Simon Crean (Hotham, Australian Labor Party, Shadow Minister for Regional Development) Share this | Hansard source

I rise to speak on the Broadcasting Legislation Amendment (Digital Television) Bill 2006 and the Broadcasting Services Amendment (Media Ownership) Bill 2006 because I have a very strong view that media diversity in a democracy is essential to that democracy’s functioning. The problem with the media ownership bill is that it lessens diversity and allows a much greater concentration of media ownership. It will result in fewer outlets and fewer media players. It will be a disaster for diversity. And it is particularly bad for regional Australia.

All countries have to deal with this issue of media diversity, because the media is not just another market for goods and services. It is also a market for ideas, for values and for culture. It is about defining us and it is about strengthening us as a democracy. We know that the media has the power to form opinions. But the truth is that, if you restrict the outlets and concentrate the ownership, you dry up the sources of those ideas and values. Diversity of media is therefore a public good, and it requires public interest tests and protections.

Labor have long understood this. We have been the champions for media diversity; we remain the only champions in this parliament. Labor are the only party to ever establish rules and policies to ensure diversity in the protection of the public interest. Our commitment to the ABC, to SBS and to community broadcasting has been strong, consistent, generous and innovative. In 1987, Labor introduced cross-media rules to prevent owners of print media also owning the electronic media. The famous expression at the time was that they could choose to be either a prince of print or a queen of the screen. This is not a policy whose time has come, yet the bill, with little debate in the parliament, abolishes the cross-media rules. It is true that the proliferation of technology and platforms means that we need to adjust our media laws, but not in a way that dilutes diversity. Labor are opposed to this bill. The cross-media laws should be retained, and we also need to strengthen other avenues to promote media diversity.

The other areas of action that I believe are required include, firstly, the introduction of a public interest test to apply to media mergers under the new laws, with the capacity for divestiture as a sanction if need be; secondly, the utilisation of both a strengthened Australian Communications and Media Authority, otherwise known as ACMA, and a strengthened Australian Competition and Consumer Commission, the ACCC, to ensure that the public interest test is met; thirdly, the encouragement of new entrants through incentives, if necessary, to enter the field; fourthly, recognition of the fundamental role telecommunications policy plays in driving diversity in our media; and, fifthly, the essential requirement to, in turn, connect the whole of the nation to fast, affordable broadband access over the internet.

On the question of the public interest test, I believe that a strengthened public interest test is essential. This was a recommendation of the Productivity Commission in its report into broadcasting back in 2000. I note that over the weekend the current Chairman of the ACCC, Graeme Samuel, said that observers had ‘underestimated the impact of section 50’ of the Trade Practices Act in, essentially, safeguarding democracy and diversity. I welcome his optimism. The trouble is, I do not share it. I believe that Mr Samuel will have a huge task ahead of him assessing future mergers, given the greater capacity for more concentration. It is not only Labor that does not share his optimism—neither do the Productivity Commission. In 2000, in the report I have referred to, they found:

... the Trade Practices Act as it stands would be unable to prevent many cross media mergers or acquisitions which may reduce diversity.

The fact is the Trade Practices Act is equipped to deal only with threats to competition due to the concentration of market power. It is, if you like, an economic test. It does not have the capacity to deal with threats to our democracy and culture through the concentration of media ownership. Nor does the ACCC have the powers to preserve or enhance diversity in media content or media ownership. These are the powers which are deficient in the ACCC; it should be given those powers. Also, with the advent of media convergence, the ACCC must focus on the concentration of content rather than on looking solely at the mediums—that is, it must focus on the content, which is news, sport or music, not just the mediums by which that content is conveyed.

But this is not the only concern in responding to the media diversity question. The Productivity Commission recommended a public interest test be inserted into the Trade Practices Act to encourage competition in and entry into an increasingly convergent environment. Under that test, significant media acquisitions or mergers would not be permitted unless it could be demonstrated that the merger or acquisition was not contrary to the public interest. It would be a test that adequately addressed the public interest in promoting diversity of ownership and diversity in sources of opinion and information. Each case would be required to involve public consultation and would therefore reach out to the community and find out what their desires and needs are for media diversity.

The Productivity Commission also saw a role for the relevant communications authority in this process. At the time, the Australian Communications and Media Authority did not exist. It resulted from a merger of the Australian Broadcasting Authority and the Australian Communications Authority. But the Productivity Commission, in recommending the public interest test, recommended that the precursor of ACMA, which was then the Australian Broadcasting Authority, should be consulted by the ACCC in considering media mergers. We believe, given ACMA’s role as the independent broadcast regulator, that it should be consulted by the ACCC in applying the new public interest test. Indeed, the inquiry into media ownership by the Senate Standing Committee on Environment, Communications, Information Technology and the Arts strongly supported that role for ACMA of enforcing an enhanced public interest test and giving ACMA ‘stronger powers to enforce by way of injunction or divestiture orders, breaches of the provisions aimed at greater diversity’. That was what the Senate committee, including government members, recommended as part of its majority recommendations.

But there is a question as to the sanctions that ACMA or the ACCC have. At the moment, the ACCC already has many powers—including divestiture—to enforce decisions, including the power to reject proposed mergers. The problem with the TPA is that the government has not acted on the recommendations of the Dawson report and the Senate Standing Committee on Economics which found several deficiencies in the legislation back in 2004, most noticeably that the ACCC does not have the power to use the divestiture power in cases of abuse of market power—they are section 46 abuses under the act—or for ‘creeping acquisitions’. Divestiture is a sanction, but it is not a sanction for identified and proven abuses of market power. Labor believe it should be. We recognise that divestiture is a severe power, but, if we believe in the importance and value of diversity and are committed to ensuring it for the sake of democracy, we should ensure that there is an instrument in place to protect that diversity.

