23rd Parliament · 2nd Session
The DEPUTY PRESIDENT (Senator the Hon. A. D. Reid) took the chair at 3 p.m., and read prayers.
Assent to the following bills reported: -
Income Tax and Social Services Contribution Assessment Bill 1960.
Income Tax (International Agreements) Bill 1960.
Income Tax and Social Services Contribution Bill 1960.
International Development Association Bill 1960.
Customs Tariff Bill 1960.
Customs Tariff (Canadian Preference) Bill 1960.
Customs Tariff (New Zealand Preference) Bill 1960.
Customs Tariff (Federation of Rhodesia and Nyasaland Preference) Bill 1960.
Excise Tariff Bill 1960.
Telephonic Communications (Interception) Bill 1960.
National Service (Discharge of Trainees) Bill 1960.
Income Tax (International Agreements) Bill (No. 2) 1960.
Sulphuric Acid Bounty Bill 1960.
Copper Bounty Bill 1960.
Judiciary Bill 1960.
– I direct a question to the Leader of the Government in the Senate. Is the Minister aware that at a recent meeting of the International Parliamentary Union discussion took place concerning the substantial differences between the prices of raw materials and the cost of articles manufactured from them, and the possibility of reducing these differences, for the benefit of both producers and consumers? Can the Minister tell the Senate what results have been achieved by the organization which has been investigating this problem in Australia? Has any research been undertaken into the possibility of reducing the cost of manufacturing woollen garments and other articles? The Minister may be aware that the Farmers Union of Western Australia has taken this matter up and expressed itself in the following terms: -
Our Executive contends that this is not in the best interests of the wool industry, and at the last meeting of the Executive it was decided to inform all West Australian members of the Federal Parliament of the Executive’s views.
Does not the Minister agree with the contention of the Farmers Union of Western Australia that the high cost of manufactured articles, when compared with the cost of the raw material, is not conducive to wider sale of woollen goods?
– I am sorry to say that I have not seen the written representations made by the Farmers Union of Western Australia, to which Senator Cooke has referred. However, this is a topic which has, of course, been the subject of discussion and consideration over a long period of years. Comments are constantly being made on the fact that while wool costs so much per lb., the finished suit or dress costs so much more. I think the final concensus of opinion is that processes of manufacture differ so widely from fabric to fabric, and the making up of different fabrics involves so many different sets of circumstances, that it is not possible to lay down a price, related to the cost of raw material, at which either fabrics or finished goods shall be sold.
– I address a question to the Minister representing the Treasurer. In view of the urgent need to provide accommodation for aged people in Australia, will the Government give consideration to the granting of a subsidy of either £2 for every £1, or £1 for every £1 contributed by State or local government authorities for this purpose, in addition to the amounts granted under the existing scheme?
– This question relates to the Commonwealth’s homes for the aged scheme. I think honorable senators will recall that this scheme was established some six or seven years ago and its original purpose was the payment of a subsidy of £1 for every £1 contributed by organizations other than State government organizations. The scheme was designed to help charitable institutions, hospitals and other approved bodies. That condition has remained, although in recent years the Commonwealth subsidy has been increased to £2 for every £1 provided by the approved organizations. That scheme has worked very successfully. As to whether the scheme should be extended to government organizations, I repeat that its original purpose, which is retained, was to help nongovernment organizations in the various States.
The ‘ Commonwealth does contribute money for home-building under the Commonwealth and State Housing Agreement. That agreement is administered by my Leader, the Minister for National Development. I know of no impediment under the agreement which prevents the construction of homes, at least, for aged people. It is within my knowledge that in Western Australia flats have been built for them, and I understand such has been done in other States as well. The agreement is the medium through which Commonwealth moneys have been available for the provision of housing for aged people when undertaken by State government authorities.
– I ask the Minister representing the Treasurer whether he will communicate with the Governor of the Commonwealth Banking Corporation and inform him that passengers waiting for omnibuses on many routes in Brisbane are compelled to shelter from heavy rain and the heat of the burning sun against a bare outside wall of the Commonwealth Bank at the corner of Albert and Adelaide streets, Brisbane. Will he invite the Governor of the Commonwealth Banking Corporation to construct an awning along the Albertstreet side of the bank and place comfortable hardwood seats under that awning for the comfort of bus travellers? Will he suggest to the Governor of the Commonwealth Banking Corporation that he deduct from the contribution which he pays annually to the Brisbane City Council in substitution for the payment of rates a sum sufficient to cover the cost of providing the awning and the seating facilities?
– No, I do not think I will bring the matter to the notice of the Treasurer.
– I will.
– I suggest that the practice which should be followed in Brisbane is that which is followed in what are, presumably, the States which are more advanced in this matter. It is that the State system which provides the transport also provides the shelters for passengers and clients of the transport system.
– I preface a question, which I direct to the Minister representing the Treasurer, by saying that there is considerable dissatisfaction in Western Australia over the workings of the Development Bank, and it has been adversely noted that a Tasmanian banker, who, it is said, has very little knowledge of the problems of such a vast State as Western Australia, was appointed as manager in Western Australia. Will the Treasurer consider steps to be taken to allow the Rural and Industries Bank of Western Australia, which does precisely the same work as the Development Bank, to be appointed an agent of the Development Bank on the same terms as the other major trading banks of Australia? Will the Treasurer consider the substitution of a simpler form for the present complicated1 form of application supplied to would-be customers of the bank?
– Yes, I am aware that some criticism has been directed at the activities of the Development Bank in Western Australia. However, 1 remind the honorable senator and the Senate generally that when the Commonwealth Bank established its mortgage bank department io 1932, initially the same type of criticism was directed at it, but I do not think that any one would deny that the mortgage bank department of the Commonwealth Bank has done a good and1 useful job over the years. I know that the honorable senator was at least half joking when she referred to the appointment of a Tasmanian as manager of the Development Bank in Western Australia, but I do not think that that appointment really has any bearing on the matter at all. In my own experience, and I am sure in the experience of all other Western Australian senators, this refugee from Tasmania is doing a fine job in Western Australia for Western Australians, and most people are happy to have him there. The honorable senator mentioned the complexity of the application form. I have seen one of these forms. It did not impress me as being particularly confusing; I thought all the questions were fairly straightforward. The subject of agency rights of the Rural and Industries Bank of Western Australia involves a number of matters of policy. I shall refer that part of the question to the Treasurer and ask him for his advice.
– I direct to the Minister for National Development a question that relates to recent publicity regarding the proposed export of iron ore. I might mention in passing that just prior to the Second World War a very interesting debate took place in the Senate on the proposed export of iron ore from Yampi Sound in Western Australia to Japan. I should like the Minister to inform me whether it is possible for iron ore to be exported from Australia merely by arrangement through the Department of Trade or whatever other Government department might be interested, or whether the matter must be referred to the Parliament. 1 ask the question because of the discussions that took place previously regarding the quality and quantity of iron ore available in Australia.
– In order to remove any misunderstanding, I should say at the outset that there has not been any Government decision to permit the export of iron ore. The present situation is that there has been an up-to-date review of our resources, which shows a very different prospective position from, that which appeared when the last survey was made at about the time to which Senator Sheehan referred. All that has happened1 up to this stage is that the Government has had the matter under consideration. lt has not reached any decision. No decision having been reached, I have not inquired closely into the procedure that would be necessary if it were decided to do something. I believe that the export of iron ore is prohibited under a schedule of the Customs Act.
– That is so.
– Senator Henty confirms me on that. A change in Government policy would entail an Executive Council decision and an alteration of existing regulations. In the normal course, the altered regulations would be tabled in the Parliament and would be subject to disallowance.
– If my memory serves me aright, the previous regulations were disallowed by the Senate.
– 1 must have a look at that.
– My question is directed to the Minister representing the Minister for External Affairs. In view of the discovery recently of intricate and ingenious listening devices in the American Embassy in Moscow, can the Minister give an assurance that no such listening devices have been discovered in the Australian Embassy in Moscow? Has the Australian Department of External Affairs yet taken over the building in Moscow which was allotted to it as an embassy building by the Soviet authorities? Is it a fact that the building, until it was allotted to the Australian Government, was used by the Chinese Embassy? Can the Minister give an assurance that adequate precautions will be taken to see that no spying devices are installed in that building when the Australian Government takes it over?
– The honorable senator has asked me a rather comprehensive question. I would say that any building occupied by the Australian Embassy or any other embassy in Moscow would be, as far as possible, checked to see that there were no listening devices installed in it before occupation took place, and that little surprise would be felt if such devices were discovered during a search.
– I direct a question to the Minister representing the Minister for the Interior. I point out that it has been the custom over the years for the street lights of Canberra to be turned’ off somewhere between midnight and 1 a.m. Great and growing numbers of tourists are visiting Canberra, not all of them owning cars and most of them being unaware of the eerie gloom that shrouds the national capital when the street lights are turned out. Would the Minister for the Interior give immediate consideration to the issue of instructions for the street lights to remain on, so that people who attend public functions or places of private entertainment, or baby sitters, may find their way home in a city that is not entirely simple in its road pattern, even in daylight?
– 1 shall have to accept the honorable senator’s statement that the lights of Canberra are turned off at 1 o’clock in the morning. I have no knowledge of that. J presume that he is speaking from personal knowledge, and I accept his word. The point he has raised is one of some interest, because Canberra, until you know it, is not an easy place in which to find your way about, even in daylight. If the lights do go out at 1 a.m., as the honorable senator suggests, people who have to walk - not being car owners and being unable to hire a taxi - could get lost. I shall refer this matter to the Minister for the Interior and see whether he can do something along the lines the honorable senator has suggested.
– Is the Minister representing the Treasurer aware that many dairy farmers are modernizing their plant by the installation of bulk milk tankers? Does he know that milk cans and such tankers, excluding the transport chassis &c, owned and operated by milk factories, are free of sales tax? Can the Minister tell the Senate why the primary producer is singled out for the imposition of sales tax at the rate of 16f per cent, on milk tank units? Will he bring this anomaly to the notice of the Treasurer before the 1960 Budget is introduced?
– I understand that it is a fact that milk cans used in the dairy industry are free of sales tax and that no provision exists for the exemption from sales tax of milk tankers as such. The matter has been brought to the notice of the Treasurer quite recently and I understand that he has given an undertaking to consider it before the forthcoming Budget is brought down.
– Will the Minister representing the Minister for Trade ascertain whether his colleague will consider a proposal to send a floating trade delegation to countries overseas? In view of the necessity to develop and extend our overseas markets, I suggest that a ship should be fitted up as a floating shop, to display for sale all manner of goods and commodities that are either manufactured or grown in Australia. The ship could visit all five continents. lt could be manned by a trade delegation, including experts to sell the wares displayed and to operate machinery on display, and be furnished only with Australian manufactured articles, all of which would be saleable and for the supply of which orders could be taken. I suggest that not only could such a ship serve as a floating market, but in addition, it could be open to the public at the various ports of call, so that the citizens of the countries visited might be able to see something of the Australian way of life and standard of living. Perhaps a small charge could be made to inspect the display and the receipts given to a local charity, thus furthering good relations with our neighbours near and far. The cost of the venture could be borne jointly by the Government and the manufacturers and primary producing organizations which exhibited goods in the ship. I am confident that a vessel of a suitable type could be speedily built at the Whyalla shipbuilding yards in South Australia and could be so constructed that, in an emergency, it could be converted for use as a hospital ship. I therefore ask the Government to give serious consideration to this proposal.
– I remember that some twelve or eighteen months ago a trade ship such as that referred to by the honorable senator went to Japan. I recall going down to the wharf to see it before it left. By all accounts, the trade mission that went to Japan on that occasion was a great success. My recollection is that the cost of the venture was borne by the Department of Trade and the various exhibitors who had goods displayed on the ship. I can only say that I shall bring to the notice of the Minister for Trade the suggestion that there should be another such venture, though proceeding further afield. I am sure that he will give it a good deal of thought and consideration.
– My question is addressed to the Leader of the Government in the Senate, who represents the Prime Minister. By way of brief preface, I recall to his mind that recently, through the splendid efforts of the Junior Chambers of Commerce, the hopes for economic security of physically handicapped people were considerably heightened by an Australia-wide publicity campaign in regard to employment of the physically handicapped. Does the Minister recall that on 19th March, 1959, I asked in the Senate, as recorded at page 469 of “Hansard” of that date, whether the Public Service Board prohibited the employment of physically handicapped people on its permanent staff. At that time I asked whether the Prime Minister would consider ordering a sympathetic and careful review of the board’s policy in view of the Government’s established practice of encouraging the rehabilitation and employment of physically handicapped people. I now ask: Has the Prime Minister caused the Public Service Board’s policy to be reviewed? If so, what is the present position?
– I remind Senator Marriott that the matter he has raised is one of the matters that is discussed in the recent report of the committee headed by Sir Richard Boyer, which inquired into recruitment to the Public Service. That report canvasses the issues that are involved in the honorable senator’s question. The report has been given some preliminary consideration by the Government, but all the recommendations contained in it have not yet been the subject of Government decision. The matter raised by the honorable senator will be dealt with when final decisions are being made with regard to the Boyer report. It is not practicable to forecast what the Government’s decisions may be.
– My question is directed to the Minister representing the Minister for Trade and relates to a statement in this morning’s newspapers that the Minister for Trade proposes to re-introduce import restrictions, I think under the administrative head, on air-cooled engines. As I understand the newspaper report, the Minister is proposing to take this action because imported engines are providing undue competition to Australian manufacturers of such engines. Can these import restrictions be resurrected by the Minister from time to time as an adjunct to the tariff policy? Is this an instance where import restrictions are being used really as. tariff protection?
– I saw the news- ‘ paper statement this morning to which thehonorable senator refers. I have no official information but by chance I happen to know something of the circumstances of this matter. The industry concerned is a major employer-
– Is it not a fit subject for consideration by the Tariff Board?
– Yes. The industry employs 3,000 or 4,000 people. The easing of import restrictions was a heavy blow to the industry. As I understand the statement attributed to Mr. McEwen, all that is contemplated is to invoke import licensing to allow the Tariff Board time to hold an inquiry. This procedure has been adopted on the recommendation of our advisory committee that Mr. McEwen has set up to advise him in respect of cases such as this. The honorable senator may remember that when import restrictions were eased restrictions were retained for the benefit of certain industries which the Government thought should have an opportunity to place their cases before the Tariff Board. It seems to me that the industry referred to by Senator Wright is probably one of the industries that was overlooked when the restrictions were eased. It would be a very serious matter if this industry were to be destroyed before an inquiry could be held by the Tariff Board.
– My question is directed to the Minister representing the Treasurer. About four weeks ago I asked the Treasurer to investigate the case of a young man who was injured while engaged on national service training. The trainee concerned lodged an application for compensation under the Commonwealth Employees’ Compensation Act. Will the Minister inform me what position has been reached in the investigation and when a final decision can be expected?.
– I do recall the matter, and I regret that I am not in a position to give a final answer to the honorable senator. I will immediately take up the matter again with my colleague and endeavour to get the information before the sittings conclude.
– I wish to direct a question to the Minister for National Development, who administers the Australian Atomic Energy Commission. Is he prepared to inform the Senate of the result of the very well-organized and wellconducted conference on irradiation, which was held last week at the University of New South Wales at Kensington, Sydney? Will the papers that were presented by the various scientists be made available to honorable senators?
– 1 thank Senator Branson for asking this question. I am very glad to know that he was present at some of the sessions of the conference. The papers that were prepared, and the subsequent publicity that was given to so many of the topics that were discussed certainly seemed to me to make a worthwhile contribution to scientific knowledge in Australia I am not sure whether the papers can be made available to honorable senators. Possibly a better, approach to the matter might be to give a summary of the proceedings. I shall discuss the matter with the Australian Atomic Energy Commission to see whether we can evolve some arrangement whereunder the report of the proceedings at the conference can be distributed, in not too technical a fashion, to members of the Parliament.
– I ask the Minister representing the Minister for External Affairs: Has he seen recent press reports indicating that prior to, and since the Summit conference, the Government of Soviet Russia has stepped up the operation of its radio jamming transmitters against news and information broadcasts by the Western democracies? Is the Minister in a position to give the Senate details of this increased jamming and the transmitters against which the jamming is directed? Have the transmissions of Radio Australia, which have such an excellent world-wide reputation, been honored by the attention of a Soviet radio jammer?
– Yes, I have seen the reports that the Russians, since the Summit conference, have stepped up or resumed the jammers which they use to prevent broadcasts from the West being heard by the Soviet people. The use of them is directed against programmes emanating from any of the free countries of Western Europe which might give factual news of what in fact did happen at and prior to the Summit conference. I do not know the answer to the question regarding Radio Australia, but I shall find out and let the honorable senator know.
– Will the Minister representing the Minister for Primary Industry comment on the progress to date of the wool futures market which was recently established in Sydney, and the contribution, if any, it has made to the stability of wool sales prices?
– The wool futures market opened on 11th May and I think that, in the first fortnight, the transactions averaged about 70 a day, which is regarded as quite good for this early stage of its operations. It is too early yet to say what effect on the future level of wool prices, if any, the futures market will have. It is important to remember that the main purpose of a futures market is not so much to have an effect on the level of prices or to stabilize prices at a particular level, as to guard against wide fluctuations of prices.
– I direct a question to the Minister representing the Minister for External Affairs. Has the Minister followed closely the negotiations that have been proceeding at Geneva with regard to the banning or regulating of tests of nuclear weapons? Is he in a position to say what progress has been made, or whether any report has been presented? Will he assure honorable senators that when definite information is received a report will be made to the Senate?
– I cannot give details of the discussions at Geneva on this subject, which have been going on for a very long time indeed, simply because I have not those details in my head at the moment. There is nothing secret abou; them, and from time to time reports of these discussions have been published. The committee concerned is still discussing the subject, but the talks have been bogged down, mainly on the question of proper inspection procedures for enabling any agreement that may be reached to be policed. If the honorable senator is interested, I will endeavour to get for him the latest published reports of the negotiations.
– I wish to ask a supplementary question. I thank the Minister for his very kindly reply, but [ am mainly interested to find out whether the Parliament will rely for its information on press reports, or whether a statement will be submitted to the Parliament with regard to the success - for which we all hope - or otherwise of this most important conterence.
– Undoubtedly the Parliament would be given information concerning any agreement entered into at the conference, or any other results achieved, but I think the honorable senator would not expect reports to be presented continually on the progress of the conference before any result was achieved.
– I direct a question to the Minister for National Development. Has the Minister’s attention been directed to a statement by Dr. P. B. Cornwell of the Harwell Research station, made on behalf of another British scientist, Dr. J. O. Bull, concerning the possibilities of using atomic radiation against blowflies, which do so much damage to the sheep industry? Dr. Cornwell said that the blowfly pest, a few years ago, cost the industry £4,000,000 in one year, and that such losses might be eliminated in the future by the -use of atomic radiation. Will the Minister discuss this matter with the Minister for Primary Industry, and also, perhaps, with the Minister in charge of the Commonwealth Scientific and Industrial Research Organization, directing attention particularly to the statement made by this visiting scientist?
– I saw a report of the statement mentioned by the honorable senator, and I have had some preliminary discussions with the Australian Atomic Energy Commission with regard to the sterilization of the blowfly by radiation. I would point out that it has also been suggested that it may be possible to sterilize the fruit fly in this way. These are matters of such extraordinary interest to Australia that I have asked the Atomic Energy Commission to brief me fully on the matter. Let me issue the warning, however, that it is not wise to jump to the conclusion that it is practicable to eliminate these pests ir. the way suggested. As I understand the matter at this stage, some preliminary research has been undertaken which gives rise to hopes rather than expectations. In view of the great importance of the subject to Australia, I think we would all agree that the Atomic Energy Commission should look carefully into it.
– I address a supplementary question to the Minister for National Development. Is it not a fact that Dr. Cornwell will be spending a month in Australia for the purpose of investigating the possibility of using atomic radiation to eradicate blowflies and also weevils in grain?
– I understand that one of the results of the recent conference held in Sydney was that the commission was successful in arranging for some of the scientists to remain in Australia for a time, to talk about and give guidance on some of our research programmes.
– Has the Minister representing the Minister for Immigration noticed a press reference to the effect that many migrants, unable to speak any English, are being charged heavily for assistance in filling in various necessary forms? Can the Minister inform the Senate whether the Department of Immigration has a staff of interpreters adequate to give such assistance? Can he assure the Senate that full publicity will be given to this matter, and that the department will assist migrants in every possible way?
– I am confident that the Minister for Immigration has had this matter under pretty close supervision, but in order that I may obtain a full answer from him for the benefit of the honorable senator, I suggest that the question be placed on the notice-paper.
– 1 address a question to the Leader of the Government in the Senate. As it appears that the Senate will rise this week for a short winter recess, will the Minister request his colleagues and the heads of departments to provide answers this week to as many as possible of the 33 questions that now appear on the notice-paper, one of them dating back to 31st March?
– I think Senator Marriott’s request has been anticipated. I am terrified by the list of questions on notice which I will have to deal with later this afternoon.
– I wish to ask a question of the Leader of the Government in the Senate. In view of reports in the “ Sydney Morning Herald “ that negotiations with the British Aluminium Corporation for the purchase of the Bell Bay aluminium undertaking have broken down on a matter of price, arising from the question of tariff protection for the aluminium industry, can the Minister make a statement regarding the present position?
– No, except to tell Senator Armstrong that the negotiations have not broken down, and that I am therefore unable to make any statement on the matter.
asked the Minister representing the Minister for Defence, upon notice -
– I have received the following answers: -
asked the Minister representing the Prime Minister, upon notice -
– The following reply is based on the assumption that, as far as civil aircraft are concerned, the questions relate to transport aircraft for regular airline use: - 1 and 2. The following aircraft have been imported into Australia since 1956: -
asked the Minister representing the Minister for Trade, upon notice -
– The Minister for Trade has supplied the following answers: -
asked the Minister representing the Prime Minister, upon notice -
– The answers to the honorable senator’s questions are as follows: -
asked the Leader of the Government in the Senate, upon notice -
Is it possible for totally and permanently incapacitated pensioners to obtain copies of “ Hansard “ direct from Parliament on application?
– The answer to the honorable senator’s question is as follows: - “ Hansard “ is not available on application direct from Parliament House. Copies may be obtained from the Government Printer, Canberra, upon payment of the prescribed charge of 6d. per number, or 6s. per calendar year for the reports of each House, post free. “ Hansard “ is supplied free of charge to organizations of persons such as those mentioned by the honorable senator, and to branches of such organizations having not fewer than 50 members.
asked the Minister representing the Acting Prime Minister, upon notice -
– The Acting Prime Minister has supplied the following answer: -
asked the Minister representing the Minister for Trade, upon notice -
– The Minister for Trade has advised me as follows: -
Certain components such as tyres, batteries, glass and body trim are to be obtained from South African sources of supply.
asked the Minister representing the Minister for Trade, upon notice -
– The Minister for Trade has now informed me as follows: -
asked the Minister representing the Minister for Trade, upon notice -
In connexion with the agreement reached between France and Australia concerning the cessation of subsidized wheat exports from France to Eastern markets, can the Minister provide any information as to the approximate size of those markets, and which countries receive wheat from Australia?
– The Minister for Trade has informed me as follows: -
asked the Minister representing the Minister for Health, upon notice -
– The Minister for Health has now furnished the following reply: - 1 and 2. I have not seen the statement referred to, but the position is that the drugs allowable as pharmaceutical benefits are listed upon the recommendaiton of an expert committee which includes four medical practitioners appointed from a panel nominated by the Federal Council of the British Medical Association. No claim has been made by me that “ practically every drug was listed “, however the list of available drugs includes practically every one of the drugs subject of j monograph in the British Pharmacopoeia.
– by leave - I desire to inform the Senate that I shall be going overseas on 7th June. I shall visit Japan to discuss markets for Australian coal, and I shall also attend a meeting of the International Atomic Energy
Authority in Vienna. I shall discuss atomic energy and mining matters in the United Kingdom, France and North America. I shall return to Australia towards the end of July. During my absence the Minister for Customs and Excise (Senator Henty) will act as Minister for National Development.
Motion (by Senator Spooner) agreed to -
That the Senate, at its rising, adjourn till Wednesday, 1st June, at 2.30 p.m.
Bill received from the House of Representatives.
Standing Orders suspended.
Bill (on motion by Senator Spooner) read a first time.
– I move -
That the bill be now read a second time.
Honorable senators will soon appreciate from the bill that I propose to introduce to amend the Broadcasting and Television Act that it is proposed to enable the preservation of a record of certain matters of historic interest which have been broadcast or televised, where such material becomes available as a result of the operation of clause 32 of that bill. As I have already indicated, it is felt that the question of the recording of matters of historic interest emanating from the Parliament should also be covered by legislation.
Looking back on the period during which proceedings in this chamber have been broadcast, honorable senators will, I am sure, share my regret that no official sound record exists of many notable and historically important occasions in which they have participated. In framing a bill to remedy this situation in the future, particular care has been taken to ensure that Parliament itself exercises the authority in the matter.
The measure before us amends the Parliamentary Proceedings Broadcasting Act of 1946 and provides that the Australian Broadcasting Commission may make a sound recording of any proceedings of the Senate and shall do so when directed accordingly by the chairman or vicechairman of the Joint Committee on the Broadcasting of Parliamentary Proceedings. The committee will give all necessary directions and oversee the procedure involved, lt will also make the decisions as to those items which will be put in permanent safe keeping and establish desirable safe-keeping arrangements.
This bill, whilst it supplements other legislation being introduced, has an importance in its own right which, is not related to ordinary considerations of government. The preservation of a systematic record of our national history and development is a responsibility that must not be lost sight of in the urgency of day-to-day affairs.
I accordingly warmly commend this bill to honorable senators.
Debate (on motion by Senator McKenna) adjourned.
Bill received from the House of Representatives.
Standing Orders suspended.
Bill (on motion by Senator Spooner) read a first time.
, - I move -
That the bill be now read a second time.
During the third session of the Twentysecond Parliament a bill for an act to amend the Broadcasting and Television Act 1942-1956, which had passed all stages in another place, received some consideration by the Senate but had not passed all stages when the Parliament was dissolved. This bill includes most of the provisions of that measure and in addition contains new clauses which the Government considers to be desirable because of developments, particularly in television, since the inauguration of the services in 1956. In the meantime, fourteen television stations have been put into operation and these are providing services to more than 60 per cent. of the population. This will be increased to 75 per cent. when stations are established in the thirteen country districts during the third stage of development approved by the Government, which will give early attention to the question of the further extension of the services to other areas.
The appeal of this new medium to Australians has been clearly demonstrated by the eagerness of the people to obtain television receivers, the sale of which is fast approaching the million mark. Because of these rapid developments, the Government has reviewed the Broadcasting and Television Act 1942-1956 and has come to the conclusion that some important amendments are necessary. I now proceed to explain the major changes which are contemplated by the bill.
In the first place, I wish to refer to amendments which are designed to give effect to the Government’s policy that this very important channel of communication should not fall into the hands of too few, and that the benefit derived from the exercise of licences which lie in the grant of the Government should be spread widely through the Australian community. The provisions of the act relating to the ownership and control of television stations are at present contained in Division 3 of Part IV. of the act, which contains two sections, namely, section 91 which provides that a person shall not be in a position to control directly or indirectly more than two television licences, and section 92 which provides that 80 per cent. of the share capital of a company holding a licence shall be held by residents of this country and that no non-resident shall hold more than 15 per cent. of that capital. These sections still broadly express the Government’s policy and they are being retained in substance in the new Division 3 provided for by clause 30.
Experience has shown that something additional is required because a legal view could be taken that the control of a company rests with the general meeting of the company and that to control a general meeting, and thus control the company, it is necessary to be able to exercise as of legal right 51 per cent. of the voting power in the general meeting. A company may, of course, be effectively controlled in a commercial sense by persons who hold less than 51 per cent. of the voting power and in relation to such an activity as the management of a television station, control can be exercised by a variety of means other than the possession of voting power at a general meeting. The Government is anxious that that there should be no circumventing of its policy by any of these means. The new Division 3, comprising sections 91 to 92k, is accordingly proposed by the Government to ensure that its policy is in this respect effective. This, we propose to do, by a series of provisions which, amongst other things, will -
The Government realizes that circumstances may exist at the present time which are contrary to the provisions which I have mentioned. It is possible that some person is holding too many shares in a third television company, or is a director of more than two such companies, or has some arrangement which gives him control of a third television station. Under the bill, twelve months’ time is given for adjustments in shareholdings to be made and for articles of association of the companies to be varied in any case where this may be necessary. It also gives a person six months in which to resign from a board of directors of a television company if he is required by the act to do so.
The Government also appreciates that some of the applications for licences in country districts which are at present under consideration by the Australian Broadcasting Control Board may contain proposals which in their present form may render the applicants ineligible for the grant of a licence if this bill becomes law. For this reason, I intend, in the committee stages, to move an amendment to clause 30, the effect of which would be -
The Government proposes in clause 31 that there should be a new section designed to prevent any endeavour on the part of any one to use television film, not in a legitimate way of business, but rather as an unwarranted source of power. What is proposed is that when a person who has a right to sell or hire a television film refuses to make it available to a licensee of a television station, or to do so except on unreasonable terms and conditions, the television station seeking to obtain the use of a television film has the right to apply to the Australian Broadcasting Control Board for an order that the film be made available and the board may after due inquiry order it to be made available on just and reasonable terms. It is, however, proposed to provide that a person against whom an order is made may appeal against the order to the Commonwealth Industrial Court which may quash or vary the order if it is satisfied that the ground of appeal has been established.
I want to make it clear that the provisions of clause 31 are directed only against any endeavour to corner television programmes and to use them as a means of coercion or control. Let me emphasize that the Government appreciates that there may be very many good and reasonable business reasons why a person may be justified in not parting with a television film. The clause endeavours to protect all these sound commercial reasons. It provides that the board shall not make an order if there is reasonable objection to making it, and without prejudicing the generality of that provision the clause nominates a number of reasons which must be taken by the board as good and valid reasons for refusing to make an order to make the film available. Moreover, I propose in committee to move an amendment to clause 31 providing that the person against whom the order is sought shall be deemed to have a reasonable ground for objection to the making of the order if he satisfies the board that his failure to make a film available is not in any way related to an intention to obtain control of a television station. There is also, as I have said, a right of appeal against an order of the board.
In short, Mr. Deputy President, the Government has attempted by clause 31 to see that no genuine business transaction or business interest is harmed whilst at the same time ensuring that the use of the television film cannot be refused simply because it is desired to use its possession as a means of obtaining control of the operations of a television station. This is a brief account of these important provisions.
Whilst the Government feels that the proposed measures are desirable to guard against the development of monopolistic and restrictive tendencies in the television field, it is very conscious of the need to protect bona fide transactions which are beneficial to the maintenance of our free economy. The Government has, it believes, provided suitable safeguards in that respect.
Whilst on the subject of licences, I direct attention to clause 28 which provides for a new procedure for the revocation of licences for commercial broadcasting stations and commercial television stations. At present, section 87 of the principal act provides that any such licence shall not be revoked by the Minister unless he has received a report from the Australian Broadcasting Control Board upon an inquiry by the board in relation to a specified ground for revocation. Under clause 28, it is proposed to provide that a licence shall not be revoked unless the revocation has been recommended by the board. As an additional protection for licensees, it is also proposed that a person whose licence has been revoked may appeal against the revocation to the Commonwealth Industrial Court.
The clauses I have just outlined are clearly the major issue which the bill contains. The remaining matters with which it deals, whilst they do include some amendments that are merely of a drafting character, nevertheless are most desirable in themselves. I would like to draw the attention of honorable senators to the broad principles of the remaining clauses. By clauses 17 to 23 it is proposed to effect substantial improvements to the staff arrangements of the Australian Broadcasting Commission. This is to be achieved “by introducing a procedure tor consultation between the commission and the Public Service Board, such as is already the case with a number of statutory authorities established in more recent years. This procedure, which will involve the board’s concurrence in regard to salary fixation, conditions of employment and entrance qualifications for permanent appointment, will involve the introduction, of staff rules. These staff rules will be drawn up by the commission with the approval of the Public Service Board in place of most of the existing staff regulations. It is still intended to prescribe by regulation such matters as. those relating to the administration of the promotion appeal and disciplinary appeal provisons which are more properly provided by statutory rule.
The changes will mean that the commission’s staff will enjoy no less favorable conditions than are available to the Commonwealth Public Service, and should also mean simplification in implementing changes in these conditions as they become necessary. They will not remove any of the commission’s obligations to its staff. Among the specific matters contained in the clauses, which will be dealt with in committee, are improvements to methods to be followed in recruiting young people, and also changes designed to bring the disciplinary provisions of the commission into line with those operating under the Public Service Act. The new staff rules will not include the Appointments Advisory Committee which operates at present under the exsting staff regulations and upon which the staff is represented. This body reviews proposed nominations for vacancies and changes affecting the staff’s salary and employment conditions. Honorable senators will appreciate that it is most difficult to operate a formal committee of this type in a large organization with a staff of about 2,500.
Under the proposal in the bill, provisional promotions will still be subject to the existing appeal system, and the independent Appeal Board will continue to have authority to endorse or disallow the commission’s selection. The change will eliminate delays and duplication, and every officer who feels aggrieved will have the right of appeal. It is also intended1 to allow the permanent appointment of non-British subjects to the commission’s permanent staff where the Minister so approves, as is already permitted in the case of a number of other statutory authorities.
Clauses 17 to 23 are intended to ensure that administrative arrangements for the introduction of desirable changes will be improved and further that the commission will have the advantage of the Public Service Board’s expert advice on matters of principle. It is not the intention of these clauses to make changes to the existing conditions applying to the commission’s staff. Clauses 6 and 7 relate to the terms oi 011 ice of, and vacation of office by, members of the Australian Broadcasting Control Board. The proposed new provisions are similar to those prescribed by the Commonwealth Banks Act 1959 for members of the Commonwealth Banking Corporation Board. Clauses IS and 16 introduce like provisions cor the commissioners of the Australian Broadcasting Commission. Clause 16 provides in addition for the notification by a commissioner of any interest he may have in a contract made or proposed to be made by the commission and for his exclusion from any deliberation or decision of the commission with respect to that contract.
Clauses 8 and 14 make amendments to section 16 and insert a new Section 28a to clarify the responsibilities of the Australian Broadcasting Control Board and the PostmasterGeneral’s Department in connexion with interference to the transmission or reception of the programmes of broadcasting and television stations. It is proposed to amend section 16 of the act to provide for the board to detect sources of interference and to furnish advice and assistance in connexion with its prevention. The addition of a new section 28a will authorize the Postmaster-General’s Department to provide, at the request and expense of the Control Board, any facilities and services that may be required by it to carry out these functions.
Clauses 9 to 12 deal with inquiries conducted by the board in accordance with the requirements of the act. Under clause 9 the board will be enabled to arrange with the Crown Solicitor to obtain counsel to assist the board at an inquiry. Clauses 10 and 12 contain proposed amendments to sections 22 and 25 respectively of the principal act to give the board appropriate power to control proceedings at inquiries. Without adequate powers in this respect, the board has been at a disadvantage in the past and as a result some of its inquiries have lasted longer than was expected.
In clause 32 of the bill, the Australian Broadcasting Commission and the licensee of each broadcasting or television station will be obliged to have a record made, in writing or by means of a device for recording sound, of matter which is broadcast or televised relating to a political subject or current affairs and to retain the record for a period of six weeks or such longer period as the Minister directs. The purpose of this clause is to give some protection in general against the broadcasting or televising of defamatory statements. In any case where legal proceedings are proposed, the record of matter which may be required for the purpose of the proceedings may, under the proposed section 117a, have to be kept for a longer period. The new section will also enable preservation of a record of matter which is, in the opinion of the Minister, of sufficient historic interest to justify this course.
A separate bill has been introduced to amend the Parliamentary Proceedings Broadcasting Act to cover the retention of recordings of matters of historic interest which are broadcast from this Parliament.
A further matter of some importance is contained in clause 33 which, by providing two sections 126a and 126b, introduces new forms of licences for broadcasting and television receivers. The effect of section 126a is to oblige a person engaged in hiring receivers as a business to have a licence for each such receiver. The operation of hire purchase agreements will not be affected by the requirement.
The present act, it is considered, is hardly fair to people obtaining a receiver on hire for short periods. The proposed amendment makes the obtaining of a licence for a hired set the responsibility of the supplier.
Section 126b deals with the case of those receivers in lodging houses, hotels and the like type of establishment. The keeper of these premises will have to have licences for each receiver, including each broadcast loud-speaker, provided by him in any room of his premises which is occupied, or available for occupation, by any lodger or tenant.
By the bill persons occupying accommodation in hotels and boarding houses will not be affected themselves by the requirement nor will they be regarded as being involved in any offence which may be committed under it. Both the new types of licences will be transferable as they are felt to attach to the assets of the businesses involved.
Clauses 34 and 35 provide for amendments consequential upon the proposals in clause 33. Clause 33 also amends subparagraph (c) of sub-section 3 of section 128 of the act, which at present provides that a broadcast listener’s licence, or a television viewer’s licence, may be issued and renewed at reduced fees to a pensioner who lives alone, lives with another pensioner, or lives with any person or persons if the income of each such other person does not exceed the maximum amount of income and pension allowed under the Social Services Consolidation Act or the Repatriation Act. Amendments made to the Social Services Act in 1956 provide for higher maximum pension payments to pensioners in charge of two or more children than those made to ordinary age, invalid or widowed pensioners. Thus, in existing circumstances, unless the number of children a pensioner may have under his or her charge is known, the maximum pension is not ascertainable in terms of the present legislation.
A further alteration is also desirable to paragraph (c) of sub-section 3 of section 128, to cover the alteration to the Social Services Act which exempts a permanently blind person from a reduction of age or invalid pension. The amendment proposed, therefore, includes as a qualification in regard to a pensioner who lives with another person, a reference to the maximum amount of income and pension such other person may receive, unless that person is a permanently blind person or person who has the custody, care and control of two or more children. Should the other person receive a greater income than that specified, then the pensioner does not qualify for reduced licence-fees under the Broadcasting and Television Act.
Clause 37 proposes a new section to enable the Minister, on the recommendation of the board, to grant a permit for what is known as a community antenna system. These systems are now being extensively used overseas to provide television services in areas which, though not far distant from a television transmitter, are, because of the topography surrounding the areas, screened in such a way that satisfactory reception is not consistently available to viewers in the areas concerned. Improvement in reception can generally be provided by the erection of a high aerial in a nearby elevated position. From this aerial the programme of a television station may be relayed by a coaxial cable to houses in the affected area. At the present time this procedure, if it means the use of a relay line, other than one erected on private land or within a private building, would not be permissible because of section 81a of the Post and Telegraph Act. Clause 37 accordingly proposes that the Minister may grant a permit for the use of a telegraph line for the purpose of community antenna systems and stipulates that the provisions of section 81a of the Post and Telegraph Act do not apply in relation to any such approved use of a telegraph line. The community antenna system may also have possibilities for providing television services to pockets of people outside the normal range of television stations, but this is a matter for consideration after our plans for the expansion of services by the provision of additional stations are further advanced.
I have circulated copies of the amendments to the bill which I propose to move in committee. I have already referred to the most important of these amendments and shall explain the others at the appropriate time. I commend the bill for consideration of honorable senators.
.- The bill before the Senate has already been dealt with in another place. In introducing this measure in that chamber, the PostmasterGeneral (Mr. Davidson) said that it was similar to legislation that had previously been introduced, but which had not been proceeded with for reasons which he felt he need not elaborate at that stage. The bill that we are now discussing is entirely different from the bill to which the PostmasterGeneral was referring. The former measure was a bill of some four pages. The present bill runs to 24 pages, is empirical in character, and contains much more than meets the eye.
When introducing this bill in the other place the Postmaster-General said -
The bill . . . incorporates all the matter dealt with in the previous bill, except for one item, and also includes additional provisions which experience in the field of broadcasting and television since 1958 has shown to be clearly desirable.
That is a misleading statement. It implies that the present amending legislation is similar to the legislation that was presented in 1958 but not proceeded with. This bill was described as machinery legislation, but an examination of it shows that it deals with the whole field of television. The proposal, as we on the Opposition side see it, is unacceptable to us at the present time. Accordingly, I move -
Leave out all words after “ That “, insert - “ consideration of the bill be deferred until after presentation to the Parliament of a report from the Broadcasting Control Board on its provisions with particular reference to the practical effects of those provisions purporting to limit or restrict control of companies owning or operating broadcasting or television stations “.
I move this amendment on behalf of the Opposition because many of the provisions of this measure are very wide, controversial, and open to debate. Various provisions deal with the constitution and personnel as well as the powers and functions of the Australian Broadcasting Control Board. Section 91 of the principal act purports te prevent a person from controlling, either directly or indirectly, more than two television stations. The act also provides that shares representing not less than 80 per cent, of the issued capital of the licensee shall be held by residents of Australia and that non-residents shall not hold shares representing more than 15 per cent, of the issued capital. The Minister for National Development (Senator Spooner) pointed out that these provisions have been incorporated in the act to express the Government’s policy that this very important channel of communication - television - shall not fall into the hands of too few people, and to ensure that the benefits derived by the Government from the issue of television licences will be spread widely in the Australian community.
I think the Senate is well aware of what is going on throughout Australia in practically every field of communication and information. The Eleventh Annual Report of the Australian Broadcasting Control Board for the year 1958-59 contains a very enlightening survey of the position in relation to the ownership of commercial broadcasting stations, lt is of great interest to know, for instance, that during that year the Minister approved of the sale by M.P.A. Productions Limited of 2,100.000 ordinary 5s. shares in The Herald and Weekly Times Limited, which is the licensee of commercial broadcasting stations 3DB, Melbourne, and 3LK, Lubeck. This represented 14 per cent, of the total share-holding, but the voting rights assigned to these shares were subject to special provisions which restricted those rights to 1.64 per cent, of the total. I want to point out to the Senate why, in this particular tie-up the shares, 1,350,000 of which were acquired by interests I shall mention, now have the same voting rights as other shares in The Herald and Weekly Times Ltd. These shares were acquired by Queensland Newspapers Proprietary Limited, Advertiser Newspapers Limited, Australian United Enterprise Proprietary Limited, West Australian Newspapers Limited, Telegraph Newspapers Company Limited, Silverton Securities Proprietary Limited, and even by the mining companies, Loloma (Fiji) Gold Mines No Liability, and King Island Scheelite (1947) Limited, as well as by National Nominees Proprietary Limited. This gives an indication of the trend through all forms of communication.
In South Australia, Advertiser Newspapers Limited holds the licence for SAD Adelaide and controls the companies holding the licences for 5MU Murray Bridge, 5PI Crystal Brook and 5 SE Mount Gambier. It also holds 1,250,000 ordinary 5s. shares in totals of 125,000 “A” preference, 275,000 “ B “ preference and 15,207,443 ordinary 5s. shares in The Herald and Weekly Time? Limited - the Melbourne “ Herald “ - which holds the licences for 3DB Melbourne and 3LK Lubeck. Attention to this position has been directed, as I have said, in the Eleventh Annual Report of the Australian Broadcasting Control Board for 1958-59.
Amalgamated Wireless (Australasia) Limited should have been the contact in the radio industry for the Australian people and should have been able to move in as a competitor when this new medium of entertainment was introduced, but the Government sold its share-holding in that company. The company now holds the licences for 2AY Albury, 3BO Bendigo, 4CA Cairns and 4TO Townsville. It owns all the shares in the companies which operate 2GF Grafton and 2GN Goulburn, and it has a controlling interest - 4,400 shares of a total of 5,000 shares - in the company which operates 4WK Warwick. By agreement with the licensee, the company conducts the service of 2CH Sydney. Amalgamated Wireless (Australasia) Limited holds 10,000 of the 20,000 shares in 7LA Launceston, 800 of the 6,500 shares in 2SM Sydney, and 7,136 of the 400,000 shares in the Victorian Broadcasting Network Limited, which controls 3CV Maryborough, 3HA Hamilton, 3SH Swan Hill and 3TR Sale.
To conclude my reference to the tie-up by Amalgamated Wireless (Australasia) Limited, I point out that that company also holds 1,000 preference shares and other ordinary shares in Transcontinental Broadcasting Corporation Limited, which controls 2KA Limited, licensee of 2KA Katoomba. The report of the board also shows, in relation to the tie-up by The Herald and Weekly Times Limited, that that company holds the licences for stations 3DB Melbourne and 3LK Lubeck, and is the principal shareholder in Advertiser Newspapers Limited, which controls stations 5AD Adelaide, 5MU Murray Bridge, 5PI Crystal Brook and 5SE Mount Gambier.
I turn now to the section of the report which shows the tie-up between the newspapers. Newspaper companies, or persons substantially interested in newspapers, owned twelve of the 108 stations in operation on 30th June, 1959, and held shares in 23 other stations. The principal newspaper interests in broadcasting stations are set out. In 2GB Sydney, John Fairfax and Sons Proprietary Limited holds 14,000 of the 99,370 shares. In 3 AW Melbourne, a quarter interest is held by David Syme and Company Limited - the Melbourne “ Age “. The licences of 3DB Melbourne and 3LK Lubeck are held by The Herald and Weekly Times Limited - the Melbourne “Herald”. The licences of 4AK Oakey and 4BK Brisbane are held by Queensland Newspapers Proprietary Limited - the Brisbane “ Courier-Mail “. The licence for 5AD Adelaide is held by Advertiser Newspapers Limited - the Adelaide “ Advertiser “ - which controls the companies holding the licences for 5MU Murray Bridge, 5PI Crystal Brook and 5SE Mount Gambier. News Limited - the Adelaide “ News “ - and several newspapers in Western Australia own 2BH Broken Hill, and News Limited has both ordinary and preference shares in the company which holds the licence for 5DN.
– And now there is the case of the Sydney “ Daily Mirror “.
– Yes, there has been, a further development, in which the Sydney “ Truth “ and “ Mirror “ have been taken over by Advertiser Newspapers. Limited of Adelaide. We find in Perth that West Australian Newspapers Limited has a half interest in W.A. BroadcastersProprietary Limited, which controls stations- 6IX Perth, 6WB Katanning, 6MD Merredin and 6BY Bridgetown. A half interest in the commercial station 7HO in Hobart is held by Davies Brothers Limited, a company which controls the Hobart “ Mercury “.
I have given this information to show that the trend to-day is towards a monopoly of one of the most important industries in modern civilization - the communications industry, covering all forms of communication, whether written, oral or visual. The Government purports to be taking some action, ‘by means of this legislation, to honour the promise given in the GovernorGeneral’s Speech to deal with restrictive trade practices. The Prime Minister (Mr. Menzies) and the Minister for National Development (Senator Spooner), who introduced the measure into the Senate, have contended that in the legal view the control of a company is not determined at a general meeting, but according to the proportion of shareholding. I suggest that what happens in practice is very clear indeed. It is not necessary for a section of an organization to hold 51 per cent, of shares; if it has sufficient voting power at a general meeting it can gain control of the organization. I think every honorable senator knows that a company can be controlled by a person or a group of persons holding only a very small proportion of the total shares in the company.
The Minister quite rightly stated that control of a company running a television station can be achieved by a variety of means, and that the control of voting power at a general meeting is not the only way in which such control may be achieved, and the Minister has submitted that the Government desires that there should be no frustration of the anti-monopoly policy by sheltering behind a legal concept, while in reality the policy is being defeated. He has suggested that proposed new Division 3, comprising sections 91 to 92k, represents an endeavour by the Government to ensure that its policy is effectively carried out, by denning the word “ control “. The Minister takes pains to tell the Parliament that what is meant is not only control by voting power, or legal control, but also effective control by any other means. The Minister says that the Government feels it is necessary, for the fulfilment of its avowed policy, to lay down the proportion of voting power which shall be deemed to represent control of a company and its operations. It is suggested that these measures are directed towards preventing a person from having control of more than two licences. The Minister has outlined the measures it is proposed to take to prevent a person from controlling more than two licences, but it appears to me that there has been a fair amount of wishful thinking, and even of double talk, with regard to this legislation.
