Jones, Paul --- "The Implied Constitutional Freedom of Political Communications and Australian Media Policy" [2003] UTSLawRw 4; (2003) 5 University of Technology Sydney Law Review 65

THE IMPLIED CONSTITUTIONAL FREEDOM OF POLITICAL COMMUNICATION AND AUSTRALIAN MEDIA POLICY

Paul Jones^[*]

On difficult occasions, choosing “the good” involves precisely the opposite of the action expected from the rational atom of the market—self-denial, or personal disadvantage. It is not an easy path, and real ethical decisions are lonely. One place to look for help is in stories. Through J.K. Rowling’s

profoundly moral tales, for example, we meet Professor Albus Dumbledore, whose advice to the young wizard Harry Potter may serve equally well as guidance for the virtuous journalist ... ^[1]

_Democratic norms do not trip lightly from Australian media policy commentators’ tongues. Let me start with the simple assertion that Australian media policy discussion has suffered from a truly remarkable deficit of democratic norms. To cut a long story short, until recently, fear of proprietorial influence has been the only clearly recognizable norm

vaguely within range of that of informed citizenship.^[2]

But Michael Gordon-Smith’s recent invocation of Harry Potter demonstrates this Australian normative poverty more obviously than any other recent example. That it should be presented at the conclusion of a set of reflections on the cash for comment affair by a person who presided over the inquiry into Alan Jones and John Laws only adds to its signifi cance. The fact that Channel 10 actually employs a television reporter named Harry Potter only adds to the comment’s surreal dimensions.

Lest I offend the legions of Harry Potter readers, viewers and cultural populists, I would not reject the suggestion that popular stories contain

“morally” redeemable dimensions. Rather, I would reject the delimitation of plausible options that leads Gordon-Smith to this concluding appeal. He tends to accept the basic deregulatory thesis that regulation and performance monitoring are “old-fashioned” and that the only alternatives

are faith in free markets or faith in the good conduct of individual professional actors.

Of course, given his topic, Gordon-Smith acknowledges that deregulated markets can’t achieve everything. And so he is left with the ethical residue of the anomic individual who has nowhere more appropriate to turn than Harry Potter stories. Such ethical loneliness is, in my view, at least in broadcasting, far more a product of the failure of the Australian regulatory system—old or new—to articulate clearly definable norms which might diminish the alleged loneliness of the ethical actor. There is, in short, an institutional deficit even within recognitions—like Gordon-Smith’s—of the normative defi cit.

And yet almost simultaneously with the Cash for Comment Inquiry, the implied constitutional freedom was being invoked to redress this normative deficit during the 1999 Productivity Commission Inquiry into Broadcasting. Before describing such counter-developments, some discussion of the implied freedom is required.

The Implied Freedom

There is a certain irony that presents itself to anyone seeking to invoke the implied freedom in a critical analysis of this Australian normative defi cit. The most obviously relevant body of critical social theoretical work is the now vast international literature related to the Habermasian conception of the public sphere. However, as I have detailed elsewhere, this literature tends to be remarkably Eurocentric in its institutional assumptions.^[3] More understandably perhaps, there is a complementary focus on US sources and contexts in the free speech literature. Reconciling these two tendencies is not easy and neither literature speaks directly to the Australian case. For this reason the small comparative international literature on free speech and media policy assumes greater signifi cance.^[4]

The Australian scholarship on the implied freedoms is still small, especially given that the most recent key judgement, Lange v Australian Broadcasting Corporation^[5], is only five years old. Michael Chesterman has provided the most detailed study of the emergence of the implied freedom.^[6] However, as he notes, while media policy—especially cross-media ownership policy—forms a significant backdrop to the decisions, he has not elaborated the freedom’s significance for that policy arena per se.^[7]

There is certainly one obvious dimension of the implied freedom that does address the concerns of this conference—its potential consequences

for a liberalization of defamation law. However, while such an increased negative freedom might open possibilities for investigative journalism, I propose to set this aside to focus on the freedom’s implications for the fostering of professional standards by regulation of broadcast journalism as a media policy goal. I’ll focus also on television news, as even the High Court judgements single it out as a crucially influential medium. There is some empirical data to support this view.^[8]

Accordingly, this section will conduct a brief dialogue with Chesterman’s work with two purposes: to recapitulate his exposition of the implied freedom and to extend this discussion more fully to media policy. This will necessitate minor disagreement with some of Chesterman’s conclusions. For Chesterman, any exegesis of the implied freedom must take into account the changes wrought upon the “first and second waves” of decisions by the Mason Court in 1992–94 by the last wave in 1997.^[9] The key later case, as already mentioned, is Lange. Undoubtedly this interpretative shift has been one of “narrowing down” of the implied freedom by fi rmly locating

it within the “text and structure of the Constitution” as

(i) an informing conception of democracy as representative rather than participatory;

(ii) a freedom of “communication on government or political matters” rather than a general protection on all forms of “free speech” that might inform public opinion.

Such changes have occurred within equally signifi cant consistencies that stress the freedom’s difference from, especially, US conceptions of

“first amendment rights”. Crucially, the High Court has consistently relied on only one of the three major justifications for freedom of speech: the instrumental “argument from self-government”. The Court has not employed the “constitutive” argument that free speech is a constitutive personal or human right, or the alternative instrumental argument based in a notion of a “marketplace of ideas”.

