Footnotes
Chapter 1 - Background to the Inquiry
[1] Cultural
Regulation of Australian Television Programs, Bureau of Transport and
Communications Economics occasional paper 114, quoted in Papandrea F, Trans-Tasman
Blues: Australian Content on Television, 1998, unpublished, p 3
[2] DOCITA,
Submission no. 32 p 2 quoting Explanatory Memorandum to Broadcasting
Services Bill 1992
[3]
This behaviour does not appear to be economically rational. In a
competitive free market one would expect A, selling programs in market B, to
seek prices as high as possible while still undercutting prices for local
programs in market B; conversely, prices for A’s programs in market A would
drop under pressure from imports from B, and A would rely on increased income
in market B to make up the difference. Thus in each market prices for local
versus foreign programs would reach a relationship determined mainly by their
relative appeal to viewers and advertisers. Some evidence to the committee
implies this: see T Branigan (FACTS), evidence 4 December 1998 p 30: ‘Over a
decade Neighbours went from a situation where its entire production cost
was recovered in Australia to a situation now where, I suspect, a relatively
small proportion of its production cost is recovered in Australia.’ Submissions
did not offer any explanation for the reported actual behaviour.
[4] Australian
Broadcasting Authority, Review of the Australian Content Standard -
Discussion Paper, July 1998, p 22
[5] Australian
Broadcasting Authority, Review of the Australian Content Standard -
Discussion Paper, July 1998, p 23
[6] At the
time of the reference the committee was called the Environment, Recreation,
Communications and the Arts Legislation Committee. Formally the reference had
to be renewed in the new (39th) parliament. This was done on 30 November 1998.
[7] Information
in this section is largely drawn from Department of Communications, Information
Technology and the Arts, Submission no. 32, and Australian Broadcasting Authority,
Review of the Australian Content Standard - Discussion Paper, July 1998.
[8] Australian
Treaty Series, 1988 no. 20
[9] Project
Blue Sky vs Australian Broadcasting Authority, unreported ,19 July and 26
August 1996
[10] Australian
Broadcasting Authority vs Project Blue Sky Inc. & ors, 12 December
1996, (1996) 71 FCR 465
[11] Some
third parties intervened in the case as amici curiae. Not all of them
agreed that the present standard is inconsistent with international
obligations. See K Ireland (Australian Film Commission), Evidence, 4 December
1998 p 25.
[12] This
argument relies on two underlying principles: 1. where two parts of a statute
are inconsistent (as the ABA argued for s122 and s160(d)), the more specific
takes priority over the more general; 2. Australia’s international treaties are
not binding in Australian domestic law ‘of their own motion’: rather, to
enforce a treaty in Australia appropriate Australian laws must be made. In the
absence of these it is quite possible for an action to be lawful in Australian
law although inconsistent with Australia’s treaty obligations.
[13] In the
Federal Court, Project Blue Sky & ors vs Australian Broadcasting
Authority, No. NG 807 of 1995 FED No. 600/96 Broadcasting, 19 July 1996,
para. 11
[14] Australian
Broadcasting Authority vs Project Blue Sky Inc. & ors, 12 December
1996, (1996) 71 FCR 465
[15] Project
Blue Sky vs Australian Broadcasting Authority, 28 April 1998, HCA 28;
(1998) 153 ALR 490, at para. 90
[16] Project
Blue Sky vs Australian Broadcasting Authority, HCA 28 (28 April 1998).
Strictly speaking the judgment related only to clause 9 of the standard - the
clause setting the general 55 per cent quota. But the same logic applies to the
standard as a whole.
[17] Australian
Broadcasting Authority, Review of the Australian Content Standard -
Discussion Paper, July 1988
[18] Australian
Broadcasting Authority, Review of the Australian Content Standard - Proposed
Standard, November 1988
Chapter 2 - Implications of retaining section 160(D) of the Broadcasting Services ACT 1992
[1] This is
the effect though not the overt structure of the draft standard. The draft
standard is structured to retain ‘Australian’ content as its default topic, but
adds a section to the effect that New Zealand, Australian/New Zealand programs
or Australian official co-productions can be used to reduce Australian content
quota obligations.