The Governor-General stated specifically and definitely in his Speech that the Government would take measures to control restrictive trade practices. This was a very popular statement, and it received wide publicity and approbation, in the Parliament and throughout the Commonwealth. People are well aware of the tendency towards take-overs in every field of business, and that the ordinary citizen can be exploited by the cornering of markets, by price-fixing activities of cartels and by other methods that are not in the best interests of the ordinary members of the community. This legislation is the first tangible evidence of the Government’s attempts to implement its policy with regard to restrictive trade practices, but it is my contention that the legislation is based on very shaky grounds. Let us see what is involved in it.
The Minister has given no indication of the constitutional head of power on which he relies to validate this legislation. There is overwhelming evidence that section 92 of the Constitution, around which have centred arguments before various courts and the Privy Council over the years, severely restricts the Commonwealth Government’s power over companies, particularly interstate companies. For that matter, this section also imposes considerable restrictions on the Government’s power to legislate with regard to companies the activities of which are mainly confined to a particular State, although some of its services may be of an interstate character. For this reason I suggest that if this bill becomes law it may be challenged on the ground of constitutional validity, and there is no guarantee that it would stand up to such a challenge before the High Court or the Privy Council.
A perusal of the bill shows that the Government intends to vest in the Australian Broadcasting Control Board power to control prices. Even though the prices determined may be just and equitable, I remind honorable senators opposite that the Government has previously contended that the power to fix prices was denied to the Commonwealth. Whether the article in question is a television film which is owned by one station and is required by another, or whether it is a pound of butter, the Government has itself contended that the power to legislate for price control does not exist. For this reason also I contend that the measure is on very shaky ground.
– Would charges for advertising time be also involved?
– No. I understand that the provision gives authority to the Australian Broadcasting Control Board to arrange a just and equitable price for a television film which is owned by one station and which is required for use by another station. There are provisions by which a television station or company may submit its case to the board for the retention of the exclusive or sole rights to the film; but the board, if it sees fit to instruct the station or company to make that film available, is required to fix a just and equitable price at which the film is to be made available.
– Subject to appeal.
– It is subject to appeal, but the point I am making is that this amounts to price control.
– No, the requirement is just terms and conditions.
– Restrictive trade practices have become an integral part of modern business. In all directions we see the trend for the larger bodies engaged in trade to unite, and to fix prices at which goods or services will be available. In many cases this practice makes it extremely difficult for the small man to compete. I have personal knowledge of cases in which people who wished to enter into such trades as the supply of elecrical equipment were excluded from all sources of supply. In my view, power to prevent that type of practice does not reside with the Commonwealth at the present time. Whether the legal advice that has been given to the PostmasterGeneral (Mr. Davidson) and1 the Government on this matter differs from what has been the accepted legal position hitherto, 1 do not know; but it is certain that the Commonwealth’s authority to legislate for the control of restrictive trade practices is very doubtful. The Minister may feel confident that the Constitution vests in the Commonwealth implicit or explicit power to legislate in connexion with restrictive trade practices, but there can be no doubt that legislation of this kind will have to stand up to challenges.
I come now to the provisions seeking to restrict the control of commercial television stations by any one company or concern to one station in a State or not more than two stations in Australia. I consider that this provision will conflict with section 92 of the Constitution which grants freedom of trade between the States. Unless the States themselves introduce legislation complementary to what the Government now seeks to do, it is extremely doubtful whether the Commonwealth has power to legislate effectively along those lines. The Attorney-General (Sir Garfield Barwick) has given opinions on this subject in two different roles. In 1958, he gave an opinion as the representative of the Herald and Weekly Times in Melbourne. He was then acting as legal adviser to the company. At that time the Melbourne “ Herald “ published a statement answering allegations by members of the Australian Broadcasting Control Board about the company’s control of a number of companies. The company had sought the opinion of Sir Garfield Barwick in the matter. He gave an opinion based on the phrase, “ in a position to exercise control “ appearing in section 91 of the Broadcasting and Television Act 1942- 1956 and immediately after an examination of more recent cases bearing on the question before the British Court of Appeal and the reasoning of the justices of the High Court of Australia. He said -
Construction of the words “ in a position to exercise control “ is a legal question not to be resolved by references to speeches or answers to -questions made in Parliament.
He went on to say -
One must credit the draftsman with familiarity with such decisions when approaching the legal construction of the phrase in the present statute, an instrument prescribing precise legal rights, duties and inhibitions in the language of the law and not in the jargon of the businessman.
Yet the Commonwealth now seeks to assume authority to legislate on this very controversial point.
Let us examine those parts of the bill which relate to the limitation of ownership. It is proposed to limit the ownership or control of commercial television stations by any one company or concern to two stations only. The meaning of control of a company is defined by proposed section 92b, as follows: -
For the purposes of this Division, a person who is or who, by any application or applications of this section, is deemed to be in a position to exercise control of more than 15 per centum of the total votes that could be cast at a general meeting of a company is deemed to be in a position to exercise control of that company and of any voting rights of that company as a shareholder and of all acts and operations of that company.
As I pointed out earlier, the opinion expressed by Sir Garfield Barwick in 1958, casts a considerable amount of doubt on the Government’s authority to legislate in this way.
– What opinion are you referring to?
– The opinion given by Sir Garfield Barwick in the “Herald” case in 1958.
– Was this opinion published in the press?
– Yes. On 14th October, 1958, the Melbourne “ Herald “ published a statement answering allegations by members of the Australian Broadcasting Control Board about that company’s control of other companies. The “ Herald “ sought the opinion of Sir Garfield Barwick, who is now the AttorneyGeneral. The Australian Broadcasting Control Board’s interest in the matter arose from the grant of television licences in Adelaide and Brisbane. In its statement, the “Herald” declared that the company had a 37 per cent, interest in Advertiser Newspapers Limited, Adelaide, and an interest of 37 per cent, in Queensland Newspapers Proprietary Limited, the holding company for the “ Courier-Mail “ and Brisbane “Telegraph”. The statement went on to say that the “ Advertiser “ company had agreed to take up 40 per cent, of the shares in Television Broadcasters Limited, of Adelaide, and that Queensland Newspapers Proprietary Limited, through its operating companies, had agreed to take up 28 per cent, of the shares in Brisbane T.V. Limited. The Herald’s “ statement continued -
Through these links the Herald and Weekly Times will have an interest of 14.6 per cent, in the Adelaide Television company and 10.5 per cent, in the Brisbane company.
The annual report of the Australian Broadcasting Control Board for the year ended 30th June, 1959, sets out the shareholdings in all the television companies operating at that date. From this information, it can be seen that of the 1,500,000 shares in Brisbane T.V. Limited, Queensland Newspapers Proprietary Limited, publishers of the “ Courier-Mail “ hold 240,000 and the Telegraph Newspaper Company Limited holds 156,000 making a total of 396,000, or 36 per cent. I have stated that the Attorney-General’s opinion given in 1958 was based on the words “ in a position to exercise control “ appearing in section 91 of the act and was arrived at after an examination of the more recent cases bearing on the question before the British Court of Appeal, and on the reasoning of the justices of the High Court of Australia. He said that the construction of the words “ in a position to exercise control “ was -
The control of a company and, through it, of its assets was a matter to which other statutes had been addressed, and some of them had received judicial consideration which had yielded a fairly consistent result.
Sir Garfield went on to state that one must credit the draftsman with familiarity with such decisions when approaching the legal construction of this phrase in the present statute -
He said that the board appeared to reject what, to his mind, was the accepted legal construction of such words and to conclude that a shareholder with a comparatively small percentage of the shares of a company might in certain cases, which remained unspecified, effectively control a company. He went on -
The board then appears to think that that company is in all circumstances debarred from holding a commercial television licence, or at least so long as the shareholder himself holds such a licence.
Sir Garfield maintained that the critical phase was “ in control “, which, to his mind -
– You are making it clear that that opinion was not given as Attorney-General.
– That is quite true. Sir Garfield Barwick gave that opinion as a Queen’s Counsel and as adviser to Melbourne Herald and Weekly Times Limited. However, it is sufficient to show that there are very grave doubts on whether this legislation, if and when it becomes law, will stand up to challenges. The worst feature is that it will open wide the field for further development of monopolistic practices unless, of course, the Government concurrently introduces legislation embodying many of the recommendations that have been made by the Constitutional Review Committee. That would put teeth into the Constitution and enable Parliament to deal with matters such as these, that arise from a complete alteration of habits and social activities from those that prevailed when the Constitution was framed 60 years ago. As time goes by, we shall find it constantly irritating that the Parliament, which has final responsibility to the people, is lacking these essential powers. There is clearly a need for authority to rest with the Commonwealth Parliament under the Constitution.
At present there is, in various parts of Australia, quite feverish activity in the formation of companies, in anticipation of the passage of this legislation and the granting of licences by the Australian Broadcasting Control Board. There is a great opportunity for accountants and lawyers to show their skill in avoiding the intention of legislation such as this by the establishment of subsidiary companies, interlocking directorates, and shareholdings which are beyond the wit of any one but the most astute research student to unravel.
– What do you say as to the political content of the legislation? Do you approve of it?
– We believe, in the first place, that the Government has bypassed a most important instrumentality in not allowing members and senators to see the current report of the Australian Broadcasting Control Board, which is very closely in touch with all the aspects of this matter as a result of hearing evidence in support of applications for licences. That would be invaluable material in the consideration of this bill. We seek the amendment so that we may see from that report exactly what is the position and what is the result of the inquiry being conducted. With that information we could approach this matter in a unanimous way, instead of there being opposition, concern and alarm lest by the failure of this legislation measures to avoid restrictive practices be defeated and monopolies get the green light to go ahead.
– Did not the board express an opinion on that matter after its Brisbane sittings?
– Not in the form of an ofFicial report to the Parliament. The last report presented to the Parliament was the eleventh annual report, from which I quoted, and in which the board made reference to other fields of restrictive practices and interlocking directorates of newspaper companies and radio stations. The Australian Broadcasting Control Board would be doing a great service and fulfilling one of its most important functions by informing the Parliament fully of any further monopolistic practices of the kind referred to in its previous report.
– Why can you not form an opinion?
– I would rather have it substantiated by the sworn evidence given to the board in support of applications for licences.
– That is not the real function of the board in hearing these applications. It is considering specific applications for licences.
– Yes, but at the same time it is getting a very good idea of what is going on.
– But it is for you, as a politician, to form your opinion as to the effect of that.
– I can most certainly tell you the facts. This is a matter that we must consider instead of making the mistake of introducing legislation which, as the cases show, obviously will not stand up to challenge in the High Court. It is our responsibility to direct attention to this very point. If we had before us the board’s report we should know whether the same tie-ups and monopoly practices that exist in relation to newspapers and radio stations continue into the field of television. With this knowledge we could act unanimously in the Parliament and perhaps reach the stage of having power written into the Constitution to deal with this very subject. The Government clearly is in a dilemma over this matter. No doubt it will have to adopt strong measures and fight these monopolistic practices in the courts right through to the Privy Council, if necessary. I consider that will be inevitable when this legislation becomes law.
The bill deals with matters which affect the staff of the Australian Broadcasting Commission. A number of provisions call for very close examination. As a result of the sweeping changes to be made by this bill members of the staff of the commission feel that they will not have the same status and security in employment as they have at the present time. The bill does contain some good provisions and is an improvement on the principal act, but it should be given more serious consideration in the light of the report of the Australian Broadcasting Control Board.
The bill does bring to the notice of the public how important it is for modern parliaments and governments to see that such an important instrument of public propaganda, education and entertainment does not fall into the hands of syndicates and monopolies. We on this side believe that the purpose of a monopoly is to make the maximum profit that can be extorted and that therefore if a monopoly is to exist it should be in the hands of the people themselves under the control of their Parliament. The fact that the Government has seen fit to introduce legislation such as this, whether it be effective or not, is evidence of the fact that it is necessary to take strong measures to control monopolistic practices. I commend the amendment which 1 have moved to the Senate.
– I support this bill which is designed to give effect to the Government’s policy on television and the restriction of monopolies. Consequently I oppose the amendment that has been moved by Senator O’Byrne. If we cast our minds back to the commencement of the present inquiry of the Australian Broadcasting Control Board into the third stage of television, we shall recall that the Postmaster-General (Mr. Davidson) emphasized - particularly in relation to New South Wales - that country interests should receive consideration, provided they could supply programmes of comparative merit with those offered by other competing companies. I feel that this bill will be welcomed by country interests, because it seeks to restrain powerful city companies, which have a tendency to create monopolistic interests, from extending their activities into the country. Such an extension of influence is not in the best interest of the country districts nor, indeed, of the Commonwealth. Therefore, I am particularly pleased that the Postmaster-General has brought this bill before the Commonwealth Parliament.
Honorable senators doubtless recall that during the early stages of the hearings to which I have referred, suggestions and strong allegations were made by the competing powerful city companies that the programmes offered in the cities would be so tied up that they would not be available to the smaller country companies, if those companies were successful in obtaining a licence. It was obvious from such a statement that something had to be done. At the time the Postmaster-General made a statement to that effect. He said that if the suggestion that had been made was correct the Government would have to look at the position and ensure that programmes would be made available to the smaller companies. I feel that this bill is the natural sequence to the statement that the Postmaster-General made at that time.
When the inquiry first commenced, the two main city companies in New South
Wales fought with each other to tell the people of the State that the country dwellers were deserving of only the best that television could give them. I heartily agreed with that sentiment, but I strongly disagreed with the implication that was made in the same breath, namely, that only those two companies could provide such a service. I do not think the statements made by. those companies could be substantiated and I think they were made mainly with the idea of frightening the smaller companies from the field. It has been suggested that the provisions contained in this bill will result in fewer applications for licences. 1 do not subscribe to that view at all. We know that in almost every State, five or six, or even more companies, have applied for a licence in a particular area. I will be very surprised if that state of affairs does not continue. I do not believe we have anything to fear on that score.
Considerable criticism has been levelled at the proposal that, for the purposes of this legislation, a person who is deemed to be in a position to exercise control of more than 15 per cent, of the total votes that could be cast at a general meeting of a company is considered to be in apposition to control that company. It has been mentioned that a shareholder with nearly 15 per cent, of the shares could exercise control of the company. We accept that, but I refer the Senate to the second-reading speech of the Minister for National Development (Senator Spooner) in which he said that the bill made it clear by a definition of “ control “ that section 91 of the principal act, which appears in the bill as proposed section 92, referred not only to legal control or control by voting power, but also to practical and commercial control by any means. So, we are not just tied te 15 per cent., which some people seem to think is the yardstick. It has been said that the control is too open and should be defined more strictly, but we have to remember that a great deal of attention has been given to the drafting of this bill. The Attorney-General (Sir Garfield Barwick) has spent many hours considering it and I think that the fact that he has done so must give us a great measure of comfort. I, for one, am prepared to go along with the bill. It is possible that, as its provisions operate, it will be found necessary to amend them. That has happened with many other acts, and 1 have no doubt that if such a position arises the necessary action will be taken.
There has been criticism of the measures taken to ensure that programmes will be made available to the smaller companies, to which I referred earlier. Some resentment has been expressed regarding the provision that if those companies cannot obtain programmes because the programmes have been tied, they may call on the owners to make them available. Surely, no one envisages that that will be a common, everyday occurrence. The provision has been placed in the bill as an assurance against restrictive and unfair practice. That is all it amounts to. I should be very surprised indeed if the provision was ever invoked. Many of our laws contain provisions that are not invoked but which exist in case the protection that they afford may be needed. That is the position, as I see it, of the provision of the bill to which I have referred. It is there in case recourse to it should be necessary. I think that that is a very wise method to adopt.
There has been a considerable degree of disappointment on the score that this third stage of the extension of television will not provide television for the remote country areas. I share that disappointment, but I think that the Government has adopted a wise course, economically speaking, in first providing television for the more densely populated areas. As the Minister for National Development stated in his secondreading speech, the third stage of the extension of television will bring television to 75 per cent, of the people of Australia. Having regard to the economic aspect, which the Government must consider in the circumstances, I think that a wise plan has been adopted. After all, we are not going to sit down once the third stage has been reached. The Postmaster-General has made the position very plain over and over again. Honorable senators may remember that the preliminary work of stage three was commenced before stage two was finalized. I hope that the same state of affairs will apply in regard to the next stage.
There has been criticism, not so much in this chamber as in another place, of the television programmes that are being provided. To a great extent, I agree with that criticism, but it must be acknowledged, nevertheless, that the programmes cannot be quite so poor as some people say they are. After all, the number of licences issued has climbed to around the million mark. Applications for licences are coming in thick and fast. Although we are not satisfied with all the programmes that are presented, I think it is fair to say that not all television programmes are of very poor quality. 1 have been viewing television for four or five months now, and I have found that many good programmes have been available. Indeed, on Channel 2, which is the Australian Broadcasting Commission’s channel in New South Wales, a number of English films have been shown, a fact which helps to rebut the criticism, so often levelled at the television stations, that they show allAmerican programmes.
The Australian content of television programmes is not as great as we would like it to be, but we have to be realistic and appreciate that we are young in television. As a result, we have not a sufficient number of script writers to provide the large number of scripts that are necessary for television programmes, nor, indeed, have we sufficient artists to enable us to present programmes with a very much greater Australian content than is the case at the moment. However, I point out that only last Saturday night, on Channel 7, an Australian play called “The Grey Nurse Said Nothing”, in which some 71 performers took part, was shown in New South Wales. I was nol able to see it, but I have been told by those who were that it was quite well presented. That, of course, was not the first occasion on which a completely Australian programme had been shown.
– On the same night, on Channel 2, there was a play about Governor Bligh.
– That is so. As time goes by we shall see an increasing volume of Australian material being used in television programmes. Although we are perhaps somewhat impatient on this score, we have to be realistic and appreciate that there are problems connected with it. Our young people have been suffering for very many years because of the poor films shown by the motion picture industry. We have had to put up with that, whether we have liked it or not. To a lesser degree, the same thing has happened with the trashy, canned music that has been broadcast on the radio. The quality of some television programmes is poor, and the sooner we can improve it the happier we all will be.
I think that we in Australia should pay a tribute to the companies that provide our television programmes, for the excellence of the pictures that they present. I have not seen television overseas, but I understand from those who have done so that the. Australian, picture is second to none in the world. That is something of which we should be proud, and we ought to hand a bouquet to the companies that are providing the programmes for our enjoyment. The Minister, in his second-reading speech, stated that companies would be given a reasonable time to alter the composition of their holdings if it was found that they conflicted with the provisions of the bill now before the Senate. 1 think that is only reasonable and I am pleased to see that provision in the bill.
The Postmaster-General is given the right to issue a licence subject to the proviso that the companies undertake to conform to the provisions laid down in the bill, if not already doing so. That, I think, is quite a reasonable proposition.
– It is democracy at work.
– That is so. I understand that some honorable senators have grave doubts whether this bill will be valid. If we passed only those bills which we felt certain were valid, very few bills would1 be passed in this Commonwealth Parliament. That would be true of any parliament. I remind the Senate that the architect of the legal clauses of this bill is the Attorney-General (Sir Garfield Barwick). He has expressed his confidence in the bill and all of us are aware of his legal stature. I think we should cross the bridge of the bill’s validity when we come to it.
It was alleged in the other place that the Australian Country Party was endeavouring to obtain control of certain New South Wales country television stations. Frankly, that is news to me and I still hold a high position on the executive of the party. I say without equivocation that there is no truth in the allegation.
The Opposition has moved an amendment, seeking that the bill be deferred pend ing a report from the Australian1 Broadcasting Control Board. I point out the utter futility of such a suggestion, because the board is almost ready to make its recommendations in relation to its New South Wales inquiry. Indeed, that is one reason why this bill should be passed as speedily as possible. The board will then be able to make its recommendations unhampered. It is of no use for the board to make recommendations if they are to be upset by the bill. 1 am sure that if honorable senators opposite examine carefully that aspect of the matter they will see the wisdom of my argument.
I have addressed my remarks in a very gene; al way to the bill. I have no doubt that at the committee stage we will hear some very legal and highly technical arguments. I conclude as I began - by congratulating the Government on bringing down the bill and expressing my support for it.
– To see the provisions of this bill in their true perspective it is necessary to go back to the time when radio broadcasting was introduced into the Commonwealth. That will take us back over a period of 30-odd years. Everybody knows that broadcasting licences were issued to companies associated with the production of newspapers. We have seen what has happened in the field of broadcasting over the past 30 years. We have seen the development of large, strong companies in the newspaper world and in the broadcasting world. Also, we have witnessed the collapse of some old established newspapers in the Commonwealth.
Since the first issue of licences for the operation of television stations - that was about 1956 - we have been aware of the growing tendency for companies associated closely with newspaper production, radio broadcasting and television broadcasting to form combines. Not only are combines operating in the television field but also they are rapidly developing into monopolies. The Government is aware of this situation. The Australian Broadcasting Control Board is aware of it, but the legislation that the board was called upon to administer has been inadequate to prevent such a state of affairs. The Government is now in a fog. It does not know how many licences are controlled by the various companies nor the extent of that control. Let us not concern ourselves for the moment with shareholding interests in the various television companies. At present the Government is not aware of the degree of control exercised by some companies in respect of more than two television licences. To clear the air the Government should withdraw the bill. This is the second time the Government has introduced legislation of this kind. Somewhat similar legislation was introduced a few years ago but it could not get through the Senate.
– The previous legislation was wholly dissimilar to the present legislation.
– The previous legislation contained some of the provisions that are contained in this bill. The present bill opens a new field, because further developments have been made in recent years.
– The matter that you refer to was not included in the 1958 bill.
– Combines operating in the newspaper, radio and television fields had not developed in 1958 to the point that they have developed now. To what stage has this combine control developed? The Government is quite unaware of the situation and I am sure that no honorable senator is able to tell me what point has been reached. I support the amendment moved by Senator O’Byrne. To clear the air let us have a royal commission inquire into this subject thoroughly so that we may tell the people of Australia just what is the true position.
– What would you do about licensees in the meantime?
– I would allow the present licence holders to continue to operate, but I would not issue new licences until the position had cleared. The present position is unsatisfactory. The Government is in a fog, as it has admitted. In his second-reading speech the Leader of the Government (Senator Spooner) made that admission, although he - was not quite as forthright as I have been.
– It is a well-known fact.
– The Government is aware of the position and it knows the tendencies.
– You would go further than the amendment; you would refer the bill to a royal commission.
– Yes. Let a royal commission ascertain whether everything is in order - whether the existing act has been punctiliously observed by all the corncompanies that have been granted licences.
I admit that over the years the Australian Broadcasting Control Board has done a good job but it cannot keep up to date with some matters, such as the exchange of shares that is taking place almost continuously. It is impossible for the board to follow the business transactions that are going on between the various companies associated with newspaper production, radio broadcasting and television.
– If any evils are associated with television surely the board should know of them.
– The evils do not become very evident. They do not become outstanding because, they are financial evils.
Sitting suspended from 5.45 to 8 p.m.
– Prior to the suspension of the sitting, I was dealing with the trend towards monopoly control of the means of mass communication, that is, newspapers, radio and television. It is interesting to note that prior to 1955 the Commonwealth Government decided to grant a television licence to The Herald and Weekly Times Limited, of Melbourne. To comply with the Broadcasting and Television Act, this company formed another company, which was called Herald-Sun T.V. Proprietary Limited. At that time, The Herald and Weekly Times Limited had an issued capital of 7,760,000 ordinary shares of 5s. each. It is also interesting to note that those 5s. shares are at present quoted on the Stock Exchange at £2 4s. each. The shares were held by approximately 6,000 persons, of whom only 33 held 20,000 shares or more. Of those, the main shareholder was Advertiser Newspapers Limited, of Adelaide, which held 640,000 ordinary shares. At the time that a licence was granted to Herald-Sun T.V. Proprietary Limited to operate station HSV Melbourne, 637,500 £1 shares were held in it by The Herald and Weekly Times Limited, and
Associated Newspapers Limited, of London, held the remainder of 112,000 £1 shares in a total capital of £750,000.
In the same year, The Herald and Weekly Times Limited held licences to operate radio broadcasting stations 3DB Melbourne and 3LK Lubeck, and Advertiser Newspapers Limited, of Adelaide, the holder of 640,000 ordinary shares in The Herald and Weekly Times Limited, had a licence to operate 5AD Adelaide, and it controlled three companies holding licences for 5MU Murray Bridge, 5PI Crystal Brook and 5SE Mount Gambier - all in South Australia. The 5s. shares of Advertiser Newspapers Limited, of Adelaide, are now quoted at 32s. 6d. each, so the holders are doing very well from their newspapers and their radio activities. In the same year, The Herald and Weekly Times Limited had a controlling interest in Queensland Newspapers Proprietary Limited - it was then the “ Courier-Mail “ - which held a licence for stations 4BK Brisbane and 4AK Oakey. The Herald and Weekly Times Limited was at the time the principal shareholder with 1,149,620 ordinary shares of a total of 2,688,000 ordinary and 168,000 preference shares in Advertiser Newspapers Limited which, as I have just said, controlled four radio stations.
The 10s. shares of Brisbane T.V. - that is a television station that is operated in Brisbane - are quoted to-day at 26s. 3d. each. One of the principal shareholders is the “ Courier-Mail “ - actually Queensland Press Limited. I will come to that later.
– What percentage of the shareholding is owned by the company?
– Senator, it makes things very difficult when one is interrupted in such a manner. We will have a symposium on these things when we get into committee.
In 1957, the Australian Broadcasting Control Board stated that The Herald and Weekly Times Limited held licences for stations 3DB Melbourne and 3LK Lubeck and was the principal shareholder, with 987,620 ordinary shares in a total of 2,688,000 ordinary and 168,000 preference shares in Advertiser Newspapers Limited, which controlled Stations 5AD Adelaide, 5MU Murray Bridge, 5 PI Crystal Brook and 5SE Mount Gambier. During 1957 there was a substantial change in the company’s interest in stations 4AK Oakey and 4BK Brisbane, the licences for which were held by Queensland Newspapers Proprietary Limited - that is, the “ Courier-Mail “. The shares in the latter company were previously held by The Herald and Weekly Times Limited - 303,876 shares - and C.W.L. Proprietary Limited- 264,004 shares - both of which had disposed of their holdings to Queensland Press Limited, a public company in which the shares were held in the following proportions: - The Herald and Weekly Times Limited, 37i per cent.; C.W.L. Proprietary Limited, 29-i per cent.; and public subscribers, 33J per cent.
C.W.L. Proprietary Limited was a company of 1,142,000 fully paid shares of £1 each. They were held by John and Joseph Wren as executors of the estate of the late John Wren as to 571,000 and the balance by three others. When applications for television licences for Brisbane were dealt with by the board, one of the applicants was a company called Brisbane T.V. Limited, which was incorporated in Brisbane on 13th March, 1958. The authorized capital of this company was £2,000,000 divided into 4,000,000 shares of 10s. each. The company’s principal shareholders included Queensland Newspapers Proprietary Limited and the Telegraph Newspaper Company Limited.
– What is it that the honorable senator is reading from?
– It is my own work; you may examine it. I am quoting my own work. I have prepared this, the same as you do. You want to make a distinction between yourself and me.
– I just wanted to know the reliability of the subject matter being read.
– I am the authority and if Senator Wright wishes to do so he may move that this paper be laid on the table when I am finished. I challenge him to do that. I can stand and proudly say that this is all my own work. I do not happen to be briefed as you are. You will get your one hundred guineas for your job, too, because you are the champion of the combines in the Commonwealth. You will not offend them.
– It is all based on the 1955 report.
– Yes, on the reports furnished to the Parliament. I have not manufactured these things as Senator Wright is manufacturing many of his statements to suit his case.
– That is a grovelling, unworthy thing that has come from the depths of your mind.
– It is no more unworthy
The DEPUTY PRESIDENT.- Order!
– Thank you, Mr. Deputy President. When I was so rudely interrupted, 1 was giving the authority for this information. The two companies I mentioned were wholly owned subsidiaries of Queensland Press Limited, which was incorporated on 6th September, 1956. Its paid up capital . amounted to £2,250,000, in 10s. shares. Of this amount of capital, £750,000, or 33i per cent., was held by 4,115 individual shareholders. Of the remaining £1,500,000, Herald and Weekly Times Limited held 37i per cent., and C.W.L. Proprietary Limited 29i per cent. The principal shareholders in Brisbane Television Limited, as I have said, were Queensland Newspapers Proprietary Limited, which operates the “CourierMail “ newspaper, and Telegraph Newspaper Company Limited. The first of these companies held 240,000 shares, or 17.14 per cent, of the total number, and the second company held 156,000 shares, or 11.14 per cent. That, I think, answers Senator Wright’s question about the holdings of those companies.
During last year Telegraph Newspaper Company Limited was converted to a private company, and joined with Queensland Newspapers Proprietary Limited hi buying 600,000 ordinary shares in Herald and Weekly Times Limited. There is clear evidence that the companies I have mentioned, engaged in publishing newspapers and operating radio and television stations, are a combine, and are as close to being a monopoly as the Broadcasting and Television Act will permit. Not one of these companies has shown much regard for the public interest, the main interest of each being to make as great a profit/ as possible. As one example, Queensland Press Limited paid a dividend of 10 per cent, for last year, and the ruling market price for its 10s. shares is £2 4s.
The power of these quasi-combines and monopolies operating in the business of the press, radio and television should not be under-estimated. When the Commonwealth Government proposed to increase the bulk postage rate on newspapers recently, the big daily newspapers led a hostile attack on it, causing the Government to capitulate. It costs the Post Office 6d. to handle each newspaper posted at the bulk postage rate, while its return for the service is lid. The people, through general taxation, subsidize the postal costs of daily newspapers posted in bulk to the extent of 4id. a copy. They also heavily subsidize the telegraph costs incurred by the daily press. I pause here to mention that on 26th November of last year I asked the following questions of the Postmaster-General: -
The replies given by the PostmasterGeneral were as follows: -
This Government has been very kind to the monopoly press of Australia, but of course it has been well paid for its generosity. When I peruse this proposed legislation, I become very dubious about its probable effects. It is extremely unlikely that the Government will offend the big press interests, which own and control as well the other two mass communication media, radio and television.
I do not think any honorable senator doubts the existence in Australia of monopolies controlling mass communication. I could go further and show how the various interests involved in the press and radio have combined and what they are doing at the present time.
– Are you alleging that there is a combine involving the newspaper interests you mentioned?
– I say there is a combine. This is obvious when one considers the shareholdings of the various companies, the way in which shares are exchanged between one company and another, and the common interests of the various companies. Frequently one sees buildings being repaired, with tubular steel scaffolding built around them and apparently holding them up. This is a graphic representation of the position of big newspaper companies operating in our capital cities, which have strengthened themselves with a scaffolding of combines and monopolies. I have given tangible proof of the connection between Advertiser Newspapers Limited, in Adelaide, Herald and Weekly Times Limited in Melbourne, and Queensland Newspapers Proprietary Limited and Telegraph Newspaper Company Limited in Brisbane. This group also has an interest in radio and television stations, including at least three television stations. I shall not try to show in detail the extent to which this group controls mass communication in this country, but it is estimated that these companies, between them, exercise control over 60 per cent, of mass communication in Australia.
In the mass communication industry at the present time we are witnessing a rat race for the gold stakes. If one examines the economics of newspaper production and radio and television broadcasting, it becomes obvious that these companies must live on the charges made for advertisements, and these charges, in the final analysis, have to be paid by the consumers of the goods advertised. The greatest single cause in recent times of our increased cost of living is advertising. It is estimated that Australia’s advertising bills last year amounted to £150,000,000. These bills have to be met. If no profit is made from advertising, the newspapers and the radio-stations must go to the wall. Advertising is their life-blood, as it is with television undertakings. Much has been said about films and programme standards, but these are of little concern to the operators of stations. They are used only to fill in time. The only time that owners of television stations are concerned about is the time used for advertising. That is where they derive their income. Advertising is their only source of income. Advertising costs are increasing all the time, and it is here that we see the real evil. There is no such thing as competition in advertising to-day. Everything is cut and dried.
It would take me probably a full week to deal with the ramifications of the various newspaper companies in Australia. I recall that a committee was appointed a few years ago to investigate radio broadcasting, and that committee took about two years to reach its conclusions. It is obvious that a single senator cannot give a clear picture, in one speech of limited duration, of all the evils associated with the combines that are controlling the media of mass communication - newspapers, radio and television.
I come now to that portion of the bill which relates to the staffing of the ‘television services of the Australian Broadcasting Commission. I notice that it is intended to give the Public Service Board authority to deal with various matters relating to the staffing of the commission. For instance, wages, salaries, promotions and many other things related to a staff of 2,500 hands will be dealt with by the Public Service Board. If the Government will accept advice from me, I suggest that it should give the Public Service Board all the strength it possibly can to deal with matters relating to the staff employed by the commission. Do not be half-hearted about it. If the board is to be given any authority at all, then give it complete authority because it is administered by the Prime Minister and there would be direct/ contact between the board and Parliament. We would know what was going on. There would be no need to approach the commission or any television authority. We would approach our own Public Service Board and get prompt service, and I can assure honorable senators that there are problems to be dealt with in connexion with the staffing of this commission. Those problems can be overcome if the Public Service Board is given full power to deal with the recruitment of staff.
Whenever we have had the opportunity to consider the annual report submitted by the Australian Broadcasting Commission, I have stressed the fact that the commission has neglected to say anything about its staffing arrangements. For instance, we do not know what provision it has made for the employment of the technicians necessary to produce an efficient television service. We do not know the number of apprentices employed. Again, if the Government did decide to embark upon the making of suitable films, it would not know whether the commission has recruited suitable staff to carry out the necessary work. 1 support that part of the bill.
In conclusion, let me say that 1 wholeheartedly support the amendment moved by Senator O’Byrne.
.- I am extremely disappointed at the attitude which the Opposition has adopted to this matter. On the many occasions when honorable senators on the Government side have referred to the necessity for controlling monopolies, there has been a good deal of encouragement and cheering from the Opposition side, yet, as soon as the Government introduces a measure which marks the first modern attack at the federal level on monopolies and restrictive trade practices for 53 years, the Opposition sees fit to oppose it. I should have thought that if Labour senators’ protestations meant what they said there would have been a wild stampede by Labour senators to support clause 105 ex sequentia. But that has not been so, and 1 think it fair to say that a good deal of the expressed antipathy to monopolies has been merely lip-service on the part of honorable senators opposite.
Adverting to the legislation itself, I think the bill is important because of its dual objective. In amending the Broadcasting and Television Act 1956, the bill does two very important things. First, in laying down administrative changes in relation to the conditions upon which licences may be obtained and held, the bill attempts to modernize and streamline the legislation relating to what is perhaps our most modern service. Secondly, the bill makes an attack on monopolies to which I have referred already, and I repeat that I am disappointed that the Opposition has seen fit to oppose that proposal. Subject to such amendments to detail as may seem desirable in the committee stage, I support the bill.
On the technical side of television, I think Australia owes a great deal to this Government, the original committee of inquiry, the technicians and the engineers, both government and commercial, for having given us a technical picture and1 service that is the envy of the whole world, with the exception of Western Germany, lt is nosmall feather in the cap of a nation of 10,000,000 people scattered around the edge of an enormous continent to produce a service of that technical standard. If there has been a blind spot, that has been inevitable, because, in my opinion, although engineers are magnificent when they are engineering, it is inevitable that they will suffer if they become administrators. They suffer through leaving their proper sphere of engineering and going into those realms which, as we have shown in the Senate in the last six or nine months, they have had markedly bad public relations.
Proposed new section 28 makes available to the Australian Broadcasting Control Board the services of this splendid body of engineers. Although I do not feel strongly enough on the subject to suggest an amendment, I do feel that it might have been desirable to have had something coercive behind the power of the engineers of the board and the Postal Department in the tracing of interference and its elimination. At present the law provides that a person shall not cause any interference, but there is no sanction or penalty provided against any one who wilfully causes such interference provided it is not done by way of a radio transmitter.
The tremendous range of this bill, covering as it does matters relating to the Public Service Board, control of monopolies and so on, marks it as an interesting experiment in Australian sociological legislation. It is only stating what is common knowledge when we affirm the importance of television in our daily lives. I do not propose to do that. It is probably the most potent influence in the middle of the twentieth century. It has the great advantage or the great ability, or the great power - call it what you will - to enter right into the homes and to the hearths of the people in a way that no other form of mass communication, entertainment or instruction can do. For that reason and that reason alone, the Government has been extremely wise and prudent in ensuring, as we shall show later, that the control of this mass medium shall not fall into too few hands.
There have been very many criticisms of the form of programme. We are told - usually, 1 think, by people who do not own a television set - that the programmes are rubbish. We are usually told by people who have never watched television for more than an evening or two, and then at somebody else’s place, that both the commercial and government stations are producing material which is an insult to one’s intelligence. I do not subscribe to that view. Over the past few years, I have had the opportunity to view both government and commercial programmes in Melbourne. To a limited extent, I have viewed the programmes in Sydney, and I believe that, making allowance for certain matters with respect to which allowance must be made, the Australian programmes, by and large, whilst not being perfect, have shown marked improvement in the four years during which this scientific service has been available in Australia. I am indebted to George Patterson Proprietary Limited for the brochure that it circulated recently. 1 have one; I do not know whether everybody else here has one. I propose to make some reference to the analysis of that organization. As Senator Benn gave us his own analysis, we might as well have a look at the analysis of certain other people who have made it their life work to study the problem. This Patterson report states -
At rising four, Australian Television can scarcely be said to show much stamp of individuality, or to display any great resemblance to the mind and face of homo Australiensis
In sheer size it certainly bulked large, but the accent is strictly mid-Western, the face Sunset Strip stereo, and home is Dodge City. Occasionally the trappings are shed to reveal a slight, uncertain figure that looks local - a tryinghardtobesomeone or something, unsteady of foot, hand outstretched, bewildered by the spray of bullets from the six-guns and the voices from across the sea. From this it might be gathered that, with two or three notable exceptions, development of Australian content programming has, if anything, slowed down since our last report.
That, I think, is a fairly - but not entirely - accurate, and a somewhat bitter summary of the view of one person in the trade of Australia’s television programming industry. He goes on to mention the reference by Actors’ Equity to the position in regard to our programmes. Actors’ Equity claims that the board’s dilemma, which is on the one hand to resolve somehow why Australia’s television is not assuming the character obviously envisaged for it in 1956 and on the other hand to require it to assume that character, would seem to call for financial resources which people interested in production do not seem to possess. Nevertheless, Actors’ Equity went on to suggest that the board should set up an administrative fund financed by all television sponsors by payment of a surcharge or other fees in order to try to get a greater Australian content into the programmes.
I express no view on the efficacy of such a method. All I say is that the end in itself is desirable. I for one am all for the presentation of as much Australian material as is reasonably possible, but I think that when we consider the difficulties that Australian licensees face in presenting a greater percentage of Australian material, we should perhaps have a look at the footage of film imported. In 1958, according to the Commonwealth Film Censorship Board, 10,654 television films passed through censorship. On a footage basis, the figure of approximately £300,000 for that year almost doubled the figure for the previous year. Of this footage, approximately 85 per cent, came from the United States, and about 1 1 per cent, from the United Kingdom. I think that these are the figures that we must consider. This does not mean that all of the remaining 4 per cent, came from Australia. Unfortunately, the production of Australian films for use on television has been largely limited to advertisements for detergents, soaps, breakfast foods and the like. The 4 per cent, is a mixture of films from Australia and from foreign countries other than the United States and the United Kingdom. Perhaps we ought to have a look also at the fact that crime, in one form or another, formed the principal theme of the imported products.
– That is, the American material?
– American and British. This is the interesting factor to which I should like to direct the honorable senator’s mind, as I know that he is particularly interested. The Department of Visual Aids at the University of Melbourne, after making a careful study of the effect of crime dramas on children, claimed that there was no evidence of any harmful effect at all on children. It went on to say, slightly cynically, that frequent viewers merely tended to become indifferent to the nightly mayhem.
– It made them bigger and better bodgies
– Dealing with that interjection, I say that perhaps one of the most effective contributions that television has made towards the social structure in the modern world is the way in which it has defeated and destroyed the pests created by horror comics and partly by trashy literature. Since 1950 when horror comics were at their peak, with the growth of popularity of television in the United States, most horror comic producers- in that country have been forced out of business. The cynic might very well say that it is not much of an improvement in culture to go from the horror comic to the six-gun epic, but I think the latter is a vast improvement upon the sex and horror comics which were polluting the minds of America’s young, and to some extent our our young, a few years ago, but which are now, thank God, going out of business because they cannot compete with the glamour of the moving picture on the television screen.
On the question of Australian technicians being denied employment in our own industry, a rather satirical note may be obtained from the American view of this industry. The secretary of the Screen Extras Guild of America, referring to the fact that American producers of television motion pictures were making a series of adventure films abroad, stated -
It seems incredible that a sponsor selling in America would flout public interest by choosing a television series made abroad.
If an American secretary is able to say that about the .01 or so per cent, of foreign material shown on his screen, with some justice we might cavil at the percentage of work obtained by Australian people in our own television industry. This industry is certainly sick at the moment. Some local feature programmes are developing. I have not seen any of the productions being made, but T hope we shall have an opportunity of seeing them. Patterson drew attention to the production, mainly in New South Wales, of four series called “ Sanders of the River “ Cobb and Co.”, “ Flying Doctor” and “Whiplash”. He said that shooting was scheduled to start in October, 1959. I understand that it has begun, although certain difficulties were met. This is the point to which I direct the Senate’s attention. The 39 half-hour programmes are estimated to cost between £300,000 and £500,000.
– To whom?
– To the producer or the advertiser?
– The cost of advertising is not so prohibitive as that. That is the cost to the producer of making the series of films in Australia.
– Making four films?
– No, of making a series of 39 of the half-hour films which have become so popular. We seem to take our standards from the United States, where 39 films are regarded as a series for one year, the theory being that in the summer quarter the viewers fall off and it is not worth while making expensive productions for that period.
– Do I understand that the cost would be £10,000 for a half -hour film?
– Yes. Subject to the honorable senator’s mathematics being accurate, the principle is right. I make these remarks, not by way of harsh criticism of the work of the Australian Broadcasting Control Board, or of our licensees, but because I think that a brief statement of the difficulties which face us, of the disadvantages from which we suffer, and of some of the faults in our own productions will focus attention on them and may induce people to provide a remedy. In the report released shortly before October last, the Australian Broadcasting Control Board said - . . although several commendable attempts have been made to promote the use of the services of Australians the .results have been rather disappointing. It also appeared that there was some evidence that earlier estimates of the extent of Australian talent which would be available for television programmes have not been realized. In an analysis the Board’s report shows an overall increase in the volume of programmes of local origin since 1957, but a considerable diminution in the percentage of total telecasting. This percentage decline, on a four station average, has been from approximately 54 per cent, in June, 1957 to approximately 35 per cent, in June, 1959.
The board points out that so far as the quantum of our own productions is concerned, the position has not improved.
– The advertisers do not want them.
– That is a debatable point. That is an argument into which I do not propose to enter this evening. The report goes on to say -
The Board says that it cannot claim to have found any practical solution to the problems associated with Australian programming. Basically, it says, they are economic, but even apart from this, it must be conceded that stations face very many other difficulties at the present time in devising and presenting Australian programmes. The Board was not satisfied that some kind of quota was a practical solution but claims that various proposals of a very general kind for financial or other assistance to the Australian film industry were being considered.
That is a matter which 1 hope will come to fruition. The report continues -
Also, extension of television into the country should help the development of local programmes.
I propose to say something about that later, when I come to the technical section of the legislation. The board says that <he advisory committee on children’s programmes has made the comment -
I have had an opportunity of speaking with some Australian producers about this programme problem. I think that recently all members of the Parliament received a circular from a Mr. Crawford - one of the Australian producers - in which he gave the number of hours of foreign telecast material and Australian telecast material. In Sydney, during the peak viewing hours of 6.30 to 9.30 p.m., the proportion was roughly 67 half-hours of imported programmes to one half-hour of Australian programmes. In Melbourne the position was slightly better, in that there were 64 half-hours of imported programmes to four half-hours of Australian programmes. This producer claimed that the United States of America, the United Kingdom, Canada, Japan and Italy all have some form of quota system as a protection for their local productions, and he urged that, in order to preserve our national cultural identity, there should be a prudent and reasonable pro tection of our arts and sciences. He then went on to suggest that the Government should call a conference of representatives of the industry to discuss the matter.
I recall a half-hour Australian drama series, employing local talent, which had a short run in Melbourne and Sydney. When it ended the manager of one of the stations on which it was telecast commented that although technically the Australian production might not have come out of the top drawer, and that some of the scripting was poor, it had been the victim of an unfair knocking campaign from certain newspaper interests which wanted to kill drama production in Australia. Whether that is true or false, I do not know. I simply quote the manager of the station in relation to that.
– Who was the manager?
– I do not feel disposed to give the manager’s name at the moment.
Coming now to control by monopolies In our modern society, 1 think that it has been recognized by most of those who believe in a Liberal philosophy that the main benefits to our community which flow from the free enterprise system, flow only when that system is strong and competitive. The Government’s proposals to limit the holding of licences is a step in the right direction. The Government has had the courage to specify a IS per cent, shareholding as being sufficient in regard to the control of a third television station. Some amendments have been foreshadowed in order to prevent the injustices that could arise if the legislation were to go through in the form it was when it first saw the light of day in another place. I am quite happy to accept the amendments that have been proposed.
I think it would be disastrous if control of this medium of mass communication fell into too few hands. I concede that an excellent job has been done by existing licensees and existing stations, but I do not think that their tentacles should be spread to the limit. Speaking two centuries ago, Edmund Burke said -
Let us suffer any person to tell his story morning and evening for one twelve months and he will become our master.
Burke could have been speaking prophetically of the power of a television licence.
– They all used to walk out of the House when Burke got up to speak.
– That may well be so, but his speeches and ideas were thought worthy of recording, and, if I may say so with humility, they are worth reading in 1960.
I am hopeful that the Government’s restrictions will have the further effect of assisting in the development of our own film and television production industry and in the development of our arts - particularly the arts of drama and writing. In the allied industry of films for theatres, it is unfortunate, but true, that most of the theatre outlets are owned by two companies. The Government’s action may be intrumental in preventing that unfortunate state of affairs from prevailing in the television industry of this country. Last Friday night I was in a country town in which there are two picture theatres. The town is well out of the range of television broadcasts, so the theatres are popular institutions. One theatre proprietor had the right to show the productions of seven film renters, while the other man had been able to obtain films from only one renter. Although one theatre could not show all the films to which it had access, the film distributors would not provide the little man with the dozens and dozens of films that the other theatre did not want. As a result, the small man was having considerable difficulty in remaining in business. I hope that the Government’s legislation may help to prevent that state of affairs from existing ultimately in regard to country television stations.
I think it was prudent, too, of the Government to include the use of video tapes, along with photographic films, in it control measures, since video tape is much quicker and cheaper to produce, in many ways, than is film, and perhaps will be the modern medium whereby canned entertainment is provided over television stations. I should like to go a little further, Mr. Acting Deputy President, and to indicate the value of competition, incidentally proving that the Government genuinely believes in competition. For the purposes of illustration, I propose to refer to the quarterly returns, ignoring the older States of Victoria and New South Wales, which have had television for some years. If we look at the quarterly returns for South Australia, Queensland and Western Australia, we find some interesting figures. I may say that the figures were published in the press on 17 th May last. It should be borne in mind that in South Australia and Queensland there are two competitive commercial stations. In Western Australia, there is only one station. We find that the increase in the number of licences in South Australia, where two stations are competing against each other, was 93 per cent. Similarly, in Queensland, where two commercial stations are competing, the increase was 93.1 per cent. But in Western Australia, where there is no competition, the increase was only 54 per cent.
If we look at the rate of saturation, which may in a sense mark the degree of satisfaction of the community with the services provided, we find that the story is almost identical. In South Australia, it was 44 per cent, and in Queensland, 37 per cent., but in Western Australia, where there is no competition, it was only 21 per cent. The rate of saturation is a fairly complex assessment which I personally am unable to work out, but which is worked out by statisticians according to the number of homes in a particular State, the number of licences that have been granted, and the rate of increase, working on a basis, I think, of 3.4 persons to a television receiver. However, I am not too certain of the exact method1 of computation.
– Would not the size of the States have some bearing?