Yet, as Chesterman points out, such matters are never so neatly circumscribed. Elements of the other two justifications of freedom of speech nonetheless arise within some versions of the argument from self- government, not least because, as noted above, the Court has shifted in its understanding of self-government.

That crucial shift is further characterized as one that arrives at an institutional rather than participatory activist model of democracy.^[10] As Chesterman characterizes this later “top-down” model:

[It]... goes little further than merely requiring a public debate of suffi cient quality and diversity of viewpoints to lay the basis for “true collective self- determination” through the exercise of voting rights. The latter provides for such rights only to the extent necessary to achieve the goal of a genuinely

“deliberative” process, in which a “rich public debate that fully informs voting citizens of available alternatives and options” is sustained. Accord- ingly, in the words of a leading modern adherent of this approach, “the state must act as a high-minded parliamentarian, making certain that all view- points are full and fairly heard”.^[11]

Significantly, it is this view that Chesterman links with his brief discussion of media policy. He lists two possible media policy practices consistent with this institutional or deliberative conception of freedom of speech:

(i) ownership and control regulations that reduce the tendencies towards monopolization and concentration of ownership of media organizations

(ii) content regulations that encourage a diversity of views within the publi- cations of media organizations.^[12]

Significantly, Chesterman links (ii) with arguments concerning “access rights” of individuals to use of the media. He then tends to focus on this exclusively as it is closely linked with the distinction between constitutive and instrumental justifications for freedom of speech. That is, arguments for individual access rights can also be justified by constitutive “natural rights” arguments.^[13]

Moreover, this in turn articulates with the well-known distinction between “negative” and “positive” conceptions of freedom of speech. Negative conceptions consider free speech and communication fun- damentally a freedom from (especially state) interventions or, in jurisprudential language, “burdens”. Positive conceptions are more diffi cult to define but refer to a freedom to. But to what? Consistent with his earlier discussions of media policy, Chesterman’s account emphasizes positive claims to individual rights to freedom of access to the media.

The classic instance here is the now obsolete US Federal Communications Commission’s Fairness Doctrine, which instituted a right of reply provision in pursuit of “balance”.^[14] Famously, the US Supreme Court left the anomalous legacy of endorsing the Fairness Doctrine in one case (Red Lion Broadcasting v FCC)^[15] in 1969 but also holding a similarly designed state statute regarding newspapers invalid five years later (Miami Herald

v Tornillo).^[16] The anomaly is usually accounted for by the reliance of the former decision on spectrum scarcity for free to air broadcasting—the historical rationale for most broadcasting regulation. This has since been claimed to have been overcome by cable and other delivery systems.

As Chesterman makes clear, the Australian decisions have never endorsed a conception of positive rights or freedoms that would grant such individual rights of access. The freedom is “inherently negative” and a “test” established in Lange requires that a public interest must be demonstrated to justify any “burden”. Chesterman’s distinction between the two options open for media policy practice is consistent with Lichtenberg’s between

“structural” and “content” regulation.^[17] The former is usually regarded as more justifiable than the latter in negative free speech terms. However, the focus of Chesterman’s account leaves the impression that the only defensible forms of content regulation disappeared with the alleged technical obsolescence of the US Fairness Doctrine and in any case are difficult to mount within the narrowed terms of the Australian implied freedoms. This parallels the rhetorical “pessimism” he adopts towards the freedom’s distance from a bill of rights in his closing initial evaluation.

For good reasons, Chesterman’s account of the relation between the freedom and media policy does not place comparable emphasis on the European legacy of media policy practice, especially its very different conception of content regulation. Comparative scholars like Barendt emphasize the stronger positive dimensions of this legacy. For Barendt the argument from democracy can also be understood to generate “recipient rights to speech”, i.e. the rights of a public to be informed.^[18] Likewise, the European perspective in media regulation is one that values this “positive” conception of the right or freedom more highly than the USA:

Broadcasting freedom ... is to be protected in so far as its exercise promotes the goals of free speech: an informed democracy and the lively discussion of a variety of views. It is not enough to regard the freedom primarily as an immunity from government intervention, as it is treated in the USA. Instead, the constitutional guarantee of freedom of expression requires the

enactment of legislation to safeguard free speech in the context of broadcast- ing to ensure, for example, that it is dominated neither by the state nor by any commercial group. On this approach programme standards promote, rather than run counter to, broadcasting freedom. Further, it is less mate-

rial from this perspective to determine who exercises individual free speech rights than it is to ensure that broadcasting institutions are so composed and regulated that they promote the exercise of free speech.^[19]

European regulators have thus long regulated for impartiality in matters of political content and banned “editorializing” by licensees.^[20] The major

structural instrument of such institutional guarantee was “public service” broadcasting. But Barendt plainly includes content regulation by programme standards as another such instrument. Moreover, Barendt argues that such a position flows from the view “that broadcasting freedom should primarily be regarded as a set of institutional rather than of individual rights”.^[21]

In short we have in the European legacy of broadcast regulation a continuing practice that provides a very different understanding of the policy implications of a freedom of communication from that in the US. Yet this too would appear to be consistent with the institutional and deliberative understanding of the freedom of communication argued by Chesterman to be dominant in the Australian High Court judgements. On this account, Chesterman’s “pessimism” may be a premature response.