[2] Australian
Broadcasting Authority, Review of the Australian Content Standard - Proposed
Standard, November 1998, p 3
[3] Australian
Broadcasting Authority, Review of the Australian Content Standard - Proposed
Standard, November 1998, Attachment D p 7-9
[4] Australian
Broadcasting Authority, Review of the Australian Content Standard - Proposed
Standard, November 1998, Attachment D, p 10-12
[5] Australian
Broadcasting Authority, Review of the Australian Content Standard - Proposed
Standard, November 1998, Attachment D, p 12-13; also L Osborne (ABA),
Evidence 4 December 1998 p 20
[6] Media
Entertainment and Arts Alliance, Submission no. 17 p 2
[7] Australian
Broadcasting Authority, Review of the Australian Content Standard - Proposed
Standard, November 1998, Attachment D, p 13-14
[8] Australian
Broadcasting Authority, Review of the Australian Content Standard - Proposed
Standard, November 1998, Attachment D, p 7
[9] ‘First
release’ to include telemovies previously broadcast on pay TV; changed
definition of ‘documentary; changed definition of ‘sketch comedy’; additional
creative elements test for animated programs. Australian Broadcasting
Authority, Review of the Australian Content Standard - Proposed Standard,
November 1998, Attachment D, p 16-17
[10] A Britton
(Media Entertainment and Arts Alliance), Evidence 4 December 1998 p 5
[11] Australian
Broadcasting Authority, Review of the Australian Content Standard -
Discussion Paper, July 1998, p 24, quoting F Papandrea, Cultural
Regulation of Australian Television Programs, Bureau of Transport &
Communications Economics Occasional Paper 114, 1997, Appendix 2, p 233
[12] Department
of Communications, Information Technology and the Arts, Submission no. 32 p 16
[13] Australian
Children’s Television Foundation, Submission to ABA review, 3 September 1998
[14] Screen
Producers Association of Australia, Submission no. 22 p 112
[15] Australian
Children’s Television Foundation, Submission no. 23 p 144
[16] G
Masterman, Evidence 4 December 1998 p 26
[17] This
point applies particularly to proposals to increase the subquotas. Australian
Broadcasting Authority, Review of the Australian Content Standard - Proposed
Standard, November 1998, Attachment D, p 8-9
[18] Screen
Producers and Directors Association [NZ], Submission no. 12 p46; J Tyndall
(SPADA), Evidence 4 December 1998 p 29
[19] Australian
Broadcasting Authority, Review of the Australian Content Standard - Proposed
Standard, November 1998, Attachment D, p 10. See also Screen Producers
Association of Australia, Submission no. 22a p 2
[20] Australian
Broadcasting Authority, Review of the Australian Content Standard -
Discussion Paper, July 1988, p 24-25
[21] Australian
Film Commission & others, Submission to ABA’s review of the Australian
Content Standard, 1998, p 14
[22] Federation
of Australian Commercial Television Stations, Submission no. 25 p155
[23] T Branigan
(FACTS), Evidence 4 December 1998 p32; see also FACTS, Submission no. 25
Attachment (submission to ABA September 1998) p 4. See APPENDIX 3, for figures
on the networks’ compliance with the quotas. The main areas where there is only
bare compliance are: all networks for first release children’s drama quota;
also Ten Network for general transmission quota and documentary quota.
[24] Screen
Producers and Directors Association [NZ], Submission no. 12, p 41, 44 &
FACTS, Submission no. 25, p 6
[25] Federation
of Australian Commercial Television Stations, Submission no.25 Attachment
(Submission to ABA September 1998) p 6
[26] Screen
Producers and Directors Association [NZ], Submission no. 12 p 42
[27] Media
Entertainment & Arts Alliance, Submission no.17 p88; Australian Film
Commission, Submission no. 29 p 230
[28] Screen
Producers Association of Australia, Submission no. 22 p 126-7
[29]
There was some confusion in evidence between children’s programming
and children’s drama. The networks must show 130 hours per year of Australian
children’s programs of which 32 hours must be first release Australian
children’s drama.
[30]
For example, Media Entertainment and Arts Alliance, Submission no. 17
p 86; Australian Screen Directors Association Ltd, Submission no. 27 p 170.
[31]
Australian Film Commission, Submission no. 29 p 220
[32]
Federation of Australian Commercial Television Stations, Submission
no. 25 Attachment (FACTS Submission to ABA 21 October 1998), p 6
[33]
Australian Film Commission, Submission no. 29 p 220
[34]
Media Entertainment and Arts Alliance, Submission no.17 p 73 (for
example)
[35]
Federation of Australian Commercial Television Stations, Submission
no. 25 Attachment (submission to ABA September 1998) p 6
[36]
Federation of Australian Commercial Television Stations, Submission
no. 25 Attachment (Submission to ABA September 1998) p 7
[37]
Australian Film Commission, Submission no. 29 p 223
[38]
Australian Film Commission, submission to ABA review 1998, p 15, ABA, Australian
Content - review of the program standard for commercial television,
September 1995, p 33
[39]
Federation of Australian Commercial Television Stations, Submission
no. 25 Attachment (Submission to ABA, 21 October 1998), p 6
[40]
Australian Broadcasting Authority, Review of the Australian Content
Standard - Proposed Standard, November 1998, Attachment D p 8
[41]
A Britton (Media, Entertainment and Arts Alliance), Evidence 4
December 1998 p 20
[42]
Australian Film Finance Corporation Ltd, Submission no. 31 p 288;
Federation of Australian Commercial Television Stations, Submission no. 25
Attachment (Submission to ABA, September 1998) p 14
[43]
S McCreadie (Australian Writers’ Guild), Evidence 4 December 1998 p
19;
[44]
Film Australia, Submission no. 34 p 6
[45]
Federation of Australian Commercial Television Stations, Submission no.
