Present media law is a complicated jungle created by various governments wanting to play favourites but at the same time having to meet the requirements that all are equal before the law.
It is further complicated by constitutional limitations to the Commonwealth’s power, though these limitations have been used as an excuse for inaction against concentration of media ownership. A determined government could quite easily create a constitutionally valid framework of media law that provided the four things that Australians want: high standards; local ownership; diversity of content; competition between a lot of media providers; and clear statements of principle.
When the Constitution was framed, there were no radios or television. But the Commonwealth Parliament can still legislate to control the media because the Constitution gives it power to make laws over “”postal, telegraphic, telephonic, and other like services”; “”foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth”; and trade and commerce with foreign countries.
Broadcasting has been held to be a “”like service”.
From the very early days of radio and television the Commonwealth imposed total bans on broadcasting to the public unless you have a licence. It then set conditions to the licences.
The present requirements insist that licensees be corporations; that they satisfy certain programming requirements and that they do not offend rules against foreign ownership; cross-media ownership and general competition requirements.
The Commonwealth has no direct power over the press, so it would be hard-pushed to institute a licensing scheme with a prohibition against printing without a licence. Such a scheme would likely offend constitutional provisions about freedom of interstate trade and freedom of political communication.
But press ownership can be and is regulated, albeit in a limited way, under the Commonwealth’s corporations, foreign trade and broadcast powers.
Under the Trade Practices Act, corporations are not permitted to acquire assets in a way that would lessen competition in a market. This applies to media assets as much as to margarine.
Under foreign trade requirements, foreigners are limited to how much share they can have of any asset, including media assets.
Under broadcasting law, a corporation that has a broadcasting licence is restricted (as a condition of the licence) as to how much print media it can own.
So the broad powers are there to deal with both broadcast and print and there is at least some legislation in place for each key element: standards; monopolisation; cross-ownership and foreign ownership.
But each has problems.
Standards: The Australian Broadcasting Authority and its regime of self-regulation for commercial broadcasting has fallen down on policing breaches of local, children’s, advertising and news content requirements.
Monopolisation: The Trade Practices Act prohibits media acquisitions that lessen competition in a “”market”, but the definition of “”market” has caused difficulty. Suppose Rupert Murdoch’s News Limited were to buy The Canberra Times. Would it be prohibited as lessening competition in the general market of metropolitan dailies; or would it be allowed because Murdoch has no newspaper in Canberra and competition in the Canberra newspaper market would not be lessened?
Foreign ownership: The general power of the government to limit foreign ownership has not been used effectively. Its purpose was to prevent foreign control, but Labor allowed, for example, Conrad Black enough of a holding in Fairfax, albeit only 15 per cent, to gain control, and then increased it to 25 per cent so he could retain control. It has now been on-sold to another foreigner. A government serious about limiting foreign control of Australian media could force divestment.
Conversely a general broadcast limit of foreign control has been circumvented the other way to allow a Canadian company 55 per cent ownership of the Ten Network because it is not exercising its ownership rights to control the Network. It says it is a passive owner.
Cross ownership: The ban on cross-media ownership, however, has been quite effective. It has prevented Murdoch from getting control of the Seven Network in addition to owning the largest circulation daily in six of eight capitals. It has prevented Kerry Packer whose company controls the Nine Network from moving to take over the Fairfax newspaper groups which publishes The Sydney Morning Herald and The Age.
And it is precisely this one pillar that has been effective against concentration of media ownership in Australia that the Government looks like dismantling.
Clear statements of principle: We have a bigger problem. If the law is in plain language stating general principles, big media players litigate furiously to exploit the tiniest ambiguity. The result has been denser and denser law to patch up every possible loophole. Just the definition of “”control” in the Broadcasting Services Act, for example, is 2700 words. And still it is argued over.
The law-makers and policy-makers also find it difficult to keep up with technology. Digital television will bring extra channels which Australians would probably like to be translated into greater choice; though the present network owners would like the all channels to be consumed into giving clearer transmission for existing signals _ very little gain for a great deal of lost opportunity.
Then there is the internet. The Commonwealth has very little legislative power over the internet, because no-one controls it; it is mainly used by individuals; and it is physically impossible to monitor all but a tiny fraction of its content. But then why would anyone want the Commonwealth to legislate to control the one medium that has no foreign control and huge diversity of content.