The definition of “”control” in the Broadcasting Services Act must be the most bizarre piece of legislation in Australia. Incredibly, it runs to 2640 words. The diversity of Australian media ownership hangs on this definition. It determines, for example, how much of the Fairfax newspaper chain television magnate Kerry Packer can devour. Its aim is to ensure that the princes of print cannot be queens of the screen _ that there is no cross-ownership of television and print in one city. Yet, despite its 2640 words, the definition contains the damning admission that the very task of defining “”control” is impossible. It says, “”Because of the complexities involved in this area, it is not possible to provide rules which will give a definite answer in all cases.” So how are we to find out whether someone has “”control” of a television station or newspaper? The Act says, “”The ABA is given a monitoring role over the broadcasting industry and suitable powers of investigation in order to reach a conclusion as to whether a person is in a position to exercise control or not.” And how does the ABA do this? In secret of course. It must not give any commercial secrets away. This week the ABA ruled that Packer’s 17.2 per cent shareholding of Fairfax does not amount to “”control” and that he is entitled to have both that shareholding and have control over Channel 9. No-one can judge whether that decision _ affecting the viewing and reading of millions of Australians _ is sound because the basis for the finding is secret. But never mind, the Minister for Communications, Michael Lee, assures us that the ABA will monitor the situation closely. Great. It took 10 weeks for the ABA to tell us that Packer’s increase of ownership from 14.9 to 17.2 per cent did not amount to taking “”control”.
The sharemarket, however, does not work as slowly. About 12 per cent of Fairfax’s shares would get turned over in that time on average trading _ let alone during a concerted bid. This law is more a mule than an ass. The trouble is that the present legal and constitutional set-up make solutions difficult, even if the political will was there. Australia has now tried several models to control media ownership. All have ostensibly aimed at providing a diverse ownership by Australians who recognise that media ownership is special and requiring a trust relationship with the public. All models so far have failed.
The old system of issuing broadcasting licences to “”fit and proper persons” on the basis of the highest bidder and public hearings failed. It did so because challenges to people on the basis that they were not “”fit and proper” got lawyerised. The sort of people who owned licences could throw lawyers at challenges and tie the cases up in the courts. Further, the system did not account for the on-sale of licences. The next system of declaring cut-off points beyond which foreign involvement of any media or cross-ownership of print and television was prohibited also foundered. Once again lawyers managed to confuse control and ownership so that foreigners could get even majority ownership and assert that they did not “”control”.
The present system of investing the ABA with some discretion (2640 words of it) in determining whether someone’s level of ownership amounts to control has also failed if you think Packer should not have such a high ownership of Fairfax and at the same time own the Nine Network. So open hearings, fixed cut-off points, and administrative discretion behind closed doors have all failed. Worse, there is no guarantee that a thorough rewrite of the broadcasting law will help much either. However it is written, the stated aims of diversity, local ownership and no concentration of ownership can always be defeated by rich media owners through artful company structures, clever lawyers and ultimately an appeal to the courts who are always willing to take up the cases that come before them. Indeed, the High Court has positively assert it is the courts and only the court who exercise the judicial power of the Commonwealth; they cannot be excluded. Some lateral thinking might be needed. I’ll put aside the thought that successive governments are more interested in appeasing powerful media interests than in providing a diverse, Australian-owned media and work on the premise that it wants to act.
The problem in the past couple of decades is that the Government has concentrating far too much effort in controlling the ownership of existing media. It has given little or no thought to new media _ with the exception of pay TV, which was a fiasco of delay and pandering to existing players. Instead of putting all its efforts into opaque laws such as the 2640-word definition of “”control” the Government should do more to open the airwaves _ there is room _ for new players. It could also reverse the slide in the number of daily print titles by allowing any of the existing players (print or television) to set up a new newspaper. That can only help diversity. In the meantime, revisions to the morass of Australian media law are no panacea.