Election 2007: Media policy

Paul Jones, University of New South Wales

The single most important reform the next Australian government should make in the media policy field is to make ‘freedom of expression’ and ‘the provision of resources for informed citizenship’ the centre piece of Australian media/communications policy. The best means of doing so would be to make these the leading objectives of The Broadcasting Services Act (1992) (BSA). My proposal draws on and refines one made by the Productivity Commission in its landmark report, Broadcasting, in 2000 (p. 447–462).

Freedom of expression is a much richer ideal than merely the prevailing idea of freedom from censorship, important as that is. Following Isaiah Berlin’s distinction between positive and negative liberties, free speech advocates usually employ a distinction between a negative ‘freedom from’ sense and a complementary, positive one. While the negative stresses freedom from state excesses like censorship, the positive sense places an obligation on the state to provide the resources of informed citizenship. Accordingly, the positive sense advocates citizens’ freedom to access resources such as reliable and diverse sources of information and opinion. Hence it is necessary to add both ‘freedom of expression’ and the ‘resources of informed citizenship’ to the goals of the BSA.

Freedom of expression is a
much richer ideal
than freedom from censorship.

In short, my aim is to restore to the centre ground the primary public interest goal of media policy—the cultivation of informed citizenship via the supply of diversely-sourced and reliable information and public debate. This goal has tended to decline in recent years into an infinitely elastic notion of (media) ‘diversity’.


The negative sense of freedom of expression has come to predominate not only because it is much better known, but also because historically it seemed sufficient for the period of the rise of the free press. Gradually a powerful assumption was added: that the free press’s independence from the state was guaranteed by ‘the market’. In striking contrast to the freedom of the press, the broadcasting spectrum was made subject to state regulation based upon a licensing system because it was initially regarded as a scarce resource. Conditions were placed on those licences, partly in response to the market excesses of the first forms of mass tabloid journalism. In this context, the positive sense of provision of resources comes into its own.

Today, the BSA is the main legal instrument by which Australia’s commercial media are regulated. The ‘regulator’ responsible for such administration and compliance is the Australian Communications and Media Authority (ACMA). The Productivity Commission Inquiry of 1999/2000 was the most open and thorough review of Australian media policy in a generation. The suggestion for highlighting freedom of expression came from a submission to that Inquiry by the Australian Press Council (1999, cf. 2003). Press councils are self-regulatory bodies set up by participating newspaper organisations to hear complaints about journalistic or editorial malpractice. They thus tend to embody a very important ‘negative’ self-regulatory convention: that the press should be immune from any state regulation, even of their quality.

Broadcast licence conditions in Australia usually take the form of regulatory standards determined by ACMA or self-regulatory or co-regulatory codes co-developed with the industry. The best known of these standards relate to Australian content quotas. However, unlike comparable nation states, Australia has little history of establishing ‘positive’ broadcast standards to regulate the quality of broadcast journalism and related content (Jones 2001; Hitchens 2006). Nor do our commercial broadcast media organisations have readily accessible editorial guidelines like the very detailed ones developed by the Press Council, the Australian Broadcasting Corporation (ABC), and the Special Broadcasting Service (SBS). This unequal situation amongst broadcasters’ editorial standards of accountability goes a long way to explaining both the focusing of conservative elites’ charges of bias against the ABC and also, in contrast, the unending supply of commercial tabloid pseudo-journalism addressed by ABC Television’s Media Watch.

The advent of multi-channelling and digital online media is often said to have undermined the ‘spectrum scarcity’ rationale for broadcast regulation. The Australian Press Council’s freedom of expression recommendation to the Productivity Commission, for example, was coupled with another recommendation to remove restrictive ownership rules. This ‘market forces’ position has recently won out, with the substantial watering down this year of the cross-media ownership rules. Previous cross-media ownership restrictions had limited commercial media organisations’ capacity to dominate horizontally across the different media of newspapers, radio, and television.

Broadband policy
has not been linked
to the primary public interest goals of media policy.