Mobilizing the Implied Freedom in Australian Media Policy Debate

During a public debate about the future of the ABC during the Mansfi eld Inquiry of 1996, Sir Anthony Mason (after retiring as Chief Justice) drew on the newly found freedom at a small conference organized by the Communications Law Centre:

Free speech is of course the essence of modern democratic government and the very spirit of our social life. All the rhetoric about electoral mandates, which of course is legitimate political argument, should not be allowed to obscure the basic proposition that government is undertaken by our political representatives in the interests of the people. This means that good govern- ment requires that the people are entitled to the provision by government of relevant information, to informed commentary, to the benefit of continuing discussion and debate on public affairs and to the impact that that discus- sion and debate (have) on the decision making processes of government. In other words we should aspire to the ideal of a deliberative democracy. Unfortunately that ideal has not always flourished in Australia in recent decades.

...

Good government and vibrant social life call not only for laws that protect and enhance free speech but also for the resources that in a modern world

provide for the access to information and informed commentary which I men- tioned earlier. ... I have no hesitation in saying that the Australian Broadcast- ing Corporation has been instrumental in furthering the cause of deliberative democracy in Australia. Its current affairs programmes have played and con- tinue to play a vital part in bringing to light and agitating important public and policy issues and in ensuring informed discussion of them.^[22]

Here in Mason’s 1996 speech we find (to my knowledge) the fi rst, and in my view the most interesting, mobilization of the implied freedom in Australian media policy debate. Mason explicitly links the defence of the ABC with the deliberative conception of democracy endorsed by the

judgements. Moreover, he links this to an argument that at least strongly resembles the European conception of positive freedom of speech: “the provision by government of relevant information, to informed commentary, to the benefit of continuing discussion and debate on public affairs and to the impact that that discussion and debate (have) on the decision making processes of government”.

But the ease with which Mason equates all this with the institutional position of the ABC—legitimately, in my view—nonetheless points to an Australian institutional anomaly that also partly explains Chesterman’s emphases on policy options other than content regulation by programme standards. This is the commonly held view that the Australian television system structurally constitutes the “best of both worlds” by combining a BBC-like broadcaster with a USA-like advertising-funded commercial system. As I have argued elsewhere, however, this “dual system” is an unfortunate pastiche in which the ABC has never been granted the hegemonic position of the BBC and the commercial sector has never been subjected to a US-style Fairness Doctrine nor anything like the programme standards by which British commercial broadcasters are regulated.^[23] Instead, the ABC is burdened with such content responsibilities—and so attracts far more “élite” acrimony concerning alleged journalistic bias—while the commercial networks are freed to regard television journalism as just another form of competitive programming.^[24]

Indeed, once the “best of both worlds” myth is set aside, the remarkable under-regulation of commercial broadcast news and current affairs emerges as the most striking feature of the Australian regulatory system from a freedom of communication perspective (although the failure of our attempts at structural regulation to prevent high ownership concentrations would be a rival feature.) While the ABC can be held accountable to its programme codes, there are no comparable standards—as opposed to self-regulatory codes—applying to commercial television news and current affairs.^[25]

Perhaps unsurprisingly then, other mobilizations of the implied freedom have been inspired primarily by the more negative conception. In its submission to the Productivity Commission Inquiry into Broadcasting in

1999, the Australian Press Council proposed the inclusion of a reference

to the implied freedom in the (uninspiring) objectives of the key legislative instrument, the Broadcasting Services Act 1992.^[26] This the Commissioners duly did in their draft and final Reports. The final Report explicitly argued that the freedom could remove ambiguities relating to notions of “community standards” in matters such as censorship (so probably overestimating the freedom’s reach).^[27]

The Report further recommended the introduction of compulsory programme standards for fairness and accuracy in commercial broadcast journalism in reporting as part of an improved complaints handling procedure by the ABA.^[28] While these two recommendations together imply a positive or deliberative conception of the freedom, my exchange with the Commissioners in my verbal submission revealed that they had not considered any linkage between the two proposals, even though they were made in the same chapter.^[29] Consistent with the dominantly negative view in such discussion outside Mason’s 1996 statement, even the Communications Law Centre’s comments on the Draft Report supported the inclusion of the freedom as an objective in the Act, but not the “positive” programme standards. None of these recommendations were acted on and the Productivity Commission Report was publicly discussed primarily for its views on the cross-media rules and digital television.

In early 2002, the freedom was invoked more widely during the Inquiry by the Senate Standing Committee on the Environment, Communications, Information Technology and the Arts into the Broadcasting Services Amendment (Media Ownership) Bill 2002. Leading the charge was, again, the Australian Press Council, but it was also joined by the Fairfax group and the Friends of Fairfax.

The draft legislation, still before the Senate as I write, proposes to revise the current cross-media ownership rules by introducing a public interest test in the event of a proposed merger in breach of the current rules. The chief criterion would be to secure, in the words of the Explanatory Memorandum, “an undertaking to retain separate and distinct processes of editorial decision-making”—between, for example, television and newspapers—in the event of a merger.^[30] This proposal is informed by the quite reasonable premise that plurality of ownership cannot guarantee diversity of sources of news. However, as submissions made plain, this mechanism is quite muddled.

In terms of the freedom of communication norms introduced earlier, the Bill would introduce into the current structural regime what are arguably content provisions. Further, it would result in an unprecedented extension of the powers of the Australian Broadcasting Authority (ABA) towards newspapers, so breaching the usual distinction drawn between broadcasting regulation and newspaper freedoms. Newspaper content is the greatest negative freedom taboo.

