laws do not become purpose-built for two media magnates who so dominate our democracy.

I urge the House to put an end to this worship once and for all. I exhort the government to do the honourable thing, fulfil its duty as trustee of Australia’s democracy and put the interests of Australia first. I await with great interest the media reform paper which the Minister for Communications, Information Technology and the Arts, Senator Helen Coonan, is expected to release in the near future to find out the real intentions of the government in relation to the media landscape that will exist when the government amends the Broadcasting Services Amendment (Media Ownership) Act.

People are very concerned about this because the negotiations have been and are being conducted by stealth. All the reports that one gets outside the two biggest media companies that have some objectivity of what is really happening are that the government—in particular, the Prime Minister and the minister for communications—seem to think that the two biggest media companies have to sort out their differences and ultimately report back to the government, who will provide them with a bill that will achieve what they want. That is a very serious threat to the public interest. That is a very serious threat to the future of our democracy and I want to see something happen with this new bill to make sure that we get new players, whether they are from overseas or Australia. For example, I have spoken before about how John Singleton wanted to have a free-to-air, 100 per cent Australian content television licence—he is denied that. The government are not even going to allow a fourth free-to-air television licence. They are not doing anything about multichannelling; they are not promoting datacasting. Why? Because it is a threat to the two biggest media companies, and that has to stop.

See this speech in context