Divestiture is a power, I remind the House, that is available in other circumstances—a power which in its exercise does not expose the government to compensation claims. For example, it does not expose the government to compensation for section 50 breaches which relate to mergers. In the case of the Trade Practices Commission v Gillette, the courts exercised divestiture powers under section 81A for media mergers, but there was no compensation required. In my view, the question of divestiture does require some further legal advice, but it could prove an important mechanism for ensuring greater diversity, and if it does we should pursue it.

We recognise that there would need to be a code of compliance for business to ensure that they are aware of their obligations under the act. This too was supported by Labor senators in the majority report of the Senate committee inquiry. Labor have consistently called for the granting of power of divestiture of assets in cases of repeated abuse of market power. This has been so particularly since the Dawson report. The government has not embraced the recommendation, even though its own representatives on the Senate inquiry supported it.

I turn to the question of supporting and enhancing new platforms. I believe that new entrants must be encouraged and supported in both traditional and new media platforms. The digital age offers huge potential for advanced diversity in our media choices, but it should not be compromised by simply allowing the existing players to also compete for the new opportunities. Under the Broadcasting Legislation Amendment (Digital Television) Bill, the minister has the decision-making power to grant digital television licences. Previously this was a power that rested with the regulatory authority. The switch to the minister is bad policy. It opens up the possibility that the minister will be lobbied by the main media conglomerates, who pander to vested interests. The power to grant the digital television licences must be retained, in our view, by the independent regulator, ACMA.

But the Minister for Communications, Information Technology and the Arts involved herself in this debate in another backflip. It relates to the question of who can bid. Back in July, the minister was quite clear: existing players cannot bid for the digital television channel B licence. But that has now been reversed. Why has this decision been taken? What is the rationale for awarding it to the highest bidder and closing it to new entrants? What is the rationale for creating a new barrier to entry for new entrants? There was no explanation by the minister, and I would hope that her representative, in the summing-up of this legislation, will give us the benefit of that rationale. We believe it is bad policy; it should not be persisted with.

Given the circumstances in the Senate, we forced the government to ensure an access regime under the new spectrum, but this can only be described as a second-best option. If this is the case for more concentrated power, it will strangle diversity, it will strangle choice, it will strangle local news and it will strangle the dissemination of information—and that is a huge problem for the nation and a particular problem for regional Australia.

Back in 2000, the Productivity Commission recommended that regulatory barriers that prevent new entrants be removed and that the increased spectrum available be essentially for new broadcasters. The spirit of that recommendation has not been carried out in this legislation. It would create a more competitive atmosphere for Australian media and enable many more players to emerge and enhance the pool of possible owners with media experience.

The other problem in this legislation is that there is nothing in it to drive the early switch-over to digital. If that does not happen and the spectrum stays on analog, there will not be the opportunity for new spectrum for a new licence entrant. This bill is terribly deficient in many ways, not only in relation to the scrapping of the cross-media laws. If it is necessary we may need to consider new incentives for new players emerging in media markets. It may require particular attention in the regions, where I believe diversity is most threatened.

In a country of our size and diversity, the need for local news and information such as weather, stock prices, events and road conditions is essential—it is the local news. Concentrated media ownership threatens diversity and localism particularly severely in regional Australia. Localism has already decreased through aggregation policies and the creation of larger markets for commercial television and the consolidation of regional radio.

The National Party have not saved the day for media diversity and choice in regional Australia, nor have they effectively protected local content. They have again sold out their constituency. Despite the member for Hinkler’s strong interest in this as an advocate for diversity, he buckled at the last minute. Only Senator Joyce was prepared to be courageous enough to vote against the bill within the National Party.

The amendments that have been put forward will not and cannot prevent a massive concentration of regional media markets. There are currently up to seven independent media owners in each regional media market. Under the new laws, this could be reduced by more than a third to just four under the five-four voices test. For example, it would see a fall from seven to four in Cairns, Mackay, Nambour and Newcastle. The number of owners would fall from six to four in Ballarat, Bundaberg and Murwillumbah amongst other places, and from five to four in Grafton, Bendigo, Lismore and Tamworth. Nor will the two out of three ownership rule protect diversity in regional markets because it allows just one of those four remaining voices to dominate. The other three could be quite insignificant voices because the government determines what a voice is, not the community. The fact remains that a media company that is allowed to own a newspaper and a television station in local markets will exert an extraordinary degree of influence on regional markets.

The five-four voices test pays lip-service to protecting regional diversity. The government has not asked the people in regional Australia if four voices are acceptable to them and if they will meet their requirements. As I said before, the test gives no weighting to the relative influence of the media. It fails to guarantee that the five-four test, the local content rules, will also be enforced. It is now emerging from the industry that there is no guarantee that the government’s local content requirements on regional licences will be implemented once the government has finished a yearlong inquiry—convenient, isn’t it: an inquiry into how we implement the local content rules that reports after the next election. You have heard it all before in terms of broken and core promises. That is what the National Party have signed up to.

The ABC maintains local content and local news in radio but it is continually up against funding constraints. Likewise, SBS is restricted by funding allocation. The encouragement of community and local networks is important and we want to see encouragement of that, and in particular local content rules, become important. This could include community radio, use of online local message sharing and ensuring local government has resources through local libraries. Communities and localism are essential ingredients.

So diversity of opinion, ideas and variety of information are fundamental to our democratic principles. We need to strengthen other avenues to promote media diversity. It is vital for our social and cultural development as a nation. This bill is a disaster for media diversity in this country. Not only should the cross-media rules be retained; we need to strengthen those other avenues of activity, in particular the introduction of an enforceable public interest test to ensure that the damage that this government is doing in terms of protecting our diversity does not proceed. (Time expired)

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