Minister Alston’s Department was forced to produce a legal opinion defending the proposal’s constitutionality within a late submission

(Department of Communications, Information Technology and the Arts,

2002). Both the Chair and the Dissenting Minority structured their reports in response to “the constitutional challenge”.^[31]

What is perhaps most remarkable about this current escapade is its demonstration that little appears to have been learned by legislators in the 10 years since the High Court struck down the Hawke/Keating government’s attempt to ban outright paid political advertising in one of the first of the freedom of communication decisions, (Australian–Capital Television v Commonwealth). The dubious expansion of powers of the ABA towards political “content” was then too a key factor.^[32]

The heart of the policy dilemma here is a failure to move beyond the goal of a mere plurality of ownership of media organizations towards the positive free speech norm of the cultivation of a deliberative public sphere. The relationship between structural and content regulation within free speech norms likewise appears to be barely comprehended by legislators.

There does seem to be a piecemeal recognition that plurality of ownership is an insufficient policy goal—that it does not necessarily deliver diversity of opinion and news sources—at least amongst those who prepare explanatory memoranda to bills and the like. Yet it also seems likely that the realpolitik within which Australian governments in power operate has shifted little since Paul Keating’s candid 1994 admission that his policy goal was “a diversity of media power bases”.^[33]

Although the legal efforts of those same “power bases” were instrumental in bringing about the implied freedom, the freedom poses a potentially serious challenge to that realpolitik. This is the fascinatingly contradictory potential of the norm of freedom of political communication. That the latest stalemate over cross-media rules can now be characterized almost completely in terms of the implied freedom is, in my view, a major improvement in the Australian situation. The freedom has so set a normative benchmark for media policy that might inform future public debate.

Lessons from the British System

The state of play in the current Australian policy debate nonetheless begs the further question of just what is the ideal mix of content and structural regulation, especially when the institutional monopolies of European public service broadcasters have become vulnerable to freedom of political communication challenges.^[34] I share the view of commentators like Peter Humphreys that the British regulatory instruments are the most sophisticated precisely because they hegemonise public interest values across a plurality of BBC and non-BBC sectors.^[35] Of crucial relevance here is the British practice of separating ownership of news provision from ownership of “ordinary” commercial broadcast licences.

However, the full originality of the British system lay in its combination of fairness and impartiality codes with a structural model which prevented direct competition for the same audience and advertising revenue.^[36] The US and Australian model of convergently competing commercial networks was avoided. This was initially achieved by granting regional monopolies to the companies that shared the first commercial channel (ITV) and the granting of a second channel to the BBC (BBC-2). Although Channels

4 (from 1982) and 5 (from 1997) are also advertising funded, they have minority remits which have (so far) prevented them from competing for the same audiences as the “mainstream” channels, BBC-1 and ITV.^[37] The British thus understand all fi ve of their terrestrial free to air channels to be

“public service broadcasters”.

Consistent with this understanding is the most remarkable structural innovation of the British system: the prevention of “in-house” news production by the Channel 3 (ITV) companies. A separate entity, ITN (Independent Television News), has always produced the main Channel 3 news bulletins in its role as “the nominated provider”, selected by the regulator of commercial television (currently the ITC)^[38] consistent with charter requirements. More recently, this “guaranteed” role has been subjected to competitive challenge.^[39] ITN has also competitively obtained the contracts to provide news to Channels 4 and 5.^[40]

So, the British system’s key features can be summarized in this table:

BBC-1 BBC-2 ITV

(Channel

3)

Channel 4 Channel 5

Chief Revenue Source

Licence Fee Licence Fee Advertising from

region- ally based

companies with “local monopo- lies” in advertising

National

Advertising

National

Advertising

News

Provider

BBC BBC ITN⁴¹ ITN ITN

% Total Audience Share

(2001)^[42]

27.2 10.8 29.3 10.5

(minorities Charter remit)

5.7

Table 1: Terrestrial free to air British television, 2001

Although ITN’s de facto “monopoly” status is likely to be increasingly challenged, the nominated news provider system has been guaranteed to continue in the current British Communications Bill, and the Culture Secretary, Tessa Jowell, has recently promised the government “will retain and strengthen content regulation to ensure the quality, impartiality and diversity of broadcasting services”.^[43]

This system has also survived the introduction of the British Human

Rights Act 1998.^[44] The (structural) system of the nominated news provider

and the positive content regulation of fairness and impartiality codes both provide a very active role for the regulator which nonetheless respects freedom of communication principles. The implementation of this structural separation in television prevents the need to extend the powers of the broadcast regulator towards print media.

The British system works from a different conception of the role of plurality in the democratic role of the news media. Plurality of ownership is taken to apply to the television news provider as well as the licensee. This separation is fundamental. The issue is less the maintenance of a plurality of licensees or news organizations—or indeed, fear of “moguls” intervening personally—than the separation of news production from

“head to head” competition for audiences and advertising revenue. For this reason the issue of mergers has tended to be less significant for the British in the case of television.

As can be seen from Table 1, the British have for many years had only two television news providers overall, the BBC and ITN (although this has not been essential since the advent of Channel 4 in 1982). Yet this arrangement has ensured the world-renowned quality of British television journalism for decades. Could this system be applied here? Independent production companies routinely provide other forms of programming to Australian commercial networks. The ABC has been required to outsource most of its drama production to such companies. There would seem to be no reason why the same could not be required of commercial licensees’ news services (although not necessarily to a single provider serving all three networks). The ABA could play the role of selector of news provider, modelled on the ITC’s current role in Britain. We might then see “proprietorial intervention” considerably diminished as a policy issue—especially if proprietors saw an advantage in offloading their news services.

