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.
This story first appeared on www.crikey.com.au on March 12. Republished with permission.