Communications Minister Stephen Conroy has announced a minimalist package of media regulatory reforms with the goal of rapid passage through Parliament as the government runs out of time before the election to deliver a comprehensive response to the Convergence and Finkelstein reviews.

The package consists of:

  • A new public interest test for media mergers of national significance. Media companies from the commercial television, commercial radio, subscription TV platforms (e.g. Foxtel), subscription TV news channels, newspapers and online news services (with subscribers) will be caught by the new test if they are above a certain size in terms of readership (understood to be 30% of an average metro commercial evening news bulletin audience, orcurrently around 59,000). The test will require any mergers to be assessed against the requirement that they do not result in a substantial lessening of diversity or the public benefit outweighs the reduction in diversity.
  • A new print/online media self-regulatory framework in which industry self-regulatory bodies will be required to demonstrate a capacity to enforce current media standards.
  • A Public Interest Media Advocate who will determine the capacity of self-regulatory bodies to enforce standards and implement the public interest test.
  • As promised, a permanent halving of the commercial television licence fee rebate.
  • A referral to a joint parliamentary committee of proposals to remove the current 75% reach limit and to add program outsourcing to the issues that determine control of a television licence;
  • Referring (back) to the Australian Law Reform Commission the issue of a statutory right to privacy;
  • A permanent allocation of spectrum to community television.
  • Updating the ABC and SBS charters to reflect their online and, where appropriate, international activities.

Conroy was blunt about why the 75% rule removal had been referred to a committee: the outbreak of dissension among the metro commercial free-to-air networks meant the proposal needed to be considered further, but that if a quick consensus could be reached on it the removal would be added to the legislative package. Both Seven and Ten have retreated from support for the removal of the 75% reach rule with news Southern Cross Media has been considering a merger with the Nine Network.

Conroy was blunter still about the government’s interest in finessing the package past the crossbenches and through the Senate, saying it won’t be “bartering” over the legislation and if it isn’t past next week it will drop the package.

The government has thus presented the Greens, which have been pushing hard for rapid action on media reform, with a fait accompli — either support the government’s reforms or see nothing happen at all before, as seems likely, the Coalition is returned to power.

COMMENT:

After months of debate and endless predictions that it was about to be released, this is a minimalist reform package from Labor. The public interest test — the nature of which won’t be revealed until we see the legislation later this week — will overlay the current ownership restrictions, although it will embrace a wider range of media groups than the current media ownership laws, which are confined to major newspapers, commercial television and commercial radio (and which doesn’t include national dailies The Australian and The Australian Financial Review, which currently aren’t caught by radio licence area-based ownership restrictions).

For the first time, subscription television and online publications, if sufficiently large, will be captured by media ownership laws. The test also adds a third regulatory layer to the media merger approval process — mergers now need to be considered by the Australian Competition and Consumer Commission, the Australian Communications and Media Authority and the new Media Advocate.

In exchange, the commercial television networks get their permanent licence fee reduction, with the notional quid pro quo of Australian content requirements that are already below current multichannel local content levels. A final judgment on the public interest test awaits the detail of the legislation, but it will be hard to avoid the core problem of a subjective, qualitative test — the uncertainty that attends the test for media companies, consumers and people opposed to individual mergers.

Conroy has also minimised, but by no means eliminated, the chances of a stoush with newspapers by opting for strong requirements for a newspaper/online self-regulatory régime, with the incentive of protection from existing privacy laws, rather than imposing any government regulation or funding a new mechanism.

Conroy has also sought to address a problem that has particularly vexed Labor — the growing News Limited influence over the Ten Network — by proposing that provision of news and current affairs programming be added to the legislated criteria in the schedules of the Broadcasting Services Act by which ACMA might determine that a party providing news and current affairs programming is a “controller” of a television licensee, even if they don’t own any part of the licensee or have a board presence. This is a subtler way of addressing the issue than simply banning it or seeking to impose intrusive, bureaucratic rules on media outlets as the Howard government did with local content on radio, but Conroy has played it safe by sending it off to a committee.

Moreover, by referring a statutory right to privacy back to the ALRC, which looked in vast depth at privacy in 2009 — there have already been four inquiries over the last five years devoted wholly or partially to privacy including that one — Conroy is safely deferring the issue off beyond the election. But a statutory right to privacy, coupled with a public interest exemption, remains the most significant omission in Australia’s media regulatory framework and one that courts and judges are likely to increasingly address themselves without waiting for media-wary politicians to act.

The update to the ABC and SBS charters, which some of us proposed within government a decade ago, is long overdue. But the decision to permanently allocate spectrum to the pointless and irrelevant community television sector is a disappointment — that spectrum is better off opened up to the market to see what competition brings.

Overall as a response to the Convergence Review — which proposed a genuinely innovative and forward-looking set of reforms to both the substance and the framework of media regulation — it’s probably best forgotten about. The Convergence Review, it seems, will join the many other significant reports on media regulation that have been ignored by governments.

Peter Fray

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