Such a policy might move in tandem with the introduction of foreign expertise into the consortia that might bid for the role of news provider to commercial television. The British limit of 20 per cent maximum shareholding in the news provider(s) could also be adopted. Aside from local content provisions, which easily could be made a requirement of the provider, there is little that is special about Australian commercial television news that could not be improved by the addition of high quality foreign expertise.

Conclusions

I can thus summarize my comparative discussion with Table 2:

structural regulation

(of commercial broadcasting)

content regulation

of “political speech”

(in commercial broadcasting)

USA cross-media ownership rules⁴⁵ Fairness Doctrine

(1949–87)

UK “Channel 3 model” and

“nominated provider” model for commercial TV news provision (ITN); cross-media ownership rules.

“positive” programme codes^[46]

(UK term “code” = Australian term “standard”)

Australia cross-media ownership rules no UK-like compulsory standards nor legacy of a Fairness Doctrine— only self-regulatory and co-regula- tory codes (except “cash for com- ment” temporary standards)

Table 2: Australian Media Policy Instruments Compared with the UK and USA

The above discussion might seem a long internationalist bow to draw from the Australian implied freedom. Yet Australian media policy debate—and much analysis of it—is littered with myopic invocations of

“globalization” in support of technologically determinist and neo-liberal accounts of potential media futures. The implied freedom not only increases the ability to identify Australian policy failings more precisely within the increasingly “globalised” normative discourse of freedom of communication. It so facilitates assessment of Australian media policy against “international best practice” in specific areas. I have focussed on television news but much the same argument could be mounted concerning television current affairs. I have deliberately avoided the term “tabloidisation” yet one consequence of the British model is the diminution of the competitive spiral in ethical values known popularly as “dumbing down” but which is better accounted for by the economists’ term of “Hotelling’s effect”.^[47]

My proposed mix of structural and content regulation is, I would argue, consistent with a positive and deliberative reading of the implied freedom. This could only be decided definitively by the passing of Australian legislation and its (probably inevitable) testing in the High Court. Yet such legislation would not require anything as censorial as even the ban on paid political advertising that was the central issue in the ACTV case. The content regulation of talkback radio could be a limit case here. For this Australia needs something like the Fairness Doctrine the USA abandoned

or the current UK Radio Authority News and Current Affairs Code.^[48] Such regulation may be more difficult to reconcile with the implied freedom and appropriate justification of it is beyond the scope of this paper. If Harry Potter really can inspire the conduct of talkback radio hosts, then perhaps he does have an ethical gap-filling role to play after all.

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Appendix

UK ITC PROGRAMME CODE SECTION 3: DUE IMPARTIALITY^[49]

SECTION 3: IMPARTIALITY

As stated in the Foreword, the Broadcasting Act 1990 makes it the statutory duty of the ITC to draw up, and from time to time review, a code giving guidance as to the rules to be observed for the purpose of preserving due impartiality on the part of licensees as respects matters of political or industrial controversy or relating to current public policy. The Impartiality Code relates specifi cally to Section 6(1)(c) of the Act and is drawn up in accordance with Section 6(3), 6(5) and 6(6). It is published under Section 6(7).

For ease of reference, guidelines relating to the requirement under Section 6(1)(b) that news be presented with due accuracy and impartiality and the requirement under Section 6(4) relating to the views and opinions of persons providing a licensed service are also incorporated here. These are based on the ITC’s code making powers under Section 7(1)(c) of the Act as well as those deriving from Section 6(3). Section 47 of the Act allows the ITC to substitute for Section 6(1)(c) a modifi ed requirement in respect of local licensable programme services. Guidance is given in Section 3.8 of the Code.

This section refers mainly to programmes covered by the impartiality requirements: i.e. those dealing with matters of political or industrial controversy, and current public policy. The only exceptions to this are in relation to news (3.4), where the due accuracy requirement relates to news on all topics, and to appearances by politicians and other political activists.

3.1

DUE IMPARTIALITY

The Broadcasting Act requires the ITC to do all that it can to secure

“that due impartiality is preserved on the part of the person providing the service as respects matters of political or industrial controversy or relating to current public policy”.

Under the Act, matters relating to current political issues, those of a current industrial relations nature, and current public policy which is subject to opposing points of view should be regarded as “controversial”. The due impartiality requirement does not apply to every topic where differences of opinion may exist.

The term “due” is significant; it should be interpreted as meaning adequate or appropriate to the nature of the subject and the type of

programme. While the requirement of due impartiality applies to all areas of controversy covered by the Act, it does not mean that broadcasters have to be absolutely neutral on every controversial issue. And while broadcasters should deal even-handedly with opposing points of view in the arena of democratic debate, it does not mean that “balance” is required in any simple mathematical sense or that equal time must be given to each opposing point of view.

Opinion should be clearly distinguished from fact. Judgement will always be called for. The requirement will also vary with the type of programme; the considerations applying to drama, for example, are different from those applying to current affairs programmes. Licensees transmitting to countries other than the UK should be aware that the due impartiality requirement applies to them no less than to licensees operating solely within the UK. The provision that due impartiality must be preserved “on the part of the person providing the service” is also significant. Subject to the safeguards contained in this Code, the provision allows for individual contributors to put forward what may be a personal or subjective view, or for such views to be reflected in a programme. It is for each licensee, acting through the executives who commission and schedule programmes, to ensure the service they provide deals fairly with matters of political or

industrial controversy, or current public policy.