There is, then, a tendency for the ideal of freedom of expression to act as a justification for the allegedly inherent benefits of market forces and new technology. The ideal also sat easily with the early democratising hopes for the Internet, and can also be combined with the more commonly cited driver of media deregulation today: the much-touted convergence of the formerly separate media and information technologies into interactive digital streams known by the newer acronym of ICTs (information and communication technologies). More precisely, many (but not all) Australian media corporations had argued that ‘old media’ ownership rules limited competition and their capacity to compete as global entities in the new digital environment.

ICT policy is also where the current electoral debate about ‘broadband futures’, for example, is being played out. Of course broadband access really is a pivotal issue for our digital future, but eventually we need to ask—new media technology to what end? While its potential uses, like those for ‘old media’, are many, broadband rollout policy has so far not been linked in Australian public debate to the primary public interest goals of media policy. Rather, that old Australian stalwart—it’s good for business and jobs—has been trotted out yet again. The ALP’s ICT policy platform, for example, is to be found under industry policy (Australian Labor Party 2007, Ch. 5). In contrast, an intense public interest debate has taken place in the United States recently over the need to maintain equality of access to broadband—so called net neutrality—because of a perceived risk that a two-tier, two-speed internet might become the norm if broadband networks are allowed to develop as ‘just another business’ (Jolly 2007, p. 33–38). In a less straightforward way, the United States’ First Amendment goal of a free press provides a kind of conscience to which the remarkably large US media policy public interest advocacy groups such as freepress.org have successfully appealed.


So, despite the risk of its becoming part of corporate ploys for deregulation, ‘freedom of expression’ is also capable of shifting the terrain of debate back to the crucial democratic purpose of the media which should be at the heart of media policymaking.

Of course the negative sense of freedom of expression is absolutely vital at present as anti-terror and other legislative provisions increasingly constrain journalistic freedoms, especially the capacity to protect confidential sources in investigative stories. Accordingly a remarkable, if under-publicised, coalition of media organisations—from the Murdoch press to the ABC—has formed Australia’s Right to Know, to campaign against restrictions on freedom of the press understood as this negative freedom (Schliebs 2007).

Yet the positive sense of freedom of expression can equally take the right to know as an obligation on the state to ensure that citizens enjoy freedom to access journalism that is reliable and accurate—rather than, say, cheaply produced tabloid substitutes. This is a core justification of media regulation to ensure high journalistic standards in many democracies. Significantly it need not depend on spectrum scarcity as an enabling technical rationale. One might reasonably assume that such an implicit obligation would be greater in Australia where voting is compulsory. This is one implication of the positive sense of freedom of expression that I propose should be embedded as a policy goal under the name of ‘provision of resources for informed citizenship’. Its inclusion would also lessen the capacity for freedom of expression to be used as a cloak for corporate advocacy of deregulation.

Negative freedom of expression has been an issue in the cross-media ownership debate.

The establishment of public service broadcasters like the ABC and SBS is also consistent with the positive freedom of expression case. As former High Court Chief Justice Sir Anthony Mason publicly argued at the outset of the Howard years, the ABC provides such resources of informed citizenship very well (Mason 1996). But the ABC is a treasured bulwark, not a near-hegemonic force like the British Broadcasting Corporation (BBC). Certainly, with SBS currently in crisis over its direction, one small bright light on the current media policy horizon is the ALP’s modest set of commitments designed to enhance the ABC’s independence—which, notably, would still fall short of those enjoyed by the BBC (Australian Labor Party 2007, pp. 56–64). Similarly, Jolly (2007) notes the capacity of our public broadcasting sector to check the full implications of the recent US-style media deregulation. But is it enough to breathe a sigh of relief that the ABC has not only survived the last eleven years of siege but has even flourished into the online world? One’s answer to those questions turns on whether one’s benchmark is personal consumer access to adequate information or concern for the overall quality of information within Australian democracy.

If concern for the overall quality of information is the benchmark, then Australia’s lack of a bill of rights looms very large. Without a reference point for a media/communications objective as clearly articulated as freedom of expression, the chances of further short-sighted and/or directionless policy development are very high. Indeed it was precisely the lack of a bill of rights that stimulated the Press Council’s push for the inclusion of freedom of expression in the BSA.


