Network Insight Institute

Ian McGill

Ian McGill, Partner, Allens Arthur Robinson

So how does the law deal with cultural imperatives? The objects of the Broadcasting Services Act include the promotion of the role of broadcasting services in developing and reflecting a sense of Australian identity, character and cultural diversity. In Blue Sky, the High Court held that cultural objectives can be fulfilled effectively without requiring preference to be given to Australian programs over New Zealand programs. How did they do that? The necessary conclusion to the way the courts looked at this issue is that anyone can make Australian content – anyone.

A more important point, as we talk about the importance of industry policy, is that the Broadcasting Services Act and the Australian content of programming must, as the High Court has found, give way to conventions and agreements that the Australian Government enters into. In the Blue Sky decision the relevant agreement was the CER (Closer Economic Relations with New Zealand). The ABA must perform its functions in a way that is consistent with Australia’s obligations and any agreement between Australia and a foreign country.

This all means that the express cultural objectives, and indeed the implied industry policy objectives, hang by a thread. The Australian government could, for example, decide to bargain access to US markets for lamb, wool and iron-ore in return for American requirements for most favoured nation status for American programming. That may or may not be a realistic example. If they chose to do that and entered into such an arrangement, then, as the High Court has informed us, you can have a valid standard for Australian content which gives effect to that arrangement by entirely giving way to the foreign treaty. To take what the High Court said to its logical conclusion: if by reasons of an obligation under a convention or an agreement with a foreign country, it is impossible to make an Australian standard that is consistent with the obligation, the ABA is precluded from making the standard. So that is the logical conclusion that we get to.

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