3.1(I)

EDITORIALISING

The Act places the additional duty on the ITC to do what it can to secure the exclusion of the licensee’s views and opinions on controversial matters other than the provision of programme services.

If, in a programme included in a licensed service, a director or offi cer of a licensee does express an opinion on a controversial matter other than the provision of programme services, it must be in a context which makes clear that the opinion expressed is not that of the licensee.

Speeches in Parliament are exempt from this provision.

3.2

IMPARTIALITY OVER TIME

There are times when licensees will need to ensure that the principal opposing viewpoints are reflected in a single programme or programme item, either because it is not likely that the licensee will soon return to the subject, or because the issues involved are of current and active controversy. At other times, a narrower range of views may be appropriate within individual programmes. The ITC recognises that such issues call for editorial judgement based on the particular circumstances and that an impartial programme service does not necessarily have to ensure that in a single programme, or programme item, all sides have an opportunity to speak.

81

3.2(I)

THE “SERIES” PROVISION

The Broadcasting Act’s requirements about impartiality allow a series of programmes to be considered as a whole. For this purpose, the ITC defi nes a series as more than one programme broadcast in the same service, each one of which is clearly linked to the other(s) and which deal with the same or related issues.

It is not sufficient to claim that programmes on other channels or other media will ensure that opposing views will be heard.

Some series consist of programmes broadcast at regular intervals under the same title, but which may deal with widely disparate issues from one edition to the next. In this case, each programme should normally aim to be impartial in itself. Alternatively, producers may choose to deal with the same subject over two or more programmes or, for instance, offer separate in?depth interviews to the leaders of political parties and in this way achieve impartiality over time.

The intention to achieve impartiality in this way should be planned in advance and, wherever practicable, made clear to viewers.

3.3

PROGRAMME CONTENT: “MAJOR MATTERS”

The Act requires the Code to take particular account of the impartiality due to major matters of political or industrial controversy or relating to current public policy.

What is a major matter will vary according to the current public and political agenda, whether national or regional. It would in most circumstances include political or industrial issues of national importance, such as the UK’s role in the European Union, or signifi cant legislation currently passing through Parliament. For licensees serving a local or regional audience, it would also include issues of comparable importance within their region.

In dealing with major matters of controversy, licensees must ensure that justice is done to a full range of significant views and perspectives during the period in which the controversy is active.

The treatment of major matters should not obscure the fact that due impartiality is required on all matters of political or industrial controversy or current public policy. The ways in which this may be achieved in relation to different programme types is dealt with in the following sections.

3.4

NEWS

In addition to the general requirements relating to matters of political or industrial controversy or current public policy, the Act requires that any news, given in whatever form, must be presented with due accuracy and impartiality.

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Reporting should be dispassionate and news judgements based on the need to give viewers an evenhanded account of events. In reporting on matters of industrial or political controversy, the main differing views on the matter should be given their due weight in the period during which the controversy is active. Editorial discretion will determine whether a range of conflicting views is included within a single news item or whether it is acceptable to spread them over a series of bulletins.

3.5

PERSONAL VIEW PROGRAMMES

Programmes in which an individual contributor is given the opportunity to put forward his or her own views, without necessarily referring to opposing views have a valuable place in the schedules. Personal view programmes on

“controversial” matters covered in the act are, however, subject to specifi c safeguards in order to ensure compliance with the general provisions relating to due impartiality.

The safeguards, which apply to all personal view programmes on

“controversial” matters, are as follows:

a. Each programme must be clearly identified as giving a personal view both in advance announcements and at the start of the programme itself.

b. Facts must be respected, and licensees have an obligation to do what they can to ensure that the opinions expressed, however partial, do not rest upon false evidence.

c. A suitable opportunity for response to the programme should be pro- vided, where appropriate, for example in a right to reply programme or in a pre-arranged discussion programme.

3.5(I)

PERSONAL VIEW PROGRAMMES: THE TIMESCALE

As with current affairs and documentary programmes, a series of personal view programmes has no need to give equal time to every relevant point of view. But licensees should take care to ensure that a suffi ciently broad range of views is expressed in any series of such programmes, and across the service as a whole during each calendar year, taking account of the frequency of the programmes within the series, the length of individual programmes and the nature of the subject matter.

For series which are a regular fixture in the schedules, such as a nightly, weekly or monthly access programme, the views expressed on controversial matters should be kept in reasonable balance throughout the progress of the series and licensees must be able to demonstrate this.

For an occasional series of programmes dealing with different aspects of the same subject matter it will normally be necessary to maintain impartiality within the series. Occasionally, however, the series itself may

take a particular approach to a controversial issue or comprise a group of programmes presented from the same personal viewpoint, perhaps reflecting an original body of thought or research which may not readily be balanced.

The ITC recognises that such series are likely to have a long gestation period and are unlikely to be included in the schedules very often.

