Helen Coonan (NSW, Liberal Party, Minister for Communications, Information Technology and the Arts) Share this | Hansard source

These amendments have been moved by my colleague Senator Joyce. I think it appropriate that I say something about them, because I do listen to and have respect for Senator Joyce’s views on a number of matters. I think it appropriate that I put on record why the government disagrees with this particular approach whilst acknowledging his genuineness and his desire to achieve an outcome here that I do not think is achieved with these particular amendments. But I do think it is appropriate that I record it very briefly.

His item (1) inserts the definition of a related entity, which he has taken, as I understand it, from the Income Tax Assessment Act 1997 and put into the Broadcasting Services Act 1992. Item (2) of Senator Joyce’s amendment removes from the count of separate media groups in a licence area any radio or television licence with less than 20 per cent comment—defined as news, current affairs, issues of public opinion and talkback—in its programming.

In respect of the first matter, the amendment deals with how control is interpreted in the Broadcasting Services Act. If I may say so, Senator Joyce has correctly appreciated that this is a crucial issue in how effective the diversity test proposed in the bill will be. However, I believe that it is unnecessary. Section 6 of the Broadcasting Services Act currently has a definition of ‘associates’ which operates in a similar way to the definition of a ‘related entity’ that Senator Joyce proposes to add to the Broadcasting Services Act. Like the ‘related entity’ definition, the ‘associate’ definition covers relatives and business partners of a party. However, the ‘associate’ definition does go further and includes other parties who may act at the direction of or in concert with another. This enables the regulator to determine that an individual or company is in a position to control a broadcasting licence even if they do not directly own or control the licence or are not related to a person who does control the licence. This level of flexibility is necessary to ensure that the control provisions of the Broadcasting Services Act are both effective and rigorous.

Senator Joyce’s second proposed amendment would substantially affect the operation of the diversity protection mechanism in the bill by excluding a number of commercial broadcasting licences from the five-four test. Under the current cross-media rules, all commercial broadcasting licences are treated similarly in terms of licensing, regardless of their content. This is because, if you think about it for a minute, the level of influence of a broadcasting operation is subject to change and working out what is influence requires a subjective judgement. Senator Joyce’s proposed amendment proposes just one method of assessing influence, but of course there are others. For example, ratings also provide an indication of influence and clearly ratings like the format or content of a broadcaster can change rapidly. Also, they can be very popular. So it is very difficult to rely on something like ratings.

No matter how you structure a test, it means that a decision maker at some point—the chairman of the industry regulator, the ACMA, or I suppose the minister or a judge, if the issue were to be appealed—would have to make a subjective judgement about the level of influence or about whether a broadcaster meets the requirement to be a media voice under Senator Joyce’s test. But, more seriously, assuming you could get over those difficulties, the amendment opens up opportunities to fundamentally undermine the rigour of the five-four test, in this way. A commercial broadcasting licence that is outside the five-four test is a far more valuable one than if it is within it as it can be acquired by other operators, of course, without breaching the five-four rule. The amendment would therefore create a clear incentive for the owners of radio and television licences to possibly dumb down their services so they no longer counted for the voice test, enabling them to be sold to incumbents in the same market, in clear contravention of the five-four rule.

The amendment as drafted could also exclude television licensees who may not produce at least 4.8 hours of news and current affairs a day. Given that many Australians primarily rely on evening news as a main source of information, I think this really is an unintended outcome, although I repeat that I acknowledge the genuineness of Senator Joyce’s attempts with respect to the proposed amendment. But I think it has very significant and unacceptable risks.