– Not on the percentage. It is interesting to note that in Perth, and also in Hobart, no applicants sought a competitive licence. I think that the figures I have given are a fair indication that in this field, as in every other, the consumer benefits from reasonable competition. I do not want to give a free advertisement to anybody, but I point out that a commercial station of which I have knowledge has a revenue from advertising of £208,000 a month. Of course, a goodly percentage of that is returned to the Commonwealth Treasury, but that is the revenue of the station, which is in competition with two other stations.
Before concluding my remarks, Sir, I want to refer to a circular letter which has been sent, 1 think, to all honorable senators and members of the House of Representatives by the Federation of Australian Commercial Broadcasting Stations. The letter points out some of the difficulties from which a licensee of a radio station, particularly in the country, although it is not limited to the country, suffers during an election campaign. Section 116 of the act makes it compulsory for a licensee, once he decides to allow one political party to broadcast from his station, to make available to all other parties which have a member in either House of the Parliament, similar facilities.
– The Democratic Labour Party, too?
– Yes, if it has a member in a House of the Parliament. Section 124 has the effect of turning the broadcasting station into the publisher, for purposes of defamation, of statements made by a person during a broadcast address. The spoken word over the radio is regarded as being in a permanent form and therefore is considered as libel and not slander. The federation has requested some form of amendment to give it complete immunity from that kind of thing during election campaigns. For myself, I cannot agree that the immunity which it seeks is entirely warranted, but I believe that the principle behind the request is just and that some form of modified amendment may be necessary to protect a licensee who acts in good faith, without prior knowledge of defamatory matter which is broadcast over his station, from either civil or criminal action in regard to that broadcast.
– Why should a radio station licensee get more protection than a newspaper, for example?
– A newspaper is not compelled to publish.
– That is the point. Once a broadcasting station licensee allows one party to broadcast he is compelled to allow all other parties to do so, and he is not permitted to select the speakers. This matter could perhaps be the subject of fuller and more comprehensive debate at the committee stage. At all events, the position is such that it warrants careful Investigation. I foreshadow, Mr. Acting
Deputy President, an amendment of the bill, if necessary, to ensure that a licensee acting in good faith is not made to bear an unfair burden which other business people, including newspaper proprietors, are not compelled to bear.
I think that criticism has been made by certain commercial interests regarding the requirement in the bill that broadcast matter relating to current affairs, political topics and subjects of that nature, shall be kept for a period of six weeks. My only criticism of that provision is that the words “ current affairs “ seems rather broad, and that the meaning of the legislation could with advantage be narrowed to suggest political affairs and matters of national moment. The argument regarding the cost of keeping tape does not appear to me to be very soundly based. If a broadcasting station had to tape matter of this type for eight hours a day, with modern recording machines running at 1£ inches a second, it could be done on a £3 roll of tape which would occupy a width of about threequarters of an inch on a shelf. The entire six weeks supply of tape would fit on -a three-foot bookshelf. The cost would be approximately £125. Having regard to the very high revenue earned in many aspects by these undertakings, I cannot see that this is a reasonable argument against the legislation. For the reasons I have given I support the bill and oppose the amendment moved by Senator O’Byrne.
[9. lj. - Mr. Acting Deputy President, the bill before the Senate is both comprehensive and important. It is comprehensive because it deals, amongst other things, with the constitution, powers and functions of the Australian Broadcasting Control Board and with the conduct of inquiries by that board. It deals with the constitution of the Australian Broadcasting Commission and with the very important subject of the service and the staff of that commission. It deals with the granting and revocation of broadcasting and television licences. The bill also deals with the vastly important matters of limitation of ownership or control of commercial television stations and the monopolizing of television programmes. Finally, in clauses 33 to 38, the bill deals with a number of miscellaneous matters, all of which are important.
The bill comprises some 24 pages, lt has grown somewhat since it was first introduced into another place. In view of the information given to us by the Leader of the Government (Senator Spooner) in his second-reading speech to-day, the bill will grow still further when eight new amendments are proposed in the committee stage.
The bill is important also because it deals with aspects of the vital matter of mass communications in this country. That is a subject that is vital by its very nature to the preservation of a political democracy. The bill is important because of the two entirely novel provisions to which I have already briefly referred - the limitation of ownership or control of television licences and the provisions that seek to set up protection against the monopolizing of television programmes. Those two matters are complicated as well as novel. They involve considerations of constitutional law and company law. They require for their full understanding a knowledge of complex commercial and technical practices in the field of broadcasting and television.
Despite a very lengthy second-reading speech by the Postmaster-General (Mr. Davidson) in another place, in the course of which he undertook to embark upon much explanation in the committee stage of the clauses dealing with this matter, he preserved a notable silence throughout the debates in the committee stage. I noted that very little explanation was given to members of another place by the PostmasterGeneral regarding many important matters. I feel confident - I certainly hope that my confidence is not misplaced - that we will not have that experience in this Senate. In my view the bill is essentially a bill to be discussed in the committee stage. Quite a number of its aspects need very close examination. I trust that the Leader of the Government, who is in charge of the bill in the Senate, will be prepared to give as full an explanation of the bill as may be required by honorable senators. I do not mind confessing that even with my somewhat wide experience I had very great difficulty in understanding the purport of certain clauses of the bill, particularly those dealing with protection against monopolizing of television programmes;
It is unfortunate that honorable senator* were not provided with an explanatory” memorandum of the bill of the type thatthe Government was good enough to prepare for us in connexion with the 1956 bill. I have in my hands the explanatory” memorandum that was at that time presented to the Senate, showing in one type of print what was proposed to be omitted and in another type of print what was proposed should be included. That memorandum was a tremendous help in the study of a complicated bill. We are obliged to face this bill without such help. I confess that there is real difficulty in addressing oneself to it. One is obliged to visualize the effect of the various amendments on the principal act. One encounters the further difficulty that the bill to which one directed one’s attention and upon which one made notes when it was being debated in another place is different altogether in form when it comes to this place.
The Opposition has agreed to proceed at once with the debate on this bill for quite a number of reasons but those of us who really want to study the bill have not had our paths made easy. I invite the Government, when presenting bills of this nature in the future, to make sure that it repeats the pattern that was followed in 1956.
I do not propose to traverse the subject of television to-night, nor all the subjects with which the bill deals. I shall deal with the matters affecting the staffing of the Australian Broadcasting Commission and the two novel provisions relating to ownership or control of television licences and the monopolizing of television programmes. I deal first with the service of the Australian Broadcasting Commission. The Senate will recall that on 26th November last year, on behalf of the Opposition, I moved to disallow a regulation - No. 80 of 1959 - relating to changes in the staff rules dealing with the terms and conditions of employment in the Australian Broadcasting Commission - the classification of officers and so on. A lengthy debate ensued on the matter at the time and I have little doubt that the Senate will remember the case that was presented. I showed that great dissatisfaction existed amongst the staff of the commission. The case I put was based upon findings and comments of the Assistant Public Service Arbitrator. Very trenchant comments were made regarding the failure of executive officers of the commission to consult and confer with the staff association. The same complaint was made about the commission itself
The commission apologized for the fact that it was not aware that many of its officers were working unduly long hours without payment for overtime. It confessed that vastly important and relevant matters concerning staff welfare had not been put before it. I do not propose to re-open the whole of that matter. I indicate that changes were made at the time reversing the statutory rules that had been settled after two years’ study by this Parliament’s broadcasting committee back in 1947. The classifications and sub-divisions of the Australian Broadcasting Commission’s departments and divisions were set out in the statutory rules. Rule No. 80, of which we sought the disallowance, reversed all that and left to the commission itself the determination of divisions, classifications and sections, lt vested plenary power in the general manager to determine all duties of senior officers. I merely refer to the fact that the Assistant Public Service Arbitrator at the time, in detailing the difficulties between the staff association, the executive officers and the commission, said very bluntly that the commission was heading for disaster in the matter.
That makes it an important point, as the whole gravamen of the dispute rested upon failure to consult. Then I look for consultation in connexion with this matter. The Minister said in his second-reading speech that the alterations to be implemented by the provisions of clauses 17 to 23 of the bill were made’ with the agreement of the Australian Broadcasting Commission; that the commission was consulted by the Government. The point I make is that there was no proper consultation by either the Minister or the Australian Broadcasting Commission with the staff association. T do not say that it is a matter of duty - legal duty - for either the Minister or the commission to confer with the staff association, but in the light of what the difficulty was between the commission, the executive officers and the staff, I merely make this comment: Would it not have been exceedingly wise to prepare the staff association for the very major changes that are affected in the position? The Postmaster-General also said this -
The intention is not to make changes in existing conditions affecting the commission’s staff as sei out in the regulations and the commission’s decisions.
But that is quite wrong because, as I hope to point out to the Senate, there is quite a number of major and important changes. The first one, of course, is that under section. 43 (10.) of the existing act it is required that the terms and conditions ot employment of the staff are to be prescribed; in other words, they are to be written into statutory rules. Under the act it is provided that the terms and conditions shall be prescribed by rules - by statutory rules that have to be laid on the table of this Parliament, rules that we are bound to review and which the Parliament is competent to disallow. Clause 17 repeals that provision entirely. The Postmaster-General in his speech said -
Statutory rules are to be replaced by staff rules. They will not be subject to parliamentary supervision.
I point out that under the new arrangement the terms and conditions of the staff as provided in the bill are to be determined by the commission with the approval of the Public Service Board. They will be announced in staff rules which are not to be brought to this Parliament, which have not the effect or the force of statutory rules, and which do not come under parliamentary control in any direct way. I indicate to the Minister for National Development, who is at the table, that there is no provision in the bill imposing an obligation upon the commission to make the staff rules available to each member of the staff. The members of the staff are to be bound by them, quite obviously, and whilst under the present statutory rules there is an obligation on staff members to know the act and the statutory rules that are relevant to them, that is easy enough because they can get access to those things. But there was also a provision that any decisions of the commission had to be communicated to the staff. I ask the Minister to point out where in this bill there is a very proper obligation upon the commission even to make the staff rules known to each member of the staff.
I come now to the second, and a vastly important point. Under the existing statutory rules, there is a body termed the Appointments Advisory Committee set up. It comprises two senior executive officers and a representative of the staff association. They deal with all kinds of matters as sei out in Regulation 49. They deal with appointments to the service of the commission, transfers, promotions, classifications to each range of salary, and matters concerning increments being granted or withheld. That body had a right, of its own motion, to make a recommendation to the commission and any officer or person affected by any matter under consideration by the committee was entitled to appear before it himself, or to be represented, and to be heard. That had gone on since 1947 - down a period of thirteen years. The committee was a great protection against any form of nepotism or favouritism, lt is a body that has processed the whole staffing, the development of the commission’s staff. Under this bill, it is to be abolished and that, of course, gives a further cause of dissatisfaction to the staff.
The Minister acknowledged last year that in October, 1947, there were 1,130 employees, and that- by October, 1959, the number had grown to 2,401. But the Minister referred in his second-reading speech to the fact that the staff had grown from 500 to 2,500. For the figure of 500 he must have gone back 20 or 25 years, because the staff has about doubled down the thirteen year period from 1947 to date, a period of great development, particularly in television. That has imposed a heavy task upon the commission, but the whole of the processing has been done by this Appointments Advisory Committee. That treatment is being virtually terminated. The whole trouble in relation to staff in the commission, has been the lack of collaboration and consultation, yet the one piece of machinery to permit of consultation with the staff is being thrown overboard. It is a major change, of course. There is no consultation whatever by the Minister or by the commission itself with the staff organization. I submit to the Senate that that is an additional reason why this bill might be deferred. I suggest that the abolition of the Appointments Advisory Committee will mean that there will be far more appeals to the Promotions Appeal Board. The functioning of this committee has prevented matters from becoming acute enough to go on to the Promotions Appeal Board. The Government argues in presenting the bill to us that there will be greater speed in dealing with these matters. I merely say to the Government that there has been a great saving in complications, in formal appeals. People settled their matters quietly before the committee. But when this body is abolished probably just as much delay as formerly will be caused by the growth of formal appeals.
The only other matter I want to deal with in connexion with the staff arises from the fact that I understand there is a very large number of persons classed in the auxiliary section of positions and in the temporary section. The auxiliary people very properly include artists whose powers may wane. They may be wanted only for a particular time; they do not become officers of the permanent staff of the commission. As I understand the matter, members of the auxiliary staff, so-called, include people who are termed, I think, set makers, who are merely carpenters. Those in another class are merely painters but they are termed set finishers. There are production managers who are deemed auxiliary. There are production managers placed on the auxiliary staff, and there are production managers who are permanent employees. The recommendation that I put to the Government is that it should interest itself in seeing that positions of that type, that in effect are permanent, are placed on the permanent list, because all these people in the auxiliary and the temporary classifications have no appeal either to the Promotions Appeal Board or to the Disciplinary Appeal Board. Both of those appeal tribunals are open only to persons who are officers, in other words permanently appointed. All the auxiliary staff and temporary staff will lose the one benefit and protection that they have had, in the form of the Appointments Advisory Committee. They will be left entirely at the mercy of the commission. Until now they have had the benefit of the Appointments Advisory Committee, but under this bill even that will be taken away. This being so, it is high time that the Government made sure that the Australian Broadcasting Commission looked at the plight of these personnel, to ensure that those who should properly be on the permanent staff are so placed.
In the course of his second-reading speech the Postmaster-General (Mr.
Davidson) said this -
The commission . . . will discuss major changes affecting the staff with their representatives.
This is a provision for the future, but the bill itself, as I have already pointed out, destroys the only sure machinery that exists for consultation, and it gives the staff, accordingly, no confidence for the future. The view has been put to me, on behalf of the federal executive of the Australian Broadcasting Commission Staff Association, that the members of the association are well aware of the objections that I have voiced, and that they do not believe that, in the absence of proper consultation, there can be an improvement in the very bad position that exists, and has been so publicly disclosed, between the commission and its staff. I think we all have a vital interest in seeing that the situation is corrected, because the efficiency of a staff - and that of the Australian Broadcasting Commission is exceedingly good - is grievously affected by dissatisfaction and by disputes between those directing operations and those concerned with carrying out such directions.
I pass now to the very important question of the limitation of ownership or control of television licences. Clause 30 proposes to insert in the act some twelve new sections dealing with this matter. They are aimed at preventing a few persons or companies from gaining extended control of television stations. In the course of his remarks Senator Hannan suggested that honorable senators on this side had been giving lip service only to their opposition to monopoly. I propose to develop my theme to show that this is true of the Government, and not of the Opposition. In the light of what has happened one must suppose that primarily these proposed new sections are directed at newspaper proprietors, who are already in effective control of almost every television station in the capital cities, and who are now very determinedly trying to extend that control to country television stations. The Opposition welcomes these provisions, but it suggests that they have been brought forward far too late, having regard to the degree of control of television already exercised by newspaper proprietors in capital cities, in which - and this is the important point - is found the great bulk of the Australian population. As I say, the newspaper proprietors are already in charge in capital cities, and their coverage extends even now to perhaps three-quarters of the population.
– Does the bill do nothing about that situation?
– No, it does not affect it at all. It does not affect the present set-up. I am complaining at the moment of the fact that in the six capital cities the newspaper proprietors are in effective control of this powerful medium.
– But does not the bill require any company that might otherwise continue to operate in breach of the new legislation, to conform to the new proposals?
– No. The present provisions of section 91, as I understand them, which allow control of two stations in each of the capital cities, will still stand. This bill has nothing to do with the position in which the newspaper proprietors are already entrenched, and that is our complaint against the bill. That is the very nub of our objections, that this Government is seeking to cure a monopoly position, after having allowed the monopoly to become established. In my view, the bill does not say one single word about it disturbing the position of newspaper proprietors in connexion with the commercial television stations in the six capital cities. The bill refers only to the control of a third licence. The newspaper proprietors are already entrenched, and this bill can affect them only to the extent that they may not gain more than 15 per cent, control of a third licence.
I say that the Government has utterly failed to protect this country against substantial control of television passing into only a few hands. The most powerful medium of mass communication, television, is already in the hands of a few. I say that the newspaper proprietors already enjoy this control and - I want to be emphatic about this - that they were deliberately helped by the Government to gain control, in defiance of the recommendations of the expert body, the Australian Broadcasting Control Board.
– And of the act itself.
– The act compelled the Minister to refer the matter to the board. 1 am speaking now of the licences granted in Adelaide and Brisbane. The matter was referred to the board. There were three applications in each city. The board submitted a recommendation that none of the applications should be accepted, and that only one licence should be granted in Brisbane and one in Adelaide. Having received that report, the Government completely rejected it. The board had given pages and pages of reasons for its recommendations. It had said that none of the applicants was any good, that fresh applications ought to be called, and that only one licence should be granted in each of those capital cities.
– ‘But have not events proved that the Government was right and the board was not?
– I think not.
– Did you say that the board reported that none of the applicants was any good?
– I may not have put that felicitously or accurately.
– A bad choice of words.
– A bad choice of words, I concede. Let me put it this way: The board did not recommend or approve any of the applicants. It thought there should be fresh applications.
– But that was on a matter of policy, was it not?
– 1 know, but what did the Government do? The Government completely overrode the board’s recommendation. I know the Government had a legal right to do so, but the fact is that it discarded the board’s report and said to it, “ Proceed with the applications you have. Do not call for fresh applications, and grant two licences in each city, not one.”
– “Recommend “, not “ grant “.
– But there was the clearest direction by the Government to the board to do so. The two licences in each of the two cities fell, of course, into the hands of newspaper proprietors. I mention these matters as a basis for my statement that the Government deliberately helped the newspapers into the monopoly position they now occupy in the great capital cities.
– Would not one licence in each city have constituted more of a monopoly than two?
– Well, you gave two, and I simply make the point - it should be quite clear by now, because I have made it so often in this place - that it is striking at the cornerstone of democracy to give the few who are in charge of newspapers in this country, and who enjoy an extraordinarily wide coverage in the radio field, a monopoly of the most powerful medium of all, television. That is my complaint against the Government’s action in leaving substantial control of this powerful new medium of communicating ideas to the people of Australia in the same old hands. That is the burden of my lament. I am not worrying about whether competition between two is better; I am talking about vesting in the newspapers in the capital cities effective control of television.
– What particular leprosy attaches to newspapers?
– None beyond that it is one body expressing its personal views, as I have said before, with an aura of omniscience.
– Is the journalistic profession so subservient as to express management’s views in its newspapers?
– I would not give a general answer to that, but I would say there are many who do.
– They are out of work if they do not.
– They are out of work if they do not. I am not prepared to make a general statement, but I am prepared to affirm the proposition with certainty.
I want to make the point that the Government has had ample experience to guard it against falling into this trap. In 1953, when the Government brought in the Broadcasting and Television Bill, I said that it was entering a virgin field and urged the Government not to let it be fouled up. The Government had had the experience of radio broadcasting. It saw the newspapers allowed into that powerful field, too. In 1955, the Government had before it the very comprehensive report of the Australian Broadcasting Control Board. That report reviewed the shareholding in all the broadcasting companies of Australia. It showed the newspapers in effective control of 43 out of the 106 broadcasting stations, with an Australiawide cover. The board went into the matter in minute detail. It analysed the shareholdings in the companies seeking television licences in Sydney and Melbourne at the time. The position was plainly and clearly before the Government. And it now proceeds to do something to counteract that type of influence, having let it run for four years, having let the newspapers get into control!
– Having let them give us a first-class television service.
– As any intelligently directed company could have done.
– I doubt whether there is any other organization in Australia that could have got within coo-ee of where we have got with television.
– The point I make is that the Government never gave such a body a chance. Look at how the public of Australia, when, allowed to take a few shares in these television companies, oversubscribed them in a day or two! They just were not given the opportunity.
– The people oversubscribed because the companies had the good organization which could deliver the goods. You try to get money for an organization that has not experience and which has not goodwill!
– What greater experience could the newspapers have than any other commercial concern in this country had in the matter of television? As 1 have said very often from this place, brains can always be bought for these technical things.
– I have heard that before.
– And you have seen it come true. Even the Minister for National Development (Senator Spooner) has had to go to France to buy some brains to help in the search for oil. He has been able to find brains over there. That is the case in point. We lacked the essential know- how, it was not readily available, but, after years of pressure, the Minister has found some in France at last.
– You could not do that with aluminium.
– That remains to be seen, but help was bought at a price, as the honorable senator knows. But do not lead me into these things any further. I have limited time, and there are three aspects with which I have to deal.
At the moment, I am making the point that the Government should not have erred. It had before it the experience of radiobroadcasting. It had before it the reports of the Australian Broadcasting Control Board. I put before the Government at the time the Australian Labour Party’s decision, arrived at in Hobart, objecting to what was going on in newspaper management. We dealt with it at length at Hobart. I do not want to read it now, but, with the concurrence of honorable senators, I incorporate in “ Hansard “ the following three paragraphs: -
I include those paragraphs to indicate that we foresaw what was coming in the matter of monopoly control. I repeat that we dealt with it when we considered in 1953 a bill which I thought was the most inept and ill-considered piece of legislation dealing with television. It contained a few clauses, one of which authorized the Minister to grant television licences upon terms and conditions determined by him, and conferred upon him power to let the authorized body, which might or might not be the Australian Broadcasting Commission, run a national station. The bill gave plenary power, and it was pursuant to that plenary power that the first betrayal took place in letting the newspapers in Sydney and Melbourne take control of television in the commercial sphere.
– Do you assume that i here will be no further commercial television licences granted?
– In the capital cities?
– I am not necessarily making that assumption. All 1 say is that I do not think that at the moment anybody visualizes that as an early development. It certainly has not been predicted by the Government. Having gone on with phase three, as we call it, the Government now contemplates going to phase four - television in the extreme far out-back. I say to the honorable senator that it is not in contemplation at the minute even by the Government. I think it is quite unlikely.
I should like now to. refer to the discussion on the Broadcasting and Television Bill 1956. We moved an amendment to the motion for the second reading of that bill. I refer to the first part of our proposal, which reads -
. the bill should be withdrawn and re-drafted so as to include -
In addition, in committee, we tried to amend that part of the bill dealing with the functions and powers of the board so as to ensure that the board would be compelled to follow that principle. That amendment was defeated. That is the point I make particularly to Senator Hannan who spoke about the lip service of the Opposition in connexion with monopolies. We affirmed it in 1953 and 1955. In 1956 we tried to amend the motion for the second-reading of the bill as I have indicated, and we sought to give the general direction to the Australian Broadcasting Control Board. We were defeated by the Government votes. On those grounds, I reject entirely what Senator Hannan had to say in connexion with that matter.
Looking at what has happened in the capital cities and at what newspaper proprietors in particular have been trying to do in relation to the new country licences, I should say that what the Government is doing now with this bill may be likened to trying to patch a shipwreck with adhesive tape. The Government is trying to shut the stable door after the horse has gone.
I come how to the 1956 act. Section 91 of that act prohibited control by a company of more than two television stations, but did not prevent, in express terms, a company from owning 50 per cent, of the shares in every television licence in Australia. That is conceded now. It bears out the opinion given by the AttorneyGeneral when he was legal adviser to the Melbourne “ Herald “. It bears out the decisions of the court that there must be voting control of the majority of the votes before you are in effective control. The Government has recognized at last that a small block of votes solidly used - and it concedes it could be even 15 per cent. - could be a controlling factor. That comes about by the fact that most shareholders are completely disinterested in the management of the undertakings in which they invest. They are investors interested in only two things - the market price of their shares and the dividends that come from them.
– And the reputation of the concern with which they are associated.
– That is very true. They are the things in which the investing shareholder is primarily interested. How many of these shareholders ever turn up at general meetings when matters in relation to the two factors I mentioned are going along all right? One honorable senator reminds me that it is barely possible to get a quorum at meetings. The result is simply that a 15 per cent., 10 per cent., or even 5 per cent, bloc vote is exercised at meetings, which in effect makes for effective control. The Government now, through the Minister, concedes that that 15 per cent, could represent effective control. From the various reports of the Australian Broadcasting Control Board we have seen what has happened, first in Melbourne and Sydney, and then in Brisbane and Adelaide. Then the licences in Hobart and Perth were handed over to the substantial control of newspapers, within the definition of “ control “ in this bill.
When we look at the matter of the country licences that are now being considered by the board, we find that the Government, in effect, has already prejudged it. In the 1956 act there is provision for the members of the Australian Broadcasting Control Board to have the same protection and immunity as justices of the High Court. That ought to put them beyond any type of coercion or influence. Yet on 30th April, 1959, when these country licences were in contemplation, the Postmaster-General announced, in the Parliament, decisions of the Government, which I claim were prejudging the matter for the board and which at least were attempts to influence the board’s decisions and operations. He said -
The Government has, however, decided that the number of commercial licences in any area should not necessarily be limited to one.
He was speaking about country areas, and he continued - . . more than one commercial service in each area might be licensed. It has decided that, as far as practicable, priority in the grant of such licences would be given to applicants which are local independent companies not associated with metropolitan stations … It has further decided that the actual number of commercial television stations . . . should not be determined until a report on applications for licences has been received from the Australian Broadcasting Control Board.
When I spoke to that matter at the time, I said that that announcement was an attempt to influence the mind of the board before it began its inquiries. It is rather interesting to find that the Government has granted one commercial licence in the Perth area - where, according to the board’s reports, there is a population of 400,000 to be served by television, whereas in the Canberra area, where there are some 44,000 people, the Government says that there may be two commercial licences. Only one licence is granted for Perth, which has 400,000 people. In short, the Government has prejudged and sought to predetermine the matter. After the Government’s action in completely ignoring the board’s recommendations in relation to licences in Adelaide and Brisbane, the board knows in advance that if it does not run true to that line of policy laid down by the Government, its recommendations will be, perhaps, rejected again.
The Government introduces this measure, which is based upon its own knowledge and experience. The Government completely ignores the board and does not give any particulars worth talking about in relation to its findings. At page 1900 of the current “ Hansard “ for the House of Representatives, the Postmaster-General is reported as having said -
I advise the House that the Broadcasting Control Board had nothing whatsoever to do with either the inception, the initiation or the development of this bill. It is a bill produced by the Government, as the result of the experience gained in the last four years from the development of television.
He went on -
So this bill, which deals with all those possible methods of control, is, as I say, a sincere attempt to halt the development of monopoly control while there is still time.
I direct the Senate’s attention particularly to the word “ halt “. The bill, of course, is only seeking to pick up the tail end of it. The Minister went on -
Persons holding licences were going round the country, telling intending applicants that unless those existing licensees gained some form of control over the station - assuming the applicants were successful in obtaining licences - those stations would not get programmes.
So the Government is realizing upon its own experience and outlook over four years. Why did it not consult the expert and experienced body, which has already put to the Government and to the Parliament the shareholdings and the interlocking of all these companies? The board members know the practical difficulties. It is quite obvious that the Government, in blundering on on its own, has fallen into some bad errors. Look at the vast number of amendments that have been made to the bill. They are very lengthy, substantial amendments, covering matters that ought to have been thought about.
– Is that not a good thing?
– It just shows that the preparation was ill-conceived and that the Government neglected a source of expert information that was available.
– Do you think that the Australian Broadcasting Control Board really has any expert information about things of the type covered by the amendments?
– I do. The board would undoubtedly have said, in dealing with the mandatory provisions relating to programmes, that if a person made a futile application, or an application that he should not make, the board ought to be in a position to award costs. The Government would not then have to go searching around to put an amendment in a bill that had had consideration since July, 1958.
– Are you assuming that private members have no sources of information?
– Would the honorable senator tell me how much the private members knew about this before it was presented to them as a fait accompli? If he can tell me that any private members had any say in this, I shall be very interested to hear about it. If he speaks, I hope that he will tell us what effect they did have. The board had nothing to do with it, and I say that the matter should have been referred to that experienced body. There has been consideration since 1958. A bill was introduced and not proceeded with in this place. The Government’s own experience has extended over four years. The Minister foreshadowed eight new amendments in the Senate. Many of these should obviously have been foreseen from the beginning. For instance, there is the position of the sole proprietor of a film. Under the bill as originally drawn, anybody could demand that the proprietor sell the film to him. Amongst the amendments is one that seems to me to be obviously necessary to protect a person in those circumstances. In view of the tribe of amendments in the other place and the tribe of amendments here, the Government could have been advantaged by a consultation or conference with the board. We think that the body that has been looking into all this interlocking, and that knows the difficulties and the practical position in the field of television as a result of its long experience, might well have been called in to advise on the adequacy of these new and extraordinary provisions. 1 support the amendment which Senator O’Byrne has moved on behalf of the Opposition.
The bill purports to re-define control. It says that control of a company can be exercised by any one holding more than 15 per cent, of the shares. It recognizes that control can be exercised through common directorates, and they are forbidden. It recognizes that control can be effected through trading arrangements. The Government has addressed itself to that matter, making certain exceptions, which are probably quite correct. I am not going into those matters now, as we will be able to have a look at them in detail when we reach the committee stage.
I admit that the bill makes an improvement in regard to those two matters. What is proposed is better than the present position, but it comes four years too late. This is a case of acting after the true monopoly has been established and is to continue. It was acknowledged by a Minister in the other place that there was no particular virtue iri selecting 15 per cent., and that it might well be that effective control could be exercised by a person holding 10 per cent, of the shares. At all events, 15 per cent, has been selected and it certainly is better than 50 per cent. We have to acknowledge that.
The vastly important matter of trusts is dealt with in the bill. Certain trusts, unless registered with the board within three months, can be invalidated. That is a very extraordinary power. On the face of it, it is foreign to Commonwealth powers. It is a power that primarily falls within the ambit of State constitutions. I do not want to pursue that matter now, because we can discuss it in the committee stage.
The third matter to which I wish to refer is the prevention of the monopolizing of films. The board can order a person .in control of a television film to make it available to the licensee of a television station on just and reasonable terms. Certain conditions are provided. A board hearing has to take place, for instance. After taking years to draw up this bill, the Government has already brought in three amendments on this matter. One of those amendments provides that the board can award costs for or against a party appearing before it. The Government also had to bring in an obviously necessary amendment to cover the position of persons who committed offences abroad and who could be made liable in this country by the presence of their bodies or their businesses. The Government has also provided for an appeal to the Commonwealth Industrial Court. I am not attacking any of those amendments. I am saying simply that they show that the bill was not properly prepared in the first instance.
In the few minutes that I have left I should like to say a few words about the constitutional position. I think it was Senator McKellar who said that the Attorney-General (Sir Garfield Barwick) had expressed himself as being confident that this bill would stand up to attack. I do not think Senator McKellar knows exactly what the Attorney-General said. From my own recollection, I think he said that one had to be very humble in expressing an opinion upon the constitutionality or otherwise of this measure, and that it was just as difficult to be right as it was easy to be wrong. I think he said that for what it was worth, his view was that the provisions of the bill would stand up to attack and that if the Government asked him to defend the bill, if it was challenged, he would be happy to do so.
– He has won more cases than he has lost.
– I have the greatest respect for his ability, but I think you will agree that he was most tentative in expressing an opinion about the constitutionality of this measure. He had good reasons for doing so. In the first place, television is not mentioned in the Constitution. The Government relies on the section that deals with postal, telegraphic, telephonic and other like services, and it would have to establish that television is such a like service.
– Nobody has tested die broadcasting power.
– It was tested in 1935, in Brislan’s case. A majority of the high court then held, to the amazement of a lot of people, that radio broadcasting came within the postal, telegraphic and telephonic power. It is interesting to note the constitution of the court to-day, compared with its constitution then. A dissenting judgment was given in that case by Mr. Justice Dixon, now Sir Owen Dixon, the very honoured and efficient Chief Justice. One would not expect Sir Owen Dixon to have changed his outlook. Of the affirming judges, only one is left. If both those judges preserve the viewpoints they expressed in 1935, they will cancel each other out. It is virgin country for the other justices who may have to address their minds to the question. I agree with the Attorney General that it is anybody’s guess as to what may happen. I think that that is what the Attorney-General meant.
We have a very limited and ill-defined power over companies. It has never been properly explored. We have no precise power over restrictive trade practices, to which the bill addresses itself. Tt is interesting to note that the Constitutional Review Committee made recommendations on television, corporations and restrictive trade practices. There is a vast amount of information in the report, which T hope we will discuss in this place when the Government has considered it. If honorable senators care to peruse the report, they will see the doubts that have been expressed and the reasons for those doubts, about the presence or absence of powers in relation to the three matters, upon which, very largely, the amendments rest. It may well be that if they are attacked, they will fall. I will be very sorry if that happens, although I think it may well be the case. If the legislation is attacked and the provisions restricting monopolies and so on are declared to be invalid, the Government may be galvanized into going to the people to obtain power to enact the provisions properly. I think it is quite certain that before very long these provisions will be attacked by some of the interests that will be adversely affected by the bill. If the provisions do stand up to test, I invite the Government to consider the logical proposition that they be extended to radio broadcasting. The Government will need to have a good look at the link-up in that field. I always talk for too long, but my time has run out. lt is not possible for me to go any further. I am grateful to the Senate for listening to me on the three matters 1 have discussed. [ look forward, at the committee stage, to a further discussion of details that cannot adequately be discussed at the present stage.
.- The bill before the chamber, as Senator McKenna has said, is essentially a committee bill because it embraces a number of dissociated matters of ordinary significance. However, in one respect at least it demands the best that we can give it by way of consideration. I refer to the significant division which deals with the experimental step of restricting trade monopolies. I find the approach of the Senate to the bill quite uninspiring, in the light of that challenge. I have listened closely to what the Opposition speakers - Senator O’Byrne, Senator Benn and Senator McKenna - have contributed. I cannot rid myself of the thought that the decision taken by caucus to support the amendment to the motion for the second reading was conceived in drink and executed in delirium.
Never have I heard even Senator O’Byrne descend to such confusion. In my most despairing moments I never dreamed that I would hear Senator Benn dredge the streets of Brisbane for the material that he contributed to this debate. Now we are confronted with a conundrum from Senator McKenna which may be a product of the issue between him and the honorable member for East Sydney (Mr. Ward), that seems, to be a continuous bone of contention. We are confronted with the hope, expressed by him at the end of his remarks, that if this legislation is attacked it will survive. Yet, he is opposing the legislation! What a stalwart, robust and progressive approach by the Leader of the Opposition to the onslaught of the Government on restrictive trade practices!
Let me indicate my approach to the provisions of the bill which deal with controls, the restriction of directorates, and other attempts to define the management of television licences. I remind myself that a television licence is the product of a government decision. Through a government agency - the Australian Broadcasting Control Board - there comes a recommen dation that certain persons should be licensed by the government of the day. Immediately, we are reminded that government licences are the very apparatus, the essential apparatus, of socialist control. I think that is unavoidable in the regulation of an industry such as radio and television; but never let us forget that when a government takes upon itself to authorize the legality of carrying on a certain industry solely because it licenses A and refuses to license B, it places A in a monopoly position, the very position that excited such constitutional contests at the time the first monopolies act was passed in the House of Commons in 1623. A television licence is a form of private property, but it owes its origin directly to a government grant. Therefore, I say that we need to be vigilant to see that that government grant of monopoly is not used for unjust enrichment or for control that is prejudicial to the public interest, by reason of the exclusive power that a government licensee acquires.
We remind ourselves that a government licence can be issued only on the recommendation of the Australian Broadcasting Control Board, and that that recommendation must be preceded by a public inquiry, at which the board is bound to give audience to all applicants who seek the licence. There are safeguards in those procedures. I am happy to see that in this bill, for the first time, there is provision for a disappointed applicant to have the right of appeal to the Commonwealth Industrial Court. I am also happy to assure Senator McKenna that the back-benchers of my party had a potent part in the introduction of that most important provision into this bill. With those procedures - first, consideration by an independent administrative body, such as the Broadcasting Control Board; secondly, a public inquiry; and thirdly, the right of a disappointed applicant to appeal to a judicial court - there is fairly satisfactory machinery to ensure that the selection of a licensee will be made on considerations of proper public interest and of justice. The existence of that machinery takes away from the granting of a licence, to a considerable degree, the distasteful elements of monopoly.
– Is not recourse to the court only in respect of the revocation of a licence, and not in relation to the application?
– Yes. The honorable senator is quite right. I was wrong in stating that provision is being made for an appeal against the refusal of a licence in the first instance. In that respect, a remedy still has to be pursued and achieved. The remedy against arbitrary revocation is the one I had in mind, and it is a salutary safeguard.
Having indicated the way in which a licence begins to operate, I point out that the bill provides that such a licence may be granted only to a company registered in the Commonwealth. No doubt the draftsman, in considering provisions that were being designed to control licensees, found difficulty in adapting language dealing with persons to make it also applicable to companies. I have no doubt that, for ease of drafting, the idea has occurred to somebody that only a company shall be the licensee of a commercial television station. I ask myself how consistent with my political point of view is the idea of these provisions hedging around ownership and control of directorates and programmes, and how consistent it is with my idea of free enterprise. I reflect that it is approximately 100 years since the British law for the first time,, authorized the creation of joint stock companies. During the following sixty years there was a theme that nobody’s liberties should be interfered with. Unrestricted freedom of the individual was the cry. Any seven persons, with seven pence in their pocket, could subscribe for seven shares of, say, one penny each, go along to the registrar of companies, and file a document of incorporation. They were then entitled to a certificate of corporation and could walk away with all the advantages of a joint stock company. In none of the State companies acts that I know of is it compulsory to fix the minimum amount of capital that should be subscribed to the company before it may commence business. That figure is left to the decision of the promoters, who fix such an amount as they think will attract the confidence of the public.
Turn from that idea as to the instability or possible instability of some joint stock companies to the idea that a joint stock company may incorporate another. The process of reproduction of artificial persons or entities from company registrations is not in need of advice from Senator Dittmer on the medical side or from Senator McKenna on the legal side. The complexities that arise in modern commerce by reason of the interaction between shareholdings of one company and another may lead to a good deal of concealment, sometimes chicanery and at all times the very antithesis of simplicity which should go along with most commercial transactions.
I mention those things because in my moodful way I have meditated for some years past as to whether the time is not overdue for some review to be made of the complete freedom with which persons, however impecunious, may form a joint stock company and try their fortunes with the public. At the present time the registrar of companies has no power to refuse registration. Registration is an automatic administrative act provided the documents are in order and have been signed by seven persons. The registrar is bound in those circumstances to issue a certificate of incorporation, giving the company its juristic existence. We have decided that companies meeting those requirements shall have licences for television stations. When you associate that idea with the licence of a monopoly such as a commercial television station it is appropriate that an endeavour should be made so to control, regulate or govern the ownership of companies that are licensees of television stations that they will not be able to utilize this most powerful medium authorized by the government irresponsibly or against the public interest. From what I heard of the Opposition’s argument it seem to me that the antipathy of honorable senators opposite to the idea of one person holding multiple licences is based on the fear that that person may have access to too many sources of profit. That is one aspect, but in the main to-day income tax should take care of that. The other aspect that seemed to emanate from honorable senators opposite is that multiple control of television licences is likely to vest great power of mass persuasion in .one group of persons. Senator McKenna did anything but make his case good on that basis when he made some inexact reference to the report of the Australian Broadcasting Control Board on the application for licences in Brisbane and Adelaide. Senator McKenna referred to the report in language that betokens not consummate experience, but a fair degree of inexperience. The report, when it commits itself to an opinion on the proposition that Senator McKenna would condemn, states -
There have been networks of broadcasting Stations in Australia for many years and in the opinion of the Board their activities have generally speaking been beneficial to listeners because they have enabled programmes to be produced on a scale which could not have been undertaken by individual licensees.
So we cannot overlook the advantages that come from existing businesses bringing in to the newspaper undertakings the main news channels from other countries and the fact that those undertakings are already regulated and established. They confer advantages to the cognate mediums of news transmissions, broadcasting and television. I am not here to voice smooth eulogies of newspaper proprietors as such, nor of reporters, any more than I should of Ministers.
– Do not go too far!
– I have gone far enough for that purpose. I have registered the idea. All I say is that I do not think they are much worse and, in all modesty, not much better than most of us. I dare say they have no more pernicious motives of profiteering than were exhibited by a commercial knight in a case with which we had some acquaintance not so long ago. Do not let us sneer at the profit motive. Consider then whether these provisions are made too late, four years after television has been introduced into the country. Senator McKenna would give the impression that the status quo is to remain. I direct the attention of the Senate, and of Senator McKenna in particular, to proposed section 92 (2.) which applies the provisions of this bill to existing licensees if they continue to maintain their constitution in disconformity with the provisions of this bill after 30th June, 1961. So the requirements exist that the remedies of this bill, if they are remedies, are to be applied to the constitutions of existing commercial television licensees. If they are not applied by 30th June, 1961, the present statute will have been contravened.
Let us consider how effective and how proper are the provisions of this bill for preventing monopoly ownership and con trol of government licences. Senator McKenna has reminded us that the bill provides that a licence is subject to the condition at all times during the currency of the licence that shares representing not less than 80 per cent, of the issued capital will be beneficially owned by persons each of whom is either a resident of Australia or a company controlled by persons who are residents of Australia. The bill endeavours to be much more specific by trying to improve upon the juristic conception of control which, as Sir Garfield Barwick has correctly said, was the basis of section 91 of the principal act. I hope he has endeavoured, not consciously but from his experience of the de facto situations in the matrimonial causes legislation, to define de facto control. This appears in proposed new section 91 (2.) and it invites my repeated study -
In this Division, “control” includes control as a result of, or by means of, trusts, agreements, arrangements, understandings -
I wonder how that will go at the fireside as between husband and wife if the husband controls one company and his wife controls another - and practices, whether or not having legal or equitable force and whether or not based on legal or equitable rights.
There is a very wide net, and it is a question of whether the rope has not thinned into the weakest tissue on the .periphery of the net. It is not for me, though, with the idea of the reform before me, to question the efficacy of the master. Assume the efficacy and if the expression of the purpose is good, then let it be! Proposed new section 92 provides - (1.) A person shall not be in a position to exercise control, either directly or indirectly, of -
We have been reminded that the word “ person “ still refers to “ company “. I suppose that a “person” there is strictly confined to the singular, although the Acts Interpretation Act says that unless the context otherwise indicates the singular includes the plural. Nevertheless, the provision is that a person shall not be in a position to control more than two television companies in Australia. Well, suppose a company consists of ten business men, all of whom are of comparable power and wealth, and that they subscribe equal amounts to the organization. I ask my mathematical instructors to tell me how many permutations you can get by taking ten companies registered in various degrees. It will be difficult to distinguish company A from company B in some circumstances, or to say that whether company A which gets a television licence in one locality is not controlling, by an understanding between persons, company B in another locality. There may be a loophole for evasion in that respect, but everybody seems to agree that it is a proper reform to confine the control by a person in relation to this type of property to not more than two television companies. The next thing that the bill does is to provide that a person shall not be a director of more than two companies each of which is in a position to control a different licence. There again, that is not in itself self-sufficient, but it is a step in the direction of preventing monopoly control.
The next provision is that a person shall be deemed to be in a position to exercise control of the operations conducted under the licence if he is in a position to exercise control of the management of the station in respect of which the licence is in force. So there is a prohibition against a person having control of two or more companies. Of course, it would be difficult indeed to police this prohibition and to detect offences, but the mere existence of the law upon that subject will in itself be some deterrent to the aggregation of interests relative to television licences to the one management.
I come now to the fourth provision, which is an attempt to curtail arrangements as to programmes. In my view, simple though it may be, this may be something which is different from the licence for a television station - the product of a government decree. Some television programmes may be the product of the most depraved mentality but in most cases - I accept Senator Hannan’s more experienced assessment - they are products of very great and often of delicate skill in no way owing their origin to a government decree. It may be a play of rare, even unique literary quality - something beyond price - and we are to ask the Australian Broadcasting Control Board - with I hope fitting solemnity - to sit in judgment in the matter. If one of the favoured few selected to receive television station licences informs the board that he wants to use that special item in his programme and says to it “ Issue an order against that author and tell him to make that play available to me-
– On just terms.
– If the board so orders, he must make it available on reasonable terms and conditions. I do not think that the phrase “ just terms “ is used. It has been said to those who have been good enough to hear my criticisms on these matters that the orders shall not be addressed to the author himself, but I remind the Senate that proposed new section 105a provides -
The Board may, upon the application of the licensee of a television station, by order addressed to a person who -
I cannot see in that provision any exemption in favour of the original author. It seems to me as though that provision gives the Broadcasting Control Board the right to arrogate a television film for any person who, by virtue of ownership or otherwise, has the right to request that that television film shall be made available.
– Would not the author be entitled to his royalty?
- Senator McCallum asks me whether the author would not be entitled to his royalty. Well, in such a case I might be so vain as to think that mv royalty should be similar to that which, I regret to say, some people were misguide.! enough to pay for “ The Summer of the Seventeenth Doll “.
The DEPUTY PRESIDENT (Senator the Hon. A. D. Reid). - Order! In conformity with the sessional order relating to the adjournment of the Senate, I formally put the question -
That the Senate do now adjourn.
Question resolved in the negative.
– That is my point. One of these plays may hit the market and be a howling success, while another may be as profitable as Milton’s “ Paradise Lost “. But are we going to stand for the principle that the Australian Broadcasting Control Board should be given the power to say that the price for a certain film or other piece of material shall be what it declares to be reasonable?
– The word “ just “ is included in the provision.
– Thank you. I am reminded that the phrase is “ just and reasonable “. As I am being reminded of this, let me quote the whole of this significant and unworthy phrase - being terms and conditions that appear to the Board to be just and reasonable in all the circumstances.
This is the phraseology of the pseudodictator. lt is a product of the peculiar brand of Canberran draftsmanship that results in legislation which, instead of prescribing a rule of law, leaves the matter in the hands of the board. The decision is made according to the way in which the matter appears to the Australian Broadcasting Control Board. The board does not even have to be satisfied that the terms are just and reasonable; the provision is simply that they should appear to the board to be just and reasonable. If they appear to be just and reasonable, then no court of law could revise them, were it not for the appeal provisions, which Senator McKenna would be interested to learn, if he were here, were again a product, in some degree at least, of the efforts of back-benchers on the Government side. An appeal is now available which is not limited simply to determining whether or not the Australian Broadcasting Control Board properly applied its mind to the matter.
Proposed new section 105a, sub-section (10.), provides that the Commonwealth Industrial Court shall have power to decide whether or not, in its judgment, the terms and conditions specified in the Australian Broadcasting Control Board’s order are just and reasonable in all circumstances. Because of the provision for this appeal, these unworthy phrases regarding terms and conditions which appear to the board to be just and reasonable have lost much of their effect. One derives a measure of satisfaction from the thought that the court may review the assessment of the board. But I am here to deny, until evidence demonstrates that I am wrong, that in all the circumstances justice is done to the private producer, author or entrepreneur having the right to make a television film available at will, if he can be ordered compulsorily to make such a film available toa television licensee at a price or on terms that the board, or, after an appeal, the Industrial Court, thinks just and reasonable. No honorable senator of the Australian Country Party would allow his crop to be sold for what the government valuer in the district says it should be sold.
– We had to do it with our wool for years and years.
– Well, I may be wading into deep waters.
– I have been listening with great patience to the honorable senator’s remarks on something he knows very little about.
– Well, I know something about wool other than that which hangs over my eyes, and all I am saying is that on a reasoned outlook the woolgrowers of this country would not allow their product to be expropriated at a price which some government authority or the Industrial Court said was just and reasonable.
– They had to do so in war-time.
– After the war they very thoughtfully, and as a result of an aversion to the socialism introduced during the war, decided to regain their private enterprise system. But do not let me get too far afield. I merely want to say that the author of a television film should have our consideration. I have yet to be persuaded that we should stand for a system under which his right to private property - and property which is peculiarly and personally his own in such cases as this - should be invaded, and that property should be expropriated at a price fixed by a govern* ment board, or, after appeal, by the Industrial Court. I hope to hear from the Minister with regard to the justification for that provision in the committee stage.
I remind the Senate that the Australian Broadcasting Control Board is obliged to listen to any reasonable objections set up by the author. It has been made clear to us that if the applicant wants to use the film or other material in an area coinciding with the area covered by the author, or if he wants to forestall the showing of the film by the author in point of time, or if he wants to cause a breach of a reasonable condition imposed by agreement by an advertiser, any of those circumstances shall, as a matter of law, be considered a reasonable objection. The Minister for National Development (Senator Spooner) has announced that he intends to submit an amendment to the effect that the author - I use the term as a shorthand expression in this connexion; ii may be any other person who has the right to dispose of the television film, by virtue of ownership or otherwise - may be regarded as having a reasonable objection if his objection is not based on an intention or an attempt to obtain for himself, either alone or in association with any other person, control of the management or selection of the programmes of any television station or stations. This ensures that the owner may have a reasonable objection if his intention is not to corner the market. Well, I say with bated breath that it was the intention to injure the public interest that constituted the hurdle at which the old Australian Industries Preservation Act fell down and ceased to be an effective instrument.