3.6

INTERVIEWS AND DISCUSSIONS ON CONTROVERSIAL TOPICS Sometimes, interviewees—including representatives of the Government— will seek to impose their own conditions on the conduct and use of an interview. Such requests are not improper in themselves, but care should be taken to ensure that what is included in the programme is determined by editorial criteria and not as the result of pressure. Licensees should consider whether, in the interests of due impartiality and fairness, they should disclose such agreements to viewers at the time of the broadcast. In programmes dealing with political issues the participants do not necessarily have to be speakers from the main political parties. The obligation to ensure due impartiality relates to issues, not to parties, and some important issues do not divide opinion along existing party lines. Indeed there are occasions when it is preferable to confi ne discussion to representatives of only one party; the opportunity can be taken to investigate a particular approach to an issue in depth, provided that overall in a series of programmes impartiality is maintained. On the other hand there are many issues on which the attitudes of the parties are clear cut and distinct, recognisably part of the current political debate. In those cases speakers of known party allegiance should be chosen by

the broadcasters.

For the provisions relating to other aspects of the conduct of interviews, see Section 2.5.

For the provisions relating to Impartiality and Fairness in drama and drama documentary, see Section 2.12.

3.7

POLITICIANS IN PRESENTATION ROLES AND NON-POLITICAL PROGRAMMES

Programmes in which politicians and other activists in fields of political and industrial controversy appear outside their normal political role present different problems. Care and discretion are required over the use of such persons to produce or present programmes. Because of the need to preserve due impartiality, no currently active politicians should appear as newscasters, interviewers or reporters in any news programme, unless their use can be clearly justified, in which case their party allegiance should be clearly identifi ed.

Care should be taken in making use of active politicians and political activists to present other programmes, such as studio discussions or current affairs programmes. Impartiality will normally require that such presenters are drawn from a wide political spectrum.

Guidance on the appearance of candidates in programmes during election periods is given in Section 4.3.

3.8

THE UNDUE PROMINENCE RULE FOR LOCAL LICENSABLE PROGRAMME SERVICES

Under Section 47(4) of the Broadcasting Act l990 the ITC may modify the provisions of Section 6 in respect of local licensable programme services by substituting in place of Section 6(1)(c) the following:

“(c) that undue prominence is not given in its programmes to the views and opinions of particular persons or bodies on matters of political or industrial controversy or relating to current public policy”.

The ITC will decide on a case by case basis whether the undue prominence requirement (rather than the impartiality requirement) should apply to particular licensees. Any licensee wishing to pursue this should contact the ITC for further guidance.

* Lecturer, School of Sociology, University of New South Wales.

I wish to acknowledge the continuing advice of Professor Michael Chesterman in this research.

[1] Gordon-Smith, M., in Cunningham, S. and Turner, G. (eds), The Media and

Communications in Australia, Allen & Unwin, Sydney, 2002, 290.

[2] For further elaboration of this this point see Jones, P. and Pusey, M. (forthcoming),

“Class and ‘Media Influence’ in Australia”, in Heider, D. (ed), News and Class, Rowman & Littlefi eld, Lanham.

[3] Jones, P., “Democratic Norms and Means of Communication: Public Sphere, Fourth

Estate, Freedom of Communication”, (2000) 1 (2) Critical Horizons, August, 307–339.

[4] I have found the work of Eric Barendt especially helpful here.

[5] [1997] HCA 25; (1997) 189 CLR 520

[6] Chesterman, M., Freedom of Speech in Australian Law, Ashgate, Aldershot, 2000.

[7]Ibid., 30. Indeed, the only dedicated such study appears to be David Flint’s contribution to the Campbell and Sadurski collection which discussed the “first wave” of High Court judgements (Flint, 1994).

[8] See Macintyre, 1994.

[9] The key judgements are: Australia Capital Television v Commonwealth and Nationwide News v Wills (both September, 1992), Theophanous v Herald and Weekly Times, Stephens v West Australian Newspapers and Cunliffe v Commonwealth (all October, 1994), Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520 and Levy v Victoria [1997] HCA 31; (1997) 189 CLR 579.

[10] Cf. the similar conclusion of Patapan, H., Judging Democracy, Cambridge University Press, Melbourne, 2000, 56–57

[11] Chesterman, op. cit., 29. I have elided Chesterman’s footnotes for the sources of his internal quotations. They are, respectively, from the work of Schumpeter, Meiklejohn, Post and Fiss.

[12]Ibid., 29–31.

[13]Ibid.

[14] Most historical accounts of the Fairness Doctrine are unsympathetic. But see Donahue, H., The Battle to Control Broadcast News: Who Owns the First Amendment?, MIT Press, Cambridge, 1989, Mass. and Lively, D., Modern Communications Law, Praeger, New York,

[1991], 390.

[15] [1969] USSC 141; 395 US 367 (1969).

[16] [1974] USSC 147; 418 US 241(1973).

[17] Lichtenberg, J., 1990, “Foundations and Limits of Freedom of the Press”, in Lichtenberg, J. (ed.), Democracy and the Mass Media, Cambridge University Press, Cambridge.

[18] Barendt, E., Freedom of Speech, Clarendon Press, Oxford, 1996, 25.

[19]Barendt, E., Broadcasting Law: A Comparative Perspective, Clarendon Press, Oxford, 1993, 34.

[20] Gibbons,T., Regulating the Media, Sweet and Maxwell, London, 1991, 102–104.

[21] Barendt, 1993, op. cit., 34.

[22] Mason, A., “The Free Speech Debate in Australia”, in Communications Law Centre (ed),

Free Speech in Australia: Conference Papers, 1996, 4–5.

[23] Jones, P., “The Best of Both Worlds? Freedom of Communication And ‘Positive’ Broadcasting Regulation”, (2001) 23 (3) Media Culture and Society, 407–417.

