George Brandis (Queensland, Liberal Party) Share this | Hansard source

Senator Sherry, you came in halfway through my speech so you did not hear what I said before. I am merely seeking to set the record straight as to where these particular recommendations came from.

I will now address the issue of diversity. There is more diversity because there is a greater variety of platforms in the Australian media today than there was the last time this parliament had a go at media reform during the time of the Hawke government some 20 years ago. We all know that. We know it as a matter of common sense and practical everyday life. The current set of laws under which the media operates predate the digital age. I wonder how many in Australia appreciate that. The digital revolution has been one of the great factors that have changed Australia in the last two decades and yet today we operate under a set of laws that predates it. How can it be seriously maintained that those laws ought not to be reformed? Of course they must.

It is a common view on both sides of the chamber that there is an important public interest in protecting the diversity of media, which is what this legislation does through a series of safeguards now very significantly expanded, in particular as a result of the initiative of the Treasurer, Mr Costello, yesterday, by the expansion of the two out of three rule and what has been called the five-four voices test, which, I state again for those listening to this broadcast, provides that in regional centres there must be at least four different media voices and in capital city markets there must be at least five different media voices. The five-four voices test combined with the two out of three rule, which provides that no more than two out of three traditional media—that is, television, radio and newsprint—in the same market may be owned by the same proprietor, cements diversity into the market as a matter of law.

I want to address some observations Senator Conroy made about the role of the ACCC. This was a matter that was discussed between Senator Conroy and Mr Samuel, and between me and the gentleman, whose name escapes me, who was the spokesman for ACMA during the Senate committee hearing. Notwithstanding what Mr Samuel may have said in response to a question from Senator Conroy, it is not right to say that section 50 of the Trade Practices Act is a sufficient provision for protecting media diversity. It is not right to say that, in considering mergers under section 50 of the Trade Practices Act, the ACCC might have regard to broad concepts like the market for ideas, because, for the purposes of section 50 of the Trade Practices Act, a market is defined as a market in goods and services. The public interest that section 50 protects is the interest in maintaining a competitive market. The vice which section 50 prohibits is a merger which has the effect of substantially lessening competition. And the meaning of that expression ‘substantially lessening competition’ is defined by section 50 of the act purely according to economic criteria which are set out in subsection 3.

Diversity and competitiveness are quite different concepts. That is why the government senators on the committee—Senator Eggleston, Senator Ian Macdonald, Senator Ronaldson and me—recommended that, in this legislation, it was very important to ensure that the Australian Communications and Media Authority, the industry-specific regulator, be given the policing power to enforce the diversity test; not the ACCC, through its power to apply to the court to stop anticompetitive mergers under section 50 of the Trade Practices Act, but ACMA, applying the specific diversity considerations which embrace a much broader range of issues under the Broadcasting Services Act.

We made some recommendations, which I read to you before, in particular about empowering ACMA to have the same broad injunctive powers under its act as the ACCC has under section 80 of the Trade Practices Act. The government has accepted that recommendation. So, once again, it is a demonstration that, in the ultimate form in which it arrives in this chamber, having passed through the Senate committee process—relatively brief as it was—this legislation has been improved. I want to commend Senator Coonan, because that was an area in which I took a great interest, as you might know, in materially improving the legislation in that respect.

Can I finish on this point, because there seems to be a bit of a philosophical distance underlining this debate: there are some who say or seem to think that private, commercial media companies, which exist in a particular market to make a profit for their shareholders by providing a service that meets that market, ought by heavy-handed government regulation to be made some sort of generic social utility, irrespective of commercial considerations. The media sector in Australia has for too long suffered from the heavy-handedness of that approach, which seems to underlie what Senator Conroy said and seemed implicit in other contributions as well. That is not the role of governments, in my view, in this or any other industry—but particularly in this industry, where we have, at least in the electronic media, a large, expensive and, in my view, generally excellent social utility: the ABC, whose regional services in particular are relied upon, as those of us who know country people know very well, by country people pre-eminently as their source of local news in regional and rural Australia.

This is regulation that regulates the private sector but, to the extent to which the private sector, governed by commercial principles, is unable to fulfil that role, the ABC does and, in particular, in rural and regional Australia, does so excellently. It is the ABC that is the social utility, and that is not a role which ought to be imposed on private companies. (Time expired)