I say this not because I disapprove of the spirit of this amendment - in fact I think it is generally a welcome one - but to remind the Senate that programme management by the means proposed in the bill may be ineffective. If it is, that will not displease me, because I believe that an attempt to arrogate this species of private property, distinct as I say from the Government property in television licences, is unjustified by any evidence that has been submitted to this Senate to show that in the arrangement of programmes there has been a cornering of television operations prejudicial to the public interest.
With these reflections I leave the question of monopoly control and this most interesting experiment in coping with that problem. It is interesting because of the constitutional basis that may or may not exist for it. It is interesting because of its complexity. lt is interesting because of this device of using the joint stock company as the sole medium of control, which in itself creates innumerable loopholes, and it is interesting because it attacks shareholding directorates, management and programmes. When we add the provision that attempts to invalidate any trust which is created either in writing or orally, other than by will, unless it is notified within three months of its creation, not to the Australian Broadcasting Control Board but to the company, we have a piece of legislation which I hope will be appropriately debated in committee. I express that hope because I think the Senate ought to take a very thoughtful view of the justification for the provision as to trusts and the justification for the provision as to programmes.
Passing from that chapter of the bill, 1 want to mention only four others, and 1 shall just mention them as matters which will engage my interest in committee. I notice that the bill contains provisions for disqualification of members of the Australian Broadcasting Commission and the Australian Broadcasting Control Board. I notice that the provisions for suspension of members, upon which this Senate got into most heated debate in 1956, have been dropped. I think that before the committee stage is concluded we shall want to know something about what the Government proposes with relation to the suspension of members and the review which either House of Parliament may have over an executive act of suspension.
Senator McKenna raised a matter relating to staff. I refer in particular to that part of Senator McKenna’s speech in which he said that we are to have staff rules which will be made in the office of the Public Service Board or the Australian Broadcasting Control Board and may never see the table of either House of Parliament and are not in any way subject to our review. That endeavour to secrete provisions in relation to an important part of the Public Service will have to be justified.
The next matter to which I refer is the provision that broadcasting companies are to keep for six weeks a record of all matter relating to a political subject or a current affair. If a horse race is run and the jockey is brought before the stewards, the
Way in which the commentator has described the race may be an important piece of evidence. That horse race is a current affair. Again, if there is an outbreak of the disease of brucellosis in an area and if some comment is made in the news about the attention given by the local veterinary officer to it, that officer may think that the comment is a reflection upon his reputation and that, too, is capable of being brought before the court in a case for defamation. That is another current affair. In effect, this bill requires the recording of all programmes of the broadcasting and television stations and the retention of the recordings for six weeks or such period as the Minister may direct.
Another provision which I think requires a little consideration is that which says where any of these matters is of sufficient historic interest to justify the record being permanently preserved, the Minister may direct any person who has custody of the record to deliver it for safekeeping. There is nothing specified as to the terms upon which it is to be delivered, or anything of that sort. Are ye modern Churchills to have expropriated the records of your speeches for the historical archives without any access to them which may fill the pockets of your children as Churchill’s earnings have?
Lastly, I mention the lodging-house keepers’ licences. I am interested to note that we are to ask for a licence-fee with respect to every broadcasting outlet in the lodging house and every television set in the lodging house. I am not expressing any opposition to that. I think there are considerations to be kept in mind, but it is a matter which, in justice to those upon whom the service fee is to be imposed, should be debated publicly. I am credibly informed that the hotel keepers’ association had no knowledge of this provision until one day last week. I repeat I am not expressing any opposition to the proposal; I am merely using this floor of Parliament, which I jealously appreciate, as a place on which there can be public debate on matters which affect the public.
I hope I have made it clear that I regard this as an occasion when the Government has seized a great opportunity to give practical evidence of the real purpose which is entertained by honorable senators on this side. I refer to our principle of supporting a system, not of free enterprise unlimited, but of free competitive enterprise sensitive of the fact that we create property by government licence and that it is necessary to surround that property with safeguards so that the monopolistic aspect of it cannot be used with prejudice to the public interest. We are sensitive of the fact that we must also safeguard those things which are inherently personal property and ensure that they are not expropriated by public agencies unless national interest demands that this should be done; and that in such case they are expropriated only on such just terms as a court would fix. In that sense, I support the bill.
.- Senator Cole and I, representing the Australian Democratic Labour Party, will vote for the amendment which seeks to defer consideration of this measure. We shall do so for a number of reasons. First, we feel that this is a most complex measure and that the bill, when placed before us, should be accompanied by explanatory notes to assist honorable senators in considering and discussing it. Secondly, we think that there are most profound objections to bringing a bill of this complex character before the Senate with such limited opportunity for discussion. While it is being presented to us, we see blazoned in every newspaper in the Commonwealth the statement that consideration of the bill must be completed in time to enable the Senate to rise next Thursday. That procedure was objectionable enough in connexion with the Matrimonial Causes Bill, and we feel that a protest ought to be made before this kind of thing becomes a regular practice.
We also oppose the bill because no steps have been taken by the Government to remedy the very great injustices that are suffered in Australia by minority parties during the course of federal elections. I have said on a previous occasion, and I repeat, that it has always been considered fundamental in a democracy that candidates for the national legislature should be placed upon an equal basis. We are always told that all candidates are equal before the electors. Most stringent provisions are made against any favoritism to any candidate or candidates. It would be abhorrent to anybody in a democratic community if propaganda were to be printed for certain candidates at the public expense. Nobody would support a proposal that preference be given to certain candidates on ballotpapers or in other ways. We pride ourselves as a democracy upon our belief that all candidates are equal before the electors, but at the same time we condone a system under which free broadcasting and television time worth thousands of pounds is made available to certain groups of candidates while other candidates do not receive that advantage from public funds.
– Is there any provision in the bill affecting that matter?
– There are provisions in the Broadcasting and Television Act in relation to the allocation of time. I am opposed to the bill because it does nothing to remedy the existing situation. Recently a protest was lodged in relation to the Queensland State election. One group of candidates was heavily penalized while the Australian Government, through the Australian Broadcasting Commission, made propaganda time of considerable value available to certain candidates, to their advantage, but not to others. During the last federal election campaign, my party was not allowed sufficient time for our leader to broadcast his policy speech, while the Government parties and the Australian Labour Party were given one hour to broadcast their policy speeches and were then permitted, out of the public funds, the opportunity to broadcast night after night, for three weeks before the election, at a time when most people would be in their family circles and when the speakers could reach the electors, while that privilege was denied to other candidates. During the La Trobe by-election campaign, the Australian Broadcasting Commission made available half an hour to the Leader of the Opposition in another place. In that half hour, he was questioned by a panel. He was allowed to make references to the by-election and he was given an opportunity to deal very tren chantly with the party to which I belong and which was fielding a candidate in that election. When the Democratic Labour Party, making no objection to his being given that opportunity, applied for an equal opportunity to put its case, it was denied that opportunity. I believe that if we are a democracy we ought to see that all people who stand for Parliament receive equal treatment. I understand that the contention is that the right to allocate time has been given to the Australian Broadcasting Commission, on the ground that it will be impartial. I have no desire to say anything derogatory of the members of the commission, but in my experience it is a very unusual public instrumentality that does not take notice of what it thinks will be the views of the Government or the potential government.
Looking at other countries, we find a different situation. I have endeavoured to ascertain what is done in certain other countries. I am told by the office of the United Kingdom High Commissioner that in Great Britain arrangements for allocation of broadcasting time during a general election compaign are agreed upon beforehand with the main parties. The leaders of the parties are consulted and the matter is not left to a commission. I am told that in New Zealand the allocation of broadcasting time is determined by the government of the day in consultation with other political parties. It is stated that in Canada the corporation covering broadcasting sets aside some free time on the national networks to provide for adequate presentation of policies and the parties are asked to agree mutually on the division of the time. I think the attitude of the other great dominion is probably the best of the lot, because I am informed that during the recent general election campaign in South Africa no broadcasting time was made available to any political party, government or otherwise. South Africa may not have a reputation for democracy in another direction but it is certainly standing by democratic principles in that respect.
In the 1955 election campaign in Great Britain, the last for which I have figures, the Conservative Party was given 80 minutes to cover 50,000,000 people. In a federal election in Australia, the Government gets four hours to cover 10,000,000 people, and the main opposition party gets four hours. I suggest that that is an extremely long time to be made available only to certain groups of candidates. In New Zealand, fourteen broadcasts were given to the Government and fourteen to the Opposition, while seven were given to the Social Credit Party, a minority party similar to my own. New Zealand certainly does not adopt the attitude that is adopted on occasions by the Australian Broadcasting Commission which, in Victoria, where my party can get one-seventh of the votes, generally allocates us about one-fifteenth of the broadcasting time. Some senators may say that I appear to be rather warm on this matter, and 1 agree that I am. After all, in an election campaign we drive ourselves while other prominent figures are driven in government cars. We pay our own expenses while some other personalities receive £12 or £10 a day. We stay up late at night working out our newspaper statements, while other people have publicity officers, paid by the Government, to assist them. When, on top of that, we are not even given sufficient time to broadcast our policy speech while other parties have so much time that they have difficulty in getting speakers to allocate to the vacant times, we cannot help feeling that these stories about our having a democracy where there is equality of opportunity ought to be looked at. My view of it is that a political party that is represented in the Parliament, that is putting up a sufficient number of candidates, say in 50 per cent, or 75 per cent, of electorates, and that will put up candidates in every seat at the next federal elections, is a political party that is recognized. Why not broadcast the policy speech of ail parties and if they want extra time, let them pay for it? If we have over 100 candidates in an election, as we have had on occasions, with other parties having not many more, why should they get four hours while we get only 45 minutes? I see no reason for that. The Government ought to introduce the same kind of custom that exists in Great Britain, New Zealand and Canada, whereby the leaders of political parties are consulted. Furthermore, I think that a very worth-while reform would be for the
Government to say to the parties, “ You can have an hour each to broadcast your policy speeches and you must pay for the rest of the time on the commercial stations “. That would be fair play.
There is a provision in the Electoral Act which limits the expenditure by each candidate. I do not know to what extent it is observed, but I suggest that all political parties may shortly have to consider putting a limit to the amount of money that political parties can spend on television. 1 have had some experience as an organizer of elections. I know of an election some years ago when one of the big parties federally - quite apart from the States and individual candidates - spent £78,000. If charges remain as they are at present, it will cost from £250 to £300 for a telecast lasting for a quarter of an hour. In view of the impact that television can make upon the electors, all parties will want to use it. If one party decides to use television, the others will want to use it to the same extent. I am prepared to say that if that happens, political parties will be up for huge sums at elections In a number of cases, they will not be able to find the money to pay the huge cost of television time. Television. I repeat, is going to have an amazing effect in the electoral field. 1 hope the situation will not be reached where political parties, in order to put their cases, will be called upon to spend huge sums of money If it is good enough to limit the amount that a candidate is supposed to spend, it is good enough for all parties to agree to limit, to some extent, their expenditure on television
I come now to the subject ot programmes, which has been discussed by some speakers to-night. I regret to say that I do not support those who think that the present programmes are what they should be. In my view, since advertising upon television has virtually filled up all the available time, there has been a deterioration in the standards of the programmes presented. Although there was a commendable spirit of enterprise in regard to programmes in the early days of television, the indications are that that spirit of enterprise is disappearing. On some nights you will see in some instances only one live section of the programme. On occasions virtually the whole evening is taken up with films, usually of an inferior quality. It seems to me, therefore, that we will have to do something to try to stimulate enterprise in television programmes. On a previous occasion I suggested that one way to stimulate television would be to have more stations in the big cities. One of the reasons for the high standard of radio programmes is that there are a number of stations competing with each other. When I made the suggestion that there should bs an extra television station in each of the main cities, I pointed out that it was becoming practically impossible to buy advertising time from the big television stations in the capital cities. I am referring to advertising of a fairly extensive character. I was dealt with very severely by some sections of the press for making that statement. It was suggested that there was plenty of opportunity for people who wanted to advertise.
– At three o’clock in the morning.
– At three o’clock in the morning perhaps. In order to show that saturation point has already been reached in advertising on the existing stations, allow me to state that in the “ Radio Television News “ there appeared a big advertisement by the London Stores - one of the biggest stores in Melbourne - in which the company stated -
When it was not possible to get a TV channel last year in which to present the show, we took it off the air. We tried to reserve TV time again this year, without success, and when this was known, there was no hesitation on our part in putting the programme back on 3UZ.
– Was that an Australian show?
– Yes. If you speak to people in the advertising industry they will tell you that saturation point has been reached to-day in advertising. If there is saturation, and if the programmes are deteriorating, I suggest once again that one way in which to improve things would be to have an extra television station in the main capital cities.
Like Senator Hannan, I was impressed with the submission that was sent to all of us by Mr. Hector Crawford. He has an interest in Australian productions, but in his submission he put forward very sensible and worthwhile suggestions as to what should be done to put an Australian content into our programmes and also to improve them. I know that some people and some stations have said that we have not the artists in this country who could put on really worthwhile Australian shows that ‘the public would view. The only way to attract artists and develop their talent is to give them an opportunity. While we adopt the attitude that we have only a few artists here and that we will not give them an opportunity, we will continue to be without enough artists.
– We have lost a lot of artists to London.
– Many of the best Australian artists, because of lack of opportunity here, have gone to London and other places abroad. I believe that artists are here, and that all they need is the opportunity. A great deal more can be done than even this bill proposes to do to give Australian artists that opportunity.
It is true, as Mr. Crawford says, and as others have said, that some American films are being sold here at dumping prices. It is more essential now than ever before for us to set up an Australian film industry in order to provide our own films for our programmes. There are a number of ways in which that can be done. I should like to see the Australian Broadcasting Control Board and the Australian Broadcasting Commission press for a greater Australian content in the programmes. I would support a quota system. I think that kind of thing would give an impetus to Australian programmes. I do not see why the Australian Government should not give financial assistance to those who are prepared to develop an Australian film industry. It will be essential to give that assistance if the necessary job is to be done. The commercial broadcasting companies anticipate that their revenue for 1958-59 will be in the region of £9,000,000. I do not see why a small percentage of that money should not be allocated for the purpose of assisting Australian productions. If we want to do it, we can. I am afraid that so far the situation has been that powerful influences have found it easier to buy inferior American films and screen them for half an hour or for an hour. These powerful influences have done so well in that way that the suggestion that we should develop a real Australian content in our programmes has not got very far. 1 want to comment on the violence of television programmes. On some occasions when I am watching television I am appalled to sec that the method of starting a fight is to use what we in Australia know as a king hit. Not only criminals, but also members of the police force, are shown attacking somebody without a word of warning. The person attacked is knocked down, and1 while he is lying on the floor unconscious he is picked up, held with one hand and bashed with the other hand. I think that that kind of thing ought to be stopped. I realize that there is violence in in the world and that people cannot be shielded entirely from it. I appreciate that it may be necessary for that kind of thing to be shown on occasions, but when such a scene is shown night after night and sometimes two or three times on the one night, and is watched by children, there are grave potential dangers in it, and I think that something ought to be done about it. 1 approve of the provisions of the bill that are designed to curb monopoly practices. The Government is taking the first steps towards the programme for restricting monopoly which it has promised us, and I do not think we should do anything to discourage it. I am extremely doubtful, however, whether the Government is going to have a very easy passage in the implementation of those provisions. I think - it has almost been predicted in this Parliament - that they will be the subject of legal challenge. Even if they are not, I have the greatest respect for the ability of some of the forces who will want to get round them, to get round them in some way or other. However, as I have said, the Government has done the right thing in at least making an attempt to control monopoly, and I shall support those provisions. I hope that if they are introduced they will do everything that is necessary.
On the question of licences, it has always seemed to me a strange thing that it is not necessary for a person who obtains a licence for a radio station to operate that station. In Victoria, we have the amazing situation that one radio station - station 3KZ - has never been operated by the persons to whom the licence was given. I understand there are provisions to the effect that renewals of licences have to be approved. Station 3KZ has been in operation for 30 years and has never been operated by the persons holding the licence. The licence was given to the Australian Labour Party in the 1930’s, a time of depression. The party had no money and had to lease the station to a commercial advertiser, who has run it ever since. The point I want to make is that surely it should not be possible for a licensee to avoid the obligation to run his own station for such a length of time as that.
I remember that some years ago an attempt was made by the stations in other States controlled by the Labour Party and the trade unions to get the persons operating station 3KZ in Melbourne to come into line with them, because they would then have had an all-Australia hook-up, which would have been of great financial and propaganda value. 1 was one of those concerned in the matter. Although we brought to Melbourne the manager of the Labour station in Sydney to address the 3KZ people on the mutual advantages that could be obtained if they operated the station themselves and brought it into an all-Australian hook-up, they refused to do it. I do not suggest for one moment that the licence ought to be taken from them, but I do suggest that the Australian Broadcasting Control Board, after thirty years, ought to say to the Industrial Printing and Publicity Company Limited, which is controlled by the unions and the Australian Labour Party, “ It is about time you ran your own station “.
I believe that, in the case of all licensees, it ought to be a condition of holding a licence that the licensee must run the station himself and not lease it. Afer all, a television or radio licence is a very valuable thing these days. It would be most undesirable if people could obtain a licence for a station and immediately sell it to somebody else, in the way that some people sell taxi licences and bus route licences the day after they get them.
I think that Senator McKenna was on very sound ground when he said that there was a feeling of profound dissatisfaction among sections of the staff of the Australian Broadcasting Commission. I should like to hear from the Minister a statement of the improvements that will be effected by the new provisions in regard to staffing. When one hears, as one does, many disturbing statements about conditions inside the commission, from the staffing point of view, we want to be satisfied that the new provisions will be just to the existing staff and will bring about a degree of satisfaction which certainly did not exist a month or two ago.
The bill provides that section 43 of the principal act is to be amended by omitting sub sections (4.) to (7.). Sub-section (6.) provides -
Appointments to positions which are open only to persons who have passed the prescribed entrance examination shall be made in order of merit of their passing the prescribed examination. .
Sub-section (7.) of the act provides -
Adequate notice and particulars of the prescribed entrance examination shall be given by the Commission to the public, by advertisements in the Gazette and the daily newspapers and by announcements from the national broadcasting stations.
In my view, those are very desirable provisions. As we all know, they are the kind of provisions that were inserted in legislation years ago with the object of avoiding the possibility of people obtaining jobs because they knew somebody, or went to a certain school, or did not go to a certain school. I have always believed that such provisions should be maintained. Heads of departments may at times feel that they would like to have the right to tell one person to go here and another to go there, but I think that the cause of justice is best served by providing that appointment shall be on merit.
I do not see in the bill any other provisions which cover this aspect. If there are such provisions, and I have not noticed them, I shall be very happy to have them brought to my notice. I have referred to the matter because last year a very retrograde step was taken. In the case of the Reserve Bank, provisions prescribing appointment by merit were removed from the banking legislation. A week later, in the case of appointments to Trans-Australia Airlines, provisions relating to appointment by merit also were removed from the relevant legislation. I hope that I am wrong and that I shall be corrected on this matter. I shall be very happy indeed if I am wrong, but if it happens that I am right and that the provisions have been taken out and no provisions of equal force put in their place, I shall register an emphatic protest.
I know all the arguments about allowing the man in charge to pick the best people tor the job. I can understand that in an organization like the Australian Broadcasting Commission those in charge must have a free hand to choose artists who will appear before the public. But in the case ot administrative officers who merely hold positions in an office, I say that the safest and best way and the way that gives most satisfaction to everybody is to have a system of promotion by merit. 1 hope that this matter will be referred to later by Senator Spooner. I hope that I am wrong, and if I am I will be happy to apologize. Last year, in the case of the Reserve Bank, promotion by merit or examination was abolished. A week later the same thing happened in the case of Trans-Australia Airlines. I want to be assured that the trend will not be continued in the future.
Senator Sir NEIL O’SULLIVAN (Queensland) [11.22]. - Before addressing a few remarks to the bill I should like to contest one or two submissions made by Senator McKenna, particularly his allegation that the Government rejected the report submitted in July, 1958, by the Australian Broadcasting Control Board. That allegation is not correct. The findings of fact by the board were accepted by the Government. Where the board went astray and attempted to interpret government policy, the Government refused to accept its findings. The board had no function to interpret government policy. The board’s inquiry was a fact-finding inquiry and all findings of fact were accepted by the Government. The Government did not accept the board’s interpretation of government policy which is dealt with in paragraph 135 of the report of July, 1958.
I listened with interest to the remarks of Senator McManus in connexion with the broadcasting of political speeches and I commend his remarks to the serious consideration of the Leader of the Government (Senator Spooner). I think that Senator McManus’s remarks hold substantial merit and I trust that they will be considered by the Government.
I propose to support the motion for the second reading of the bill. The bill is an earnest and well-considered attempt by the Government to cope with and rationalize this very forceful means not only of entertainment but also of propaganda. Subject to some few reservations which I shall state later, I believe that the Government has done an excellent job. I am very pleased that in another place amendments have been accepted ensuring that the rights of individuals will be preserved according to the rule of law and will not be determined in a back room. During the committee stage I will have more to say on the clauses to which I have objections.
I am pleased that private hospitals will not be prejudiced in the administration of this measure. Proposed section 11 7a states - (1.) Where the Commission or a licensee broadcasts or televises matter relating to a political subject or current affairs, being matter that is in the form of news, an address, a statement, a commentary or a discussion . . .
That proposed sub-section does not refer to a description of a football match or a cooking demonstration, lt is confined to matters of a political nature and I have no quarrel with that provision.
The bill provides that if a broadcasting station - I presume this will refer also to a television station - allows time to the spokesman of one political party it must also allow time to spokesmen of other political parties. Newspapers have an opportunity to see the written word and as a rule they have time to get legal opinion on whether the contents of the submitted article breach the law of defamation. But this is not so in the case of broadcasting or television because even if a script is submitted, there is nothing to prevent the spokesman from departing from the script. With all the good faith in the world the owner of a broadcasting or television station could be held liable for defamatory remarks so uttered. I think that some protection should be afforded to broadcasting and television stations that- can establish good faith and lack of malice in such circumstances.
I come now to proposed section 92b. I am as keen as anybody to eliminate or con trol the evils that flow from monopolies or restrictive trade practices, but with all the goodwill in the world I cannot satisfy myself as a question of reality that ownership of 15 per cent, of shares in a company is evil and ownership of 14.99 per cent, is good. I do not think that the evils that flow from monopolies or restrictive trade practices can be measured arithmetically by percentages or proportions. It may well be that people owning 100 per cent, of the shares in a company are the most benign and philanthropic people in the world, whereas others owning 5 per cent, or 6 per cent, of shares in a company, if they are dynamic and forceful, could be most evil. The evil does not flow as a matter of arithmetic or percentage. Therefore, unless I am reassured during the committee stage, I propose to oppose the insertion of section 92b in the act.
I earnestly suggest that the Government should provide that such agreements as may be prescribed by the Minister must be registered in a court such as the Commonwealth Industrial Court. In this regard I suggest that the Government should follow the procedures laid down since 1956 in England under the Restrictive Trade Practices Act. That act is described as an act to provide for the registration and judicial investigation of certain restrictive trading agreements and for the prohibition of such agreements when found contrary to the public interest. 1 suggest that, regardless of the percentage of shareholding or voting power, if in fact any agreement is entered into which is prejudicial to the public interest it should be set aside after due judicial process. Under the English act the onus of proving that the agreement is in the public interest is on the parties to the agreement. A special court, known as the Restrictive Trade Practices Court, has been set up in England to deal with these matters. In Australia we refer such matters to the Commonwealth Industrial Court.
There seems to be a tendency by some of us to divide the world into two sections - one with haloes and the other with horns and hooves. The haloes belong - sometimes fittingly perhaps - to the heads of boards appointed by governments; the hooves and horns belong to those associated with the press. I do not know why that tendency is abroad, but that appears to be the situation. Honorable members may remember that, in March, 1959, Senator Kennelly moved the adjournment of the Senate for the purpose of discussing a definite matter of public importance, namely -
The granting of television licences and matters incidental thereto.
During the course of that debate, on 11th March last year, the Minister for Repatriation (Senator Sir Walter Cooper), as spokesman for the Government, had this to say -
In considering the extent of newspaper companies’ interest in television licences, we must bear in mind the fact that the cost of establishing metropolitan television stations is very great. I think that every one will agree with that contention. In Sydney and Melbourne, the cost was found to be about £1,000,000 for each station. The stations in the other mainland capital cities will require initial capital of about £700,000. It follows that only companies of substance are in a position to undertake the establishment of television stations. Modern newspapers are necessarily very large organizations, with substantial capital, and hence they are in a position to invest in companies holding television licences.
An analysis of the applications for licences in the capital cities will disclose that if newspaper organizations were entirely eliminated from consideration, the most substantial elements of the application would often disappear. If any one is investing his money, he wants to know who is going to be at the top of the organization in which he invests. He wants some one there who knows how to run such an organization. In Melbourne and .Sydney, newspaper organizations have shown that they do know how to run television stations and make a success of such ventures. There is no doubt that newspaper organizations will make a success of television in Brisbane and Adelaide also.
It will be noted that the public hold the greater proportion of the shares in most of the companies to which licences have been granted. This is a most desirable state of affairs. It is more than likely that this result would not have been achieved if the stability and substance provided by the contributing newspaper organizations had been eliminated.
I understand that before the licences were granted in Brisbane, the two successful applicants - Queensland Television and Brisbane Television - complied most punctiliously with every request and requirement of the responsible Minister and the Australian Broadcasting Control Board. On the strength of these actions by the prospective licensees, a prospectus was issued by each company and about 5,000 shareholders took up shares. About 50 per cent, of the capital was subscribed by the public in the faith, knowledge and belief that the news paper organizations, with their know-how and stability would have a substantial voice in the running of these stations.
I do not know what effect this legislation will have on ‘those investors. If the influence of the newspapers is to be restricted in the control and management of television, will the public feel that they have been let down by the Government in view of the pronouncements that have been made from time to time by the Government, and in view of the fact that the terms and conditions laid down by the Government have been faithfully and honestly observed? If the newpapers or any one of them are, in fact, indulging in practices which are unfair to the public, by all means let us have them restrained and those practices eliminated. But the provision defining control of a company as the holding of 15 per cent, or more of the shareholding could well be taken as a precedent by subsequent governments which might not be as keen on private enterprise as is this Government. Although this provision is to be applied to commercial enterprises operating under the grant of a government licence, subsequent governments might claim that 15 per cent, of the shareholding has been laid down by this Government as a mark? That might well have a deterrent effect on the investment of overseas capital in Australia.
There are people overseas who have a much keener and more sensitive feeling for private enterprise than perhaps some of us have, yet they are quite prepared to face up to reality. If, after the due process of law, it is found that a monopolistic practice or a restrictive trade practice is prejudicial to the public welfare, they are quite prepared to abide by a judicial decision, but they do not like the idea of having percentages and proportions determined by somebody in a back room, elected by nobody and answerable to nobody. That is all I have to say at this stage.
– It is my responsibility on behalf of the Government to say that the amendment that has been moved by Senator O’Byrne on behalf of the Opposition is not acceptable to the Government. Indeed, I go further and say that I see no virtue at all in the amendment. After all, this bill is designed to lay down legislative boundaries for the future upon matters that are of importance and substantial in principle. These are big questions because they involve such matters as the limitation of the extent to which companies can become involved in television stations, the staffing arrangements of the Australian Broadcasting Commission and the cornering of programmes.
The point of view I put to the Senate is that it is the task of the Government to decide matters of policy of such importance. Generally speaking, a statutory body is established to carry out in an efficient manner a policy enunciated by a government. It is not the function of a statutory authority to decide questions of policy. In saying that, I do not mean that a government or an administration should ignore the views of statutory authorities; nor am I to be taken as saying that this Government would not accept the advice and the assistance of a statutory authority.
This proposal is in a different category altogether. The Opposition proposes that we should obtain from the Australian Broadcasting Control Board its views on the practical effects of the Government’s policy proposals. I ask in all sincerity: What contribution could the board make to the practical effect of these proposals? They are intricate matters of company law. They are intricate matters of law generally relating to the cornering of programmes. The board could only prophesy. It could not have any experience in advance as to how these proposals would operate. All it could do would be to express an opinion, and if it expressed an opinion of that kind, which would be in the nature of guess-work, then I suggest it would be departing entirely from its functions. It has no statutory functions under this legislation to do such things. The board has no authority under the legislation by which it operates to consider the policy proposals of the Government and express an opinion upon them.
When a government lays down a policy, the Parliament gives to a statutory authority the task of doing efficiently what the government decides it should do. But the statutory authority should not express opinions upon a political matter - and this is a political matter. The Government has decided, as a matter of politics, that companies may be interested in television stations to a certain extent only. The Government has decided, as a matter of politics and policy, that these arrangements shall stand in order to prevent the cornering of programmes. It would be quite wrong in principle to ask the Australian Broadcasting Control Board to assume the role of a prophet and say how these arrangements will operate in the future.
– The board expresses opinions in its reports.
– That is the function of the board. After the scheme has been in operation the board is at liberty to express its views upon it. But it is not, in my view, the function of a statutory authority or a government department to attempt to lay down the policy that a government shall adopt. That is the function of the Parliament.
– Then the members of the board are all yes-men.
– It is not a case of being yes-men. This is a case of the Opposition walking away from its responsibilities. The members of the Opposition have a responsibility, as parliamentarians, to lay down the policy according to which this industry will continue to operate. We should not try to place that responsibility upon a statutory authority which, for all the virtues it may possess, has not the knowledge, the experience and the capacity to carry out such a task.
I ask honorable senators to consider what the net result would be if the Opposition’s amendment were carried. The result might be that all the applications that are now pending would be deferred until the board had made its report, the Government had considered that report and the Parliament had then considered the Government’s legislation. This would mean tremendous delay. Alternatively, the applications would have to be decided within the four corners of the existing legislation which, in the view of the Government, is out-moded and should make way for these new arrangements.
For these reasons, Mr. Deputy President, I say that the Government is not prepared to accept the amendment and I hope the Senate will vote it out.
Question put -
That the words proposed to be left out (Senator O’Byrne’s amendment) be left out.
The Senate divided.
The Deputy President - Senator the Hon. A. D. Reid.)
Majority . . 9
Question so resolved in the negative.
– in reply - I agree, with some trepidation, with the sentiment that has been expressed so frequently during the second-reading debate, that this is very much a committee bill. I look forward to to-morrow with a good deal of pleasure. However, despite the fact that this is so much a committee bill, there are a few comments I would like to make in winding up the second-reading debate. I think that, by and’ large, the criticism of the measure has been on three grounds: Firstly, there has been some criticism of the proposal to associate the staff of the commission with the Public Service Board. Secondly, I think that the Leader of the Opposition (Senator McKenna) said, in regard to the extent to which people may become proprietors of television stations, that the Government had locked the stable door after the steed had gone. Thirdly, a lack of confidence was expressed in the constitutional powers of the Government to carry out the intentions of the bill. I shall deal with each of those three matters and then turn to some of the comments that have been made by individual senators.
In general terms, I find it difficult to follow the criticism, or the lack of confidence, as it were, in the proposal to associate the staff of the Australian Broadcasting Commission with the Public Service Board in the way that is becoming generally accepted in the various statutory authorities. After all, that is the principle applicable to the staffing arrangements of the Snowy Mountains Hydro-electric Authority and the Atomic Energy Commission, of both of which I have some knowledge.
Senator McKenna voiced some objection on behalf of the staff association of the Australian Broadcasting Commission. I hold the view that it must surely be to the benefit of the staff of the Australian Broadcasting Commission that they will get the comparable benefits, privileges and rights - perhaps, also, the disadvantages - that extend throughout the Public Service generally. Senator McKenna said that the staff had not been consulted on these proposals. I have been asked’ to draw the attention of the Senate to the commission’s 27th annual report in which reference was made to the establishment of a consultative council. composed of members of the commission and senior officers of the various staff organizations. The members of the commission attend the regular meetings of that council for the purpose of informal discussion and an exchange of views. Early this year the commission discussed with this council a proposal to ensure that the staff of the Australian Broadcasting Commission would have conditions in line with those of the Public Service. The council was established for the purpose of giving the staff an opportunity to present their views to the commission. I do not think it can be maintained that this move - it was a big move so far as the staff of the commission is concerned - was made without consultation with the staff.
The abolition of the Staff Appointments Advisory Committee is, I understand, a more contentious matter. From the point of view of the organization as a whole, the practical result was that the committee was hampering the work. Because of the growth of the commission’s staff and the interposition of the advisory committee, delays had become the usual pattern in the filling of positions. Those delays, of themselves, were bad for the staffing and efficiency of the service.
As Senator McKenna said, the promotion appeals system will continue. The promotions appeals board will retain its authority to endorse or disallow professional promotions. I think the main thing to remember is that the changes proposed do not remove any of the commission’s obligations to its staff. The proposals were recommended by the commission to facilitate the introduction of changes approved by the Public Service Board where, in the opinion of the board and of the Australian Broadcasting Commission, it was appropriate that those changes should be introduced. They cover vital matters for the staff, such as basic wage adjustments and the payment of allowances. I think that deals, at least in outline, with what I call the staffing provisions of the bill.
I join issue on what has been said about our locking the stable door. Despite the criticism by Senator McManus, I say that the policy adopted by the Government has resulted in Australia having television stations and television facilities in which, in truth, it can take some pride. We have pretty good television stations. I think it is fair to say that the people of Australia accept that view, otherwise nearly 1,000,000 television licences would not have been issued in the short period of time in which television has been in operation in this country.
What we have heard from the Opposition has been a spate of criticism of newspapers and newspaper proprietors. 1 think it is significant that this spate of criticism was not accompanied by a reference to any practical alternative. The Opposition did not state what it thinks should have been done instead of what has been done.
– Why not let the Australian Broadcasting Commission control television?
– That is the old story of nationalization. The world has grown out of nationalization. It is not good enough to have a policy of criticizing the press. I was intrigued to read a comment in last Saturday’s “ Daily Telegraph “ which was written by some one whom Opposition senators would know - Mr. Dalziel. He stated -
The Australian Labour Party is a party which is vocal about the past, incoherent about the present, and completely mystified about the future.
I must say that that comment is very applicable to the criticism that has been made of the measure before the Senate. We have had our policy. I shall not describe it in detail, but it has been that there shall be no more than two stations owned by any one company, that no one shall have more than a 15 per cent, interest in any station, that applications for licences shall be invited publicly and that all applications shall be carefully examined and successful applicants carefully selected. I can only repeat that, as a result of that policy, we now have what I believe to be a good television system.
Honorable senators opposite are discussing the theoretical when they talk in terms of what we might have had if we had gone about controlling television in some other way. Nobody has suggested what that other way should have been, and it seems to me to be most unfair merely to select for criticism those people who were the natural or obvious people to come into this new field of entertainment. They had the experience of organizing radio stations, they put their money into television, and they gave us a good result very quickly. There has been much criticism of them, but I think they have given us better programmes than we thought we were going to_ get a couple of years ago, when television commenced in Australia. There is an infinite variety of programmes and films. There is no dearth of films and there is no dearth of programmes. In the circumstances, I see no virtue in the flow of statements we have had concerning the link between the various newspapers. In any case, I cannot see what that has to do with the present situation. The present law provides that no one, either a newspaper or any other interest, can have more than a stated interest in television stations. I repeat that that is the law at present and the bill now before the Senate seeks to take the situation a stage farther in the light of the Government’s experience.
Let me state the position in simple terms. Television was a new field. It was something of which we in Australia had had no previous experience. The policy we have adopted has been successful in its application to the comparatively small number of television stations we have in Australia. We are now going forward to further development. We propose to increase the number of stations and we are making that variation in our policy which we think the added number of stations warrants. I have complete confidence that the new formula will give us just as successful a result in the future as we have had in the past.
There were a number of comments made by honorable senators, and I shall deal with them quickly. I shall try to deal only with those that were critical and leave on one side those that were commendatory. I shall try also not to repeat what I have said generally in connexion with the three divisions 1 do not think I have dealt with the suggestion that the bill will not stand on its own feet constitutionally. I think that is always alleged about any new legislation. It is an argument that is used when all other arguments have failed. I do not think any government introduces legislation that it thinks lacks constitutional validity. The Government has no qualms, misunderstandings or misgivings about this piece of legislation. We believe it to be quite v.. lid and in accordance with the telegraph power which has already been held by the High Court to cover radio. We believe that television is a natural extension of that proposition.
Senator O’Byrne said that the staff of the Australian Broadcasting Commission will not have the same security of tenure as at present. I cannot understand by what logic he reaches that conclusion. I should think that the closer the association with the Public Service Board the better the security of tenure of the employees concerned. Senator O’Byrne also said that the proposed control over programmes amounted to prices control. The bill does not rest on any prices control principle; it rests on the powers that are incidental to the telegraph power which gives us control over television.
I have replied already to the general statements by Senator O’Byrne, Senator Benn and others in which they gave details of the shareholding interests of the various newspapers. Those figures are of some interest, but only of academic interest. I do not know in what way they can be related to the bill before the Senate. They are figures published in the Australian Broadcasting Control Board’s report. The question is not who owns which newspaper and what the interests of the various newspapers are; it is merely that we have before us a piece of legislation which sets down a formula in accordance with which people may or may not own television stations.” That formula contains provisions which will keep the control of television stations in as many hands as practicable.
I think I have covered sufficient ground now to reserve further comments until the committee stage.
Question resolved in the affirmative.
Bill read a second time.
Sitting suspended from 12.9 a.m. (Wednesday) to 2.30 p.m.
Wednesday, 1 June 1960
Clauses 1 and 2 agreed to.
Clause 3 -
Section three of the Principal Act is amended -
by omitting the words - “ Division 3. - Inquiries by the Board (Sections 18- 25).” and inserting in their stead the words - “ Division 3. - Inquiries by the Board (Sections 18-25a).”;
– While the Minister is adjusting his papers, might I point out that others are probably in the difficulty in which I personally am, namely that I had made notes upon the bill that was originally presented to the House of Representatives. Yesterday afternoon we received a new bill incorporating quite a number of amendments and rearranging clauses. As we sat until after midnight and I have been engaged’ all morning and until now, I have had no time to translate my notes from the out-of-date bill to the one that was presented yesterday. I merely suggest that others might be in a similar difficulty and I ask.for some little indulgence from you, Mr. Temporary Chairman, on account of the difficulty in which I find myself.
– I suggest that if any honorable senator finds himself in some difficulty, he should so indicate, when there will immediately be a pause to enable the situation to be met.
– I move -
Leave out paragraph (a).
The reason for the amendment is that there is no section 25a in the act.
– I agree that this is a minor matter. As I understand the effect of the amendment, if proposed section 25a goes out, this clause will be deleted, and we return to the original position in the bill, which provides for the omission of the words “ Division 3. - Inquiries by the Board (Sections 18-25).” I think that some further new sections numbered 25a, 25b and 25c, were proposed elsewhere, and that these have now been renumbered 26, 27 and 28. They relate to the revocation of licences.
– To what clause are you referring?
– I am dealing with the Minister’s amendment to clause 3, which proposes the deletion of paragraph (a).
– Can you relate it to the terms of the bill?
– I was doing that. I indicated that there had been a clause 25a, which is now numbered 26, and which opens up a new subject-matter, namely applications for licences, as far as I can see.
– It may help Senator McKenna if I say that the draftsman tells me that there never was a section 25a, and the amendment is designed merely to rectify a drafting error.
Amendment agreed to.
Clause 3, as amended, agreed to.
Clauses 4 to 6 agreed to.
Clause 7 (Dismissal and vacation of office).
.- I remind the committee that in 1958 when the last pronouncement on this matter was made by the Government, the Minister for Repatriation (Senator Sir Walter Cooper) submitted an amendment dealing with the suspension of members of the board. A great debate ensued as to the. control and power to suspend, which the individual Houses of Parliament should retain over persons occupying executive positions. Apparently some displeasure was felt at the viewpoint that was then expressed and the amendment relating to the suspension of members was itself suspended. So far as 1 can ascertain the proposed section dealing with the vacation of office does not make any reference to suspension. I ask the Minister to explain the position to the committee.
– Before the Minister replies, I should like to deal with the same proposed new sub-section. 1 note that there is no provision in this bill, or, as far as I can see, in the act, dealing with the position of a member of the Australian Broadcasting Control Board who might be interested in a contract with the .board. I also notice in the bill that in relation to the Australian Broadcasting Commission a new section 38 imposes upon a commissioner an obligation to make a disclosure. Will the Minister indicate why a similar provision has not been applied to the Australian Broadcasting Control Board? I realize that the magnitude of the financial transactions of the commission will be very much greater than those of the board, but the area in which the board might function is not insignificant.
Honorable senators will notice that Iti appendix “ C “ of the 1959 report of the board there are items that total some £68,000 in the course ot. a year’s expenditure which might well be the subject ot contract in which a board member might be interested. At least two of the members are part-time members only. I see an item of £1,500 for office requisites. It is not a large amount. A sum of £10,000 is shown for programme research and library and £11,000 for incidental and other expenditure. Technical equipment amounts to £9,000. There are some quite substantial items. There appear to be opportunities for a member of the board to have an interest in contracts relating to some of these matters. Is it an oversight or is lit deliberate that the provision to apply to members of the commission is not to apply to members of the board, in the matter of a disclosure of interest?
Senator SPOONER (New South WalesVicePresident of the Executive Council and Minister for National Development r2.38]. - Dealing first with Senator Wright’s point, I shall answer in general terms by savin s that what is inserted in the bill is something in the nature of a standard provision. As a result of the discussions in the Senate the terms of appointment of commissions have been brought into line. The terms in this bill closely follow the termsrelating to the Commonwealth Bank Board and similar organizations. 1 have a note which amplifies what I have said. The bill does not make any provision with respect to the suspension of members of either the board or the commission. Nor is provision made for the review by either Houseof Parliament of the removal of a member from office on any ground, including the ground of misbehaviour. The Government has, since the 1958 bill, given further consideration to this question and has cometo the view that in the case of bodies like the board and the commission it is moreappropriate for the courts, rather than theParliament, to have the power to review theremoval from office of a member or a commissioner. The bill, in the form in which it is now before the committee, will in effect give to members of the board and the commission the same security as is given remembers of the Reserve Bank Board. If a member is wrongfully removed from office on the ground of misbehaviour, he will havehis remedy in going to the court. The Government considers that that is the most appropriate protection to give to members of the board and the commission in thisrespect. The Government does not consider that it would be appropriate for the Parliament to adjudicate on the questionwhether a member had been guilty of misbehaviour
In reply to Senator McKenna’s point, I direct him to section 8 (3.) of the act, which quite materially limits the field of objection that he raised. Having regard to that limitation and the nature of the functions of the board, it was not thought appropriate toapply to board membership the same provision that applies to membership of the commission.
.- I am interested in this question. Section 8- (3.), to which the Minister has referred, simply provides that -
A person who -
has any financial interests, whether direct or indirect, in any company which isthe licensee of, or an applicant for a,, licence for, a commercial broadcasting. station or a commercial television station or manufactures or deals in equipment for the transmission or reception of broadcasting or television programmes - shall not be appointed a member of the Board.
The provision that we are considering deals with dismissal and vacation of office. A member may acquire an interest of the kind referred to after he has been appointed to the board. Why is there not a provision to disqualify him from continuing in office if he acquires such an interest? 1 think that this matter is most important in relation to the Australian Broadcasting Control Board.
-I refer the honorable senator to section 13 (2) (b) of the act.
– That does not refer to a contract.
– No, but Senator Wright is raising the point of qualification, as distinct from the point you raised.
– I thank the Minister for his information, and I now concede that the position is as he stated it.
Clause agreed to.
Clause 8 (Powers and functions of Board).
– The clause states -
Section sixteen of the Principal Act is amended -
by inserting after paragraph (c) of subsection (1.) the following word and paragraph: - “: and (d) to detect sources of interference, and to furnish advice and assistance in connexion with the prevention of interference, with the transmission or reception of the programmes of broadcasting stations and television stations,”.
I notice that under clause 14, the PostmasterGeneral is to be authorized, at the request of the board, to provide whatever facilities and services are required by the board to carry out the function of detecting sources of interference. I think that the function formerly devolved on the PostmasterGeneral directly. He is now to do the practical work in the matter. I should like the Minister to indicate the reason for the function being conferred directly on the board, and what advantage there will be in that procedure.
– I think that it is a natural result of television growing up, as it were. The number of complaints in relation to television investigated by the PostmasterGeneral’s Department during the year ended 30th June, 1959, was 5,766. This may be said to be a comparatively minor matter. I would hazard a guess that with the specialized attention required in relation to television, the Postmaster-General’s Department will still do the technical work. The possibilities are that while the Broadcasting Control Board will continue to ask the PostmasterGeneral’s Department to carry out the work, and pay the department for doing it, the work is becoming so specialized and technical that in the fullness of time the board will probably be forced to establish its own specialized staff.
Because of the growing volume of business it has been found necessary to give more specific powers to the control board.
Clause agreed to.
Clause 9 (Briefing of counsel to assist board).
– This clause authorizes the Australian Broadcasting Control Board where it considers it desirable to do so, to arrange with the Crown Solicitor for the Commonwealth for a barrister or solicitor to assist the board at an inquiry. It gives that barrister or solicitor the same power to examine witnesses as is exercised by a member of the board. The chairman of the board is a lawyer, and to my knowledge he is a competent one. I am well aware of the assistance that may be rendered by outside counsel to a board or inquiry of any nature. Will the Minister indicate why at this stage this proposal is advanced, particularly having regard to the fact that the chairman of the board is a lawyer?
Senator SPOONER (New South WalesVicePresident of the Executive Council and Minister for National Development) been inserted following on practical difficulties that have been experienced in inquiries that the board has been called upon to carry out for the granting of television licences. It has been found necessary not only specifically to provide for the board to have the assistance of counsel but also specifically to give such counsel the same rights of examination as are exercised by members of the board.
Clause agreed to.
Clause 10 (Representation before Board).
– Clause 10 amends section 22 of the principal act. Section 22 at present reads -
In proceedings before the Board at an inquiry under this Division, a person who is directly concerned in the proceedings, and, with the approval of the Board, any other person having an interest in the proceedings, may be represented by a barrister, solicitor or agent, who may examine witnesses and address the Board on behalf of that person.
The purpose of the amendment that is proposed is to cut down counsel’s right to examine witnesses and address the board on behalf of the person whom he represents because the amendment, instead of conferring upon such a barrister an authority to examine witnesses and address the board on behalf of that person, provides that he may do so subject to any directions of the board given under section 25 (1.) of this act. One must then refer to section 25, which is amended by clause 12 of the bill. The effect of taking those matters together appears to be that whilst a barrister assisting the commission is given the same power as, I understand, a member of the commission to cross-examine, because apparently the bill proposes that the right of a barrister representing a party before the board is to be subject to whatever directions the board gives-
– No, that is not the position. Clause 12 of the bill adds to section 25 (1 .) of the principal act - and may give all such directions and do all such things as Board considers are necessary or expedient for the expeditious and just hearing of the inquiry.
– Yes. Will the Minister indicate why it is sought to delimit the full power of cross-examination that is exercisable by a barrister representing a party at the moment?
– Before the Minister speaks, I should like to add the comment that there are some counsel who waste time and lead inquiries into futility. I think the amendment was designed to give this board the same judicial control of its proceedings as a judge has, and that is not to let people cross-examine on all sorts of stuff that the tribunal might consider wholly irrelevant, but to guide the examination towards the expeditious and just hearing of the inquiry. If counsel has a right to represent parties before the tribunal subject to that direction I cannot see that there can be any legitimate complaint that this right of representation has been improperly abridged.
