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Published online by Cambridge University Press: 02 January 2018
Delivering the 1995 Goodman Lecture, David Glencross, the then Chief Executive of the Independent Television Commission (‘ITC’) commented that the Broadcasting Act 1990 did not contain sufficient flexibility to allow the ITC to deal effectively with unforeseen developments such as changing technology and media ownership and control issues. This is an interesting comment on the legislation because the Broadcasting Act 1990 represented a deliberate move towards a rule-based form of regulation away from the flexible, non-specific and discretionary style of the Broadcasting Act 1981 which it replaced. The White Paper which set out the Government's proposals for the new regulatory system emphasised this:
‘The ITC would apply lighter, more objective programme requirements. …The ITC would therefore adopt a less heavy handed and discretionary approach than the IBA necessarily does at present’.
However, the Government recognised that ‘[a] new enabling framework must be flexible enough to allow for technological change’.
1 Referred to also in this article as the ‘Broadcasting Act’ or ‘the UK Act’.
2 ‘Television Ownership and Editorial Control’ in EM Barendt The Yearbook of Media and Entertainment Law 1996 (1996) 3 at 18. David Glencross has since retired as ITC Chief Executive.
3 Home Office, Broadcasting in the '90s: Competition, Choice and Quality-The Government's Plans for Broadcasting Legislation, Cm 517 (1988) p 20, para 6. 5. Under the previous system the Independent Broadcasting Authority was both broadcaster and regulator. This was changed with the Broadcasting Act, so that the IBA's successor, the ITC, is a regulatory body only.
4 Ibid p 5, para 2. 5. See also pp 5–6, para 2. 6.
5 Ibid pp 44–45, Annex.
6 See Ibid pp 5–6, para 2. 6 and Broadcasting Services Act 1992, s 3.
7 Also referred to in this article as ‘the BSA’.
8 Explanatory Memorandum, Broadcasting Services Bill 1992 (1992) p 2 (‘the Explanatory Memorandurn’). The Explanatory Memorandum is itself innovative. Unlike the usual form of explanatory memorandum, the Explanatory Memorandum provides a detailed discussion of the bill's provisions, how they are expected to operate, and what they are intended to achieve.
9 Ibid. The previous legislation and its history of amendments provided a classic example of ‘gap-filling’ rule-making: see, for example, Baldwin, R Rules and Government (1995) p 29 Google Scholar.
10 S Brooks ‘Broadcasting Regulation in the New Era’ (1992) 63 Media Information Australia 9.
11 C E Schneider ‘Discretion and Rules: a Lawyer's View’ in K Hawkins (ed) The Uses Of Discretion (1992), 47 at 49.
12 Above, n 3, pp 22–23, para 6. 17.
13 Seeing rules-and-discretion in these terms stems possibly from a dependence on what Lacey terms the ‘legal paradigm’ which in turn focuses on discretion in terms of controlling or constraining its exercise and views the measures of accountability only in legal terms: see N Lacey ‘The Jurisprudence of Discretion: Escaping the Legal Paradigm’ in K Hawkins The Uses of Discretion (1992) (above) 361 at 362 and generally. The problems with the former UK legislation did not stem necessarily from the existence of discretion, but rather from the way in which it was exercised. Decisions were taken in secrecy, there was no effective public involvement, nor was there any openness about the process of the decision-making. For a discussion of the decision-making processes under the former legislation, see N Lewis ‘IBA Programme Contract Awards’ [1975] PL 317. See also Ogus, AI Regulation Legal Form and Economic Theory (1995) p 334 Google Scholar for comment on lack of process values in relation to the former franchising system.