Significantly, the Productivity Commission’s view in its 2000 Report was that as the Australian media ecology changed to a field of ‘new’ and ‘old’ media unimpeded by major ownership limitations, then the case for regulation of quality of content of the kind described above increased. Accordingly, it recommended content standards for ‘fair and accurate coverage and ethical news gathering’ (p. 41). In short, it acted on both a ‘freedom from’ and ‘freedom to’ understanding of freedom of expression. Since that Inquiry, negative freedom of expression has arisen as an issue during the cross-media ownership debate—and during recent debates about film censorship as well as anti-terror legislation—but so has the need for adequate content regulation of broadcast journalism and quasi-journalism.

The Productivity Commission’s view of content regulation was undoubtedly influenced by the then-running ‘cash for comment’ scandal, in which talkback radio hosts had taken secret payments to air certain views. The rise and rise of more aggressive talkback formats in the 1990s very likely resulted from the weakening of US regulation of such quasi-journalistic broadcast content in the late 1980s. This more aggressive format was imitated here and racist vilification has become one of its signature features.

Earlier this year Sydney broadcaster Alan Jones was found to have breached the anti-vilification clauses of the ‘co-regulatory’ code for radio broadcasters by practicing vilification during the days before and after the events at Cronulla in December, 2005 (Australian Communications and Media Authority 2007a). Such industry-approved codes are not as readily enforceable as the regulator-developed content standards proposed by the Productivity Commission. Predictably, both major political parties’ leaders confirmed their preparedness to continue to appear on Jones’s program and the current Minister for Communications suggested ‘the industry’ might wish to revise the code (which is due for review). Eventually the regulator, ACMA, settled for improved anti-vilification training of producers and presenters at the radio station (Australian Communications and Media Authority 2007b). The Minister’s response and ACMA’s caution regarding compliance with the code owe much to the ad hoc character of both the current objectives of the BSA legislation and the co-regulation process. Had the Productivity Commission’s recommended standards been in place, not only would the sanctions have been more readily enforceable but the vilification may not have occurred in the first place.


The language of freedom of expression has a distinct advantage.

The current policy platforms of both the Liberal and Labor parties include mention of similar objectives to freedom of expression—at least in its negative, ‘freedom from’ sense. The ALP is committed to finding an appropriate instrument to recognise human freedoms (Australian Labor Party 2007, Ch. 13). The Liberal Party’s platform refers to support for ‘the basic freedoms of thought, worship, speech, association and choice’ (Liberal Party of Australia 2007). Ironically, of course, there are no such constitutionally guaranteed freedoms in Australia at present. Remarkably, freedom of expression does not feature at all in the ‘guiding principles’ of the ALP platform chapter that includes media matters: ‘Arts, Culture and Heritage’ policy. There is, eventually, at Item 51, ‘Labor will pursue policies that ensure that Australians have access to a diverse range of information and opinion in Australia’s media’ (Australian Labor Party 2007, Ch. 16). The Liberal Party’s media policy likewise refers to ‘maintaining a diverse, independent and vigorous media’. Neither party explains how these platform goals might be achieved yet they are not inconsistent with my proposals for the new objectives in the BSA. These parties’ policy foci, however, suggest their primary media/communications concerns lie elsewhere.

The language of freedom of expression has a distinct advantage. Its long legacy provides a coherent common language for constructively establishing an appropriate balance between its negative and positive dimensions, between rights and responsibilities. Its adoption would be entirely consistent with the noticeable shift by some Australian regulatory agencies towards world’s best practice. The Press Council has plainly moved in this direction with its improved provision of reporting guidelines. ACMA appears to be increasingly emulating the British regulator, Ofcom, in its bid to achieve world’s best practice, although it remains constrained, as we have seen, in the area of content regulation. Our public service broadcasters’ editorial guidelines already equal world’s best practice. It is our commercial broadcast sector that lets us down and provides overseas commentators with rich worst case scenarios such as cash for comment.