– I think that Senator Wright has given the answer for me to the matter that was raised by the Leader of the Opposition (Senator McKenna). Therefore, I shaft only quote in part the brief I have, because it is a fairly lengthy one. On many occasions during current inquiries, the Australian Broadcasting Control Board is able on its own initiative or at the suggestion of counsel assisting the board to request counsel to discontinue a certain line of crossexamination. It has also asked that addresses be limited. This action has curtailed cross-examination, but the board’s control of the proceedings can never be so effective in these cases unless a person’s right to be represented by a barrister is dependent upon the approval of the board. In other words, I think, as one who is not a lawyer, that my experience has shown that the proceedings have been lengthier than was anticipated and that the insertion of this provision puts the board in a better position to deal with the applications in what we laymen would call a more businesslike way.
Clause agreed to.
Clauses 11 to 15 agreed to.
Clause 16 (Dismissal and vacation of office).
.- This clause repeals sections 37 and 38 of the principal act and seeks to insert two new sections. The principles of the amendment have been debated at length on other legislation;I do not want to repeat that debate. Proposed new section 37 is admittedly an improvement on section 37 of the act. But whatI wish to refer to particularly is the proposal to repeal section 38 and insert a new section in its stead. The proposed new section deals with the question of a commissioner’s interest in any transaction before the commission. Proposed new section 38 merely requires a commissioner who is interested in a contract to make a disclosure of his interest at a meeting of the commission. The commissioner is then disregarded for the purpose of any debate that ensues. Such a provision always seems to me to be a piece of pure hyprocrisy - if you will permit hypocrisy in any case to be considered pure. The commissioner is present at the meeting, and his fellow members of the commission know exactly his views and his interests. He can have a degree of influence even as a silent member. He merely has to inform his fellow members that he has an interest, and then he abstains from voting and goes on his merry way uncorrected. I submit that if he has an interest in a contract of this kind - and particularly if he does not disclose it - he should be deemed to have vacated his office, the Governor-General declaring the office to be vacated. That has been the position under section 38 of the existing legislation, sub-section (f) of which provides -
A Commissioner shall be deemed to have vacated his office … (f) if he, in any way, other wise than as a member, and in common with the other members, of an incorporated company consisting of more than twenty-five persons -
becomes concerned or interested in any contract or agreement entered into by or on behalf of the Commission; or
participates, or claims to participate, in the profit of any such contract or agreement or in any benefit or emolument arising therefrom.
This provision is omitted from the disqualifying clauses in the legislation we are now considering, and a new section 38 is inserted, under which the commissioner merely has to give his fellow members an indication of his interest.
I remind the Senate of what the Public Accounts Committee said with regard to the most unfortunate commercial trans actions that took place concerning the Australian Aluminium Production Commission at Bell Bay. Members of the commission were actually arranging purchases, on behalf of the commission, from vendor companies in which they had shares and interests. They were buying some of their raw materials - including, I think, bauxite brought from Melville Island - from companies in which they had interests. Attached to the report of the committee is an opinion of the Solicitor-General as to the Commonwealth’s inability to obtain compensation from those commissioners who, in dereliction of their duty and because of countervailing interests, let the Commonwealth interest down. It is an opinion which I think, with very great respect, has some shortcomings and overlooks the High Court’s decision in Fouche’s case.
I merely mention these matters for the benefit of those who advise the Government on this department of the law, in which the Senate has, by persevering over the last few years, made a real contribution to strengthening parliamentary control over commissioners in these various undertakings.I am now submitting that section 38 should take a different form from that proposed, and that if a commissioner has an interest in contracts such as those envisaged it should not be enough for him simply to make a declaration of the fact before a meeting of the commission, and then let the meeting carry on regardless. His office should be vacated, in the way required by section 38 (f) of the existing act.
– Senator Wright proposes a pretty drastic remedy. After all, the circumstances giving rise to the inquiry into the activities of the Australian Aluminium Production Commission were unusual, and it is very difficult to legislate for the unusual. In many business transactions various people have an interest, and that interest may be only a minor one. I do not share Senator Wright’s view that a commissioner who declares his interest in a contract exerts an influence on his fellow commissioners beneficial to himself. On the contrary, I think such a declaration would put the other members of the commission on guard. It rather makes them more hesitant to complete such a transaction than they would be otherwise. If it is a case of a board of directors buying something and one of the members has some interest, either small or large in the vendor organization, then I think things go harder for the vendor than would be the case otherwise.
In any case, there are always difficulties in connexion with this particular matter. All this provision seeks to do is incorporate in the legislation a recommendation made by the Public Accounts Committee on the procedure which should be adopted. That recommendation was made after the Public Accounts Committee had experienced the very difficulties to which Senator Wright referred. In a vexed question like this, I think there is great virtue in accepting the advice of a Parliamentary body which has had actual experience of the problem.
.- I regret that I spoke earlier without reference to proposed new section 37 fi.) (d). I notice that it does incorporate in the disqualifying considerations a breach of proposed section 38. I therefore withdraw my criticism and express my satisfaction with the provision.
Clause agreed to.
Clause 17 (Appointment of officers).
– In my second-reading speech last night, I expressed a wish for enlightenment as to the reasons for the omission from section 43 of the principal act of sub-section (4.) (c) which provides that a person shall not be admitted to the service of the commission unless - except as provided in the next sub-section, he has in open competition successfully passed the prescribed entrance examination.
Sub-section (6.), which is also to be omitted, reads -
Appointments to positions which are open only to persons who have passed the prescribed entrance examination shall be made in order of merit of their passing the prescribed examination.
It appears to me that if those provisions are to be removed and nothing of a similar character is to replace them we should be given a reason for the decision to repeal them. Last night, I mentioned that I would request enlightenment, and I should be glad to hear what is the reason for the elimination of provisions relating to examination and appointment by merit.
– I made some inquiries on this point after Senator McManus had spoken last night. I find that the provisions relating to entry to the commission’s service by appointment in order of merit in passing the prescribed examination have had to be honoured in the breach rather than in the observance for some time past because there are so many other avenues of employment for young people with the required educational qualifications that those young people just will not sit for a separate examination for appointment to the staff of the Australian Broadcasting Commission. They obtain their leaving certificate or other educational qualification, and that opens so many doors of employment to them that they will not sit for specialized examinations. I was interested to find that the position exists outside the Australian Broadcasting Commission. The Public Service Board finds itself in the same situation and is making appointments of lads and lasses with educational standards equivalent to those which it prescribes, obtained by examinations which are not directly under the control of the board.
.- I can appreciate the reasons that have been advanced by the Minister but I am still not convinced that this is not a retrograde move. When we were considering the Australian National Airlines Commission Bill last year, we were told that a similar position existed in regard to Trans-Australia Airlines. There were too many jobs for young people and therefore the system of appointing people after examination in order of merit could not be carried into effect. I take it that when we legislate we legislate generally and not for exceptional circumstances. By 1965 our school population will have reached a very high peak. The other day I read a statement by an authority on education to the effect that because of the high peak that will be reached in 1965, there are strong possibilities that within the next five or six years young people will no longer be in the happy position of having many opportunities for employment available to them. We could well have again the conditions that existed in the days when young people were striving to obtain positions in government employment. The provision for appointment by examination in order of merit was inserted for excellent reasons. I heard a lot of a case in 1930, when a nephew of the late Mr. J. H. Scullin, who was highly qualified, was denied appointment to the Commonwealth Bank service, and members of his family assured me that there could have been no other cause than political reasons. Following upon that, the system of appointment by examination in order of merit was introduced.
If I remember correctly - 1 am subject to correction - the committee, under the chairmanship of Sir Richard Boyer, which inquired into the Public Service, recommended that the system of appointment by examination in order of merit be retained. I know that the Australian Labour Party has always been very strongly of the opinion that that system should be retained. Therefore, I am opposed to the elimination of this provision.
If the position which the Minister says exists does exist, the commission has apparently been able to deal with the problem quite effectively, and it is still able to appoint people. Why, therefore, is the change proposed? I pointed out the danger of this kind of thing last year, when within a week we considered two bills which deleted provisions for appointment by examination in order of merit. The first related to the Reserve Bank and the second to Trans-Australia Airlines. Now we have a third case. The Boyer committee, I understand, recommended that this provision in relation to Public Service employment should not be wiped out, but we have not had an opportunity of debating the committee’s report. It seems to me that we are being asked to do something that we should not do.
With the rise in the school population, I believe that within four or five years we shall have again a situation wherein large numbers of young people will be seeking employment in the service of the Commonwealth. I do not see any provision - perhaps there is something of which I can be told - to cope with a possible situation wherein all of a number of young men and women wishing to join the service of the commission possess the minimum educational standard, but some of them possess well above the minimum standard. Is there anything to provide that the applicant with the highest educational standard will receive preference over applicants with only the minimum standard? I should like to be convinced on that point.
I conclude by saying that I was in government employment for eighteen or nineteen years. In that period I felt that it was always necessary to have strict rules on this matter in order to prevent the operation of nepotism and influences of all other kinds. The object of the examination system of appointment is to stop nepotism and political appointments. If this provision is to be removed, I should like to know what guarantee there is that the best applicant will be preferred for appointment over less qualified applicants.
– 1 should like to make one comment regarding the qualifications of candidates for appointment with the commission. Will the Minister say whether any thought has been given to reciprocity in conditions of employment between employees of the commission and members of the Commonwealth Public Service? When the Australian Whaling Commission was disbanded, the period of service of employees was not taken into consideration when they managed to secure employment in the Commonwealth Public Service. I should like to know also whether returned soldiers who have passed the necessary examination for entry will be given permanent employment or whether the system of temporary employment will become a permanent feature of the commission as it has become a permanent feature of the Public Service, wherein men and women whom I know personally, who have thirteen or fourteen years of service and have passed the qualifying examination, are temporary employees. These matters must be considered. If the commission is to have a staff that is worth while, there must be security and there must be conditions of employment not less favorable than those of permanent employees of the Public Service. If employees of the commission wish to transfer to the Public Service, their period of service with this government instrumentality should be considered in relation to superannuation, long service leave rights, and so on.
– I think that Senator McManus may have overstated the order of the problem. There is provision that a person shall not be appointed unless he possesses such educational qualifications, &c, as are determined by the commission with the approval of the Public Service Board. I know that this does not cover exactly the point the honorable senator put. He said that appointments should rest on examination, with priority of appointment being determined by the order of passing the examination. 1 think a principle has to give way to the facts of a situation. If you cannot get candidates to sit for these examinations, I do not think you can do more than prescribe education qualifications of a certain level. Having regard to the complexities and the ramifications of the Public Service, there has to be some sort of discretionary power. A boy or a lass who is capable of doing a job in a particular sphere of activities may not be as good in another sphere. I think that Senator McManus would agree with me when I say that you could do grave injustice by making appointments on the run of the mill, as it were - on the basis of the order of passing. I do not feel so disturbed about the situation as he does. I think that the main thing in the recruitment of persons to the service of the commission is to maintain as high a level of educational qualifications as possible in the various categories. Beyond that, I think the situation is reasonably covered in the proposals in the bill.
In reply to Senator Tangney, let me say that there is some degree of reciprocity between the Australian Broadcasting Commission and the Public Service. Provision exists, if an employee of the commission transfers to the Public Service, for him to take with him his accrued rights to superannuation and long service leave. There are arrangements whereunder a period of service in other authorities is taken into account for other benefits. It is not exactly a matter to which a formula can be applied. People enter the Australian Broadcasting Commission, the Snowy Mountains Hydro-Electric Authority and the Australian Atomic Energy Commission with special qualifications and special professional attainments. I think that, by and large, there is a recognition that, within the limits of the work for which they were recruited, they do receive reasonably satisfactory treatment if they change their employment and go from one sphere of activity to another.
Senator Tangney also mentioned the question of temporary employment and permanent employment. That, of course, opens up a very wide field of argument upon which I hesitate to tread. We appreciate the situation of some one who has been in temporary employment for a long while and does not become qualified for permanent employment. On the other hand, we have to realize that the efficiency of the Public Service means so much that it is necessary to be careful about denying opportunities for promotion and advancement to young people who are prepared to suffer the disciplines and rigours involved in equipping themselves by further examination work. I think that, by and large, the door is open for temporary employees who acquire the necessary qualifications to obtain permanent positions.
.- I. am interested in the explanation that has been given by the Minister, but I do not think it adequately answers the arguments that were raised by Senator Tangney and Senator McManus. Honorable senators will appreciate that each year, when we are dealing with the Budget, we see that there is a large number of supernumeraries. That is the word we use in my State.
– There is a large number of casual employees in each of the branches of the Public Service. Senator Tangney questioned whether there is reciprocity between the commission and the Public Service and whether there is an opportunity to transfer from one organization to another. I am anxious to know what can be done to eliminate the large number of public servants who continue in employment year after year but are still deemed to be supernumeraries or casuals.
– It does not matter what word you use - supernumeraries, casuals or temporaries.
– Or permanent temporaries.
– We have all of those in the Public Service. With regard to the method of appointment, 1 know that when I first entered the Senate - it is a little while ago now - we had a good deal of discussion about whether there should be an examination for appointment to government positions. It was suggested then that there was such a thing as the old school tie, and that that had more to do with securing some positions than the educational qualifications possessed by particular candidates. After a good deal of debate and discussion, it was laid down that there should be a qualifying or competitive examination for entry into the service.
I am rather troubled to see that there is now a tendency, as is evidenced by this amending legislation, to alter the principle which has been in operation for many years. The provision for a competitive examination is now being quietly but very effectively withdrawn so far as appointment to the Public Service is concerned. I feel that for the Australian Broadcasting Commission we should select the best of the applicants. How frequently do we read in the press complaints about the pronunciation of English words by many of those employed by the commission? Such complaints appear continually, and in my very humble opinion they are quite legitimate. I do not think it is correct to say that because there is a number of positions offering to-day, boys and girls and young people are not studying for examinations. This legislation that we are enacting will be in existence for a number of years.
– They will still sit for examinations.
– There is nothing in the amendment to section 43 of the act, quoted by Senator Spooner, to suggest that there will be competitive examinations. The amending provision simply provides that persons will be appointed in accordance with the qualifications they hold. I want to see eliminated the possibility of a long line of supernumeraries. After a person has entered the service of the Commonwealth and has served for a certain time, he should be appointed to the permanent staff and become entitled to all the advantages which permanent employment in the Commonwealth service carries. He should be entitled to enjoy superannuation rights, and so on. I should like to see an end to the practice of long periods of temporary employment in the Commonwealth service, and I should also like to see appointments to the commission made as a result of competitive examinations.
– I know that my colleagues, Senators McManus and Tangney, will agree that the trend in educational circles has for some years been away from set examinations. There is a school of thought that prefers to regard the educational qualifications of a child who might apply for a position such as those that the Australian Broadcasting Commission has to offer, as those that he has acquired through his school life, up to the period of adolescence. So, I rather agree with the Minister that the amending provision is quite all right as it is stated in the bill. I point out, however, that the provision will throw on the commissioners a tremendous responsibility to see that they choose suitable cadets for the particular kind of work that is to be done, and that the cadets so chosen have appropriate educational qualifications. I support the clause as it stands.
.- I rise to protest as strongly as I possibly can against the whole of the provisions of proposed section 43 (4.). You may notice, Mr. Temporary Chairman, that the clause states that section 43 of the principal act is amended -
If we look at section 43 of the act, particularly at sub-sections (4.) to (7.), we find that provision is made on an equitable basis for the recruitment of staff for the commission. What will the position be in future? The Government proposes to introduce provisions that lack positiveness. Under the act, applicants for work with the commission are required to hold qualifications approved by the Public Service Board.
The act establishes the standard of education required of individuals who seek occupations within the service of the commission. In this respect, the bill refers to such qualifications “ as are determined by the Commission with the approval of the Public Service Board “.
Having mentioned the Public Service Board, why did not the Government go the whole hog and transfer the staff employed by the commission holus bolus to the supervision and control of the Public Service Board? That would have added to the number of employees under the control of the Public Service Board, but what would that matter? There are precedents for that, and if I am called on to bring them forward 1 shall unhesitatingly do so. There is no reason at all why the staff of the commission who have been employed for so many years should not be on the same footing as Commonwealth public servants. It does not matter that a person is employed by the commission; he should be a public servant, with the full status that that carries, and under the control of the Public Service Board1. There must be fairness in respect of the engagement of new hands for the commission, and I have no assurance whatever that an applicant for employment in the commission’s service will be treated fairly. I cannot protest strongly enough about the provisions of the bill in this respect. They are haywire; they are putrid; they should be thrown out immediately, if the Government wants to maintain fairness in appointments to the civil service of this country.
– And if it wants efficiency.
– Yes. There must be fair play when employees are being engaged. I object to this hanky-panky. I want the onus placed squarely on the Public Service Board to engage the staff required by the commission. The engagement of staff for the Commonwealth service is one of the functions that the Parliament has laid down for the Public Service Board to carry out. Nobody can deny that a commission that has functioned for more than 30 years should be allowed any say at all as to who it should employ.
Let me make the picture clear. First, we have a commission that has operated over the years. I cannot foresee the termination of its existence. As a matter of fact, if we examine the scope of its functions it must be apparent that the commission will have to increase its staff in the future and that it will continue to function just as long as any other branch of the Commonwealth Public Service. Secondly, there is an authority established by the Parliament to engage employees for the Commonwealth. Provision has been made in the Constitution to permit it to do so. The functions of the Public Service Board include the engagement of staff, the control of staff, and the duty to see that the work of the service is done efficiently and economically. This bill proposes a hanky-panky arrangement whereby staff for the commission may be engaged directly by the commission without reference to the Public Service Board. I suggest that not one member of the Australian community would stand for that kind of action if the position were made clear to him.
The methods of the Public Service Board have withstood the test of time. We never hear of complaints of unfairness about the engagement of staff by Public Service inspectors in the States. We never hear any cavilling at their actions, nor is there trouble about appeals against promotions and so on, because the functions are performed in an efficient and fair manner. The average Australian citizen asks only for a fair go in respect of such matters. If this bill becomes law, the people of Australia, particularly the young people, who seek careers in the service of the commission will be denied the right to engagement under conditions prescribed by the Public Service Board.
– Section 43 of the act. to which Senator McManus took exception, provides that an examination shall be conducted. I take it that the Australian Broadcasting Commission has power not only to conduct the examination but also to correct the examination papers and decide the educational qualifications required. I think that we are agreed on that point. The average standard of secondary education of young people in this country to-day is higher than it was 30 years ago. The qualifications necessary to pass examinations conducted by recognized secondary schools and universities are higher than those required to pass examinations conducted by the commission. If the commission is to be allowed to conduct examinations why should it not be empowered to judge the qualifications ot candidates who present evidence of having passed examinations held by other bodies? If in 1960 there is a great influx of candidates, there is nothing to prevent the commission re-introducing a system ot examinations. The clause under discussion distinctly provides what may be done by the commission.
– Where does the clause say that?
– Proposed subsection (4.) (b) states - he possesses such educational qualifications, and such other qualifications (if any) as are determined by the Commission . . .
If it so wishes the commission may make a determination. It may re-introduce examinations.
– Why not leave the provision for examinations in the act?
– For the very reason that you may have people with high educational qualifications seeking a position and they may not be prepared to sit for an examination. We need those ^people. I think that we are completely protected by proposed sub-section (4.) (b).
– I was surprised to hear Senator Benn say that there was no discontent with a public service board. In New South Wales the great mass of teachers and the body that professes to speak for them - the New South Wales Teachers’ Federation - are profoundly dissatisfied with the interference of the New South Wales Public Service Board in the affairs of the Education Department. The teachers want more flexibility. I support the clause now being considered. . I think Senator Benn should explain what he meant by “ hanky-panky “.
– I dissociate myself from any views expressed by Senator Benn. I was surprised1 to hear him casting a reflection on the Public Service Board. Is not the position fully protected by paragraph (b) of proposed new sub-section (4.)? I ask the Minister whether the position is not further fully protected by proposed new sub-section (6.), which reads -
Subject to this Division, the terms and conditions of employment of officers and temporary employees appointed in pursuance of this section are such as are determined by the Commission with the approval of the Public Service Board.
– A basic educational standard is set for all public servants by entrance examination or other public examinations, but for appointment to the Australian Broadcasting Commission special skills are required and it is in this regard that the commission has a discretionary power of appointment. Paragraph (b) of proposed new sub-section (4.) states - the Commission is satisfied as to his health and physical fitness;
That is a very good general principle but only last week we became aware of the appeal made throughout Australia to assist the physically handicapped people in the community to obtain gainful employment. I know quite a number of physically handicapped people - they are not mentally handicapped - who could fill positions in the Public Service or in the commission. I would like to see more flexibility given to this section of the act so that greater opportunities for employment may be provided to people who are physically handicapped. I even suggest that in the case of employment with a commission such as the one now under discussion, physically handicapped people should be given a measure of preference.
I have some misgivings about proposed new sub-section (5.). The commission is not establishing just an ordinary clerical service. It is a body that disseminates information that has a decided effect on the minds and lives of the people. The commission is a very effective instrument as an organ of public opinion. Broadcasting and television have now become the Fifth Estate of the realm. Up to date the press has exercised considerable influence on the community, but much greater influence is capable of being exercised by broadcasting and television services. We must have every conceivable safeguard to ensure that those in charge of the commission are persons of the highest calibre who will give unstinting loyalty to the commission and to Australia. It is disturbing to find that the commission may appoint people who are not British subjects and who have not made or subscribed the oath or affirmation of allegiance. Every employee of the commission should make some affirmation of his loyalty. If he is not a British subject he should be prepared to affirm his loyalty to the Crown, particularly in view of the fact that he is seeking employment in a government instrumentality. I am, of course, not speaking of artists of foreign birth who are employed by the commission.
In proposed new sub-section (6.) temporary employees are referred to once again. The matter of temporary employees has been a bone of contention in the Public Service for some time. In some cases employees are classified as temporary for 20 and even 30 years. They may be described as permanent temporaries. Some limit should be placed on the length of time an employee may remain a temporary employee. If an employee has given satisfactory service or has passed the necessary qualifying examinations, after a period of from seven to ten years he should be made a permanent employee. It is ridiculous that we should be legislating to create temporary employees without providing any limit as to the number of years they must retain their temporary status. We know that in some cases people retire after having given a lifetime of service to the Crown, during the whole of which they have been temporary employees.
.- I am still most unhappy about this clause. If we are in a position of over-full employment for young people-
– Which we are not.
– But even if we were it should have been a simple matter for the Australian Broadcasting Commission or for those drafting this bill to insert a clause to provide that if there were too few qualified applicants for the number of positions available, an examination need not be held. But the Government, instead of doing the logical thing - merely saying that if there are more jobs than applicants there is no need to hold an examination - has introduced this remarkable provision, and the safeguard that has been inserted in legislation over the years to prevent political patronage is to be wiped out. All the honorable senators on the other side who have spoken on this bill cannot deny that if we pass this legislation as it stands and in three or four years’ time there are more people wanting appointments than there are vacancies, the commission can say that an applicant for a position who has little more than the bare minimum of qualifications, should be appointed in preference to another applicant with the bare minimum. The commission may appoint a candidate with a bare minimum of qualifications, and appointment shall not depend on merit.
– Could not the Parliament make an amendment in four years’ time?
– I dc not see that it is necessary for Parliament to make an amendment in four years’ time. Why does not the Parliament say in this bill in this period of over-full employment that if there are more jobs than the number of applicants there is no need to hold an examination? Why wipe out the safeguard? That is what is being done. I have lived for long enough in this world to know that if there are two parents, each trying to get his son into the one job and one parent knows the person who is making the appointment, he is a most amazing parent if he does not ring that person on the telephone and say “ I would like you to do something for my boy “.
– That might have an effect contrary to what was intended.
– I hope it would have the opposite effect from what was intended, but in the past Parliaments have found that there were certain cases where such an action did not have that effect. Why did the Parliament of every democratic country cut out the practice of political appointments and replace it by a system of appointment on merit?- They did so because they believed that justice demanded that that should be done. A simple machinery amendment could have met the present unusual situation to which the Minister refers, but instead of that the whole principle is to be cut out. I say again that nobody on the Government benches can deny that under this new legislation a more highly qualified applicant need not be appointed.
– That is right, too. Merit does not necessarily go on written examinations. All sorts of things come into it.
– I know. That is the trouble. I will say this-
– It is not always the educated man who makes the best senator.
– 1 am not going to deal with that particular argument. At least all the people are given a right to vote at Senate elections; it is not a privilege that only certain sections of the people enjoy. Why should the Minister say that there are certain complex circumstances in the matter? I have never known of a head of a Government department who could not think up sufficient complex circumstances if he thought there was an opportunity for him to acquire power to hire and fire. There was an example of that in the State Rivers and Water Supply Commission in Victoria, where a gentleman who believed he knew the position better than anybody else fought for years to retain such a provision. I say again that under this proposed amendment the Government is opening the door to patronage and to nepotism. There is no need to do so; a simple amendment could cover the present situation. This kind of thing was done last year when legislation to establish the Reserve Bank of Australia was passed; it was done in connexion with Trans-Australia Airlines; and now it is being done in connexion with the Australian Broadcasting Commission. If we go on in this manner, within a few years there will develop a system in which spoils will go to the victor.
– I have a lot of sympathy with the point of view that has been expressed by Senator McManus. I have great faith in examinations but I believe that if you tie people down to an examination system, there may develop a situation in which an applicant for a position who has obtained more A’s or B’s or honours in an examination than somebody else will inevitably be regarded as the better man.
I am satisfied that this provision ties us down as far as possible to an examination, with the approval of the Public Service Board. I know that the board is a very conservative body; I know its inspectors. I am quite sure that the board, as constituted to-day, would always be on the side of the man who has higher educational qualifications than another man. That may not be the best system, and I think we should allow the controlling body some flexibility in this matter.
Such a view is held, I think, by most of the teachers in New South Wales. They have come to that opinion after long experience of the way the State Public Service Board has tied down the Minister and departmental authorities. They believe that it is necessary to leave the people who make appointments room for maneouvre. I think that the provision in the bill prevents the authorities from making a completely bad appointment, and also prevents what Senator McManus called nepotism. I consider that is as far as an act of Parliament should go.
– I am concerned with four separate matters concerning this clause. The first is one that was raised initially by Senator McManus. I was alarmed to hear the Minister say, in supporting the amendment, that principle has to give way to the facts of the case. I should have thought the proper approach to it was to re-affirm the principle and only make such exceptions as the facts indicated to be the right way to do it.
– The principle being a separate examination.
– A competitive examination?
– No, a separate examination for the Australian Broadcasting Commission.
– That is right.
– A separate examination having proved impracticable because there were no candidates.
– No candidates? None at all?
– I do not know that there were none at all.
– If as the Minister says there are no candidates, that is different from a definite shortage of them.
– Public examinations are the criterion.
– I am told that I might have overstated the position. For all practical purposes, the commission cannot get men. In other words, when a boy gets his Leaving Certificate and can go into the Public Service or into a bank he will not sit for another examination. The Public Service Board is experiencing that trouble.
– I appreciate that type of difficulty and I indicate that it is due to the fact that there are not enough jobs at the moment. Senator McManus was completely correct in projecting the population trends on youth to indicate that in the immediate future - down the next few years - there will be a flood of young people looking for jobs. 1 do not think that a temporary situation should be used to justify departure from what has been, after all is said and done, a fundamental principle. I think that a system that lays down that people shall be appointed on their educational qualifications is not necessarily the best system and one without defects. It is, however, the only system which will completely eliminate favoritism and discrimination. I think that is the first purpose to be served.
– Would you disregard public examination results altogether?
– I have not affirmed that broad principle. I am talking about appointments to the service of a body such as the Australian Broadcasting Commission.
– After a separate examination?
– Yes, a separate examination, with all its ills - and I admit (hat it has difficulties and ills.
– lt occurs to me that separate examinations may have become unnecessary and redundant with the improvement in educational standards.
– I would not think so. The purpose of them is to prevent favoritism and discrimination.
– This, I think, is where Senator McManus went off the track. There is no suggestion that educational qualifications should be disregarded. All that is said is that you shall take basic educational qualifications instead of conducting special examinations.
– And the provision for taking those basic qualifications opens the door to favoritism. Many people may be discriminated against on this or that ground which will never come to the surface and be made known. That is the evil. I suggest that the provision in the existing legislation is quite good enough. Section 43 (4.) provides -
A person shall not be admitted to the service of the Commission unless - ic) . . . he has in open competition successfully passed the prescribed entrance examination.
That does not tie the hands of the commission because, sub-section (5.) of that section then prescribes -
The Commission may appoint, to such positions or positions of such classes as arc prescribed, persons who have not passed the prescribed entrance examination.
This implies a recognition of the fact that some senior officers ot particular kinds will be wanted. However, the section first affirms the principle of competitive examination, and then, it provides an escape in an appropriate case. It would be appropriate, in a case in which there were not sufficient candidates, to prescribe that another basic qualification should be accepted. All this could be done without breaking down the important principle.
I would suggest that the principle should be upheld, and that power should be given to break it down when the circumstances of a particular case have to be met. I further suggest that when the principle is broken down the circumstances should be set out in the report presented annually by the commission to the Parliament.
I realize that there will be difficulties in upholding the principle under all conditions, but that is no reason for abandoning the system of competitive examinations. The principle should be affirmed, and when the necessary staff cannot be obtained it will be a simple matter to provide that persons with basic educational qualifications may be selected. Any difficulty can be met by merely providing the power to except, but a departure from what has been a well-held principle gives very great offence to all Opposition senators. We voted against and opposed most strongly the change that was made concerning entrance to the service of the Commonwealth Bank and of TransAustralia Airlines, and now, as we feared, there appears another example of the breaking down of the important principle. I think the Government is creating grave difficulties by attacking the principle of competitive entrance examinations. Uphold the principle, and as difficulties arise meet them by regulation. That is surely the sane approach to the matter.
I wish now to pass to proposed new subsection (5.), which was adverted to by Senator Tangney, and which reads -
The Commission may, with the approval of the Minister, appoint to the service of the Commission a person who is not a British subject and has not made and subscribed the oath or affirmation of allegiance. 1 think the Minister should be prepared to justify the giving of this power. Could he tell us how many cases would have fallen into this category up to the present time? I point out that a person appointed to “ the service of the commission ‘’, to use the words of the provision, will be appointed permanently - not temporarily, because section 43 (3.) provides -
The officers of the Commission shall constitute the service of the Commission.
The proposed new sub-section obviously envisages permanent appointments. 1 would suggest that a provision for the permanent appointment of a person who is not a British subject and does not take the oath of allegiance should at least be followed by a provision that the commission should make reference to such appointments in its annual report, or that the Minister himself should make a report to the Parliament as to the number and circumstances of such cases. But these two additional steps are not taken. 1 invite the Minister to say why the proposed legislation makes no reference to a requirement that a report of such cases be submitted by the commission or that the Minister should himself make a report to the Parliament. I think that the Minister would agree, on consideration, that such a provision would be reasonable.
I shall not repeat what I said yesterday on the question of the need to transfer many temporary employees of the commission to the permanent staff. Senator Tangney has adverted to that matter already this afternoon, and I said a good deal about it last night. I wish now to deal with subclause (b) of clause 17, which simply provides for the omission from the principal act of sub-sections (9.), (10.) and (12.) of section 43. 1 am immediately concerned with the omission of sub-section (10.), because this strikes at the basis of recruitment and of the terms and conditions of the staff of the commission. Sub-section (10.) in its present form provides -
Officers and temporary employees appointed by the Commission shall not be subject to the provisions of the Commonwealth Public Service Act 1922-1946 but shall, subject to this Division, be subject to such terms and conditions of employment as are prescribed.
The words “ as are prescribed “ imply that the Executive Council must pass statutory rules, which become part of the law of the country. They are deemed to be immediately available to everybody and are, of course, readily accessible to the staff. But of immediate interest to us in this Parliament is the fact that these rules are required to be laid on the table of the Parliament, and members of the Parliament may move for their disallowance. If sub-section (10.) is to be repealed, statutory rules will no longer have to be made about the terms and conditions of employment of the staff. The Minister explained in his second-reading speech that it is proposed to remove the necessity for the making of statutory rules, and that what he calls staff rules will be drawn up by the commission with the approval of the Public Service Board. He said that the intention was to ensure that the commission’s staff did not have conditions worse than those enjoyed by the Commonwealth Public Service itself. 1 am given to understand that there is no belief held by the staff of the commission that their terms and conditions are any worse than those of the Commonwealth Public Service. After all, the employees of the commission have access to the Public Service Arbitrator, who is the medium by which the conditions of the Commonwealth Public Service and those of the commission can be kept in line. 1 would like the Minister to say whether it is intended that the commission’s staff shall no longer have access to the Public Service Arbitrator.
– What is the provision of the present act that requires the terms and conditions to be prescribed?
– Sub-section (10.) of section 43. The honorable senator will find it at page 15 of the 1956 act. That makes it essential, and I see from the bill that clause 17 (a) seeks to repeal subsection (10.) of the principal act. 1 notice, too, that the proposed new sub-sections are not to become operative immediately, that their operation is -to be .postponed until they are proclaimed. The moment they are proclaimed, 1 take it that the present statutory regulations dealing with the terms and conditions of employment of the staff will fall to the ground and at that point we shall get a system of staff rules.
I note that there is no requirement that the commission shall make a copy of those rules available to each member of the staff. The members of the staff are to be bound by the rules, and they are to be liable to penalties if they do not comply with them. At the present moment, when the terms and conditions are made public by way of statutory rules, everybody can have access to them. Even the present statutory rules impose an obligation on members of the commission’s staff to know both their act and their rules. That particular requirement will go by the board and I am asking whether it is to be replaced with a provision that the commission must make available to each member of its staff a copy of the proposed staff rules.
– The commission has in fact made a copy available to the association.
– I would not doubt that. 1 would expect it to do so. I understand it has made copies of the draft rules available to the association .already. But 1 am talking about the time when this provision settles down in the act as amended. I am saying that the act should place an obligation upon the commission to ensure that the staff rules are brought to the notice of each member of the staff.
– Does not the law now require that the terms and conditions of employment of public servants shall be prescribed by regulation?
– It does.
– Order! The honorable senator’s time has expired.
– I want to deal again substantially with clause 17 of the bill. An examination of the provisions of this clause made in conjunction with a scrutiny of the principal act discloses that when this bill becomes law section 43 (8.) will remain. I do not know whether Senator McCallum and Senator Robertson had copies of the Broadcasting and Television Act before them when they made their statements a while ago, but 1 presume they would not be so foolhardy as to comment upon the provisions of the bill without having before them a copy of the act. If they did have before them a copy of the act they should have noticed that when this bill becomes law present section 43 (6.) will be omitted. That sub-section reads -
Appointments to positions which are open only to persons who have passed the prescribed entrance examination shall be made in the order of merit of their passing the prescribed examination.
In order to ascertain to whom that applies, we turn to section 43 (1). of the principal act which reads -
The Commission shall appoint a general manager, who shall be the chief executive officer of the Commission and shall, subject to sub-section (8.) of this section, hold office on such terms and conditions as the Commission determines.
Sub-section (2.) goes on to provide -
The Commission shall appoint such other officers and temporary employees as it thinks necessary.
There, a distinction between officers and temporary employees is made. I have nothing to say about the employment of temporary employees. I wish to speak only about the employment of those persons who will be classified as officers of the commission. Sub-section (3.) says -
The officers of the Commission shall constitute the service of the Commission.
So I am dealing now particularly with the officers who will constitute the service of the commission; that is, the permanent officers of the commission. What do we find with relation to them? First we find that sub-section (6.) is to be eliminated, lt reads -
Appointments to positions which are open only to persons who have passed the prescribed examination shall be made in order of merit of their passing the prescribed examination.
When this bill becomes law, a personnel officer employed by the commission will appoint all officers. I ask honorable senators on the Government side whether they believe in that. Do they support that principle? Do they say that nepotism cannot be practised under the proposal? Will they tell me now that it is not being practised at the present time where there is an opportunity for it? I do not say that nepotism is being practised particularly in connexion with the commission, but I do advise honorable senators on the Government side to look at what is happening in the Commonwealth Bank. If they do so, they will find that every word I have uttered is well supported by facts. If they have no first-hand information on the point I can only say that this is due entirely to the fact that the residents of the States which they represent do not approach them and tell them of the problems confronting people in obtaining suitable employment for their sons and daughters. If any honorable senator on the Government side does not know what hanky-panky business is going on, I can only say he is an Alice in Wonderland. Senator McCallum smiles. No honorable senator in the chamber knows more about employment matters than I do, and I know what is happening. I know how nepotism exists and unsavoury influences operate. Honorable senators on the Government side are prepared to accept this part of the bill. I am objecting to it, and I shall continue to object to it so long as there is a breath in my body.
– As the proposed alterations relating to staff matters will have far-reaching consequences, I discussed the position with my officers last night and had them prepare notes setting out what the new position will be. Those notes cover some of the points that have been made as well as some points covered by later clauses. With the permission of the Senate, I will cover all the ground now, for I have found that it is only by doing this that I was able myself to get a clear picture. The terms and conditions of employment, excluding salary ranges, are currently set out for Australian Broadcasting Commission staff, both permanent officers and temporary employees, in Statutory Rule 17 of 1947 as varied. These are commonly referred to as the staff regulations. They were brought into effect following the inquiry by the Parliamentary Standing Committee on Broadcasting in 1945-46. They arn fairly rigid in form. They make provision for the internal organization of the commission into various departments such as music, drama, youth, education. They deal with machinery matters that are purely administrative matters such as the hours of attendance of the staff, payment of allowances to staff, travelling allowances and cost-of-living adjustments. As a result, any amendment, for example a costofliving variation, involves amendment to the regulations through parliamentary processes before the increases can be applied to the staff. This results in the staff receiving cost-of-living increases long after those increases are applied to the Commonwealth public servants.
– Who is it that takes the long time?
– I will come to that. First of all, the rates have to be settled by the Public Service Board because that board sets down the pattern for Crown employees as a whole. After the Public Service Board makes its decision and sets its pattern, the mills of God have to take it up in the statutory authorities, and these have to get regulations through the Executive Council, and so on. In addition to staff regulations, matters affecting the employment of the staff were dealt with by administrative action of the commission and its executive officers through what were known as administrative instructions and commission decisions. In addition, certain conditions of employment, as distinct from salary classifications, have been determined over the years by the Commonwealth Public Service Arbitrator and are embodied in his determinations, which over-ride the provisions of regulations and the commission’s administrative instructions and decisions.
The introduction of television brought new responsibilities, resulted in a considerable increase in staff, and necessitated amendments to regulations to make them more flexible, particularly in relation to internal organization, so that provision could be made for the establishment and operation of new departments associated with television, for example engineering. The Opposition at the time opposed these amendments to the regulations on the ground that they gave greater power to the commission than was necessary.
The amendments that are now proposed will have the effect of ensuring that all matters affecting the conditions of employment of the Australian Broadcasting Commission’s staff, except those that are prescribed by the Public Service Arbitrator and those of a judicial character, to which reference will be made later, will be subject to review by the Public Service Board after they have been decided upon by the commission. This follows the procedure now adopted in regard to a great number of statutory authorities, including the Australian Atomic Energy Commission, the Snowy Mountains Hydro-electric Authority and the Commonwealth Scientific and Industrial Research Organization. The supervision of the Public Service Board over all employment matters affecting the staff of the Australian Broadcasting Commission will provide the most effective safeguard against the possibility of any capricious action on the part of the commission towards its staff and at the same time will ensure that at all times the commission’s staff will be employed under no less favorable terms and conditions than those which are applicable to the Commonwealth Public Service.
In future all decisions of the commission relating to staff will be subject to the supervision of the Public Service Board, which is one step removed from the stage at which initial decisions are made, and which will therefore be able to provide an objective assessment of the circumstances. There will be speedy application of changes in conditions of employment which have been previously agreed to in regard to the Public Service and are under consideration for extension to the commission wherever practicable. This is of very great importance to the staff. Alterations in basic wage and allowance payments, where the principles on which the payments are based have been submitted to Parliament by way of statutory rule for application to the Public Service, can then become applicable in the service of the commission. It is most desirable that those principles should have the scrutiny of Parliament and that once they have been accepted their application to the Commonwealth Public Service as a whole and to the statutory authorities established by the Government should be as speedy as possible. In other words, let them be approved by Parliament in its consideration of statutory rules for the Public Service as a whole, and then let us get right to the point with the statutory authority, without having to go through the same procedure on a second occasion.
Things of that sort will be covered in the statutory rules affecting the Public Service as a whole. It is still proposed to include in statutory rules those provisions relating to the establishment and operation of the Australian Broadcasting Commission Staff Promotions Appeal Board and the Disciplinary Appeals Board. These matter.”: will be the subject of statutory rules for the Australian Broadcasting Commission which will come before the Parliament. So Parliament’s control will be exercised in two ways. It will cover the general terms and conditions that apply, by and large, to the Public Service as a whole and1 then become applicable to the Australian Broadcasting Commission, and it will cover matters affecting staff promotion appeals and disciplinary appeals, which will be the subject of statutory rules of the commission and will thus come before the Parliament. This arrangement, I think, will remove the objections that were tentatively expressed earlier in the debate.
.- The Minister’s explanation has helped us a great deal and I thank him for the information that he has given. Nevertheless, my objection is that in the service of the commission we have a group of officers who will serve the whole of their working lives there and never become members of the Commonwealth Public Service. They will never become subject to the provisions of the Commonwealth Public Service Act 1922- 1946 and they will never be public servants in the true sense of the term. I can well understand that employees of the Snowy Mountains Hydro-electric Authority could never be admitted to the Public Service, because the time will come when their services will be dispensed with. When constructional work on the scheme has been completed and its fag ends have been drawn together, the time will have arrived for some of them to be allowed to seek employment elsewhere. But the Australian Broadcasting Commission, as far as we can see now, will go on as long as there is a Commonwealth government. The Government would be on safe ground, I would say, in placing nearly two-thirds of the officers employed by the commission completely within the ambit of the Public Service Act. Perhaps the Minister has some reason to advance, on behalf of the Government, for that not being done.
– The reasons are not easy to express, because the difference between the Australian. Broadcasting Commission and the Public Service is almost fundamental. Following Senator Benn’s line to its logical conclusion, we should have the Australian Broadcasting Commission as a branch of the Postmaster-General’s Department. A statutory authority is established in order to put in the hands of a group of people a particular job, in the belief that they can get to the point and do the job better outside the Public Service and without being subject to all the Treasury rules and regulations and everything else that goes with the Public Service as a whole. There is a fundamental difference. 1 put it to Senator Benn that this bill attempts to make the best of both worlds. It gives to employees of the statutory body, so far as it is reasonably possible to give them, the benefit of Public Service terms and conditions, because their recruitment and all other major matters will be determined automatically by the application of Public Service regulations.
– Where is that provided?
– I do not think it is provided. It is implied, I suppose.
– I took that statement from my brief. I shall try to prove it in chapter and verse. The bill will give to commission employees the benefit of Public Service conditions. At the same time it does retain for the commission the degree of autonomy that is a desirable attribute of a statutory authority.
.- I am very uneasy with regard to one aspect of this matter, namely, that the fixation of the terms and conditions of employment of the officers of the Australian Broadcasting Commission is to be removed from the surveillance of the Parliament. The terms and conditions of employment of these officers are to be determined by the commission, with the approval of the Public
Service Board, by memoranda exchanged between those two bodies. The present position is that the terms and conditions of employment are prescribed by regulations, which can be disallowed by either House of the Parliament. Under the present system, the matter comes into the light of day in each House of the Parliament by virtue of the fact that it has to be expressed in regulations.
We could approach this problem with benignity and say that it would be a glorious day when the Public Service Board could never be interfered with by the Parliament, when the board could sit around a conference table with the Australian Broadcasting Commission and when the two bodies could make their own arrangements. It would all be sweet and lovely sp long as no offensive politician put his odious nose in. A democracy of that sort would be the loveliest place in the world for these newly fledged and highly-powered bureaucrats. The Regulations and Ordinances Committee recently directed the attention of the Senate to the fact that over the last twelve months this country has had imposed upon it, by regulations made by the Public Service Board for remunerating public servants, an increase in expenditure of £16,000,000 a year.
– There was an Executive decision authorizing that.
– If the honorable senator is satisfied with Executive decisions, he should write himself off the pay-roll, go home and leave the Executive to conduct the business of the country. I am advancing the argument that the expenditure of sums, of money of that order is the proper concern of the Parliament. I am pointing out that, by regulations, the Public Service Board has increased the expenditure for remunerating public servants in one year by £15,000,000 or £16,000,000. It appears from what has happened during the last month that we are so unconcerned at the prospect of losing, as a Parliament, our responsibility for assessing expenditure in the Public Service - in this instance in relation to the Australian Broadcasting Commission - that we are going to leave such matters to an agreement made in conference by the Public Service Board and the Australian Broadcasting Commission - an agreement which may never be submitted to the Parliament. If the decisions made in this Senate during the last two or three weeks prevail - I venture to prophesy that they will not - whereby permission to table obscure public papers was refused, a memorandum that passes between the Public Service Board and the Australian Broadcasting Commission could be concealed from the Parliament. What sort of a situation are we reaching? We ars eviscerating the Parliament of all responsibility in relation to expenditure on the Public Service - in this instance in relation to the Australian Broadcasting Commission. I feel, Mr. Chairman, that something must be done in order to retain control by the people’s representatives of the assessment of remuneration for the Public Service.
The Minister has said that this easy and facile method is being adopted because otherwise long delays would occur in making salary adjustments pursuant to basic wage or margins decisions. Why should there be long delay? To put through the necessary regulations ought not to take an efficient government department more than a fortnight. The whole of the Public Service is subject to such delay at present, because it cannot get the benefit of wage decisions except through the medium of regulations. I think that the complete answer to this excuse about long delay - it is not an argument - is that in the regulations you may, if the Parliament chooses to adopt it, include a provision that the rates of pay prescribed shall be automatically adjusted as the result of any movement in the basic wage.
– And it could be made retrospective.
– Yes. With the indifference that prevails, I have no doubt that a regulation providing for retrospectivity would excite little criticism. Surely the two arguments I have raised are a complete answer to the contention that the bureaucrats have put forward, namely, that this matter should be agreed upon by the board and the commission, and that the Parliament should be ignored. They should decide how to expend the people’s money and we should be content.
I have spoken in this way because I wish to hear something more said about the matter. I shall abstain from moving an amendment at the moment, but I say that the proposed new sub-section (6.) of section 43 of the act should read -
Subject to this Division, the terms and conditions of employment of officers and temporary employees appointed in pursuance of this section are such as are prescribed.
If any argument can be raised to the contrary, I shall listen to it with attention.
– I take up the same stand as Senator Wright on this matter. If honorable senators will look a little further on in the bill they will find that not only can the commission, with the approval of the Public Service Board, determine the terms and conditions of employment of officers and temporary officers, but it can also create new positions. Proposed new sub-section (1.) of section 45 reads - . . the Commission may, from time to time, create any position in the service of the Commission and, with the approval of the Public Service Board, determine the salary, or the salary range, applicable to that position.
I do not think that Parliament should be by-passed in that way.
I feel that the Minister did not deal with the two specific points I raised in relation to clause 17. The points were also raised by my leader. If people who are not British subjects are appointed permanently to the service of the commission - people who have not made or subscribed to the oath or affirmation of allegiance - will any measures be taken to assure the commission of their loyalty? Is it not a complete deviation from accepted policy for people to be appointed to permanent positions with a semi-governmental body without being obliged to take an oath or affirmation of allegiance?
I refer to proposed sub-section (4.) (c) which provides that a person shall not be appointed to the service of the commission unless the commission is satisfied as to his health and physical fitness. Will the commission be able to employ people who are mentally fit but physically handicapped? As the bill stands, the commission may employ mentally handicapped people if it wishes to do so, but not physically handicapped people. As we know, many physically handicapped people are very alert mentally, sometimes because of the very fact of their infirmity. In this Parliament we have sometimes noticed that those who have had the greatest physical afflictions have had a correspondingly great degree of courage and application to their duties. They have done a wonderful job. Only last week, we were lamenting the passing of a very notable example in that respect. I refer to the late Mr. Clarey.
I should like to see the commission given discretionary power to appoint persons who, although they might not be Al physically, could nevertheless fulfil the requirements. If the commission were to appoint such people it would give a lead to employers in industry, to whom we have been appealing in recent weeks to assist in the rehabilitation and employment of physically handicapped persons.