14 Baldwin, R Rules and Government (1995) p 29 Google Scholar.
15 R Baldwin and K Hawkins ‘Discretionary Justice: Davis Reconsidered’ [19841 PL 570 at 580.
16 Analysis of this failure is beyond the scope of this article, although some suggestions can be made. One possible explanation is the concern about accountability raised earlier. It may also be that the Government has simply failed to give adequate attention (deliberately or otherwise) to the matter - an example of regulatory failure or symbolic regulation (where for political reasons, the law-making body is concerned only to appear to have regulated an area): see R Cranston ‘Regulation and Deregulation: General Issues’ in Tomasic, R (ed) Business Regulation in Australia (1984) p 13 Google Scholar. For a critique of UK media policy-making see L P Hitchens “‘Get Ready, Fire, Take Aim”: The Regulation of Cross Media Ownership-An Exercise in Policy-Making’ [1995] PL 620. A further explanation may be the Government's preference for an economic form of regulation in place of what might be seen as a public interest model, as has traditionally been the case for broadcasting. There is increasingly a move towards involving regulatory bodies which embody economic forms of regulation, such as OFTEL, in the broadcasting sector: see generally AI Ogus Regulation Legal Form and Economic Theory (1995) (above).
17 The bill itself grew through this process with some 700 amendments and new clauses: H C Deb, 10 May 1990, vol 172, col 412Google Scholar.
18 Simplification of legislation, including drafting in ‘Plain English’ has been Australian Government policy. For a recent statement of this policy see Attorney-General's Department, Justice (Canberra, 1995) pp 120–126 Google ScholarPubMed.
19 Section 3 states the objects as follows:
20. (a) to promote the availability to audiences throughout Australia of a diverse range of radio and television services offering entertainment, education and information; and (b) to provide a regulatory environment that will facilitate the development of a broadcasting industry in Australia that is efficient, competitive and responsive to audience needs; and (c) to encourage diversity in control of the more influential broadcasting services; and (d) to ensure that Australians have effective control of the more influential broadcasting services; and (e) to promote the role of broadcasting services in developing and reflecting a secse of Australian identity, character and cultural diversity; and (f) to promote the provision of high quality and innovative programming by providers of broadcasting services; and (g) to encourage providers of commercial and community broadcasting services to be responsive to the need for a fair and accurate coverage of matters of public interest and for an appropriate coverage of matters of local significance; and (h) to enocourage providers of broadcasting services to respect community standards in the provision of program material; and (i) to encourage the provision of means for addressing complaints about broadcasting services; and (j) to ensure that providers of broadcasting services place a high priority on the protection of children from exposure to program material which may be harmful to them.
20 Explanatory Memorandum, above, p 9.
21 Ibid.
22 Draft Broadcasting Services Bill Explanatory Papers (1991) p 7 (‘the Explanatory Papers’).
23 Explanatory Memorandum, p 11.
24 Armstrong, M and Lindsay, D ‘The Fifty-Year Revision of Broadcasting Law: The Exposure Draft Broadcasting Services Bill’, Policy Research Paper No 19 (CIRCIT, 1991) p 20 Google Scholar.
25 Ibid p 21.
26 See Broadcasting Act, ss 43, 46 and 72 respectively. Curiously, the Act gives no definition of the term ‘broadcasting’, although it does define ‘broadcast’: “‘broadcast” means broadcast by wireless telegraphy’ (s 202(1)). ‘Broadcasting’ cannot be the same as ‘broadcast’ because the Act covers more than just services transmitted by means of wireless telegraphy.
27 Above, n 3, p 5, para 2. 5.
28 This system however is to apply only until 1 July 1997. The singling out of satellite delivery possibly reflects the fact that satellite as a general service is being introduced by this legislation. Up until now it had only been used for remote areas and other specialised services. There was considerable dissent about the Australian Government's proposals for satellite services, and the BSA was passed without Part 7. Eventually, a redesigned Part 7 was added by the Broadcasting Services (Subscription Television Broadcasting) Amendment Act 1992.
29 The BSA, s 4(2)(b).
30 Above, n 24, p 23. See also Explanatory Memorandum, above n 8, p 15.
31 Explanatory Papers, above, p 9.
32 Ibid.
33 Above, n 24, p 23.
34 Ibid.
35 Although for the purpose of completeness the BSA refers to national broadcasting services, except where the Act specifically mentions national broadcasting services the regulatory regime of the BSA does not otherwise cover the national broadcasting services: s 13(5). The ABA is responsible for dealing with complaints about breaches by the national broadcasting services of their codes of practice.