My proposed modest alterations to the BSA would make explicit both the ‘freedoms to’ and ‘freedoms from’ and so provide the basis for redressing such excesses. But the implementation of the necessary regulatory content standards would require further political will than is visible from either major party at present. Australia has little history of social activism in this policy field while critics of vilification understandably have little confidence in media regulation as a means of appropriate redress (NSW Anti-Discrimination Board 2003). A Rudd government may well trigger a public debate over which freedoms to include—and how to word them—in a national charter or bill of rights. In such circumstances we can only hope that the goals of freedom of expression and the resources of informed citizenship, and the regulatory standards necessary to achieve them, will be placed at the centre of media policymaking.


Australian Communications and Media Authority 2007a, ACMA finds 2GB Sydney breached the code by broadcasting material on Breakfast with Alan Jones that was likely to encourage violence or brutality and to vilify people of Lebanese and Middle-Eastern backgrounds on the basis of ethnicity, Australian Communications and Media Authority Media release no. 35/2007, 10 April [Online], Available: http://internet.aca.gov.au/WEB/STANDARD//pc=PC_310133 [2007, Sep 21].

Australian Communications and Media Authority 2007b, ACMA accepts formal undertakings from 2GB in response to breaches, Australian Communications and Media Authority Media release no. 73/2007, 26 June [Online]. Available at: http://internet.aca.gov.au/WEB/STANDARD//pc=PC_310397 [2007, Aug 21].

Australian Labor Party 2007, ALP National Platform and Constitution 2007 [Online], Available: http://www.alp.org.au/platform/index.php {2007, Aug 21].

Australian Press Council 1999, Submission to Productivity Commission inquiry into broadcasting, no. 98, 26 May [Online], Available: http://www.pc.gov.au/inquiry/broadcst/subs/sub098.pdf [2007, Sep 5].

Australian Press Council 2003, Charter of a free press [Online], Available: http://www.presscouncil.org.au/pcsite/fop/charter.html [2007, Aug 22].

Hitchens, L. 2006, Broadcasting Pluralism and Diversity: A Comparative Study of Policy and Regulation, Oxford, Hart Publishing.

Jolly, R. 2007, Media ownership deregulation in the United States and Australia: In the public interest? Australian Parliamentary Library Research Paper No. 1. June. [Online], Available: http://www.aph.gov.au/Library/Pubs/rp/2007-08/08rp01.pdf [2007, Sep 16].

Jones, P. 2001 ‘The best of both worlds? Freedom of communication and “positive” broadcasting regulation’, Media, Culture and Society, vol. 23, no. 3, pp. 407–417.

Liberal Party of Australia 2007, The Liberal Way: Federal Platform [Online], Available: http://www.liberal.org.au/documents/federalplatform.pdf [2007, August 21].

Mason, A. 1996, ‘The free speech debate in Australia’, in Free Speech in Australia: Conference Papers, ed. Communications Law Centre, Sydney, CLC / Spectrum.

NSW Anti-Discrimination Board 2003, Race for the Headlines: Racism and Media Discourse, NSW Anti-Discrimination Board, Sydney [Online], Available: http://www.lawlink.nsw.gov.au/lawlink/adb/ll_adb.nsf/pages/adb_raceheadlinesreport [2007, Aug 22].

Productivity Commission 2000, Broadcasting: Inquiry Report No. 11, Productivity Commission, Canberra, Ausinfo [Online], Available: http://www.pc.gov.au/inquiry/broadcst/finalreport/index.html [2007, Sep 5].

Schliebs, M. 2007, ‘Nation’s media giants fight for free speech’, The Australian, 10 May. [Online], Available: http://www.news.com.au/story/0,23599,21705229-2,00.html [2007, Sep 17].

Paul Jones is Senior Lecturer in Media & Cultural Sociology at the University of NSW. He is currently Co-CI with Michael Pusey on an ARC funded research project titled Political Communication and Media Regulation in Australia.

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