.- 1 refer to proposed sub-section (6.), which reads -
Subject to this Division, the terms and conditions of employment of officers and temporary employees appointed in pursuance of this section are such as are determined by the Commission with the approval of the Public Service Board . . . 1 assume that the expression “ terms and conditions “ means “ wages and working conditions “. The bill provides that the commission may fix the wages and working conditions of officers and temporary employees, after consulting the Public Service Board. I ask: What happens then? How is such a determination to be given the force of law? Is the act to be amended further, so that the Treasury may be called upon to make available the funds needed to pay the wages involved, or will a regulation be made following on the fixation of wages and working conditions by the commission? If so, will the regulation be gazetted so that it will operate like an award of the Commonwealth Conciliation and Arbitration Commission?
I stress the importance of this provision. We have in this country at least fourteen or fifteen wage-fixing tribunals. Apparently the Government proposes to establish another such tribunal by allowing the commission to fix the terms and conditions of employment for its officers and temporary employees. We are dealing, under this legislation, with a section of the Commonwealth Public Service. It is not good enough to pass a bill of this nature without having first obtained the fullest information that it is possible to obtain. I hope the Minister will be able to explain the way in which it is expected the provision will operate, and how the funds are to be made available. Will the commission provide them from its revenues, or will it draw on the Treasury?
– Let me reply to Senator Tangney before I again forget to do so. In practice, the Australian Broadcasting Commission has a pretty good liaison with the Department of Labour and National Service. There are arrangements between the commission and the staff association in regard to the employment by the commission of physically handicapped and blind people. Whatever may be the legal framework within which the arrangements have been made, they in fact exist. In regard to the employment of nonBritish subjects, I direct attention to the fact that each such instance is the subject of ministerial approval. A non-British subject may be promoted or transferred from the temporary staff to the permanent staff only after ministerial approval has been obtained, so that the full facts and circumstances in each particular case go before the Minister.
The short reply to Senator Benn’s query is that the commission is subject to parliamentary control for budgeting purposes. The funds for the use of the commission have to be voted by the Parliament. The Treasury takes a very close interest in all the arrangements that are made, and it is not simply a matter of making appointments without regard to the need to obtain the necessary funds. The officers concerned must have a due sense of responsibility, and the arrangements have to run the gamut of budgetary and parliamentary control.
With respect, I think that Senator Wright has assumed too easy an approach to this matter. It is quite unrealistic to speak of the Public Service Board increasing Public Service salaries by £15,000,000 a year. In the world in which we live, the Commonwealth Government, in common with other governments, is subject to industrial awards and conditions. When awards are made, the Commonwealth Government has to observe them, as has any one else. That I think, is a point that Senator Wright did not acknowledge. I know that there are refinements and variations of that position, but nevertheless, the vast increases of governmental salaries that we have seen have not been due to the wisdom, or lack of wisdom as the case may be, of the Public Service Board. As I see it - and I say this without advice from my officers - to a very material extent the increases have been merely the net result of the Commonwealth, us an employer, complying with industrial conditions. That, I think, is a short answer to the suggestion that is implicit in Senator Wright’s criticism that the Public Service Board, or somebody, is running riot in these substantial cash appropriations.
The other point, which was not put by Senator Wright and which has not been mentioned in the debate - indeed, Senator Wright may not be aware of it - is the great competition that exists between departments and statutory authorities for efficient officers. One of the problems of government is caused by the practice in which one authority, in order to secure a particular person or, indeed, a person at all, will offer quite materially different terms and conditions from those that are offered by another government department or statutory authority. I speak of this matter with some personal experience. I have found that officers have gone from activities associated with one end of my ministerial authority to the other on quite different terms and conditions for what I believed te be not materially different responsibilities. Wilh the growth of government there is an increasing need for this co-ordinating work and the Public Service Board looks over the shoulders of all departments and authorities and lays down formulas that are equitable to the officers concerned and al. the same time reasonable to the government of the day.
– It stops traffic.
– There is another term to describe it used in the Public Service. I think that the way the bill approaches this matter is sound. The statutory authorities are left with choices and decisions in certain directions. The responsibilities of the commission are linked to the experience of the Public Service Board. I believe that as the bill stands at present it does protect the position of Parliament, because Public Service terms and conditions are, in the final analysis, subject to parliamentary approval. Having decided that terms and conditions of employment should be as uniform as possible throughout the Public Service and having, as it were, reduced the area in which the commission makes independent decisions, it seems unnecessary to adopt Senator Wright’s suggestion and make those terms and conditions subject to parliamentary approval and statutory rule. Indeed, I would think that it may be impracticable to attempt to do so.
.- The remarks of the Minister should be a thoughtful challenge to every honorable senator. He said that the increase in Public Service salaries by £15,000,000 in one year, to which I had referred, resulted from the fact that the Commonwealth, like every other agency of employment, is subject to the jurisdiction of industrial tribunals. If that idea is conceded so easily by the Minister, we are well on the way to the destruction of parliamentary government. There should be a proper translation of industrial decisions to the Public Service. I am fortified in that belief by the reminder of the Chief Judge of the Arbitration Commission that his decision as to a 28 per cent, rise in margins was never intended to be translated as a percentage through every salary range in which an element of skill had to be exercised by those who came within it. I am further fortified by the rebuke that the Prime Minister (Mr. Menzies) gave to everybody concerned in December last when he said that he regarded it as an irrationality - that may not have been the word he used but it has the same meaning - to translate the margins decision simply into a percentage figure to be applied to all salaries. I protest against people beyond the realm of parliamentary jurisdiction having the right to apply an industrial decision to public servants and employees of public authorities. That is cur responsibility and such matters should be brought before us by regulation.
The argument has shifted since I spoke to a suggestion that regulations are unnecessary. Benignity such as that will take away from this Parliament all its responsibility in matters of this kind. If Ministers are prepared to give to three appointees to the Public Service Board complete authority that belongs to this Parliament, constituted as it is by democratic election by the people, 1 think a halt should be called.
Proposed new sub-section (6.) reads -
Subject to this Division, the terms and conditions of employment of officers and temporary employees appointed in pursuance of this section are such as are determined by the Commission with the approval of the Public Service Board. 1 move -
I n proposed sub-section (6.) leave out “ determined by the Commission with the approval of the Public Service Board “, insert “ prescribed “.
The sub-section will then read -
Subject to this Division, the terms and conditions of employment of officers and temporary employees appointed in pursuance of this section are such as are prescribed.
– 1 direct the attention of the Minister to a number of questions that I asked him earlier and which so far he has not dealt with. I can understand his failure to deal with them, because he has had several matters before him relating to this clause. Can the Minister give some justification for seeking power to appoint to the service of the Australian Broadcasting Commission people who are not British subjects? Will he indicate in what circumstances such people have been appointed and how many are involved? I suggest that the commission should be required to report annually on this matter or that the Minister should be obliged to report periodically to the Parliament.
With regard to the abolition of statutory rules and their replacement by staff rules, is there any provision to ensure that staff rules will be brought to the notice of the staff? Senator Wright’s amendment is in line with the argument that 1 have already addressed to the committee and with the views of the staff association of the commission’s employees. I informed the Senate yesterday that its federal executive was of one mind on that matter. I can carry that a stage higher to-day by stating that its general council - a much higher body - is also in favour of retaining the staff conditions under statutory rule. How, for instance, under the new procedure could the organization approach a member of Parliament to move for the disallowance of one of the staff rules, as I did in
November of last year? lt is a great right, lt is a most enormous protection to a staff. I can see no difficulty in reconciling proper matters between the Public Service Board and the commission’s staff without delay.
In the matter to which the Minister referred, it took a long time for costofliving adjustments to percolate, as it were, into regulations in relation to the commission and every time there was a move in the cost-of-living the regulation had to be altered. Surely one omnibus clause would enable cost-of-living adjustments applicable to the Public Service to apply to the staff and be operative from the same date as they apply to the Public Service.
– Would that be automatic?
– lt could be expressed in that way. If it were automatic it would involve only one alteration. Surely the exercise of common sense would enable one clause to be drawn that would make the regulations applicable in futuro and if there were a delay in the issue of a regulation to make the application of the variation retrospective to the date on which the variation began to operate in the Public Service. Surely, that would be a very simple provision. I find the amendment proposed by Senator Wright to be in accordance with the Opposition’s thinking on this matter, and I am prepared to support it.
– I cannot add a great deal to what I have already said in answer to Senator Tangney - although I did not answer Senator McKenna - about the employment of non-British people by the Australian Broadcasting Commission. 1 said that each appointment was made only after ministerial approval had been given. I am told that very few such appointments are made but that there is a need for this provision when non-British persons are employed who give satisfactory service, have the qualifications, and have been with the commission for some time.
– Is there any provision requiring a report to be presented to the Parliament showing the number of people so appointed either by the commission or the Minister?
– There is nothing in the bill to that effect. I doubt whether it is of sufficient importance to warrant inclusion in the bill. I shall convey to the commission the view that has been expressed that this matter should be included in the commission’s annual report. Does Senator McKenna think that the names of the appointees should be included?
– There is no need for the names to be included.
– Then I shall suggest that there be included in the report a reference to the number of cases that occur during the year covered by the report.
– Have many such appointees become naturalized citizens?
– I am told that the answer to the honorable senator’s inquiry is “ Yes “, although there has not been a great number of these appointments. I am sorry to say that I have not the actual figures before me. I am told that some of these people who have been given permanent appointments have subsequently become naturalized. In order to make the staff rules effective, it would be necessary, of course, for the commission to bring them to the notice of all members of the staff.
The Government is not prepared to accept the amendment.
Question put -
That the words proposed to be left out (Senator Wright’s amendment) be left out.
The Committee divided. (The Temporary Chairman - Senator Anderson.)
Majority . .. 4
Question so resolved in the negative.
Clause agreed to.
Clauses 18 and 19 agreed to.
Clause 20 (Reclassification).
– A rather complicated provision is contained in proposed new sub-section (4.) of section 46, which reads as follows: -
That is a rather horrifying-looking section, and I would like to know whether my interpretation of it is correct. Sub-section (2.) of section 46 of the principal act says -
Whenever any position is reclassified the position shall be deemed to be vacant.
I take it that all this verbiage in the proposed new sub-section is directed towards saying that where only one position of a particular kind is in existence and is reclassified, subsection (2.) of section 46 shall not apply to create a vacancy in that position if the commission is able to certify that the reclassification follows from a general reclassification of other positions in respectof which a direction has been given that subsection (2.) is not to apply. Is that what is intended, and could the Minister give some general information showing how the provision will operate?
– I am advised by my officers that Senator McKenna’s interpretation is correct, and I am prepared to rest content with that advice.
Clause agreed to.
Clause 21 agreed to.
Clause 22 (Dismissal, reduction in status, fine, &c, for misconduct).
– I would like to ask the Minister a question about paragraph (e) of sub-section (1.) of proposed new section 56, which provides-
An officer who -
is guilty of disgraceful or improper conduct, either in his official capacity or otherwise; is, for the purposes of this section, guiltyof misconduct.
I do not think there would be any miscarriage of justice if the conduct referred to in this paragraph were restricted to conduct in the officer’s official capacity. The words “ or otherwise “ appear to cover a rather wide field, and I wanted to know whether there was sufficient opportunity for appeal, or whether there is some legal interpretation of the provision which will safeguard the officer.
– I am advised that this paragraph would apply to an offence committed outside the scope of the officer’s official employment, but that he would have a right of appeal from any award made against him as a result of such offence.
Clause agreed to.
Clause 23 (Appeals).
– This clause amends section 57 of the principal act. That section at present covers officers who are dismissed, retired, transferred or reduced in status or rate of pay, and it is now proposed to include also officers who are fined an amount exceeding £2. Officers punished in any of these ways may appeal to the Disciplinary Appeal Board. Proposed new section 56 empowers the commission to fine an officer an amount not exceeding £20. This is an entirely new power that is given to the commission, which may now caution or reprimand an officer or fine him any amount up to £20. According to clause 23 of the bill, an officer shall have the right of appeal against a fine only if the fine exceeds £2. It is possible that an officer may feel very aggrieved at being fined £2 or even less. It is conceivable that he might be vexatiously harassed by fines of £2 frequently imposed. I think it unlikely that this would happen, but I see no reason why he should have no right of appeal if the fine is £2 or less.
– The purpose is merely to bring the provision into line with that applying to the Commonwealth Public Service generally.
– I agree that the provision has now been made general, and it is against the general provision that I am protesting. 1 can well imagine a situation in which a man would rightly feel aggrieved at having been fined £2, not because of the amount of the fine but because the judgment has gone against him and an entry has been made on his record. Why should a shilling or a few shillings make the difference between a right of appeal and no right of appeal? 1 suggest that an officer should be entitled to appeal if he feels sufficiently aggrieved, regardless of the amount of the fine.
– The Minister has said that the purpose is to bring the provision into line with that applying to the Commonwealth Public Service, and I remind him that the Public Service provision is somewhat of a hardy annual which has caused grievous discontent amongst Public Service organizations for a long period of time. The discontent springs from a practice that has grown up over the years, under which a person charged with a serious offence, such as striking or manhandling a senior officer, is fined only £2 if the case against him is such that it might be dismissed upon appeal. By limiting the amount of the fine to £2, the officer is denied the opportunity of appealing. His record, however, then bears a notation that he has been found guilty of an offence, although it is quite clear that such an offence would call for a much more drastic punishment than a fine of £2.
Such a practice is obviously unfair, and the provision in its present form places a powerful weapon in the hands of senior officers. I see no harm in providing for an appeal from a fine of any amount. If a person is guilty of the offence charged and is fined only £2, he will be grateful for such leniency and will not appeal to a tribunal which has the power to increase the amount of the fine. A person will appeal only if he believes a wrong has been done. Under the existing legislation an officer can have his reputation stained and his chances of future promotion jeopardized while he is denied any opportunity of appealing. Although the fine may be only £2, the denial to him of the right of appeal could be, in effect, a much heavier penalty. The Minister has suggested that this provision is only in line with that contained in other acts relating to the Public Service, but I suggest that the employee should be given the right of appeal. After all, the cost to the commission would be only a little time, and that should not be considered against the benefit of granting a man the right to prove his innocence. I emphasize that on many occasions an unreasonable attitude has been taken in relation to alleged offences. The provision proposed here puts an unfair weapon into the hands of a person who is not game to charge an employee with a serious offence and who is content to hide behind the opportunity to impose a fine of only £2, against which there is no right of appeal.
– I find that this is one of those measures which, as Senator Willessee says, has a long history. It has been the subject of argument between the Public Service Board and the Public Service Association for a considerable period of time. I am told that it is used only in the case of a minor offence to which there is no publicity given and which is not made public knowledge. In all public services throughout Australia there is a line of demarcation between when an appeal shall or shall not lie. But there is a wide variation in respect of the amount of the fine against which there shall be right of appeal. For instance, in Victoria, an officer has no right of appeal unless the fine exceeds £25. This figure of £2 has been accepted by the Government and the Public Service Board as being reasonable, and has met with the satisfaction of all concerned. If we were to alter it in this bill we would be departing from decided policy on the matter and it would also be necessary to amend other legislation containing a provision similar to this.
.- I am surprised to hear the Minister say that in Victoria there is no right of appeal until the fine exceeds £25. I do not know to which branch of the Public Service that applies but, from my association with the railways service in Victoria, I know that there is a right of appeal against the imposition of a fine of much less than £25. We have always protested against not merely denial of the right of appeal against the imposition of a minimum fine but also no right of appeal against even a caution. The argument against us has been that the fact that a man has been cautioned is not used against him later on. Both the employees and their organization have always protested against the recording of cautions on an employee’s history sheet. They have always argued that there should be a full investigation in order to justify the placing of any entry on an employee’s history sheet. There is always the possibility that a man will be cautioned, and just as Senator Willesee has suggested, a minimum fine of £2 will be imposed, merely because there is no right of appeal and therefore no likelihood of any investigation. I know that this matter has been under discussion in the Public Service for years, and I feel that the time has long since passed when an effort should be made to remove this provision from all relevant acts. The fact that its omission from this bill would require the amendment of a number of acts is no reason why an injustice should be done on this occasion. It is a grievous injustice that a man should be required to suffer a penalty merely on the say-so of his senior officer without having any right of appeal to require the senior officer to prove his charge.
– 1 know it is of no use wasting the time of honorable senators and I appreciate that a minimum fine is quite reasonable for such minor offences as carelessness, negligence or coming late to work, but I submit that the way to put the matter in its proper perspective is to lay down the types of offences which are to attract the £2 penalty. Under the present proposal, if it is alleged that an officer has committed a serious offence such as striking a superior officer, the way is left open for the superior officer to avoid a full investigation of all the circumstances by preferring the minor charge against an employee, inflicting the minimum fine of £2 and so denying the employee concerned the right of appeal.
I repeat that the way to overcome the problem would be to lay down minimum and maximum fines for certain offences. That would then avoid giving a senior officer the opportunity to treat a serious offence such as aggravated assault as a minor offence and so avoid full investigation of the circumstances. It might be a difficult way of overcoming the problem, for it might involve requiring officers who have no legal training to interpret all sorts of rules which probably would be borrowed from a court. We could get on to dangerous ground there, but it would be one way of preventing what the unions have been complaining about for years.
So far as I know, the only occasion when offences committed by public servants are given any publicity is when the matter is taken out of the realm of the Public Service and treated as a criminal offence. I refer to such charges as misappropriation of funds and so on. Offences attracting fines of only £2 would not receive any publicity in the sense that they would be made public knowledge, but knowledge of them would exist within the department and this could do serious damage to a man’s reputation and certainly could prejudice his opportunity to obtain promotion.
It is obvious that the Minister is not prepared to alter this proposal, but I cannot agree that the fact that a similar provision exists in other acts is an argument for its retention here. I repeat that the Public Service, as the employer, has very little to lose. All that is required is that the employee be given opportunity to appeal. The only cost involved would be a little time. Again, it is no argument to say that although a provision may be unjust it must be included in this instance so that this legislation will be in conformity with other acts containing this provision. If there is an injustice anywhere, it should be rectified.
Clause agreed to.
Clauses 24 to 27 agreed to.
Clause 28 (Procedure for revocation).
.- This clause is one that 1 am very gratified to see. lt provides that a person whose licence is revoked under section 86 may appeal to the Commonwealth Industrial Court against the revocation. When one realizes how wide are the words of the undertakings entered into by licensees, one sees that as a matter of justice, before a revocation of licence by administrative means becomes effective, they should have the right of appeal. I express my great pleasure at the fact that the Government saw fit in the House of Representatives, after the introduction of this measure, to insert this clause.
I ask the Minister to tell me whether or not he is satisfied that the term “ revoked “ includes the case of cancellation of licence. I notice that the expression in section 86 is “ suspend or revoke “. I just want to know whether revocation includes cancellation.
– Apparently there is no such thing as a cancellation. The term is “ revocation “. For the purposes of this legislation, I am told, the two words mean the same thing. The expression “ cancellation of licence “ is apparently not used. The term used is “ revocation of licence “.
Clause agreed to.
Clause 29 agreed to.
– Before we deal with clause 30, Mr. Temporary Chairman, may 1 point out that it is a very long one, extending over more than five pages of the bill. I respectfully suggest that we take the clause proposed new section by proposed new section.
– Whilst I agree with that suggestion, I think we shall find that one section is intimately linked with another. 1 support the suggestion, provided that in dealing with one section we are free to refer to those other sections proposed in the clause that are linked with it.
– That could be very satisfactory. On the other hand, we could reach the stage of having a completely uncontrolled debate.
– The alternative is to take the clause as a whole and wander backwards and forwards. The procedure suggested by Senator Wright might permit of some order being achieved. I suggest that we deal seriatim with the proposed new sections but be free to refer to other proposed new sections that are connected with the one we are considering.
– The committee will proceed on that basis.
Clause 30 -
Division 3 of Part IV. of the Principal Act is repealed and the following Division inserted in its stead: - “Division 3. - Limitation of Ownership or Control of Commercial Television Stations.
Proposed section 91. “91. - (1.) In this Division, ‘licence’ means a licence for a commercial television station. “ (2.) In this Division, ‘ control * includes control as a result of, or by means of, trusts, agreements, arrangements, understandings and practices, whether or not having legal or equitable force and whether or not based on legal or equitable rights. “ (3.) The express references in this Division to companies shall not be taken to indicate that references to persons do not include references to companies.
– I move -
At the end of proposed section add the following sub-section: - “ ‘ (4.) For the purposes of this Division, a licence granted by way of renewal of a licence shall be deemed to be a continuation of the firstmentioned licence.”.
Proposed section 92h places an obligation on the chairman of directors and the secretary or manager of a company which holds a licence for a television station to make annual statutory declarations concerning certain aspects of the shareholding of the company. The section, as framed, presupposes a continuance of the licence from year to year. Licences are renewed after their initial period of five years by the grant of a fresh licence each year. The purpose of this amendment is to make it clear that a licence granted by way of renewal is, for the purposes of Division 3, to be regarded as a continuation of the original licence. In other words, the obligations under the original licence continue when the licence is renewed.
– I take it that the Minister can give us an assurance that the situation is safeguarded by the fact that the act elsewhere makes it possible for the Postmaster-General to revoke a licence if a condition of the licence is not complied with or if there has been any contravention of the act or the regulations by the licensee, and that what is proposed to be inserted now would not in any way detract from that Minister’s power to so revoke for either of those reasons. If I could have that assurance, I should not be worried about this amendment.
– This is not an additional power to put the Minister in any different situation. It is merely to make the renewed licence continue upon the basis upon which the original licence was granted.
Amendment agreed to.
Proposed section, as amended, agreed to.
Proposed section 92 (Limitation of control of commercial television stations).
Senator McKENNA (Tasmania - Leader of the Opposition [5.35]. - I regard this as one of the most important proposed new sections. It is not really new, however. It is section 91 of the existing act. I point out that it attempts to limit or control the ownership of, in particular, television stations. It provides that -
A person shall not be in a position to exercise control, either directly or indirectly, of -
licences in respect of more than one commercial television station within a
Territory or more than one commercial television station within a radius of more than 30 miles from the General Post Office in the capital city of a State.
In what I term the metropolitan area, a person is permitted to control one station, and he may control two licences in respect of commercial television stations in Australia. One person or corporation is entitled to control a station in one capital city and another station in another capital city. That is permissible under this proposed section, as I interpret it. I assume that the later provision, that control of voting power is to be limited - the 15 per cent, provision - can apply only to a third station. Am I correct in assuming that to be the position? Some argument took place about this matter during the secondreading stage. I am putting the proposition that there is nothing to prevent one corporation from being in a position to control, by having more than 15 per cent, of the voting power, two stations in Australia in capital cities. That is my understanding of the position.
If that is the case, I wish to refer back to a comment that was made in 1956 when another bill was under consideration. At that time I thought it might be difficult, owing to the limited operating range of a television station, for interstate implications to be involved in the operations of a television company, but it is quite clear now that, with the development of modern methods, programmes can be projected from great distances. Moreover, there is trade in television programmes. Films are exchanged between various States. There now is, or there may be, an interstate aspect to the operations of one person who is controlling two stations. I point out that this falls within the category of trade and commerce between States. The person concerned immediately attracts the protection of section 92 of the Constitution, which provides that trade, commerce and intercourse among the States shall be absolutely free. A licensee could have complete control of two television stations, one in one capital city and one in another, and no State government could interfere, whether by taking over or regulating the stations.
I should like the Minister to inform me whether I am correct when I say that the degree of control that may be exercised over two stations by one person is unlimited - that he may have over 51 per cent, of the shares - and that the prohibition applies only to a third licence.
– This is the position as I understand it. A company can be the proprietor of two stations, provided they are not in the same capital city. The consequence of that is that at present, there being no country stations, a person with two licences must operate them in two capital cities. Senator McKenna says that section 92 of the Constitution applies to that position and that difficulties could arise. Because of my lack of legal knowledge, I am not qualified to give an opinion on that, but 1 am quite certain that such an obvious point must have occurred to the Attorney-General and his drafting officers before they drew up this section.
– I apologize for asking the question 1 am about to put to the Minister, but some of the clauses dealing with control are difficult of understanding for any one who is not trained in law. I referred the other night to a case where a radio station licence was granted to some people 30 years ago, but the people to whom the licence was granted never operated the station. They leased it immediately to another organization, which has been operating the station as a lessee ever since. Under this legislation which is aimed at preventing an aggregation of interests in television licences, is there anything to stop an organization which fulfils all the requirements and obtains a licence to operate a station, from then leasing the station to an organization that does not fulfil the requirements? I feel there must be something to prevent such a thing occurring, but I want to be told whether there is.
– If a company obtained a licence and did not operate a television station, the licence would be revoked. If a company were to proceed to operate a station under conditions not provided for in the licence, again the licence would be revoked. If, having obtained a licence, a company proceeded to transfer that licence to a second company
– That was done 30 years ago in the case of a radio station in Melbourne, and it still persists. I want to know whether such an action would contravene the provisions of the act.
– My attention is directed to proposed section 92a. It is provided there that a person shall be deemed to be in a position to exercise control of a licence if that person is in a position to exercise control of the operations under or by virtue of the licence. I am afraid I do not follow the significance of that.
.- I feel that this clause must be scrutinized closely if we are to understand it. Going back to proposed section 91, we have the word “ control “ defined so as to include control as the result of, or by means of. trusts, agreements, arrangements, understandings and practices. Then we find a provision that a person shall not be in a position to control, either directly or indirectly, more than two licences in respect of commercial television stations in Australia. We then come to proposed section 92a, which reads -
For the purposes of sections ninety-two and nine-two C of this Act, a person shall be deemed to be in a position to exercise control of a licence if-
that person is in a position to exercise control of the company that holds the licence; or
that person is in a positionto exercise control of the operations conducted under or by virtue of the licence, the management of the station in respect of which the licence is in force or the selection or provision of the programmes to be televised by that station.
I think that, with this legislation, we are in a morass. Let me put a simple case. Assume that the Commonwealth Trading Bank finances a commercial television company in Melbourne and another in Hobart and that they both fall into such a bad business condition that the debenture holder requires the appointment of receivers. In the situation that I have put, the bank would be subject to a penalty of £100 a day, because we have quite nonchalantly said that it is an offence for a person to be in a position where he can, either directly or indirectly, control more than one such company. If the bank is a debenture holder in two companies in respect of which insolvency has neither occurred nor is suggested, is it in a position to control the companies? I know that, according to a House of Lords decision of 1897, it is usually provided that the receiver shall be the agent of the company, but for the purposes of this legislation that would be a futile and idle contention.
Let us consider the definition of “ control “. It includes control as a result of understandings, practices, agreements or otherwise. We all know that the bank controls the receiver and that the receiver manages and controls the business of the company.
– The bank’s only control over the receiver is the ability to remove him.
-I know that Senator Spooner’s association with receiverships prompts him to that inveterate idea of equity, but that is not so for the purposes of this legislation. I direct my mind to the relevant department of law. For the purposes of this legislation, surely nobody would say that, if the same bank appointed different receivers for the two companies, the bank would not be in a position to control the companies. That illustration shows how wide the penalty is. It provides for a fine of £1,000 and - not “or” - £100 for every day on which the offence continues. The object is, not that a person shall not be controlled, but that he shall not be in a position to exercise control.I feel that the illustration I have given shows how wide is the ambit of the prohibition. In fact, it is so wide as to deter one’s enthusiasm for it. I should like the Minister to indicate the invalidity of the suggestion I have made.
– I think that the Minister might well have an opportunity to look at this matter, and I suggest that this might be a convenient time to suspend the sitting.
Sitting suspended from 5.50 to 8 p.m.
– Is the Minister now in a position to reply to a matter that was current before the sitting was suspended? I take the opportunityto point out that under this proposednew section existing licensees in the capital cities are entitled to have complete control of stations. They are not limited to a 15 per cent, interest. The stations that they now control serve the great bulk of the population in this country. The proposed section to deal with limitation of ownership or control of commercial television stations will have an impact on a relatively small proportion of the population, lt will apply only to relatively minor stations in country and outback areas. While the Opposition feels that some progress has been made in this matter of limitation of control, the truth is that the Government is being concerned about monopolies four years too late and after all the big interests have become entrenched in the capital city licences. That is the broad outlook.
With that comment I indicate that apart from some matters of detail upon which we would like information, we on this side of the chamber have no objection to the control provisions of this section. We query whether 15 per cent, is a sufficiently low figure. Perhaps it is and perhaps it is not. Whether it is adequate will depend on the circumstances of individual companies and how widely shareholdings are scattered over and above 15 per cent. 1 summarize the Opposition’s outlook on these provisions for limitation of control and ownership of television stations by saying that the Opposition welcomes some activity in the matter but it deplores the fact that the Government has not moved in this direction sooner and that it moved only after monopoly interests had become very well entrenched with television licences that enabled them to reach out to the whole of Australia.
– Replying briefly to Senator McKenna, I make the point that has been made previously in the debate. The allegation that the Government has moved too late is not substantiated by the facts because the Government’s policy up to this stage has yielded good and efficient television services in Australia. The great appeal of those services to the Australian people is evidenced by the fact that approximately 1,000,(^10 television viewers’ licences have been issued. The provisions of this bill will, in the opinion of the Government, enable television to continue to expand in the future just as successfully as it has up to the present. 1 am sorry that I did not realize that certain matters were outstanding on which Senator McKenna sought information. Senator McManus raised a point about the transfer of a licence. I refer him to section 88 of the principal act, which places that matter under the control of the Minister Stations cannot be transferred without the Minister’s approval.
Proposed section agreed to.
Proposed section 92a agreed to.
Proposed section 92b (Meaning of control of a company).
Senator Sir NEIL O’SULLIVAN (Queensland) [8.6]. - I should like to address a few remarks to this proposed new section. I see no evil or good in a percentage, whether it be 15 per cent., 55 per cent., 10 per cent, or even 5 per cent. I would much prefer the Government to give further consideration to dealing with practices that flow from control of companies rather than limiting the percentage of shareholdings. We have nothing before us to indicate that under the present set-up abuses are prevalent. If they were prevalent we would have something upon which to act. The Government, in claiming that it is striking a blow against restrictive trade practices by fixing a limit of 15 per cent., is placing a parliamentary imprimatur on a percentage figure. With a percentage less than that fixed by the proposed new section shocking evil practices could very well be carried on. The Government has not indicated that under prevailing circumstances abuses or restrictive practices have taken place.
I yield to no one in my belief that the first duty and responsibility of a government is the public welfare and the public interest, regardless of any other consideration. But I am afraid that we are not meeting that responsibility by fixing an arbitrary figure of 15 per cent. I strongly urge the Government to consider favorably the suggestion that any agreements, written or verbal, must be recorded or registered. Until some more appropriate body is thought of, I suggest that the body with which those agreements should be registered should be the Commonwealth Industrial Court. If, flowing from any of those agreements, contracts, practices or usages, the public interest is being prejudiced, those practices may be stopped by an order of the Industrial Court. That is a much more sensible and practical approach to the problem than putting an imprimatur on shareholdings below 15 per cent, and a prohibition on those above 15 per cent. This is not a matter of arithmetic. This is a matter of evil practices that may prejudice public interest. I urge the Government to consider my suggestion that all agreements which in any way affect the public interest should be registered with the Industrial Court. The registrar of the court or interested parties may then initiate proceedings to have an agreement judicially considered, and if it is found to be contrary to the public interest, the proper order may be made to have it eliminated.
– I am interested in what Senator Sir Neil O’sullivan has had to say. I remind him that the PostmasterGeneral (Mr. Davidson) has personally stated the grounds which justify the Government moving in and doing something to prevent the development of monopolies. The Postmaster-General’s comments are reported at page 1900 of the current “ Hansard “.
– They are all ex parte; he never made inquiries from the persons who were charged.
– He does not agree with you that no inquiries were made. As reported in “ Hansard “, at page 1900, Mr. Davidson said -
I pointed out just now that this bill arises from nearly four years’ experience of television, of the movements in shareholdings which have taken place in licensed companies, of the companies’ financial agreements which have been worked out from time to time and of certain other developments which we felt would inevitably lead to monopoly control of this medium of communication.
He is reported on the next page ot “ Hansard “ as having said -
Persons holding licences-
By that, he must mean the existing commercial licensees in capital cities, because there are no others apart from the Australian
Broadcasting Commission and the commission certainly would not be interested in this field -
Persons holding licences were going round tm country, telling intending applicants that unless those existing licensees gained some form of control over the station - assuming the applicants were successful in obtaining licences - those stations would not get programmes. I know that this practice was being indulged in-
And he then affirmed personal knowledge in the matter.
– That was an ex parte statement.
– If you prefer to call it an ex parte statement, yes; but he stated that it was based upon experience and upon his own knowledge. We of the Opposition, while deploring the fact that this legislation has not a wider spread, nevertheless welcome it as a step in the right direction along these lines.
Apart from that comment, I want to address myself to the matter of proxies. I find no reference in the bill specifically to proxies. A person who might have 14 per cent, of the share holdings might at a general meeting collect a number of proxies that would carry him over the forbidden 15 per cent. Whilst I see no specific reference to that, I feel on looking at this clause no consideration that proxies were in mind. I should like to read the proposed section and then ask the Minister whether the view of the Government is that proxies are taken into account in determining the measure of control up to 15 per cent. The proposed section reads -
For the purposes of this Division, a person who is, or who, by any application or applications of this section, is deemed to be, in a position to exercise control of more than fifteen per centum of the total votes that could be cast at a general meeting of a company is deemed to be in a position to exercise control of that company and of any voting rights of that company as a shareholder and of all acts and operations of that company.
I ask the Minister: Does the statement that a person is deemed to be in a position to exercise control pf more than 15 per cent, of the total votes extend to include proxies he may be holding in favour of shareholders other than himself?
– In reply to the matter that has been raised by Senator Sir Neil O’sullivan, I say that it has never been claimed that there is sanctity about the 15 per centum provision. The claim in relation to the IS per centum stipulation is based on the fact that whilst legally control of the company is determined by 51 per cent, of the voting power, yet commercially as a result of the fact that not all shareholders attend annual meetings - in a well conducted company, the number that attends is comparatively small - in practice it is thought that the holding by a person of 15 per cent, of the shares of the company gives him practical control. Fifteen per cent, has been selected as a reasonable standard or a reasonable basis.
The alternative suggestion is that, instead of there being a formula such as that which is provided by stipulating 15 per cent., there should not be any such formula but that the situation should rest in some way upon all contracts, all transactions being lodged or registered with the Australian Contracts Control Board. That, to me, is a cumbersome and an unnecessary procedure. The documents would be lodged and only those persons who were aggrieved would turn to them.
– The registrar could send them.
– It surely would not be a function of the registrar to initiate proceedings!
– It is in
– I think it would be better to leave it on the basis of a person who claims a grievance, instead of the registrar, taking a part in all transactions. Senator Sir Neil O’sullivan has mentioned by interjection that it is the practice in England. For my part, I prefer to adopt this policy of restricting the number of stations that can be controlled. It is much tidier and so much easier and more certain to have a formula which is on the record, which says that your shareholding is to be restricted to a given level rather than that there should be the uncertainty of the meaning of documents, and the possibility that the documents are not used or are not looked at. On the one hand, you get your desired results with certainty, without a great deal of embarrassment or confusion or upset of commercial transactions. With the alternative, it seems to me that there is no certainty that you are going te get your result, but a good deal of doubt on what might be the construction of a particular document - what it means and what might be its effect.
I turn now to the point that Senator McKenna has raised about proxies, and I direct his attention to proposed new section 91 (2.), which reads -
In this Division, “ control “ includes control as a result of, or by means of, trusts, agreements, arrangements, understandings and practices . . .
I suggest to Senator McKenna that if the proxies were obtained as the result of solicitations - as the result of representations - then they would come within the provision of that proposed new sub-section. If the proxies were not lodged in any circumstances that were tainted but were merely lodged in the genuine, honest and every-day manner in which shareholders send proxies to meetings of their companies, then there is no objection to it.
– I cannot find in the provision under consideration any reference to bona fide lodgment or any condition as to solicitation. Proposed new section 92b reads -
For the purposes of this Division, a person who is, or who, by any application or applications of this section, is deemed to be, in a position to exercise control of more than fifteen per centum of the total votes that could be cast at a general meeting of a company is deemed to be in a position to exercise control of that company and of any voting rights of that company as a shareholder and of all acts and operations of that company.
What is referred to is ‘control of the company and its voting rights and* all of its business, its acts and operations. Whether you obtain the proxies by solicitation or otherwise, and whether you obtain them for the purpose of gaining control or otherwise - that is to say, for the purpose of gaining control or for commercial reasons - if you are in possession of proxies which give you control of more than 15 per cent, of the total voting power, then I suggest to the Minister that you cannot extricate yourself from the effects of this provision.
Then take a case in which, for financial reasons, blank transfers are lodged with a lender of money. You can very easily get yourself in a position in which, by the use of the blank transfers, you are able to control the particular company. I mention these things only because I think this legislation is, in its actual operation, wider than we have, perhaps, realized. 1 have listened to the remarks of Senator Sir Neil O’sullivan, who put the point of view that what we should oppose is not the aggregation of ownership, but the abuse of the rights which flow from that ownership by the introduction of combines and rings that tie up services and prejudice the public interest. This provokes me to ask the Minister whether or not there is any precedent in either American or British legislation with relation to radio or television for an attempt to restrict the number of licences which a company may own or control.
There is another matter that interests me. lt is said that a person shall not be in a position to exercise control of a company in certain circumstances, and reference is made to the limitation of 15 per cent, of the total voting power. I wonder at just whom this provision is directed. In any company there are usually some principal shareholders. Let us suppose there are ten principal shareholders in a particular company. Suppose also that they create five companies, in each of which they all have a nodding interest. Let us then suppose that A, B, C, D, and E each takes one company of those five and associates with himself various other persons who then become interested in that company. Is this provision directed towards the individual in that case, prohibiting him from holding more than the limited interest in more than two television licences, or is it directed rather to the companies that he creates? I should think it would be a very easy matter to constitute a company with a variety of different combinations of shareholders which would never be touched by this legislation.
I pose these problems merely because I would like to find out the depth of thought that has been given to the actual application of the legislation, and to the infinite variety of circumstances that the remarks I have just cursorily made show is quite possible.
[8.251. - I confess that I am shocked at the reply given by the
Minister for National Development (Senator Spooner) to my question about proxies. I had no doubt that when the legislation referred to an upper limit of 15 per cent, of the total votes that could be cast at a general meeting, it was intended to cover a person’s own shareholding and any proxies that might come to him, whether solicited or not. I now gather from the Minister’s answer that a person holding 15 per cent, of the shareholding can pick up another 80 per cent, by way of unsolicited proxies and record a 95 per cent, vote without being deemed to exercise control. I repeat that I am shocked, because what I have just put is a distinct possibility if the Minister’s explanation is to be accepted, and if this is the case, then there is a wide open gap in the legislation that should unquestionably be closed.
The Minister suggests that if the proxies are unsolicited they may be added to a person’s 15 per cent, holding, and the provisions of this legislation would not then apply to such a person. What normally happens when a company convenes a general meeting? The secretary writes to the shareholders, and he sends out proxies with the circular letter in which he notifies the convening of the meeting. He might indicate in that letter that it is desirable that proxies be lodged if a shareholder cannot be present. Although there is no solicitation at the instance of any particular director, what is the likelihood? The likelihood is that the shareholders who take any notice of the general request will send their proxies to the chairman of directors.
– Suppose the directors act in concert and distribute the proxies among them.
– It is very easy to see how proxies could be obtained without what could be said to amount to solicitation, agreements, arrangements, trusts or anything of that kind. In most cases it would be very difficult to prove that solicitation had been indulged in.
I suggest to the Minister that it is apparent that there is an enormous gap in the control which this bill purports to exercise, even in this very restricted field. If an individual or a corporation can have a 15 per cent, shareholding and can then obtain proxies to increase the voting power to almost the total amount - and 1 should not have thought this to be the position on my reading of proposed new section 92b - then I invite the Government to take immediate steps to close the gap. Unless it is closed it is quite obvious that the legislation will be a complete farce.
– I do not see this great gap that Senator McKenna refers to. The provision has reference to a 15 per cent, control of the voting power of a company. When a person sends his proxy to a meeting he does not part with his voting power.
– No, but he puts the proxy-holder in the position to exercise those voting rights.
– He may. He may send his proxy for the purpose of voting for or against a specific matter. 1 do not accept the proposition that sending a proxy to a meeting involves a relinquishment of voting rights. A company normally holds an annual meeting, and perhaps extraordinary general meetings during the course of a year. If you send a proxy as a matter of convenience, because you agree with some particular proposal before one of those meetings, you may pass your voting rights on that particular matter to the person to whom you give you- proxy, but you certainly retain the ownership of your shares, and you certainly retain the right to vote according to your shareholding in the manner you think fit. A person who gives a proxy may, as a matter of convenience, give away his right on a particular matter. Indeed, if my memory serves me correctly, there is nothing to prevent him revoking the proxy before the meeting. I do not look upon convenience in giving proxies as alienating the major right of one’s voting power.
– What do you say as to blank transfers?
– I do not know what the reply to blank transfers is. I am inclined to say, “ Let us see where these blank transfers arise and in what circumstances they are used “. I do not proceed upon the assumption that the majority of people attempt to get round the four corners of an act. I think the great virtue of this bill and the 15 per cent, provision is its preventive atmosphere. It sounds the policy under which the Government wants to see these stations controlled and organized. Legislation defines our policy, and in my view suppositions as to attempts to get round legislation are always very greatly exaggerated.
Senator WRIGHT (Tasmania) 1.8.32]. - I rise only because 1 think that debate upon a matter so complex as this serves the great purpose of clarifying the position. 1 am interested to hear the Minister’s remarks upon blank transfers. In 99 cases out of 100 in which blank transfers are given, they will not be given for the purpose of getting round this measure; they will be given for the purpose of securing a commercial transaction, such as the loan of money, the raising of finance essential for the executives of the company to carry on.
I am concerned about the man who holds what, but for this measure, would be perfectly legitimate security. He, by no intention of the proponents of the legislation, may be subjected to the penalties of proposed new section 92b, which are £1,000 in the first place and £100 for every day on which he holds blank transfers for more than 15 per cent, of the voting rights of the company.
Let me take the next case. Proxies have been referred to. Let us consider the position with relation to proposed new section 92b, which says that a person who is in a position to exercise control of more than 15 per cent, of the total votes that could be cast at a general meeting of the company is deemed to be in a position to exercise control of that company. Suppose a man owns 5 per cent, of the shares himself and gets proxies for 20 per cent, of the shares. Suppose he holds those proxies for a fortnight before the general meeting. That man is in a position to exercise control of more than 15 per cent, of the total votes that could be cast at a general meeting of that company. Suppose the shareholders who have given the proxies over 20 per cent, of the shares instruct him that he must utilize 10 per cent, of that 20 per cent, in voting for a particular motion and that the other 10 per cent, must be used in voting against it.
– Is that possible?
– Yes, it is possible. Many a director is entrusted with that voting right.
– In those circumstances, he does not control the votes at all; he merely records the wishes of the people v/ho hold the shares.
– Under proposed new section 91 (2.) “ Control “ includes control as a result of, or by means of understandings.
– It would be a queer sort of understanding if he had 10 per cent, of the shares to vote one way and 10 per cent, to vote the other way.
– Do not let us get into kindergarten mirth over this.
– That is not kindergarten mirth; yours is a kindergarten approach.
– It is a quite common thing for a director to be entrusted with the votes of certain shareholders to cast them one way and to cast a number of votes the other way. Irrespective of whether it is a common thing, 1 simply pose the question so that, in a thoughtful way, consideration can be given as to whether the legislation inadvertently brings that situation under penalty without ever intending to do so. It is not a case in which the man who gets proxies by solicitation or who gets proxies for some sinister purpose in evading the act is under penalty; it is a case in which a person is in a position to exercise control of more than 15 per cent, of the total votes. I just take the occasion of this bill passing through the committee, with the benefit of the discussion that is going on, to pose that proposition because I think these instances serve to clarify the real intent of these provisions, and this invites the challenge as to whether or not we intend the provisions to go to that length.
– Let me take the case advanced by Senator Wright a step farther. First of all, this particular director has not only to get these proxies in his hand but also must hold two other television station licences, or the company concerned has to hold them. Surely it is a long shot that such a set of circumstances will arise. Many troubles that we fear never arise. 1 think that this is one of those things that might conceivably occur but, in terms of practical arrangements, I do not think it is ever likely to occur unless there is something wrong, unless something is being contrived at. If that happens, then I submit the previous provision relating to understandings will operate.
– I do not think it is such a long shot as the Minister thinks. I am speaking from memory when I say this, but it is within my recollection that the proprietors of the Sun-Herald Television Station in Melbourne admit, on their own arithmetic, going through the processes of transactions, that they have a 14.6 per cent, interest, 1 think, in an Adelaide station and, so far as my memory serves me, some undefined amount of interest in a Brisbane television licence. There is nothing in this legislation to prevent them having 15 per cent, control in every television station in Australia if they can get it. The bill does not forbid that. I think I have said enough in reply to Senator Sir Neil O’sullivan to-night to show that these very licensees have provoked this legislation by seeking to stand over the applicants for country licences and threatening them that they will get no programmes. So it is not the long shot that the Minister believes it to be. I think it is the rare case, not the usual case, when proxies are applied for or against a particular proposition. The usual case is the one where there is a general meeting at which all kinds of matters may crop up and the proxies given are in perfectly general terms.
For the sake of clarity, let us keep it on the basis of proxies given in association and the granting of the proxies is in perfectly general terms. Let us take the licensee who has already got 14.6 per cent, of the voting power and who may pick up 20 per cent., 30 per cent., 40 per cent, or even 80 per cent, of the proxies. He really dominates the company for the purpose of that vote. He is under no instructions as to how he will vote and he will apply his own mind in directing the proxies. If that is possible under this legislation, 1 withdraw even the limited meed of praise that I was prepared to accord it, because that is the gate through which they will go. That is exactly what will be done to enable them to exercise unlimited control.
– Would not a man lose his licence if he did that?
– No. The Minister says that it is possible to do that. A man may have 14.6 per cent, of the shareholding of the company and other shareholders may put 80 per cent, in proxies in his hand. The Minister says that that would not offend against the provisions of this act. That man could record 94.6 per cent, of the votes and, according to the Minister’s interpretation, still be deemed to be not in control. The proposed section reads -
I should have thought, and I think even now, that that was intended to rope in proxies.
– The expression “ in a position to exercise control of votes “ is most apt in relation to proxies.
– Yes. I would say that a person who held proxies in those circumstances ought to be barred from controlling more than 15 per cent, of the votes, lt amazed me that the position of proxies was not dealt with. When 1 looked around to see if the position was covered, I thought that it was covered by proposed section 92b. The Minister’s interpretation, which I am prepared to accept as the mind of the Government and his advice, is that a person could record votes up to the extent of 100 per cent., including his own votes and those of his friends and proxies, and still be deemed to be not in control. That is a position that just staggers me. It really shows that there is a tremendous gap that negatives whatever virtue this bill had in this limited field.
– Either Senator McKenna is getting confused or I am getting confused. I forget the exact terms, but there is a general proxy and a specific proxy.
– Those are the terms.
– In the case of a specific proxy, the voting power remains entirely in the hands of the shareholder.
– I have not discussed specific proxies. I dealt with general proxies containing no instructions as to the manner in which they shall be exercised. Would you face that position?
– The position is that a person would have to be very careful about taking general proxies, because if he was otherwise disqualified he would be penalized. I think the position would be in somewhat the same category as that which I previously described in relation to understandings. It would not be in the same atmosphere, but the result would be somewhat the same. Do 1 make myself clear?
– Not quite. I should like to ask the Minister whether he is reversing the original interpretation he gave to me when I asked whether proxies were caught up by this clause. The Minister said, “ No “. That led me into the argument in relation to the position of a man who could have 15 per cent, of shares in his own right and an unlimited number of general proxies. If the Minister is recalling what he said in the first instance, I should be very glad if he made very clear that he is doing that, because I see some trace of retraction in what he says now from the original answer that he gave.