36 The BSA, s 13.
37 The BSA, s 14 and see text below.
38 The BSA, s 15. These are services which broadcast for community purposes and which are non-profit making operations. They must provide programmes which are received by commonly available equipment and be provided free-to-air.
39 The BSA, s 16.
40 The BSA, s 17. These are broadcasting services which are for limited or special interest group audiences, locations, or periods, and which are only available by subscription.
41 The BSA, s 18. These services are similiar to subscription narrowcasting services in terms of the limited nature of reception but the category makes no prescription as to the basis for payment of the service.
42 It may be argued that the flexibility of the ABA is undermined by s 19(3) which empowers the Minister also to direct the ABA as to further determinations and clarifications. These directions must be observed by the MA. A frequent comment about the new legislation is that the flexibility and discretion given to the ABA has been somewhat undermined by the number of occasions in the legislation where the Minister is able to direct the ABA: Above, n 24, p 18. See also text at n 93.
43 Explanatory Memorandum, above, p 25.
44 Letter to the Attorney-General dated 18 May 1992 from the Administrative Review Council, Administrative Review Council, Sixteenth Annual Report, (1991–2, AGPS, Canberra) p 116 Google ScholarPubMed. The Administrative Review Council advises the Attorney-General on administrative law, particularly in relation to proposed legislation.
45 Ibid p 117.
46 Ibid. It proposed as a compromise a sunsetting clause with sufficient time for the BSA to be amended. This was not accepted by the Government.
47 See, for example, above, n 3, pp 4–5, paras 2. 4 and 2. 5.
48 Explanatory Memorandum, above, p 12.
49 See, for example, Digital Terrestrial Broadcasting The Government's Proposals, Cm 2946, (1995) p 4, paras 1. 9–1, 12.
50 Broadcasting Act, s 45(2).
51 Broadcasting Act, ss 3(3) and 5(1) respectively.
52 Explanatory Papers, above, p 11.
53 Opinions given under s 21 are valid for a period of five years from the date of the opinion (unless the circumstances of the broadcasting service change) and thereafter permanently unless a determination or clarification is made under s 19.
54 ABA, Narrowcasting for Radio: Discussion Paper, 13 April 1994, para 18, 552.
55 E Burrows ‘Narrowcasting for Radio’ (1994) (Winter) Communications Law Bulletin 7 at 8.
56 The BSA, s 5(1)(b)(i).
57 The Channel 5 licence, domestic satellite service licences, additional services licences and local delivery services licences are all licences for television services which are intended to be awarded to the applicant making the highest cash bid.
58 The Channel 5 licence application round in 1995 presented similar dilemmas for the ITC. It resulted in four bids, ranging from £2 million to approximately E36 million. Two bids were for an identical amount: £22,002,000. The ITC's licence award was subject to an unsuccessful judicial review challenge.
59 Above, n 3, pp 22–23, para 6. 17.
60 For a discussion of the IBA system and its lack of accountability see N Lewis ‘IBA Programme Contract Awards’ [1975] PL 317.
61 Prosser, T ‘Regulation, Markets and Legitimacy’ in Jowell, J and Oliver, D (eds) The Changing Constitution (1994) p 250 Google Scholar.
62 For a review of the lobbying which took place see R Baldwin ‘Broadcasting after the Bill: Gold, Franchises and Murmurings of Discontent’ (1990) 11 Journal of Media Law and Practice 2. See also above, n 61.
63 Ogus, A I Regulation: Legal Form and Economic Theory (1995) (above) p 327.Google Scholar
64 The decisions to disqualify certain licence applicants were made in the absence of any requirement to give reasons. Attempts to challenge the ITC decisions were unsuccessful: R v ITC; ex p TSW Broadcasting Ltd, HL, (1992) Times, 30 March; R v ITC; ex p TVNI Ltd and TVS Television Ltd, CA, (1992) Times, 30 December. For a discussion of these decisions see above, n 61, pp 251 and 258 and, see also, Barendt, E M Broadcasting Law A Comparative Study (1993) pp 89–91 Google Scholar.
65 Broadcasting Act, s 17(4).
66 Above, n 61, p 251.
67 Ibid.
68 The BSA, s 36. However, it is for the Minister to determine the price-based allocation system for subscription television satellite services.