[24] Any doubts concerning this assertion should be set against the debate over recent reports of moves to shift the Nine Network “tabloid” programme A Current Affair “upmarket” towards “serious” ABC standards! Whether or not this speculation is true is less signifi cant than the consensus that this would be entirely a market-driven decision (cf. Simper, E.,

“Old Affair Won’t Die”, Australian Media Supplement, 28 November–4 December 2002,

[4]–5).

[25] Beyond content regulation per se, licencees used to be required by licence conditions to provide “an adequate and comprehensive service”. These requirements were watered down in the Broadcasting Services Act 1992 to the point where any prospect of sanction is negligible

(Walker, 2000, 1016). This regulatory dilution is partly responsible for the decline of local radio news and the rise of talkback (Miller and Turner, 2002).

[26] Australian Press Council, 1999, 15. See also the transcripts of the Commissions’s Inquiry for 6 September 1999, available at: http://www.pc.gov.au/inquiry/broadcst/trans/ melbourne090699.pdf.

[27] Productivity Commission, 2000, 450

[28] Productivity Commission, 2000, 461–462

[29] This exchange is available at: http://www.pc.gov.au/inquiry/broadcst/trans/

sydney061299.pdf. See 1061–1068.

[30] Explanatory Memorandum for the Broadcasting Services Amendment (Media Ownership) Bill

[2002], para 105.

[31] Senate Standing Committee on the Environment, Communications, Information

Technology and the Arts, 2002.

[32] See especially Mason CJ’s comments[1992] HCA 45; , 177 CLR 106 at 143–145. For critical accounts of this decision, see Ward, I., Politics of the Media, Macmillan, Melbourne, 1995, 191–194 and Patapan, op. cit., 51–52.

[33]Lateline, ABC TV, 18 October 1994.

[34] Barendt, E., “Freedom of Speech in an Era of Mass Communication”, in Birks, P. (ed.),

Criminal Justice and Human Rights, Oxford University Press, Oxford, 1995, 114.

[35] Humphreys, P., Mass Media and Media Policy in Western Europe, Manchester University

Press, Manchester, 1996, 128–130.

[36] The Programme Code for television can be found at the ITC website: http:// www.itc.org.uk/itc_publications/codes_guidance/programme_code/index.asp. The due impartiality code is appended.

[37] Channel 4’s “minorities” remit is well known. Channel 5 was planned to have a “youth”

remit but I could find no confirmation of this at time of writing.

[38] I.e. the Independent Television Commission ( <http://www.itc.org.uk> ). The current UK Communications Bill would merge all media regulators into a single regulator, “OFCOM”. OFCOM’s prospective relationship with the BBC is still a matter of public debate.

[39] Since 1998 the ITC conducts a “shortlisting” with the final decision taken by the ITV

companies.

[40] ITN’s ownership status has gradually been deregulated from that of a non-profi t “cost centre” to a commercial company. In 1993 its ownership changed from a consortium of ITV companies. Its current shareholders are Carlton TV, Daily Mail and General

Trust, Granada, Reuters and United Business Media. While this mixing of television and newspaper interests could be seen as violating the spirit of the Australian understanding of

“cross-media” rules, this should be measured against the current British cross-media rule that delimits any maximum shareholding in ITN to 20 per cent.

[41] ITN does not produce the news content of Channel 3 “breakfast television”.

[42] Figures do not add to 100 per cent as they exclude the 16.6 per cent audience share held by “other” (Cable/satellite/RTE). Source: BARB website (http://www.barb.co.uk/TVFACTS. cfm?fullstory=true&newsid=11) downloaded 17.05.02.

[43] Sources: “Draft Communications Bill: the Policy”, Chapter 8.2.9, Ministry of

Culture website (http://www.communicationsbill.gov.uk/policy_narrative/550809.html), downloaded 18.05.02. UK Culture Secretary’s speech to House of Commons, 7 May 2002, reproduced on BBC website (http://news.bbc.co.uk/hi/english/uk_politics/newsid_1973000/

[1973563].stm), downloaded 17.05.02.

[44] The most relevant section of the Television Programme Code is appended to this article. The full code is available at http://www.itc.org.uk/itc_publications/codes_guidance/index.asp. Some elements of this regulatory system (but not, it seems, the programme codes) are at

risk of challenge in the European Court of Human Rights. See United Kingdom Parliament, Joint Committee on Human Rights (2002) and my reply to Lawrence McNamara for some expansion of this point, below.

[45] These are currently undergoing an extensive review by the US regulator, the Federal

Communications Commission ( <http://www.fcc.gov/ownership/> ).

[46] See appendix, page 80.

[47] For an account of Hotelling’s effect in relation to television, see Collins, R. and Murroni, C., New Media, New Policies: Media and Communications Strategies for the Future, Polity, London, 1996, 62–63.

[48] For the UK Radio codes see: <http://www.radioauthority.org.uk/publications-archive/ adobe-pdf/regulation/codes_guidelines/RA_News_CAC & ProgCode2002.pdf> . Note also the apparent relation between the abolition of the Fairness Doctrine and the rise of conservative

“attack talkback” in the USA associated with Rush Limbaugh, cf. Spitzer (2000).

[49] Downloaded from ITC website, 13 December 2002: http://www.itc.org.uk/itc_

publications/codes_guidance/programme_code/section_3.asp