– I would not have any hesitation in retracting if I thought it were necessary to do so. This is a point that has arisen and to which I have just been applying my mind, in the same way as I suspect Senator McKenna has just been applying his mind. The matter has just reared its head. Let me try to define now what the position would be. I should think that there would be no breach if the person had a specific proxy, a proxy for a specific purpose. I think there would be a breach of the act if a person got a series of proxies by representations, by understandings, or by seeking to build up voting power. Between those two sets of circumstances there is the case of two innocent parties, as it were, with a shareholder normally sending his voting power by proxy to the chairman of directors. I think that that would be a dangerous position for the chairman of directors to put himself in.
Senator DITTMER (Queensland) ]8.46[. - Does that preclude any authority to the chairman to exercise the power of a proxy entrusted to him if no specific instruction is associated with the delegation of authority to vote?
– I could not answer that. Hypothetical questions on matters such as this are not easy to answer.
– The Minister should know that that is not a hypothetical case. It is a procedure customary in the voting associated with companies.
– Does not the Minister consider that the chairman of a company would breach this legislation as soon as he had in his hand more than 15 per cent, of the voting strength of that company? Would he not then place himself in the position of being in control or on the way to being in control, and so breach this legislation?
– I offer what I hope is a final comment on this matter by saying that the situation has been teased out pretty well in relation to this clause. The Minister indicated that there may be several categories of proxies. He was not prepared to express a completely firm opinion. He said that a director in certain circumstances may be in a dangerous position. Would it not be wise to postpone consideration of this proposed section? Is it not completely obvious now that something specific ought to be said about the position of proxies? I suggest to the Minister that he would be wise to agree to the postponement of consideration of this matter and to take an opportunity to have his advisers quietly look at the need to record something specifically about proxies in all their categories. We cannot begin to draft provisions while we are on our feet. I think the Minister would be well advised to put the matter beyond disputation and doubt, not only in our own minds but also above all in the minds of the people who have to work under this legislation. The Minister would be well advised to accept my suggestion that consideration of the provision be postponed with a view to giving further thought to the question of proxies.
.- The answer to Senator Wade’s question, I think, is inevitably that under this clause anybody who is in possession of more than 15 per cent, of proxies is in the position of exercising control over more than 15 per cent, of the voting rights at a general meeting and during every day that he holds those proxies he is liable to penalty under the previous provision. I think it should be recognized that the possession of proxies should be made perfectly legitimate in certain circumstances. There will be great contention in the management of a company for a variety of commercial reasons which are in no way associated with combines. I believe that that position has not been clarified in the mind of the draftsman. The only reason for my continuing the debate is to clarify it so that it will be forcefully brought to the minds of those responsible for producing the legislation that a man who is, for perfectly proper commercial purposes, in possession of proxies aggregating more than 15 per cent, of the voting rights shall not be under penalty. That is the conclusion to which the whole argument is drawing. I am afraid that, by reason of some inadvertence, the expression in this bill will put that person under penalty. T am thinking now of the question of general proxies. I brought up the instance of specific proxies only for the purpose of showing the danger of the general language of this clause, even in relation, to such proxies. I am not disputing what the Minister says. I am raising the point only for the sake of the present argument, and I do suggest that the advisers of the Minister should give this matter some quiet consideration during the parliamentary recess.
From the combined operation of sections 92b and 91 (2.), I submit that if you take specific proxies, with an understanding., you then come under the actual control. Tt is a position that I think we did not intend to put the proxy holder into unless he has that control for the purpose of creating a combine contrary to the general purposes of the legislation.
– This has been an interesting discussion.I think that Senator Wade made a very good contribution to the debate. What is the purpose of all this? As I said earlier, this is a scheme to prevent too close control of television stations. A person who had control of two television stations would, I think, be careful not to offend the provisions of this act. In the practical world of television companies, I do not think that the dangers that have been suggested will arise.
Proposed section agreed to.
Proposed section 92c agreed to.
Proposed section 92d (Condition as to non-resident shareholding).
– Proposed new section 92d reads -
A licence is subject to a condition that, at all times during the currency of the licence -
shares representing not less than eighty per centum of the issued capital of the licensee will be beneficially owned by persons each of whom is either a resident of Australia (other than a company) or a company controlled by persons (other than companies) who are residents of Australia; and
shares representing more than fifteen per centum of the issued capital of the licensee will not be beneficially owned by a person (other than a company) who is not a resident of Australia or by a company controlled, directly or indirectly, by persons who are not residents of Australia.
I move -
At end of the proposed section add the following sub-section: - “ ‘ (2.) Where, upon the commencement of this section, there arises a contravention of the condition specified in the last preceding sub-section by reason of facts or circumstances that would not have constituted a contravention of the condition specified in paragraph (a) of section ninety-two of the Broadcasting and Television Act 1942-1956, those facts and circumstances shall be deemed not to constitute a contravention of the condition specified in the last preceding sub-section unless they continue after the thirtieth day of June, One thousand nine hundred and sixty-one.”.
This amendment relates to (he operation of proposed section 92d in respect of existing licences. Section 92d makes every licence subject to a condition requiring a specified measure of ownership by Australian residents of capital of the license company. The section is in terms identical with paragraph (a) of section 92 of the present act. However, the actual operation of the provision in relation to an existing licence can be affected by the extended meaning of control provided for in the new Division 3. In these circumstances it is considered that a licensee company which, when the bill becomes law, is complying with section 92a of the present act, but which finds itself, upon the commencement of the present act, in breach of the conditions contained in section 92d, as affected by the new concept of control, should be allowed a period of approximately twelve months in which to adjust its capital structure in such a way as to comply with the new law. This amendment is designed to achieve that purpose.
– I understood the Minister to say - and I agree with the proposition - that proposed section 92d is identical, for all practical purposes, with section 92 in the existing act. It is in slightly different words, but obviously the effect is the same. A company is obliged to have at least an 80 per cent. interest by Australian residents and not more than 15 per cent. overseas interest. The Minister indicated that that applies to existing licences. He must be referring to the existing licences in the capital cities. Some of them have been operating for a considerable period. I ask the Minister what it is that has caused the Government to say that where, upon the commencement of this section - which I think is to operate immediately, without waiting for proclamation - there arises a contravention of the 80 per cent. and 1 5 per cent. provisions that would not have constituted a contravention of the conditions specified in paragraph (a) of section 92 - the procursor of this section - those facts and circumstances shall be deemed not to constitute a contravention of the condition specified in the last preceding sub-section unless they continue after 30th June, 1961.
It seems to me that I have not understood - it may be my fault - the explanation given by the Minister. One would expect that every licensee whose licence is now in operation would be complying with section 92 of the act. As proposed new section 92d is identical with section 92, how does it arise that somebody would be in contravention? 1 do not follow. Is the Minister able to point to one particular set of facts relating to some company, which he need not name, that makes it necessary to give time to comply with a condition that has existed in the Broadcasting and Television Act since 1956?
– The immunity is given only to the person who can show that the facts and circumstances would not have constituted a contravention of the old section 92.
– My difficulty is that if the two sections are identical, as the Minister says, how can there be a difference?
– I understand that, but I thought you were insinuating that somebody was being given an indemnity.
– No. I am simply saying that if the two sections are identical, then licensees should have been complying with this enactment since 1956. Why is a person to be given until June, 1961, to rectify a difficulty when that difficulty ought to be rectified at this minute? I say, with respect, that the explanation that the Minister has given is not clear to me. Can the Minister say in simple terms to the committee that one company is in such a position that it is necessary to make this) provision? If he could reduce the position to those terms I might be able to under-i stand his explanation.
– I should think that some one must be affected; otherwise, we would not be making the amendment. Honorable senators will appreciate that the amendment turns on the control of a company. Under the act as at present, a company is deemed to be controlled by a person who has a 51 per cent, shareholding interest.
– Anything over 50 per cent.
– Under section 92a (2.), 15 per cent, was the relevant factor.
– The 15 per cent, refers to overseas capital.
– I think that the Minister was referring to section 91 of the act.
– The amendment proposes a change from the old provision of 50 per cent, ownership to the position where 15 per cent, will be regarded as a controlling interest.
Amendment agreed to.
Proposed section, as amended, agreed to.
Proposed section 92e agreed to.
Proposed section 92f - (1.) A licence is subject to a condition that substantial changes in the beneficial ownership of the shares in the company holding the licence, or in the memorandum or articles of association of that company, will not take place without the approval of the Minister. (2.) The last preceding sub-section does not apply in relation to a change in the articles of association of a company for the purpose of complying with the condition specified in the next succeeding section.
.- The term “ substantial changes “ is a vague one. I am not disposed to quarrel with it, but I direct attention to the degree of difference of opinion that might be held as to whether a particular transaction came within the scope of the provision. The proposed section refers to beneficial ownership of shares, but it does not refer to shares as recorded in the share register of the company. If trustees or members of a family own them, they have the beneficial ownership. The proposed section states that changes of a substantial nature in the beneficial ownership of shares shall not take place without the approval of the Minister. The idea that a Minister of the Crown should control transactions in the shares of a company is quite foreign to my political outlook. According to my political philosophy, a Minister of the Crown has nothing whatever to do with the approval of share transactions in which I or members of my family wish to engage. I am speaking purely hypothetically, because I have not a share in any single company. I want to make that clear.
I move -
Leave out “ the Minister “, insert “ the Broadcasting Control Board which shall refuse its approval only for the purpose of ensuring compliance with the provisions of this Act “.
To make the idea of the amendment clear, I shall refer to the next amendment that I shall move, and which I now foreshadow. It will be to the effect that a person whose application to change ownership is disapproved by the board under this section may appeal to the Commonwealth Industrial Court against the decision. If we are to give the Australian Broadcasting Control Board or the Minister power to veto a change in the beneficial ownership of shares it is essential, I submit, in order to protect the right of property in shares, that there should be some appeal from that administrative refusal. It is altogether a new idea that the Minister or the Broadcasting Control Board should be given the right to veto the transfer of shares.
I ask: In what circumstances is such a transaction as that likely to occur? First, a person who owns shares may die and leave them to his widow or other beneficiary. The beneficiary then becomes the beneficial owner of the shares. The proposed section, as penned, prohibits the devolution of the beneficial ownership of the testator to his beneficiaries without the approval of the Minister. Secondly, there may be a sale. It may be that X, who has a substantial holding in a company, for ordinary commercial purposes may wish to sell to Y. The Minister, or the Broadcasting Control Board, may take the view that the sale is in opposition to the spirit of this legislation, whereas in actual substance it is a commercial transaction of an ordinary nature. To resolve that difference of opinion between the owner and the Broadcasting Control Board or the Minister, there should be a right of appeal.
Thirdly, there may be a change of ownership of shares due to a take-over. As we know, take-overs are becoming quite common in company transactions, and I suppose there will be take-overs of some commercial television companies.
– You just do not get taken over without breaching the regulations.
– If that point of view is acceptable to my colleague, it should go on record. We shall then have a cleavage that will have to be resolved by the people. 1, for one, will not stand for the idea that any government administration has the right to veto a perfectly good commercial transaction that is in no way inimical to the public interest. If we are to give to the Minister or the Broadcasting Control Board the right to disapprove of the transmission of shares on take-over, then we have to give some right of recourse to the courts, so that the individual owner will be protected against being placed in an adverse position as a result of a legitimate transaction. If there are those who quite gladly accept the control of the Minister or the Broadcasting Control Board and are prepared to accede the arbitrary right - a right that does not exist in relation to any other company - to veto the transmission of shares, that is all right, but it is quite contrary to my ideas of individual liberty and the ordinary right to dispose of shares in companies or of any other private property.
The next instance of a substantial change in control arises in a mortgage transaction. There you may not have a change in the beneficial ownership but you do have a transaction whereby the right of control of the shares is passed from one person to the other. That occurs in most mortgage transactions in which shares are involved. I ask the committee to accept the view that the more appropriate authority to have its right of veto, subject to appeal, is the Australian Broadcasting Control Board and not the Minister. Throughout this legislation we have jealously guarded against the absolute right of the Minister to grant licences. We have jealously guarded against the absolute right of the Minister to revoke licences. I want the same principle to be applied to substantial changes in beneficial ownership of shares within the company. A licence always represents 100 per cent, of the shares but a change in beneficial ownership may represent anything from 99 per cent, down to as little as 10 per cent, of the shareholding and still be a substantial change in the ownership.
I plead for the committee’s acceptance, calmly and without provocation, of the idea that what applies to the granting in entirety of the licence in the first instance, and the revoking in entirety of the licence in the last, should apply to the intermediate situation. A percentage of the shareholding that controls the licence - it could be anything from 99 per cent, down to. say. 20 per cent. - should be capable of being transferred with the consent of the Australian Broadcasting Control Board, subject to the right of appeal.
– Senator Wright made no reference to the Government amendment that has been foreshadowed. That amendment, if agreed to, will remedy the ills to which he referred, except to the extent that it will still leave the responsibility with the Minister instead of transferring it to the Australian Broadcasting Control Board, as he has sought.
– The Government amendment makes no provision for an appeal, does it?
– No, and it is the opinion of the Attorney-General (Sir Garfield Barwick) that there is no need to provide for an appeal because it is proposed to amend the section to provide that the Minister shall not withhold his approval except for the purpose of ensuring compliance with the act. A party aggrieved by the Minister’s refusal to approve would have a right to seek an order called a writ of mandamus to require the Minister to grant his approval. The principles upon which the Minister may decide to approve or not to approve a change of shareholding are now clearly laid down in the bill. The right to apply for a writ of mandamus is a completely legal and readily exercisable right, and in my view is, in many respects, more satisfactory than a right of appeal.
The objectives at which Senator Wright is aiming are already covered by the proposed Government amendment to the extent that the right to refuse transfer of shares will be restricted except when the transfer would be in contravention of the other parts of the act. A legal remedy is available to the parties concerned if the Minister does not comply with the act. I put the further viewpoint that this is the kind of circumstance in which it is desirable that the power should be exercised by the Minister rather than by the board because of the Minister’s direct access and ready accessibility to Parliament. A refusal in those circumstances, with the charter so clearly laid down, is a matter upon which Parliament should be readily able to ques tion the principal concerned instead of having to go beyond the principal to a statutory authority.
.- I am obliged to the Minister for his clear statement but I am bound, with all respect, te differ from him. The remedy of mandamus is, I submit, wholly ineffective compared to an appeal. Where you give to the Minister a discretionary right to refuse, all the Minister has to do is say, “ I refuse consent “. Unless you can prove that the motivation of his mind has stemmed from matters other than the provisions of this bill, you leave the court without any satisfaction from your application for mandamus. I submit that it is far easier to demonstrate by way of appeal that the Minister has not had any substantial ground for his refusal. However, those are rather technical considerations and it is with hesitation that one advances a viewpoint opposite to that which the Minister has been authorized to put on such a subject. But, holding the viewpoint strongly, I am bound to express it and to express my regret that some honorable senators on this side of the chamber wish to clothe the Minister with the authority to refuse approval to substantial changes in the beneficial ownership of companies. I remind my colleagues that ten years hence the Minister concerned may be a socialist Minister. At the present time this matter is confined to television companies but in the course of the next generation who knows to what kind of concern this principle may be extended?
– The Opposition cannot support Senator Wright’s amendment, in which he proposes to take away from the Minister the power of approval and entrust it to the Australian Broadcasting Control Board. I think that it is preferable for that responsibility to lie with the Minister. I point out that under section 18 of the act it is possible for the Minister to refer any particular matter to the board for inquiry. I would imagine that a Minister would not reach a decision in this matter without actually referring it to the board for inquiry and report. I think that is quite certain. If Senator Wright were prepared to leave the power with the Minister, allowing the Minister a right to refer to the board, the Opposition would support his amendment. I stress that any reference to the board would have to be deleted and the Minister substituted in the matter of appeal. I agree with all that the Minister has said on this point, that the object aimed at by the second portion of the amendment, seeking to impose on the Australian Broadcasting Control Board the obligation to refuse its approval only for the purpose of preventing contravention of the act, is adequately picked up in amendment No. 4 circulated by the Minister and which we have not yet had an opportunity to reach.
I summarize by saying that the Opposition will oppose Senator Wright’s first proposal. If he were to modify his proposal by substituting the Minister for the board, we would support it.
– I move -
At end of the proposed section add the following sub-section: - “ ‘ (3.) The Minister shall not refuse his approval under this section except for the purpose of ensuring observance of, or compliance with, this Division or with a condition of the licence (including a condition applicable under a provision of this Division other than this section).”.
The purpose of this amendment is to ensure that the Minister shall not, under proposed new section 92f, refuse approval for changes in the shareholding or in the memorandum and articles of association of a company for any reason other than to ensure compliance with the provisions of Division 3. Proposed new section 92f reproduces a section of the existing act, but it is felt to confer an unnecessarily wide power on the Minister.
Amendment agreed to.
.- I move -
At end of the proposed section add the following sub-section: - “ (4.) A person whose application to change ownership is disapproved by the Board under this section may appeal to the Commonwealth Industrial Court against the decision.”.
I hope that the principle of appeal will be accepted. I have already expressed my gratification that the Government has accepted the principle of appeal in respect of revocation of licence and in respect of terms and conditions that the Australian Broadcasting Control Board may impose upon the making available of programmes. 1 have indicated that the same principle that permits an appeal in relation to revocation of licence is just as important if the Minister is empowered to disapprove the change of ownership, which is a change of property as to a part of the licence - but a substantial part of it. I hope that the principle of appeal will be accepted in this instance.
Question put -
That the words proposed to be added (Senator Wright’s amendment) be added.
The committee divided. (The Temporary Chairman - Senator R. W. Pearson.)
Majority . . . . 5
Question so resolved in the negative.
Proposed section, as amended, agreed to.
Proposed sections 92g and 92h agreed to.
Proposed section 92j (Trusts not valid unless notified).
.- This proposed section provides, in subsection (1.) -
For the purpose of facilitating the enforcement of this Division, where a trust is or has been created, by writing (other than a will) or orally, of a share carrying voting power in a company, by virtue of which the beneficiary is able to control that voting power, and that company is the holder of a licence -
. . .
if the trust is created on or after the date of commencement of this section - the trust is not valid for any purpose-
I emphasize the words “ for any purpose “ - unless and until, within three months from the date of creation of the trust or from the date of the grant of the licence (whichever is the later), notice of the existence and nature of the trust and of the name of the beneficiary has been given in writing to the company.
It is an axiom of company law that for general purposes a company is not concerned with trusts affecting shares. It is concerned only with the ownership as shown in the register of shareholders that it is required to keep. The company is expressly absolved from any responsibility to take notice of trusts affecting those shares when recording dealings in shares. We are now dealing with a piece of experimental legislation designed to prevent combines and monopolies in companies holding commercial television licences, and it is proposed to provide that a trust affecting the shares in such a company shall not be valid for any purpose unless and until, within three months from the creation of the trust, notification of the existence of the trust is given to the company. The only effect of such notification on the company, as I am able to discover it in the bill, is to enable the management to set forth in a statutory declaration wherein lies the beneficial ownership of the shares. To my way of thinking this section confers much too wide a power to invalidate transactions otherwise perfectly valid.
Trusts are created in connexion with married women’s maintenance. Trusts are created in connexion with the maintenance of children. Other trusts are created for the purpose of the division of shares among members of families. There are trusts of all possible kinds created for all conceivable purposes. It seems to me that when federal legislation, said to be incidental to posts and telegraphs and other like services, sets out not to penalize for failure to notify a trust, but to invalidate the trust itself, and to invalidate it for all purposes-
– But with qualifications.
– If a notice is given it is perfectly valid.
– Suppose, through inadvertent omission, it is not given within the three months; is there any means of validating the trust?
– But it should not be inadvertently omitted.
– There are those whose sense of justice will permit a family trust to be made invalid for every purpose. There are some people who have an invincible disposition never to disagree with the Government. I am here simply to invite debate on this matter from an objective point of view, advancing only considerations of justice and considerations which will properly promote the purpose of this legislation. I am asking those who should be jealous of the protection of rights legitimately created; in family trusts to say that the penalty imposed for nonnotification to a company is altogether too severe. Rather than invalidate trusts of this sort, it would be far better to impose a penalty for failure to notify, a daily or weekly or monthly penalty, if you like, for every day or week or month for which the failure to notify continues.
– To meet this one case, you would propose to delete the provision and leave a loophole of escape for others.
– The only effect of the deletion of this provision would be to give to those responsible for the measure a further period of meditation. It must be conceded that the resistance put up by some of us to parts of this legislation has already resulted in an interval of a week in which the Minister in charge of the bill has thought fit to formulate eight amendments. For this he should be applauded. It shows a mind which, I think, is eminently suitable for further ministerial responsibility in the future because it is amenable to amendment - and I use the alliteration not in any Shakespearian sense, in case Senator Tangney, who is provoked to mild mirth, thinks 1 use it in that way. I merely say that amendments have been produced in this short interval. If this provision is deleted and, during the Budget session, after two months of proper consideration, a satisfactory proposal is brought forward for the prevention of dummying, it will be greatly to the credit of this Parliament. I think it is an outlandish proposition that trusts of the kind I have mentioned should be invalidated for all purposes merely because of a contravention of this provision requiring the existence of the trust to be notified. And notified to whom? To a company!
For the reasons 1 have advanced I believe that the proposed section should be deleted. I therefore move -
Leave out the proposed section.
– Senator Wright seeks to omit a provision which the Government regards as being of considerable importance. I have two notes upon it. One was prepared by the department and sets out what might be called the mechanics of the provision. The other was prepared by the draftsman, and I propose to tax the patience of the Senate by reading both notes so that we may realize the importance of the issue before voting upon it.
The proposed section is intended to prevent evasion and assist in the enforcement of the provisions of proposed new section 92. It relates only to a company that actually holds a licence and does not extend to a company further back in the chain of control. Sub-section (1.) provides that an expressed trust of a share carrying voting power in such a company is not to be valid unless notice of the trust is given to the company. This will help to prevent secret trusts of shares in a licensee company.
The provision extends to trusts created before the commencement of the section and gives a beneficial owner three months from the commencement of the section, or the grant of the licence, whichever is the later, to notify the trust to the company. Subsection (2.) is intended to deal with the case where a person creates a trust of shares in advance of acquiring the shares. In this case, the beneficial owner will have three months from the acquisition of the shares in which to notify the trust to the company.
Under the companies acts of the States, the general position is that trusts of shares are not to be shown in the share register and that such trusts are not binding on the company itself. The purpose of sub-section (3.) is to make it clear that the act will not alter the position in this regard. The company may, for example, continue to pay its dividends to the registered holder of the shares and will not be required to pay them to a beneficiary under a trust even though a trust has been notified to the company. Sub-section (4.) requires the company to acknowledge receipt of the notice of the trust.
The other note that I have may duplicate the earlier note to some extent, but this is an important matter. The proposed amendment seeks to omit proposed new section 92j. That section invalidates trusts of shares in a licensee company unless they are notified to the company in accordance with the section. The proposed amendment is not acceptable to the Government as the section is considered to be an important means of making sure that the remainder of the division is not avoided.
– Is that written by the draftsman?
– Honorable senators will be aware of how difficult it is to prevent what is known as dummying by shareholders by means of trusts. Under the proposed section, it will be a risky thing for a beneficiary shareholder to invest his shares in a dummy without notifying the company because the dummy could ignore the trust and claim the shares for himself. This should be an effective deterrent. The giving of notice to the company will also enable the company to fulfil effectively its obligations under proposed new section 92h to furnish periodic statutory declarations stating whether the division has been complied with in relation to the company.
Those are the two explanations. I think I should say in fairness to the draftsman that I discussed Senator Wright’s amendment with him in order to get an understanding and grasp of what it involved. I asked the draftsman to set out an explanation in writing, so that 1 might grasp the situation. The explanation I have read does not purport to be a legal document.
– I indicate on behalf of the Opposition that we are not prepared to support the proposed amendment. We realize that this provision is drastic, and after what we have debated earlier this evening we rather welcome something in the bill that is a little bit drastic. 1 merely indicate that we regard it as being essential to prevent dummying and concealment. 1 agree with Senator Wright that the penalty is most drastic. The mere fact that the Commonwealth purports to legislate to render invalid a trust of this type is one of the reasons that caused me tentatively to express the opinion that the act might not stand up to constitutional challenge. That is one of the things that I think the Government perhaps would be hard pressed to justify. Nevertheless, on the face of it, we think it a proper safeguard and we would not propose to move for its deletion, lt may be that some amendment of it might be acceptable to us, but we feel that to delete it altogether would weaken the already highly attenuated protection afforded by this measure. We would not be prepared to support its deletion.
.- I want to say only two things. I say with real confidence that the bill would have a greater chance of meeting constitutional challenge without this provision than itwould with it. To unburden the bill of this obstacle to constitutional validity could inadvertently assist the Government.
– That is a matter of opinion, is it noi?
– And 1 am only stating mine.
– I only want to establish that it is a matter of opinion and not of fact.
– I would not have anybody believe otherwise. My next point is that it is designed to destroy dummying, or to have dummying disclosed. Let me put this situation: You have 10,000 shares in a television company and John Smith wishes to make a settlement on his wife and family. He selects the National Trustee Company as trustee and that company omits to register the transfer. It holds these shares under ordinary Jaw for the benefit of the wife and family but omits to notify the company under this legislation. The transaction has no relevance to the purposes of this bill at all, yet, if, within three months, the trustee company fails to notify and if there is no provision for extension of the time, the rights of the wife and family are invalidated.
– And John Smith own» all the shares?
– No, John Smith does not own all the shares because the trust is invalidated.
– Who owns them?
– You ask me! There is a real legal doubt as to whether John Smith owns them under this provision, or whether the original settlor owns them. But that does not matter.
– But surely the shares must revert to somebody. They would revert to the original grantor.
– As Minister foi Customs and Excise, you say to mc “ Surely “ in connexion with a legal proposition, lt is a matter of opinion, as your colleague, Senator Gorton, has just stated. You say, “ Surely “. I myself would have the most considerable doubt about it because the question of resulting trusts arising out of legal transactions is very difficult to give a spot opinion on. In fairness to all concerned 1 abstain from doing that. 1 say that the question whether the original settlor, or the transferee would be considered to own the shares is doubtful. But apparently what the committee thinks is equity in this case is that in that perfectly legitimate transaction which had no reference whatsoever to the purposes of this bill, inadvertent non-notification within three months, without possibility of extension of rime, will me;in that the people for whom the benefit of the trust was intended will be deprived of that benefit. I think that is arbitrary and obnoxious in the extreme.
– Would it be possible, if the trust were broken, to notify a new trust immediately it was found that inadvertently the trust had not been advised?
– Once you found out who the legal owner was, you could constitute another trust.
– And notify the company and all would be well?
– It may be, but you may have lost your right to control the settlor. The decree may have been made absolute and the jurisdiction of the court may have gone. People who deal with individual family affairs, I am afraid, have much more respect for individual rights than have people who are used to the arbitrary devices of government authority to control other people’s property. That is the ideology that dividesme from the authoritarian.
Now let me take the next situation. There is a settlement in that way. Suppose that you have a man who wishes to dummy some of the shares into a trustee and he notifies the transfer but does not notify that the transferee has accepted on trust for perfectly innocent infants. The existence of the trust in favour of the infants, the secondary trust, is of no concern at all to the purposes of this bill, but because the transfer transaction to the dummy is not notified, both the primary and the secondary trusts are invalidated. Again, it just horrifies my sense of equity.
Proposed section agreed to.
Proposed section 92k agreed to.
– I move -
At the end of clause 30 add the following new sub-clauses: - “(2.) Where-
before the date of commencement of this section, the Minister referred applications for a licence to the Board but the Board had not, before that date, made its recommendation as to the granting of the licence:
the circumstances in relation to a company that has applied for the licence, or the articles of association of such a company, are such that section ninety-two E or sub-section (3.) of section ninety-two G of the Principal Act, as amended by this Act, would prevent the granting of the licence to that company; and
it appears to the Board that the company is able, within a reasonable time, to cause those circumstances to cease to exist or its articles of association to be altered to the necessary extent, and is willing, in order to obtain the licence, to do so, then, notwithstanding the provisions referred to in paragraph (b) of this sub-section, the Board may recommend the grant of the licence to that company, and the Minister may grant the licence to that company. “ (3.) Where the Minister grants a licence in accordance with the last preceding sub-section -
he shall do so upon such conditions as are, in his opinion, necessary to ensure observance of, and compliance with, Division 3 of Part IV. of the Principal Act, as amended by this Act. and the conditions applicable under that Division, at the commencement of a television service in pursuance of the licence or at the expiration of six months from the commencement of the licence, whichever is the earlier: and
the circumstances referred to in paragraph (b) oft he last preceding subsection, or the failure of the articles of association of the company to contain provisions referred to in section ninety-twoG of the Principal Act as amended by this Act. shall be deemed not to give rise, by reason of the grant of the licence, to a contravention of, or failure to comply with, the Division referred to in the last preceding paragraph, or the conditions applicable under that Division, before the commencement of a television service in pursuance of the licence or the expiration of six months from the commencement of the licence, whichever is the earlier.”.
This is a lengthy and very important amendment aimed at protecting the position of those who are now applying for new licences and who made their applications in the terms of the existing legislation. The effect of the amendment is to give those applicants a chance to alter their constitutions so that they may, if they are successful in obtaining a licence, be able to qualify to use it.
As was explained in my second-reading speech, the purpose of this amendment is to ensure that an application which has been made for the grant of a licence in a country centre and is at present under consideration by the Australian Broadcasting
Control Board will not be rejected on the ground that the applicant is not presently in a position to receive a licence in conformity with the provisions of the principal act as amended by this bill. The amendment provides that if, in such circumstances, it appears to the board that the applicant could, within a reasonable time, conform with the requirements of the amended act, and the applicant is willing to do so, the board may, if it considers it desirable to do so on other grounds, recommend the grant of a licence to the applicant.
The amendment provides further that if the Minister sees fit to accept the board’s recommendation he shall grant the licence on such terms as are, in his opinion, necessary to ensure that the company will comply with the provisions of Division 7 at the commencement of service by the licensee or within six months after the commencement of the licence, whichever is the earlier. I think that there might be general agreement that it is only fair to do this in relation to those persons who made their applications upon the faith of the existing legislation. As we are now altering the legislation, we should give them a chance to conform with the amended legislation.
Amendment agreed to.
Clause, as amended, agreed to.
Clause 31 -
After section one hundred and five of the Principal Act the following section is inserted in Division 5 of Part IV.: - “ 105a. - (1.) The Board may, upon the application of the licensee of a television station, by order addressed to a person who -
has the right, by virtue of ownership or otherwise, to make a television film available, or to procure another person to make a television film available, to that licensee for use by that station; and
has not complied with a request by that licensee that he make the film so available, or procure the film to be made so available, or has, in response to such a request, required the licensee to accept terms or conditions that are not acceptable to the licensee, direct that person to make the. film so available, or to procure it to be made so available, in accordance with the order and on terms and conditions specified in the order, being terms and conditions that appear to the Board to be just and reasonable in all the circumstances. “ (3.) The Board shall not make an order under this section if the Board is satisfied that the person against whom the order is sought has a reasonable ground of objection to the making of the order. “ (4.) Without limiting the generality of the last preceding sub-section, where an application under this section relates to a television film made or procured for the use of, or previously made available or contracted in the ordinary course of business to be made available for the use of, a particular television station or of particular television stations, the person against whom the order is sought shall be taken to have a reasonable ground of objection to the making of the order if he satisfies the Board that the making of the order would -
enable the television film to be used by a television station serving an area coinciding to a substantial extent with the area served by that particular station or one of those particular stations;
enable the film to be used in Australia before there had been a reasonable opportunity for it to be used by that particular station or all those particular stations;
prevent the film from being available at a time when it was bona fide required for use by that particular station or one of those particular stations; or
cause a breach of a reasonable condition imposed by agreement by an advertiser or other person who had sponsored the television of that film by that particular station or one of those particular stations.
.-I propose to move for the deletion of the clause. The view that I submit to the committee in relation to this clause is that the whole of it should be deleted to enable further consideration to be given to this matter. The view has been put that, by reason of transactions in relation to programmes, control of television stations can be effectuated. That is the view that has been expressed, but neither the members of this committee nor the members in another place have been afforded any evidence in a detailed way of particular arrangements or species of arrangements whereby, through the management of programmes, controlof stations has been brought about. There has been a suggestion that television companies did threaten that by withholding programmes they could in some way prejudice the business of other television stations.
– They did do that.
– I would be most obliged to have information fromany member of the committee of a substantial and factual kind. If 1 were persuaded that arrangements could be made in relation to programmes that would lead to a boycott of other stations, my objection to this clause would, in the main, disappear. I have pleaded on other occasions, as the interjector knows, to be supplied with tactual information to substantiate the viewpoint that by arrangements as to programmes other stations could be boycotted. I do not think that we have been furnished with that evidence. The first point I make is that we are without information to substantiate the point of view that has been expressed.
The next thing I want to say is that I recognize that the amendment that the Minister is about to propose is a contribution towards justice to those who have the right, as this section expresses it, by virtue of ownership or otherwise, to make a television film available. I express my gratification for another provision also. When I find two instances in one bill upon which to express my gratification, honorable senators will acknowledge that the soul is welling up very well. On this occasion I express my gratification for the inclusion of a right of appeal against the decision of the Australian Broadcasting Control Board as to what are reasonable terms and conditions for making a film available. That is provided for in sub-section 10 of the proposed new section. The proposed amendment of the Minister provides that if the owner of the film, either original or subsequent, satisfies the board that the purpose of his refusing to make the film available is not to secure control - honorable senators will notice in the proposed amendment the significant words, “ either in whole or in part “ and “ for himself or for others “ - either in whole or in part for himself or for others of the television station, then the board is bound to say that he has a reasonable objection to the request to make the film available. That proposed provision, coupled with the provision for an appeal against the board’s decision, certainly takes a lot of the sting out of my objection to this proposed section. Nevertheless no evidence has been put before the Senate to justify a provision that any person who has the right, either as the owner or otherwise, to make a television film available, shall, on the application of a competitor, submit to a direction by the Australian Broadcasting Control Board to make that film available to that competitor on terms and conditions that are considered to be just and reasonable to the owner.
I pointed out during the second-reading stage that I held the view that ownership in a matter such as this is ownership of property which is peculiarly personal in the case of the author. In the case of a subsequent owner - a person who has purchased the rights to the television film - the ownership is due to his skill, in many instances, in being able to select a film that is going to be a record-breaker, and to buy it on terms that will give him a chance of success. That is the right for which I stand. In this instance I submit that no case has been made out by the Minister to warrant a government authority having the power to intrude upon that right and direct a person to make his property available to a competitor, not on terms that are fixed in the ordinary way of commercial transactions in a system of free competitive enterprise, but on terms and conditions which a government board says are just and reasonable. We have had arguments about price control, rationing and import restrictions. I thought we were opposed to all those things unless there was an imperative need for them in the public interest.
– Does this involve the principle of price control by the Government?
– Certainly. If the Australian Broadcasting Control Board has the right t~ say to a person that he shall make his television film available at a price that it fixes, that is giving to the board a right to fix the price of the film as well as the other conditions upon which the film should be made available. It is obviously a case of price control of television films. It is also a case of government control of the terms and conditions upon which television films shall be exchanged, disposed of or made available within the industry. My objection is that no evidence has been put before us to substantiate the proposition that power of this sort should be conferred upon the Government in order to prevent combines and monopolies in the television industry.
I do not wish to say any more. I realize that the objectionable nature of the proposed section has been diluted considerably by the proposed amendments and the provision for an appeal. Nevertheless I object to a system of government control of television films, even with a right of appeal, unless it is imperative to prevent prejudice to the public interest.
Before the discussion proceeds, 1 direct attention to the fact that Senator Wright has proposed the deletion of the clause. 1 understand that the Minister intends to move amendments to the clause. If we were to proceed with Senator Wright’s amendment, and it were agreed to, we could have the position that it would be necessary to have a recommittal of the clause in order to deal with the Minister’s amendments. I suggest, therefore, that the logical thing would be to consider the Minister’s amendments first.
– The form in which I have put my proposition may have led to this error. The question to be put is, “ That the clause stand part of the bill “. That is the logical question to put first. If the committee were to delete the clause, obviously there would be no basis for the Minister’s amendments. If the committee retained the clause, then there would be a basis for the Minister’s amendments.
Senator Wright’s proposed amendment were to be moved at this stage, having regard to the form that it takes, the Minister could not submit his amendments because there would be no clause to which they would be applicable. The Minister may wish to move his amendments at this stage. It is a matter for him to decide.
– I move -
Tn proposed section 105a (4.), after “ Board “, insert “, or the Commonwealth Industrial Court upon an appeal,”.
The purpose of the amendment is to clarify the powers of the Commonwealth Industrial Court on an appeal by a person against whom an order has been made under proposed section 105a. Under sub-section (4.) of that proposed section, a person is to be taken to have a reasonable ground of objection to the making of an order if he satisfies the board as to any one of certain matters. If, however, he fails to satisfy the board and an order is made against him, it is intended that, on an appeal by him to the Commonwealth Industrial Court, he should succeed in his appeal if he can satisfy the court as to any one of the matters referred to.
It may well be that that purpose is achieved by the provision in sub-section (1 1 .), that an appeal is to be toy way of rehearing, but it is considered desirable to remove any doubt in the matter by inserting appropriate words in sub-section (4.). The amendment therefore proposes to amend the sub-section so that it will provide that a person will have a reasonable ground of objection if he satisfies the board or the Commonwealth Industrial Court, on appeal, as to any one of the relevant matters.
Amendment agreed to.
– I move -
After sub-section (4.) of proposed section 105a insert the following sub-section: - “ ‘ (4a.) Without limiting the generality of subsection (3.) of this section or the operation of the last preceding sub-section, the person against whom the order is sought shall be taken to have a reasonable ground of objection to the making of the order if he satisfies the Board, or the Commonwealth Industrial Court upon an appeal, that his failure to comply with the request of the licensee was not, or the terms or conditions that he required the licensee to accept were not, in any wise related to an intention or attempt to obtain, for himself, either alone or in association with any other person or persons, or for some other person or persons, control, either in whole or in part, of, or of the management of, or of the selection of the programmes of, any television station or stations (whether already established or not).”.
As explained in the second-reading speech, the purpose of this amendment is to provide that a person against whom an order is sought shall be deemed to have a reasonable objection to the making of the order if he satisfies the board or the Commonwealth Industrial Court, on appeal, that his failure to comply with a request to make a film available to the licensee of the station was not in any way related to an intention to obtain the control of that or any other station.
The amendment will make explicit the underlying purpose of proposed section 105a which, as indicated by its marginal note, refers to the monopolizing of television programmes. The proposed section is aimed at the cornering of television programmes as a means of exerting pressure on television stations with a view to gaining control of those stations or of the selection of their programmes, lt is not concerned with ordinary commercial transactions or with regulating the prices of television programmes in a general way. However, it is obvious that if the board is given power to order a film to be made available in any circumstances, the board must also be given power to specify terms and conditions, including price. Otherwise, the order of the board could be frustrated by the imposition of an impossible price or condition.
I point out that the amendment should also remove the fears that some honorable senators may have that the section could be used to deprive authors or producers of the just fruits of their labours, or of their right to dispose of their product in the market to whom they please and on what terms they please. An author or producer of the kind that may be in mind would have no difficulty in satisfying the board that his refusal to sell a programme was not related to an intention to obtain control of a television station. Tn other words, an attempt to take over a film can be successful only if the film is being withheld as part of an effort to gain control of a station.
.- One welcomes this amendment from the Minister, though it has some obvious imperfections to which I shall direct attention since no other honorable senator has risen, lt will be seen that any person who has the right, by ownership or otherwise, to make a television film available, comes within the compulsory jurisdiction of the rower contained in sub-section (1.) (a). Sub-section (4.) of proposed new section 105a, without limiting the generality of sub-section (3.), gives the addressee of a notice immunity from the board’s order it lie can satisfy the board that he has a reasonable ground far objecting to t.ie making of the order. Sub-section (4.) strifes -
Without limiting the generality of the last preceding sub-section, where an application under this section relates to a television film made or procured for the use of, or previously made available or contracted in the ordinary course of business to be made available for the use of, a particular television station or of particular television stations, the person against whom the order is sought shall be taken to have a reasonable ground of objection to the making of the order if he satisfies the Board- that the film is for use in a coincident area, that it has not been used by the owner or that it would cause a breach of agreement with an advertiser. That statutory definition of a reasonable objection is available only to an owner who has procured the film for a particular television station.
The new sub-section (4.) (a) which the Minister proposes gives the statutory definition of a reasonable objection by any person against whom an order is sought, whether or not he comes to be possessed of the film for the purpose of a particular station or otherwise. 1 direct attention to that for the purpose of indicating approval. This provision concedes to every person, without restriction, the right to advance a reasonable objection. But the reasonable objection is stated in terms of restriction, and I cannot understand how this can be interpreted in the context of other provisions of the bill. I cannot understand how any Minister can accept that as a reasonable protection to the ordinary owner of a film. What the owner of a film has to show is that his objection to making the film available is not in any way related to an intention or attempt to obtain for himself, either alone or in association with any other person or persons, or for some other person or persons, control, either in whole or in part, of or the management of or the selection of programmes of any television stations. So you are here referring to control in whole or in part. You have defined control in proposed new section 91. The owner has to show that his transaction is in no way associated with an intention or an attempt to obtain the film for purposes of control, either wholly or in part. Why do you refer to partial control? It is the control in the sense in which you have defined it that is the evil that is being guarded against.
– Is it not in conjunction with something else?
– No, control includes control as a result of or by means of trusts, agreements, arrangements, understandings and so forth, lt means control in fact. Of course, whether you adopt 15 per cent, or 51 per cent., it presupposes the existence of other people. The draftsman has been skimpy in providing protection to owners. People have been put under the power of the Australian Broadcasting Control Board if they own a television film. If an owner is to escape by showing that he has a reasonable objection to the board’s demand, he must show that there is no intention on his part to obtain control either in whole or in part. How can any person say that he has no desire to obtain control in part of the selection of programmes of a station?
Those considerations, I suggest, should induce the elimination of the phrase “ either in whole or in part “. An owner should be able to escape if he shows that he has no intention to secure control as the previous Division of the bill has denned it.
– The definition in proposed new section 91 does not apply to this proposed new section 105a. The word “ control “ in the clause we are now considering has its normal dictionary meaning.
– Your problems of interpretation are growing hour by hour if you are going to have the ordinary connotation of control, and then add to it the phrase “ in whole or in part “ and then have it in a bill in which in another Division you give a statutory definition of “ control “. It is in no way an essential part of my argument that control in proposed new section 105a means what it does in proposed new section 91 (2.). All I say is that you are putting the owner of a television film, original or subsequent, under the compulsory jurisdiction of the board. As I understand it, the Minister intended to give an owner his quietus if he could show that his refusal to pass on the film was not in any way associated with an intention to gain control of another station, but what the Minister is saying in his amendment is that the owner of a film will obtain his quietus from the board if he shows that he has no intention of obtaining control either in whole or in part of that other station.
Just consider what is meant by an intention to obtain control in part. Does one shareholder holding one per cent, of the shares in a company intend to obtain control in part? Does one person who makes an arrangement that he shall supply a programme for half an hour a week for two years intend to obtain control in part of the selection of programmes for that station? lt is only if the answer is in the negative) that you give this unfortunate person the means of escape that I understood this amendment was intended to provide.
The whole vice of this matter is that one individual person should attempt to control competing stations. When one studies that amendment, the first presentation of which was quite pleasing, it seems that the draftsman has defeated the real purpose that is behind the amendment.
.-! do not follow any of the difficulties and tragedies that Senator Wright foresees; I do not follow all this argument. I shall leave the verbiage to one side, although I think that it does get close enough to what is intended. The verbiage says, in effect, to a person who holds a programme, “ Look, you come forward with clean hands and say that you have that programme and you want to deal with it in an ordinary commercial way - in an ordinary manner - and you will get the protection. You will not be put in the position of being forced to sell.” That is what is meant and I say, with respect, that that is what is said.
– What is meant in relation to partial control?
– What is said in these various words and phrases in effect, is: You can get into this position as long as you do not get mixed up and become involved in some transaction, in some form of deal, in which you are trying to get control of a television station. I am sorry that it has been necessary to use so many words, but I repeat that I do not find any problem involved.
Amendment agreed to.
.- I move-
At the end of proposed section 105a add the following sub-section: - “ ‘ (16.) For the purposes of this section, the area served by a television station is the area or areas within which consistently reliable reception of the programmes televised by that station can be obtained. ‘. “.
The purpose of this amendment is to state more clearly what is intended by the expression, “ The area served by a television station ‘’ in proposed new section 105a. The area will be defined as being the area in which there is consistently reliable reception of the station. This area will have to be determined as a question of fact by the board so far as it is relevant to any particular proceedings before the board under the proposed new section.
Amendment agreed to.
– I suggest to Senator Wright that he will achieve the effect that he desires, in relation to the amendment he has foreshadowed for the deletion of the clause, if he votes against it.
– I have put my arguments. I will vote against the provision.
Clause, as amended, agreed to.
Clause 32 -
After section one hundred and seventeen of the Principal Act the following section is inserted: - “117a. - (I.) Where the Commission or a licensee broadcasts or televises matter relating to a political subject or current affairs, being matter that is in the form of news, an address, a statement, a .commentary or a discussion, the Commission or the licensee, as the case may be, shall cause a record to ‘be made, in writing or by means .of .a device for recording sound, of the matter ot, if the matter is televised, of the matter insofar as it consists of sound. “(8.) Sub-section (1.) of this section does not apply to or in relation to proceedings of the Senate or the House of Representatives broadcast or re-broadcast by the Commission in pursuance of the .Parliamentary Proceedings Broadcasting Act 1946-1960.”.
.- I move -
At end of proposed section 117a. add the following sub-sections: - “ (9.) (a) It shall be a defence to any proceedings for defamation civil or criminal arising out of electoral matter broadcast or televised during an election period if the Commission or the licensee proves that the Commission or the licensee has acted in good faith without negligence and that such defamatory matter was broadcast or televised without the prior knowledge of the Commission or the licensee. “ (b) Refusal or failure by the Commission or the licensee to publish a full apology for such -defamatory matter at the earliest opportunity after the Commission or licensee has knowledge of such defamatory matter is evidence of want of good faith. “ (10.) Nothing contained in this Act shall compel the broadcast or televising by the Commission or a licensee of any defamatory matter.”.
I have moved the amendment in this form because the two sub-sections have to be read together if we are to understand the evil at which they are aimed. Many honorable senators as well as the members of another place have doubtless received a letter from the Australian Federation of Commercial Broadcasting Stations, dated 27th May, in which the federation asked for a very wide immunity against libel proceedings in the case of statements made at political meetings or during political broadcasts at an election period. I have read the federation’s proposal carefully and for myself I am wholly unable to support it, not because I am opposed to the principle behind it but because I think that the suggestion which the federation has made is far too wide.
The proposal that a complete privilege bc extended to a broadcasting station in the circumstances to which the federation has referred is so wide that it would allow a licensee to connive deliberately at defamatory broadcasts and to escape scot-free. If the federation’s suggestion were adopted, it would allow an irresponsible licensee to connive and to conspire with an irresponsible or an unworthy person to make the most defamatory attacks and still be protected. It would be as unjust as the present state of the law, and for that reason I cannot go along with it.
Honorable senators might wonder why the amendment should go on and make what one would think was an almost axiomatic statement that nothing contained in this act shall compel the broadcast or televising by the commission or a licensee of any defamatory matter. The purpose of the insertion of proposed sub-section (10.) is that at the present time the state of the law in Australia in regard to this matter is dictated by section 116 of the principal act, which provides that if a licensee - an earlier sub-section of section 116 makes the commission also subject to that section - shall take part in any election campaign - if he decides to allow his station to be used by any one candidate - he shall grant equal facilities to a candidate from any other party, provided that party was represented in either House of the Parliament at the time it last met prior to the election.
Country broadcasting stations particularly are affected by this provision, and they have a great desire to take part in election campaigns, because by so doing they serve the wishes of many of their listeners. We must remember that in country areas, unlike the cities, there is virtually no competition for individual broadcasting stations, and those stations are most anxious to take part in election campaigns.
– There is good money in it, too.