69 Explanatory Memorandum, above, p 34.
70 See Explanatory Memorandum, above, pp 33–34. It is a matter for the licensee to take responsibility for its own financial viability. If it fails, then the licence is reallocated. This could mean significant upheaval in the provision of services to viewers and listeners.
71 Memorandum submitted by the ITC to the National Heritage Committee The Future of the BBC (1992–1993) HCP 7OOxii, p 453, para 14.
72 N Dick ‘Global Issues in Broadcasting Regulation’ (1992) 63 Media Information Australia 6. With the election of a new government early in 1996, the design of media ownership and control rules is to be reviewed. It would seem also that the ABA is not to play a central role in leading this review: Sydney Morning Herald, 21 March 1996, Sydney Morning Herald, 2 May 1996 and Financial Times, 2 October 1996.
73 Ibid.
74 Ownership and control provisions over satellite subscription television services will cease on 1 July 1997: s 104.
75 See text infra at n 85.
76 Explanatory Memorandum, above, p 39.
77 Media Ownership The Government's Proposals Cm 2872 (1995).
78 ‘Company interests’ are defined in s 6(1): in relation to a person who has a shareholding interest, a voting interest, a dividend interest or a winding-up interest in a company, means the percentage of that interest.
79 Broadcasting Services Act Amendment Act 1995.
80 Minister for Communications and the Arts, News Release, 27 June 1995.
81 Gray, L Ownership and Control: Some Thoughts for the Future’ (1992) 63 Media Information Australia, 19 at 21CrossRefGoogle Scholar.
82 One of America's largest telecommunications companies, MCI Communications (in which British Telecom has a 20% shareholding), has invested in Murdoch's News Corporation with a view to establishing a joint venture to merge the News Corporation's news and entertainment resources with MCI's telecommunications networks. Mergers between news and entertainment groups and between programme production and distribution have also been evident. The ABC network and the Walt Disney Company merger, the Time Warner and Turner Broadcasting merger and Viacom's takeover of Blockbuster and Paramount all provide evidence of these trends.
83 The ITC shares a regulatory role over broadcasting with the Radio Authority, which as the name implies is responsible for regulation of commercial radio broadcasting.
84 Evidence before the National Heritage Committee The Future of the BBC (1992–1993) HCP 700xii, 26 October 1993, p 463, para 1397.
85 Explanatory Memorandum, above, pp 12–13.
86 ABA Annual Report 1993–1994, p 10.
87 Broadcasting Act, s 69.
88 ITC Notes, No 42, September 1994.
89 Above, n 49.
90 Evidence given to National Heritage Committee The Future of the BBC (1992–1993), HCP 700iii, 17 June 1993, p 125, para 44. See also ITC Annual Report and Accounts, 1994, pp 8–9 which refers particularly to duplication of work by the ITC, the Broadcasting Standards Council and the Broadcasting Complaints Commission. The Broadcasting Act 1996 merged the Broadcasting Complaints Commission and the Broadcasting Standards Commission into one body, the Broadcasting Standards Commission. In the review of the future of the British Broadcasting Corporation, consideration was given to the possibility of establishing a regulatory body for all public service broadcasting or bringing the BBC within the regulatory ambit of the ITC and the RA. However these suggestions were rejected: The Future of the BBC: Serving the Nation, Competing World-wide, Cm 2621, (1994) p 38, paras 6, 7–6, 8.
91 Sir George Russell, Chairman, ITC, above, n 84, p 462, para 1392. See also Memorandum, above, n 71, p 456, para 35.
92 See above, n 77.
93 See text at n 45, above.
94 The BSA, s 25.
95 The BSA, s 36.
96 Broadcasting Services (Subscription Television Broadcasting) Amendment Act 1992, s93.
97 The BSA, s 162(1) makes clear that the Minister may give general directions but cannot give any specific directions except where permitted by the legislation.
98 The BSA, s 121 and s 128 respectively.
99 Davies, A The Role of Government in Broadcasting Regulation’ (1991) 11(3) Communications Law Bulletin 16 Google Scholar.