– I will deal with that point later, Senator. The money is not nearly as good as many people think, owing to the present state of the law. A licensee who permits a candidate to use his station for political campaigning must then give similar privileges to another candidate. On the face of it, no one could object to this requirement. It is a reasonable and a just provision, made to ensure that all shades of political thought are given a proper airing. But the difficulty that arises is that even if a licensee knows in advance that the second candidate is going to make a most defamatory speech, he is compelled by section 116 (3.) of the existing legislation to allow that defamatory speech to be broadcast, and section 124 holds the licensee liable for broadcasting such defamatory matter.
This is a state of affairs about which Gilbert and Sullivan would have been ashamed to write, and it is in order to correct the situation that I have proposed my amendment. It is a strangefact that as the position stands an act of Parliament may not only authorize but even require a licensee to do something wrong. This is an unthinkable state of affairs. Obviously an anomaly exists which must be corrected.
– Would not the courts have something to say on that, apart from what the Parliament says?
– Actually the courts are limited by the legislation in deciding these matters. Section 188 of the principal act provides only that a licensee shall not broadcast or televise blasphemous, obscene or indecent matter. It is quite possible, of course particularly in a political broadcast, for a statement to be made which is highly defamatory without being blasphemous, obscene or indecent. If, for example, one candidate should allege that another had falsely swindled a party or an organization and made away with a large sum of money, that would be a highly defamatory statement.
– Or that the Labour Party was a Communist organization.
– I do not propose to be sidetracked on that point. At all events it is quite easy to imagine a highly defamatory statement to which section 118 would not apply.
I have had the benefit of examining a recent opinion of an eminent New South Wales lawyer whom I shall not name because he has lately been elevated to the judiciary. His analysis of the position is in line with the propositions I have already put to the committee. In any case, I believe these arguments will stand on their own feet and do not need to be bolstered by statements made by persons who have previously propounded them. Perhaps I should refresh the memory of the committee by reading section 116(3.) of the principal act -
If, during an election period, a licensee broadcasts or televises election matter, he shall afford reasonable opportunities for the broadcasting or televising of election matter to all political parties contesting the election, being parties which were represented in either House of the Parliament for which the election is to be held at the time of its last meeting before the election period.
Sub-section (6.) of that section then defines “ election period “ in the following terms: - “ election period “ means the period commencing on the day of the issue of the writ or writs for an election and ending at midnight on the Wednesday next preceding the day of the poll.
I particularly emphasize the words “ ending at midnight on the Wednesday next preceding the day of the poll.” Election matter is given a very broad interpretation in this sub-section. It is defined as including: -
As the committee will see, that definition covers a very wide range. The obligation of the licensee arises once he has broadcast or televised any election matter at all.
– But the obligation is only to give reasonable opportunities to the other party.
– The same facilities as he has extended to the first person.
– No, reasonable opportunities.
– Those are the actual words of the section, but 1 see nothing in them contradictory to the proposition I am putting.
– The licensee would not be compelled to permit the broadcast of defamatory matter.
– But he has to give reasonable opportunities, and once the matter is broadcast the damage is done. If the speech is given ad lib. the station has no control over its contents.
– But it can make every effort to ensure that the broadcast does not contain offensive matter.
– That is why 1 have written down the protection which I think a station should get. It should be given some protection but not all protection. A station must help itself. It must take reasonable care. It must not act negligently. But when it acts in good faith it should be afforded protection, because I believe it is in the interests of .he political development of the nation and the political awareness of the people that broadcasting stations should be given a fair and proper opportunity to broadcast every point of view.
Referring again to the broadcasting of political matter, it might happen that the only political matter broadcast by a licensee is a reference to the date of a meeting. A broadcast may include a short statement that a meeting will be held at such and such a time in such an such a hall. Then for ten minutes may be broadcast recordings of matter designed to influence electors to vote in favour of a particular line of political philosophy. Once that been done, all parties must be given the right to make similar broadcasts. I would remind the committee that only a few years ago there was a Communist candidate in one of the Queensland State elections who would, under the existing legislation, have had the right to claim the same amount of broadcasting time as the Premier of Queensland.
– I thought you said that all points of view should be put.
– I do not suggest that all points of view should not be put; 1 am merely pointing out the positions that may arise, lt is apparent that in fulfilment of his obligations under this legislation a licensee will be exposed to substantial risks, and it is in order to reduce those risks to reasonable proportions that this amendment has been put before the committee. I remind honorable senators that there is no right of censorship - and we would not want a right of censorship - of any political reply. A station is compelled to broadcast something over which it has absolutely no control. I think we may gain assistance from an examination of the position that has obtained in the United States of America with regard to this matter. There has been recently at least one particularly interesting development on this line of thought. The protection that is provided to broadcasters in America varies from State to State.
Order! The honorable senator’s time has expired.
.- I rise, Mr. Temporary Chairman, only for the purpose of enabling Senator Hannan to continue.
.- 1 thank Senator Wright for his courtesy. In the states of Florida and Washington a broadcaster is protected when a speaker departs from a prepared script. In other words, if the licensee has taken reasonable care and the speaker departs from the script that has been approved, the licensee is given protection in the event of a libel action. The actual speaker is still liable. In the States of Oregon and Iowa the taking of due care to prevent the broadcasting of a defamatory statement is a defence. Some parts of the American legislation are very similar to our own. For instance, section 315 (a) of the Communications Act of the United States of America reads -
If any licensee shall permit any person who is a legally qualified candidate for any public office to use a broadcasting station he shall afford equal opportunity to other such candidates for that office in the use of such broadcasting station: Provided that such licensee shall have no power of censorship over the material broadcast under the provisions of this section. No obligation is hereby imposed upon any licensee to allow the use of its station by any such candidate.
There is a good deal more in that section, but it is not material to this discussion. Ir. June of last year, the United States Supreme Court had to consider a case in which a Mr. A. Townley, who was a senatorial candidate in, 1 think, Dakota, made a certain television appearance in which he alleged that the farmers’ union was tainted with communism. I suppose that is tantamount to saying that the Australian Country Party-
– Careful now!
– At all events, it was generally regarded as being defamatory. The matter went on appeal to the Supreme Court of the United States and that court decided that as broadcasters are forbidden to censor any of the political broadcastings which they have to make, and as they are compelled by legislation to make the broadcast, they must, by implication, be immune from libel actions which may follow.
That line of reasoning might or might not commend itself to other judicial bodies and, for that reason, I think we should take appropriate action to ensure that the protection is sure and certain, rather than vague and nebulous.
The proposition that I put to the Minister is that my suggested amendment does not cut across the philosophy of the bill. It is designed simply to make a good bill better by ensuring that broadcasting and television stations, especially country stations, may take full part in election campaigns without the constant worry of libel actions no matter how much care they take. One manager of a country station told me that during the 1958 election campaign he paid out more in legal fees for vetting scripts than he received in payment from the candidates who used his station. Although these broadcasts are popular with listeners in his area, he told me that he did not think he would cover the next federal election campaign. He cannot be compelled to cover it and he feels that the game just is not worth the candle.
The Government has shown itself to be eminently reasonable in connexion with this bill in that it has accepted a number of amendments already and I appeal to the Minister not to reject my proposal out of hand for I feel sure that if the additional conditions are written into the bill a good piece of legislation will be made even better.
– I listened with very great interest to Senator Hannan’s comments, and I congratulate him upon the draft he has produced al very short notice. I think newspapers, broadcasting stations and television stations are in somewhat similar positions in relation to the law of defamation, although there is the basic difference that if a newspaper publishes defamatory matter it does so as a relatively deliberate act and with obvious knowledge, or opportunity for knowledge. The plight of the licensee of a television station or a broadcasting station could well be that a speaker departed from a script that had already been looked at, or again, in an unrehearsed question and answer session there might suddenly be a defamatory statement. In both such cases the television station or broadcasting station would be completely innocent.
To the extent that the station has been taken by surprise with no opportunity of interrupting the defamatory statement, it does seem just that the station is entitled to some protection. But one would have to be careful about giving a body like a broadcasting station or a television station absolute absolution from all liability for defamation cases because that would concede the possibility that, as Senator Hannan has said, it might sponsor a man of straw to utter defamatory matter knowing very well that it would not be liable, that only the man of straw would be liable. I think these stations are entitled to some protection in cases where, having broadcast for one political party in an election campaign, they are compelled to give reasonable opportunities to other political parties and have no say in the selection of the speakers and no right to reject the speakers who are proffered to them by those political parties.
I take it that Senator Hannan is seeking to give limited protection to a licensee who takes proper care. As to paragraph (a) of his proposal making it a defence to any proceedings for defamation if a licensee proves that he has acted in good faith and without negligence, I should like to know whether, in a case where it was possible for the licensee to ask for the script, Senator Hannan would regard failure to call for the script as falling within his concept of “ negligence “ under this provision. My own impression is that it would. If there is an opportunity to obtain the script and the broadcasting station does not take the opportunity to call for it and examine it, and the script contains defamatory matter which ultimately is broadcast or televised, I should say that there would be negligence and the protection that Senator Hannan seeks to extend would not be afforded.
– Order! In conformity with the sessional order relating to the adjournment of the Senate. I formally put the question -
That the Chairman do now leave the chair and report to the Senate.
Question resolved in the negative.
– Senator Hannan’s proposed sub-section (9.) (b) provides -
Refusal or failure by the Commission or the licensee to publish a full apology for such defamatory matter at the earliest opportunity after the Commission or licensee has knowledge of such defamatory matter is evidence of want of good faith.
I have no quarrel with that provision, but I have circulated a proposed paragraph, reading -
– Free of charge?
– Oh, yes. I think that that is so.
– It would not be taken to mean that unless it were included.
– I think it is implied in what I have read. I would not object to having it made specific.I say quite frankly that that thought was in my mind.
– It was not necessary to include those words in the. legislation relating to newspapers.
– The intention was in my mind. If, when I was writing the proposed amendment, I had thought about that aspect, I would have included the provision that it should be done without cost. Senator Hannan suggests a requirement that the station has to apologize.
– It is not a requirement. It would be merely evidence of good faith.
– The honorable senator is quite right. It is not a requirement, but it is practically a requirement if a person wants to get the benefitof the exemption that the first proposed sub-section confers upon him. I think that it should also be evidence of bad faith if, when the person defamed wanted an opportunity to answer, that were denied. The paragraph I have proposed is designed to enable an answer to be made.
I think that the new sub-section (10.) proposed by Senator Hannan is necessary and desirable. I do not know whether the honorable senator would be prepared to agree to incorporate in his amendment the provision that I have proposed.
– I have no objection.
– Thank you.I should like to consider in the meantime just where the words “ without cost “ would work in.
– In the comparable legislation with regard to newspapers it has never been necessary to include the words “ free of cost “ in relation to publication of apologies.
– I realize that. The matter of apologies was not in my mind. I indicated to Senator Aylett that I thought it would be without cost according to the way I have drawn it. It reads -
Refusal or failure by the Commission or licensee to afford to the person affected by the defamatory matter an adequate opportunity as soon as possible to broadcast or televise an answer . . .
That certainly involves no cost. If Senator Hannan is prepared to incorporate that provision in his amendment, I shall bc completely happy with the position.
– by leave - I move -
That the amendment be amended by adding after proposed sub-section 9 (b) the following paragraph: - te) Refusal or failure by the Commission or licensee to afford to the person affected by the defamatory matter an adequate opportunity as soon as possible to broadcast or televise an answer to the defamatory matter at a time and under circumstances that will as nearly as practicable give to the answer the same publicity as was accorded the defamatory matter is evidence of want of good faith.”
This provision is so much in line with my proposed sub-section (9.) (b) that I do not think I should take up the time of the committee by speaking further to it. It is an extension of the provision contained in my proposed paragraph (b), and it provides not so much some form of protection for the broadcasting stations as some guarantee of reparation to the injured party.
. -I freely acknowledge the worthy motives that prompted Senator Hannan to propose his amendment, but I suggest that if the committee were to accept it it would be losing the substance and chasing the shadow, because few people are privileged to hold broadcasting and television licences in this country. The holding of such a licence is a great privilege and it therefore involves great responsibilities. If evidence is wanted of that statement, I think it may be gleaned from those many interested parties who are clamouring to-day for licences in various parts of Australia. A great deal has been said in this chamber concerning the rights of the individual. It is on that score that 1 want to make a point. A completely irresponsible person could, under this amendment, go from one broadcasting station to another in the space of a few hours by means of the modern trans port of this country, and defame scores, perhaps thousands, of innocent people. The only qualification suggested to apply to a broadcasting station is that refusal or failure to publish a full apology for the defamatory matter at the earliest opportunity - that provision is wide enough to drive a horse and cart through - after the commission or licensee has knowledge of such defamatory matter is evidence of want of good faith. I maintain that a station, because of the privileges it accepts when it obtains a licence, must place itself in a position to protect the individual who may be defamed. That is the point that I think is most important on this issue. There are irresponsible people in this land to-day - fortunately not many - but some of them are ruthless and have been described as men of straw and men who have evil intent. If this amendment is approved, it will leave the way open for those people to pursue their evil ways. 1 know that I am putting a hypothetical case, but I have listened to hypothetical arguments all day. My hypothetical case is worthy of consideration on the same level as all the other hypothetical cases. If a station seeks to have protection - and I am all for it - then it is in a position to secure an indemnity against any one who abuses the privileges that they obtain when they broadcast. I reject the amendment for the simple reason that it opens the door for many innocent people to be defamed without redress.
.- There seems to be a tone of weariness or boredom in Senator Wade’s contribution. He seems to be injured by listening to hypothetical cases during the debate and I heard a colleague echo “ And how! “ I protest not a word at listening to the thoughtful contribution that Senator Wade made. Whether or not it is hypothetical, I know not, but it is an illustration of a possible injustice. I venture to obtrude still further on the attention of the committee for the purpose of demonstrating that the contention Senator Wade has made is based upon an erroneous foundation. We are now united in an effort to protect an individual’s reputation. Senator Wade and I have a common outlook on that point in relation to this amendment. Let that be clearly ex- pressed. But he says that this amendment would open the door wide to the malevolent defamer and allow him in the space of an hour to go from one station to another and broadcast defamatory matter possibly to thousands or hundreds of thousands of people. This proposal of Senator Hannan’s would not give the station immunity in such a case as that.
– If the station apologizes within a certain time.
– That, with great respect, is the fallacy in Senator Wade’s argument. A station would not gain immunity merely by making an apology. It has to accept the onus of proof of three things. The first is that the licensee has acted in good faith. That means that the licensee has been actuated by no improper motive, lias not been actuated by ill-will and has not been responsible for a publication more extensive than the occasion reasonably required.
– 1 will concede all that.
– Let us see what is implied in Senator Hannans’ amendment. First the onus is placed on the licensee of proving that he acted in good faith. Next, the licensee has the onus of proving that he acted without negligence. In other words, he has to prove that he took all the reasonable and proper precautions that a prudent man would take in conducting a broadcasting station on a proper basis.
– I concede all that.
– Where, then, is thi possibility of a broadcaster, in the case of your illustration, succeeding in his defence under this section? Unless he has taken all reasonable precautions to see that defamatory matter does not go out from his station, he fails in this defence. What more are we to require of the broadcasting station?
Senator Wade obtrudes for our enjoyment at the end of a rather tedious day the observation that the apology must be made at the earliest opportunity after the transmission of the defamation. He might permit me to remind him that these words are taken from an act which was framed by Lord Campbell in the middle of last century. As far as I know, in none of the judicial references that have been necessary in relation to that act has any one thought fit to make the animadversions upon its draftsmanship that fell from Senator Wade.
I do not agree with what Senator Hannan said during the opening part of his speech as to the obligation under section 116 of the act to allow defamatory matter to go over the air. I do not agree with that at all. Section 116 requires the broadcasting station, not to give the same opportunities in every case, but to give reasonable opportunities. I venture to express the opinion that no court would say that a broadcaster had refused reasonable opportunities if, before giving a man audience over a microphone, he looked at the script and then, having found defamatory matter in it, said, “ You go to the microphone only on the condition that you cut that defamatory matter out “. I do not agree with the contention that section 116 requires a broadcasting station to permit itself to be a medium for the publication of defamatory matter. However, that propostiion is not essential to the amendment.
The next thing to remember in considering the parallel between a newspaper and a broadcasting or a television station is that the newspaper adopts all that it prints and puts it out as its own publication, whereas the broadcaster or televiser simply has a mechanism and allows people to use it if they wish to take time on it. If defamatory matter is transmitted through the medium of that mechanism there is some doubt - no case has been decided, to my knowledge, in any British court - whether the station is, is fact, liable for the transmission. It simply provides the mechanism. In a case where defamatory matter spoken over a telephone is heard by five or six people in a room, is the Postmaster-General liable for the publication of the defamation simply because he permitted that conversation to take place over his wires?
I have mentioned those subsidiary matters. The point I intended to make when I rose to speak, and which I wish to emphasize, is that this immunity is available to the licensee only if he proves that he acted in good faith and that he took all reasonable and proper precautions to prevent his mechanism from being used as a medium for defamation. He has also to prove that the defamatory matter was broadcast without his prior knowledge. If he refuses at the earliest opportunity to broadcast an apology, that is very damaging evidence against him on the question of good faith. I accept Senator McKenna’s proposition and say that if the licensee refuses to publish an answer to the defamation, again he loses his defence.
I wait with anxiety for any counter argument that might be forthcoming. I will listen to it, but I must declare that at the moment I think that the protection contained in Senator Hannan’s amendment is a reasonable protection for the broadcasting licensee. The amendment seeks to balance the rights of the person defamed and those of the person who has provided the mechanism over which the defamation has been committed.
– I have not yet made up my mind on this amendment and I am prepared to listen to what the Minister will have to say. The argument put up by Senator Hannan seems to be reasonable.
I should like to tell the Senate something which is a matter of fact, not of hypothesis. I have given over a thousand broadcasts, and J would be surprised to learn that, in any one of those broadcasts, I followed the script 1 had presented. I constantly altered or disregarded scripts. The script to me was just a general statement, like the notes of a speech. As 600 of those broadcasts were given during wartime when I had to make sure that I was not breaching security, I think I managed fairly well. A person could be tied down to his script only if the station had some kind of button by which it could cut him off the air when he departed from it. That would be absurd.
– We have had another interesting contribution to the committee stage of the bill. There is a Government view of this matter, and it is a firm view. I pay tribute to the work that Senator Hannan has done and to the way in which he has expressed himself. I have a clear recollection of the time that we, as a government, spent on this subject prior to the drafting of the bill, and of the consideration that we gave to it. As with all the important clauses of the bill and the major issues that have arisen, I have tried to codify my thoughts and the ground that has been covered in order to attempt to give an adequate answer te the issues that have been raised.
The provision is the result of a decision made by the Government. That decision is against the proposal that Senator Hannan has advanced. Let me indicate some of the considerations that actuated the Government. First, section 1 1 6, which has been referred to, does not prevent a licensee from requiring a script to be provided. When a licensee requires or insists on a script being provided he covers his position to quite a material degree. A licensee can refuse the opportunity to broadcast and thus refuse the opportunity to broadcast defamatory matter. If he insists on a script being provided, he closes one door, but there is still the risk of ad libbing and departing from the script. We gave a good deal of thought to that and came to the conclusion that it was reasonable to expect a licensee to accept that possibility as a part of the responsibility that is attached to the very considerable privilege that he enjoys by virtue of his licence. We did not ignore the fact that the licensee could insure himself against that risk.
The case for the licensee has been put very strongly by Senator Hannan. There is the other point of view, of course. I refer to that of the person who is defamed. The licence is a valuable property, derived from the Government. Is it unkind to say that if you were to give licensees protection such as that sought, they might not take the precautions that they undoubtedly do take at the present time? There are two interests involved. There are the interests of the private citizen, and there are those of the licensee.
– The only protection that the private citizen has is to seek an apology.
– I do not know whether I am correct in saying that proceedings have never been taken; that no licensee has been proceeded against.
– I know of a number of threats. I know of no actual cases.
– My information is that a Melbourne action cost one man £3,000.
– It is a big thing to give a person who holds a valuable licence and who presumably has a profitable business, protection against something that is almost one of the risks of the business from which he obtains his profit.
There is another important consideration that weighed strongly with the Government. The law in regard to defamation in Australia is governed practically entirely by the laws of the States. There is nothing in the Commonwealth act which would prevent a State parliament from giving to licensees such protection as it thought fit. The New South Wales Parliament legislated in relation to defamation in 1958 and it may be of some significance that that legislation dealt only with criminal aspects. It did not turn to questions of libel, slander or other aspects that my legal friends may put in separate, watertight compartments. The law of defamation differs from State to State. Some States make special provision in regard to the position of newspapers. Apart from the general objection to giving the protection that I have expressed in principle, we had advice that it would be difficult, perhaps even impossible, to frame a general provision for inclusion in a Commonwealth act that would fit in logically with the law of defamation in each State of the Commonwealth. Those, Sir, are some of the reasons that actuated the Government.
The amendment proposes to insert a provision to the effect that nothing in the act shall compel the broadcasting or televising by a licensee of any defamatory matter. The amendment relates to electoral matter transmitted in accordance with the provisions of section 116. Sub-section (3.) of that section provides that if, during an election period, a licensee broadcasts or televises election matter, he shall afford reasonable opportunities for the broadcast-1 ing or televising of election matter to all political parties contesting the election. I repeat that a licensee is not compelled to broadcast or televise election matters. If he elects to do so, he assumes a big degree of responsibility. It is then up to him to take the precautions that are necessary to conduct his operations in an efficient way. I do not see that a case has been made out for the amendment. I think all the equity lies with protecting the individual and the rights that he may have. I do not think a set of circumstances has been advanced which establishes that the holder of a licence now is not in a position to carry on his activities, as licence-holders have done over all the years that licences have been available, in an efficient manner, in fairness to the community and, without pecuniary risk to himself.
– I support the amendment moved by Senator Hannan. I have had a lot of experience of political broadcasting. For about four or five years I broadcast a political talk every night and on quite a few occasions people objected to what I said. What impressed me was the fact that although I was broadcasting for a political party, in a great number of cases those people who objected did not try to stop what was being said by contacting me or the political party. They endeavoured to apply pressure to the radio station, and at times I felt that there was a danger that ordinary freedom of speech would be gravely hampered by the manner in which those people threatened the radio station. They sent lawyers’ letters and did all sorts of things in an endeavour to stop the broadcasts, but they did not’ take any legal action to indicate that they felt they had been defamed. It was obvious to me at times that they had no intention of taking legal action. They did not feel that they had a case, but they thought they could muzzle the voice of the political party concerned by using threats and sending legal letters to the management of the broadcasting station concerned.
We should encourage freedom of speech, within reasonable limits. My feelings about this matter are that in the case of political broadcasts or television sessions, it ls desirable that the stations concerned should have the partial immunity that would be conferred on them by this amendment. I do not think you can say it is always possible for a station to demand a script and thereby feel that it has made the situation secure. The most popular form of televised political session to-day is of the question and answer type. In that type of session you have a compere who has with him one or two people interested in a political subject. He asks them questions and they give answers.
– Do you not think thai a station should be obliged to face up to the law of defamation?
– I think that you are asking a great deal of a station. The publisher of a newspaper sees in print what he is asked to place before the public and he may alter it upon appropriate lines. 1 recall a television session in which I took part during the recent La Trobe by-election. We did not prepare a full script of what we proposed to say, because in my wide experience of this matter I have found that if you have a prepared script and the people taking part have learnt by heart what they are to say, the session loses spontaneity. It does not go over well.
– You would not make defamatory statements, would you?
– That is a matter of opinion. Some of the people who watched my session probably felt that I was making defamatory statements. We had a general script setting out roughly what we proposed to say. The compere asked questions. We had in our minds a pretty fair idea of what we were going to say, but we were not pinned down. It would have been quite possible for somebody taking part in the programme to say something defamatory. In that case I think it would be most unfair for the station to be placed in a position where it could be penalized.
– Did you pay for the programme?
– Yes,” it was a paid programme.
– Well, why is it unfair? The station got revenue from your programme.
– The station charges for the facilities that it places at your disposal. It expects you to keep within the bounds of good taste and not to defame anybody. But it is always possible that somebody will go beyond what is contained in a prepared script. That is trie fault of the speaker and the political party that he represents.
– Do you not think that the station could restrict time to reputable people and so eliminate that risk?
– I cannot agree that the station should be held responsible in a case where it has no control over what a person says. There is a good deal of merit in the amendment. I am convinced that it would be undesirable to place a station in a position where it could be penalized. Therefore, I support the amendment.
– This is a very difficult matter to decide. The Minister says that a station may accept direct responsibility for anything that it puts over. That certainly applies to broadcasting stations. We all know that if you are making a broadcast, you must prepare a script and give the station a certain number of copies. One copy is handed to you and you are supposed to read it when you are on the air. I know of cases where people have departed from the script and introduced other words surreptitiously. That can easily be done in a broadcast.
Television is a different proposition. Last week I watched a televised press interview. Nobody knew what questions would be asked or what answers would be given, but the answers to some questions contained defamatory statements, although the person who was defamed probably did not hear them. He will probably have to take steps to clear his name. Are we to blame the station for that situation? The interview was on Channel 7 and many people saw it. There is something in Senator Hannan’s amendment that appeals to me, and yet I can see the danger on the other side that it could be used very wrongly indeed to protect a station which perhaps has views that are not the same as our own.
I do want to point out to the Minister that it is not an easy matter to decide. In relation to press interviews and that type of thing on television, I do not see how a station can undertake to accept responsibility for what a person says because it is not known what the person will say.
– I support Senator Hannan’s amendment and practically everything that has been said about it, but I should like to ask the Minister one question. When Senator McManus was speaking, the
Minister appeared to attach great importance to the fact that the time was being paid for. What happens in the case of the Australian Broadcasting Commission when, for example, it is broadcasting the parliamentary proceedings? Defamatory statements are not unknown in either House. What happens then?
– We are in a different category.
– I think it is completely wrong that a broadcasting station or a television station should be made responsible for things said by somebody else that the station did not know he intended to say.
– I was not going to speak on this matter because 1 did not think that the amendment would be taken as seriously as it is apparently being taken by some members of the committee. Senator Hannans amendment relates - correct me if I am wrong - to defamatory matter published by a television station, arising out of an electoral matter - an electoral campaign - or in pursuance of an election campaign.
I am at a loss to understand why the amendment should have merit merely because a by-election is about to take place. The first point 1 make is that if it is a sound principle to give some immunity to a powerful medium like a broadcasting station or a television station, why is the immunity being restricted to electoral matters? A great amount of defamatory matter can be published by a broadcasting station without any relationship whatever to an election. Where do we stand? Senator Hannan says, on the one hand, that when there is an election coming off YOU can be as defamatory as you like.
– No, I did not say that.
– Yes; the effect of the amendment is that you can be as defamatory as you like, provided you take reasonable care. But if no election is taking place, then you pay up. That is the great weakness in this proposition. I think that out of sympathy for Senator Hannan many senators are seeing some merit in this case. Some people feel sorry for these powerful broadcasting and tele vision stations and want to help them. But let us be a bit logical about the matter. If we give them immunity with respect to defamatory matter, let us be consistent and grant them complete immunity irrespective of whether there is an election proceeding or not. That would be logical and fair.
Senator McManus hit the nail on the head. He was making broadcasts every day for many years. He said that pressure had been brought to bear on the broadcasting station. Therefore, if he is logical he will desire immunity irrespective of whether he is making a broadcast prior to an election or not. He must be consistent and say that he wants immunity for the whole of the broadcasting or television units irrespective of when the matter is published by the broadcasting or television stations. Here we have a definite weakness in Senator Hannan’s amendment. 1 now want to make another point about the matter. Television, without any doubt at all, is the most powerful propaganda medium in the world. Let us be quite frank; there is no doubt about it at all.
– I said that last night.
– Yes, and it bears repeating. It follows that anybody who wants to run a television station has to accept this risk because there is a most important legal principle at stake. Let us have a look at the merits of this thing. For a start, Senator Hannan has to be logical and apply immunity at all times. Then somebody not connected with politics publishes a most horrible, defamatory statement about a person or a section of people. It can happen, and it probably would happen, I suggest, but not because a person has ad libbed and not followed the script. That would not be a case where defamation would normally occur. Defamation would most likely occur in these ad hoc performances where questions and answers follow quickly, where there is no preparation. In those circumstances, the television station proprietor knows perfectly well the risks he runs. He invites provocative conversation between A, B, C and D as a panel. I myself have been one of a panel.
– Would you say that Mr. Dalziel had a case against Channel 7?
– Mr. Dalziel is going to be invited to go along and be quizzed himself. The station itself invites provocation. As I said, I have been a member of a panel. Generally speaking, the first thing that happens is that the manager says something like this: “ Let us hot this up. Let us make it interesting. What questions are going to be asked and what answers will be given? We want to get a bit of blood flowing.” The television people are prepared to take the risk, and therefore they have to put up with the consequences.
– In other words, destroy spontaneity.
– You have to pay for spontaneity. The same principle applies whether you are publishing this material over a television station or in a park or on the Yarra bank. You get up and take the risk. You take risks by making inter.locutary statements before an audience.
This law of defamation is a most important one which we should alter only after the greatest consideration and care. It is a most dangerous practice to tamper even very lightly with an important principle of the common law, as we are asked to do in this case, and I for one strongly oppose any tampering with this provision.
.- I am not surprised that my friend, Senator Vincent, has entirely missed the point, which is that the provision that we have been discussing is limited to electoral matters. Quite obviously, the honorable senator has not read section 116 (3.). That is the complete answer to everything he has said. I am just as interested in the good name of my neighbour as is Senator Vincent or any one else. I repeat, however, that this amendment is confined to the broadcasting of electoral matter. Once a licensee has allowed one person to broadcast such matter, he has no say as to who must then be allowed to broadcast. He is compelled to give reasonable facilities to all other parties. This provision does not apply to any other kind of broadcast. It does not apply to the broadcasting of talks, even those on foreign affairs. It does not apply to any other matter broadcast or televised. In any other case a licensee is free to broadcast what he wishes. But in the case of electoral matter, once the ball has been set rolling, he is no longer allowed to select his speakers.
– And who sets the ball rolling?
– I concede the point that once a licensee has begun to give a service to the community by broadcasting electoral matter-
– At a fee!
– The licensee is no philanthropist, but he is doing a good job. This country is proud of its national and commercial television stations, working side by side. Once a licensee has commenced to give this service he has no choice in the matter of the speakers who must then be given equal opportunities. I think it is manifestly unjust and unfair to shackle him in this way. 1 am indebted to Senator Robertson for her contribution to the debate. She pointed out the very much greater difficulty of controlling a television broadcast than of controlling a radio broadcast. With many of the live shows broadcast on television, a licensee can have no reasonable prospect of knowing what the person involved is going to say. I can recall making a telecast during the last federal election campaign. I thought it possible that I would receive a writ from the Seamen’s Union as a result of that telecast, but it did not arrive. The difficulties in the case of television are manifestly greater than those connected with radio, but even in radio the licensee cannot always get a script. He cannot always know what a speaker is going to say. I ask this committee, especially those senators on this side of the chamber: What would we think of a broadcasting station licensee who had already allowed the Labour Party’s policy speech to be broadcast and who then said to the Prime Minister, “ We will afford you the same facilities, but we want your speech to be put on tape first so that we will not be taking any risk “. The proposition is manifestly absurd. Yet that is exactly what the Government suggests the licensee should do.
– The honorable senator’s proposition is absurd.
– Of course, no one is likely to think that the Prime Minister would defame anybody. The theoretical proposition is there, however.
– No Prime Minister?
– Has Senator Wright ever known of one?
– I do not want to be misunderstood. I am not suggesting that the Prime Minister is likely to defame anybody. I want to make that abundantly clear.
– Have you ever known of a case in which, in a policy speech, a member of the public has been defamed?
– I can go back to a time before the war and say, without mentioning the people involved, that I have known of statements made which in my opinion - and I am only a country solicitor - may have been actionable, but about which no action was taken.
I put forward these arguments because the Minister has said it is reasonable to get a tape or a script before allowing a broadcast. I would appreciate it if the Minister would direct my attention to any part of the parent legislation or of this bill which gives a licensee the right to reject a particular script on any ground at all, other than the grounds of blasphemy, obscenity and indecency covered by section 118 of the principal act.
– Do you suggest that a broadcasting or television station licensee is obliged to publish defamatory material?
– Read section 116 and tell me what it means.
– Is he obliged by law to commit an indictable offence?
– That point is not covered by section 116. It does not refer to indictable offences. It merely refers to the giving of reasonable facilities for the broadcasting of political or electoral matter. It may be, as the Leader of the Government has said, that radio licences are valuable things and eagerly sought after, but I would remind him that in the South Dakota law case to which I referred, the Farmers Union versus station WDAY, a claim was made for damages to the extent of 150,000 dollars, which is a fair bit of money. The Minister further said that a prudent licensee might protect himself against these contingencies by taking out an insurance policy.
– Of course he would.
– I invite my friend Senator Wade and the Minister to give me the name of any insurance company that is prepared to carry such a risk. The Minister further said that if licensees were given this form of immunity they might not be as careful as they are at present. Is this not an argument against his suggestion that licensees should insure? Surely if they were insured they would realize that they could say what they liked. This argument is a two-edged sword.
On the question of federal intrusion into State realms, particularly that involving the laws of libel, I remind the committee that we have not hesitated to provide in section 1.24 of the principal act that with regard to any matter involving defamation - normally a State matter - the broadcasting or televising station is the publishing authority. This could very well be the key point in an action brought in the State courts and revolving, in all other respects, around the State law.
I should, perhaps, make reference to the comments of my friend, Senator Wade, concerning the matter of an apology. I direct the attention of the committee to the fact that an apology is not a defence in this matter. The amendment says that refusal or failure to give an apology is simply a matter to be taken into account on the question of good faith. Senator Wade is again seeking to interject, but I would ask him to be logical about this matter. I do not want his heart, which I know to be good and kind and generous, to rule his head.
– Don’t start on me with that line.
– I merely say that I should not like to see your heart rule your head in coming to a decision on this important matter.
Senator Wright has already dealt with the question of the mythical man who travels from station to station making all forms of libellous broadcasts, but I think I should direct his attention to the fact that such a man would be able to do so only if the licensees whom he approached had already broadcast some form of electoral matter. I remind Senator Wright further that in the opinion of certain eminent legal authorities the law as it stands does not prevent the evil to which he refers. In those circumstances, 1 feel sure honorable senators will support my proposal.
Thursday, 2 June 1960
– I should like briefly to support the amendment proposed by Senator Hannan. I feel, however, that it should have application to other than electoral matters as such because, in the last few years, there has grown up a race of people known as political commentators who conduct regular sessions over the radio. Fortunately, these people are not many in number, but, in the course of their regular sessions they defame and vilify people. Certainly they do so in Western Australia. I have telephoned a station in Perth on several occasions about this matter. Finally it broadcast the statement, “ The views expressed by the speaker are not necessarily those of this station “. That statement is supposed to whitewash the station, or clear it of any liability.
About this time last year, or a little earlier, I was defamed by the commentator who spoke from that station. At that time, I was not even in Western Australia. I was miles away from the place where he alleged I was and where he alleged the incident occurred. My father, having heard the broadcast, telephoned the station. Apparently those responsible at the station became alarmed, for the following morning a taxi arrived at my home with the commentator who wanted to make an apology. As I was in Canberra and knew nothing about what was going on, he could not apologize to me personally. The radio station then decided that at the same time in the next week the commentator should apologize to me over the air; but any one who happened to hear the apology could be pardoned for taking it for anything but an apology. Very often the apology is far worse than the original offence.
– What did he say you had done?
– I am not telling you. As a matter of fact, he was referring to action that the Government had taken in this chamber. I was not present, so, in effect, honorable senators on the Government side were also defamed in that same statement.
I submit that this law should not apply exclusively to matter broadcast during the course of an election campaign for at such times we are quite accustomed to hearing said things which are not normally said during calm discussion. When, week after week, these commentators broadcast defamatory statements about people in public life, I feel that an amendment such as that proposed is long overdue. Therefore, I have very much pleasure in supporting Senator Hannan’s proposal.
– I support Senator Hannan’s proposal because I feel that broadcasting stations and television stations are in a different category from newspapers. The publisher of a newspaper has full control over the production of any matter published but broadcasting stations and television stations are not in that happy position. For instance, they have no control if any one using their stations decides to do some ad libbing
– That could be controlled by recording.
– What happened when Mr. Chifley recorded his policy speech? I believe it is fair to say that he probably did his cause a lot of damage. It is very easy for us to say that control could be established by recording the matter to be broadcast, but we all know that the people demand certain things of men in public life. The danger is that although a person has submitted a script and that script has been approved, the station has no control over what goes over the air if the person concerned decides to deviate from the script I had a good deal to do with a broadcasting station at one time when I regularly conducted a literary session. The proprietor of that station told me that during one election campaign he was unable to control a certain person because he kept departing from the script. Eventually the proprietor had to cut that person off the air. No one could say that the proprietor was not doing his utmost to prevent the broadcasting of defamatory matter.
– Was anybody sued?
– No, because the proprietor cut the man off the air. It was a small radio station and the proprietor was standing by. With the bigger stations, there is not the same personal control, and if one is not standing by to cut off transmission when it seems apparent that defamatory matter is about to be broadcast, great damage can be done. I am sure honorable senators appreciate that when a person is speaking, defamatory matter can be broadcast to the world within a few seconds. Quite a few sentences can be uttered within a few seconds. As the present law does not seem to take this fact into consideration, I feel that the proposal submitted by Senator Hannan is a wise one. I cannot understand why we in Australia should find it so difficult to protect radio stations and television stations against actions for libel in such instances, especially when we have the example of the protection afforded in the United States.
Sitting suspended from 12.8 a.m. to 12.46 a.m.
– I have not very much more to say. 1 was speaking of the protection of the proprietor of a broadcasting or television station. An honorable senator fired at me the question, “ What about the individual who is injured? “ I think that we are losing sight of the fact that people who make injurious statements are and should be subject to defamation charges. The matter has been thrashed out but that aspect should be kept in mind. The peculiar circumstances of broadcasting and television require close attention when considering matters of defamation. Safeguards have been established in other countries and there is no reason why we cannot do a similar job in our legislation.
– I, too, shall be very brief. As a matter of fact, it was exceedingly difficult for a member of the Opposition to have a say at all in the hour that preceded the suspension. I want to comment rapidly on one or two submissions of the Minister. First, we cannot look at past experience in this matter and judge the future on it. The whole position will be entirely altered by the provision we are considering. For the first time, the Parliament is to be concerned with making it easy for people to bring defamation actions and to prove them. The whole provision is directed to that end. It may well be that there have not been many defamation actions in the past because the people concerned did not hear the broadcasts and thought that they would be faced with insuperable difficulties in finding out exactly what was said. The bill lays plans for anybody affected by defamation. He will know that he can go to a station and obtain or have kept for him an exact copy of the broadcast. That is the first consideration. The future will be very different, in my view, when defamation actions are facilitated in this way.
The Minister pointed out that the States had defamation laws and that they had never dealt with television. The quick answer to that is that the States have recognized broadcasting and television as matters solely within the competence of the Commonwealth. Quite obviously, they have realized that matters of defamation over those media were matters for the Commonwealth. I think that that is the complete answer to the Minister.
– The New South Wales act is in respect of broadcasting and television stations.
– It does make particular provision?
– I was relying on the Minister’s statement that the States have not done so.
– Would you not agree that a criminal defamation published by a broadcasting station would be punishable under State legislation?
– That would be within the jurisdiction.
– How do you relate that to the proposition that you have just mentioned?
– It fits in with it exactly. We are talking about civil defamation actions for damages. Damages are what we are now considering. We are not concerned particularly or immediately with criminal libel, and how exceedingly rare is a prosecution for such an offence! The Minister said that the various State laws on defamation did not follow a uniform pattern and that there were divergencies. There will be no difficulty, under Senator Hannon’s amendment, in simply projecting into the State situations one more defence. That is all that this does; it puts one ground of defence. It will not disrupt anything in State legislation and will fit in as neatly as a hand fits into the proper glove.
I put it to the Minister that from the three propositions he has advanced it is quite obvious that the Government is scratching for reasons. Senator Wright summed the whole matter up perfectly when he said that the proposal was to cover two types of cases, the case where a man deviated from a script, and the case where, in an unrehearsed interview, defamation suddenly emerged. In both situations there is certainly no moral responsibility on the station owner. That is the first point.
Then Senator Wright made the powerful point that three conditions had to be fulfilled before the defence was available and that there was a heavy onus of proving those three conditions. The first condition is that there is no negligence. I affirm the proposition that if a person had the opportunity to get a script and did not do it, that would be negligence and he would be liable, despite the amendment. In addition, there has to be good faith and there has to be no prior knowledge. Then two other conditions have to be met. An apology has to be offered as soon as possible as evidence of good faith, and if the defamed person wants an opportunity to make an answer, he has to be given an adequate opportunity.
– Who is to decide whether or not the matter is defamatory?
– In the first instance, that would have to be a matter between the person defamed and the station. They would have to make their own decisions. I should imagine that they would be able to get very quick advice on that point. So five hurdles face the station proprietor before he gets the protection afforded by the proposed amendment. It is completely reasonable to come to the rescue of a station which has no moral culpability in the matter at all, which has no prior know ledge, and which has not omitted to take any steps that it should have taken. Surely it is reasonable to come to the rescue in that situation which, as Senator Hannan and Senator Wright have pointed out, arises particularly only in relation to one matter where there is an element of compulsion.
– In other words, you are advocating immunity for politicians.
– No. The honorable senator completely misunderstands the position. The politician is liable all the time. This amendment does not seek to give the slightest immunity to a politician who offends against defamation laws.
– Who would sue a politician when he could sue a wireless station?
– I think the honorable senator will admit that there would be no moral justice, in the two cases I have cited, in by-passing the politician and suing the station. At the moment, they are both liable. A very intelligent plaintiff would sue both, and have both in the net.
– If they are both liable, there will be no defamation.
– The honorable senator is more hopeful than I am. Senator Tangney put the position very well when she said that tempers are high at election time. It is a situation of high conflict and the very situation from which defamation could emerge.
– Ours is the only party ever libelled.
– The honorable senator may be right about that. I rose only to make those brief comments upon some of the Minister’s submissions.
That the words proposed to be added (Senator Hannan’s amendment) be added.
The committee divided. (The Temporary Chairman - Senator K. M. Anderson.)
Majority . . 4
Question so resolved in the negative.
Clause agreed to.
Clauses 33 to 36 agreed to.
Clause 37 (Community television aerials).
– I wish to refer to paragraph (a) of sub-section (3.) of proposed new section 130a, which reads -
The Board shall not recommend that a permit be granted in respect of an area unless -
in the opinion of the Board -
the area is within the normal range of a television station from which satisfactory reception of television programmes is not being obtained in that area; and
satisfactory reception of television programmes could be obtained from that station in that area by the means to be authorized by the permit
Would the Minister state why there is no provision in this bill for the use of repeater or translator stations? The reference in the bill is purely to community television antennas. I think that there might easily be an overriding provision that at this stage, without waiting for stage 4 of the programme, these units could be used only in an approved area, which lies within the accepted viewing area and which is blanketed by geographical features. Previously in this chamber I have referred to Mount Bakewell in Western Australia which blankets out three Country Roads Board areas - Cunderdin, Kellerberrin and
Merredin which are three fairly large towns.Because of their situation and the positionof the transmitting station they are experiencing difficulty because of the blanket’ ing effect of the physical feature to which I have referred. I ask the Minister whether the Government intends to grant permits for the use of repeater or translator units in the blanketed areas. If it is intended to do this, will such units be considered as a second station? I think it would be most unfair to consider them as a second station. I cannot imagine any proprietor of a television organization establishing one of these repeater stations if he were to be precluded from owning a further station. Such units would be only an extension of the existing service to cover people who, because of the geographical formation of the country, cannot receive television within the accepted viewing area.
– The point raised by Senator Branson has some technical aspects. My advice is that the board is not in a position, at this stage, to go into the use of boosters and translators. It wants, first, to get more experience of television operations generally in Australia. It wants more experience of the results in particular areas and the present policy is to aim at developments along the lines mentioned by the honorable senator during the next stage of development.
– I feel that this clause represents a step in the right direction. I want to commend the Government for giving legislative direction to the postal authorities that, in certain circumstances, a community television aerial may be made available. As a matter of topographical fact, there are very many areas fairly close to the site of a television aerial which, by virtue of hillsides, iron deposits and other features, have great difficulty in receiving strong signals. The use of a community television antenna has been precluded by earlier legislation and regulations and I think that it is a wise and prudent step to facilitate in this way the extension of the advantages of television to valleys and shaded areas in which the reception of an adequate signal is not possible. I appreciate greatly Senator Branson’s interest in boosters, translators and other such transmitters. It may very well be that at some future date the Government will consider the granting of sublicences, particularly to country licensees, which would not be counted as a second licence under the bill. This would enable country television stations to use a booster to get into the shaded areas which are otherwise inaccessible to them. Perhaps it would be desirable that, in these circumstances, the booster station should be built within a reasonable distance of the licensed station in order to prevent the evils of the octopus against which this bill is aimed. For example, a limit of between 50 and 60 miles from the parent transmitter might be enforced. Perhaps the Government will consider the question of sub-licences when legislation on television is next under consideration, because I have no doubt that, as television grows in the community, we will see a bill on this subject, perhaps every couple of years. I would be glad to hear the Minister’s views on that suggestion.
– I would be very hesitant to express views on the subject raised by Senator Hannan because I feel that we have only scratched the surface of the technical development in television. However, I cannot help thinking that there must be some development along the lines of subsidiary boosting stations. I cannot foretell the way in which that development will go, but I am certain that it will be a dramatic development. Therefore, as much as I enjoy Senator Hannan’s good opinion I would not venture upon a prognostication in this respect.
.- - I would be glad if the Minister for National Development (Senator Spooner) would indicate where the Government stands in relation to the second question that I asked him. I believe that certain television stations would be prepared to make application at this point of time for a translator station to test the Government on this, but they would not do so if they thought that any permit granted would be considered as applying to a second station.
I would agree that the Government would be quite right in saying that it did apply to a second station because, otherwise, there would be an avenue to evade an important point of this legislation. But an application to operate a booster unit for a special blanketed area within an accepted viewing area should be regarded as a special case. If a permit were granted, would the Government consider the unit as a second station or as an extension of an existing service?
Clause agreed to.
Clause 38 agreed to.
Title agreed to.
Bill reported with amendments; report adopted.
Bill read a third time.
Motion (by Senator Spooner) put -
That Standing Order No. 68 be suspended to enable new business to be now taken.
The DEPUTY PRESIDENT (Senator the Hon. A. D. Reid). - There being present an absolute majority of the whole number of senators, and no dissentient voice. I declare the question resolved in the affirmative.
Motion (by Senator Spooner) put -
That so much of Standing Order No. 134 be suspended as would prevent the moving of a motion, at once, for the rescission of the order made by the Senate in connexion with the date fixed for the resumption of the debate on the second-reading of the Parliamentary Proceedings Broadcasting Bill 1960.
The DEPUTY PRESIDENT.- There being present an absolute majority of the whole number of senators, and no dissentient voice, I declare the question resolved in the affirmative.
Motion (by Senator Spooner) put -
That the order of the Senate fixing the resumption of the debate on the Parliamentary Proceedings Broadcasting Bill 1960 as an Order of the Day for the next day of sitting, be rescinded, and that the resumption of the debate be an Order of the Day for a later hour this day.
Question resolved in the affirmative, there being at least one half of the whole number of senators voting in favour of the motion.
Debate resumed from 31st May, 1960 (vide page 1156), on motion by Senator Spooner -
That the bill be now read a second time.
– The Opposition supports the measure. It is a brief one, directed to the recording of proceedings of the Parliament of historical interest. The preservation of the records, and even the making of them, will be under the jurisdiction of the Joint Committee on the Broadcasting of Parliamentary Proceed ings. The Opposition recognizes that the measure is desirable, and supports it.
Question resolved in the affirmative.
Bill read a second time, and passed through its remaining stages without amendment or debate.
Motion (by Senator Spooner) agreed to -
That the Senate, at its rising, adjourn till this day at 10.30 a.m.
Bill returned from the House of Representatives without amendment.
Senate adjourned at 1.19 a.m. (Thursday).
Cite as: Australia, Senate, Debates, 31 May 1960, viewed 22 October 2017, <http://historichansard.net/senate/1960/19600531_senate_23_s17/>.