25 Attachment (Submission to ABA September 1998) p 6
[46]
Screen Producers and Directors Association [NZ], Submission no. 12 p
44
[47]
Note that the 269 hours broadcast in 1996-97 includes repeats,
much of which would presumably be excluded from Australian quota by the
proposed 18 month rule.
[48]
T Branigan (FACTS), Evidence 4 December 1998 p 31
[49]
Film Australia, Submission no. 34 p 4-5: ‘[The networks] are not
convinced that other types of documentary programs - which often have cultural,
historical, political or artistic issues as their central concerns - are
popular with audiences... The unmet demand for locally produced factual programs
extends to the nation’s schools and universities where there is a serious
shortage of local audio-visual content for educational use... over time networks
could be convinced of audiences’ desire for more documentary product and to
take risks with the material...’ See also R Harris (Australian Screen Directors
Association), Evidence 4 December 1998 p 31
[50]
Australian Broadcasting Authority, Review of the Australian Content
Standard - Proposed Standard, November 1998, Attachment D, p 9
[51]
Film Australia, Submission no. 34 p 7
[52]
Australian Children’s Television Foundation, Submission no. 23 p
139-140
[53]
Australian Broadcasting Authority, Review of the Australian Content
Standard - Proposed Standard, November 1998, Attachment D, p 8
[54]
J Tyndall (Screen Producers and Directors Association [NZ]), Evidence
4 December 1998 p 33
[55]
Media Entertainment and Arts Alliance, Submission no. 17 p 73, 77-78
[56]
Federation of Australian Commercial Television Stations, Submission
no. 25 Attachment (Submission to ABA September 1998), p 6
[57]
J Tyndall (Screen Producers and Directors Association [NZ]), Evidence
4 December 1998 p 32
[58]
Australian Children’s Television Foundation, Submission no. 23 p 139
[59]
Australian Film Finance Corporation, Submission no. 31 p 287
[60] Screen
Producers Association of Australia, Western Australia Chapter, Submission
no.37, p 1
[61]
Australian Broadcasting Authority, Review of the Australian Content
Standard - Proposed Standard, November 1998, Attachment D, p 8
[62]
Australian Broadcasting Authority, Review of the Australian Content
Standard - Proposed Standard, November 1998, Attachment D p 12
[63]
Media Entertainment and Art Alliance, Submission no.17 p 73
[64]
Australian Film Commission, Submission no.29 p 234-5
[65]
Australian Film Commission and others, Submission to ABA review, 1998,
p 20
[66]
Australian Children’s Television Foundation, Submission no. 23 p 140
[67]
Screen Producers and Directors Association [NZ], Submission no.12 p 44
[68]
Screen Producers and Directors Association [NZ], Submission no.12 p 45
[69]
ABA, Review of the Australian Content Standard - Discussion Paper, July
1998, p 43
[70]
For example, Australian Film Commission, Submission no.29 p 232; S
McCreadie (Australian Writers’Guild), Evidence 4 December 1998 p 19
[71]
Australian Film Commission, Submission no. 29 p 232, quoting Project
Blue Sky, The Six Key Goals, Project Blue Sky background paper.
[72]
Australian Film Finance Corporation, Submission no. 31 p 287
[73]
Australian Children’s Television Foundation, Submission no. 23 p 140
[74]
For example, R Harris (Australian Screen Directors Association),
Evidence 4 December 1998 p 28
[75]
Australian Film Commission, Submission no.29 p239-40 quoting K Hunter
(New Zealand Screen Writers Guild); also K Ireland (Australian Film
Commission), evidence 4 December 1998 p 32 See also T Branigan (FACTS),
evidence 4 December 1998 p 30: in proportion as a New Zealand program has
Australian sales, one would expect the New Zealand broadcaster to bargain down
the New Zealand licence fee, forcing the producer to seek more than marginal
cost recovery in the Australian licence fee. Mr Branigan made this point to
argue that the discrepancy between primary and secondary prices can be less
than is sometimes claimed; but the point also relates to possible reduced
licence fees in a single market.
[76] Australian
Film Finance Corporation Ltd, Submission no.31 p 293
[77] A Britton
(Media Entertainment and Arts Alliance), Evidence 4 December 1998 p 30
[78] T
Branigan (FACTS), Evidence 4 December 1998 p 30
[79] DOCITA,
Submission no.32, p.6
[80] ABA, Review
of the Australian Content Standard - Proposed Standard, November 1998, p 4
[81] Australian
Film Commission, Submission no.29 p 246
[82] For
example, Australian Film Commission, Submission no.29 p 244
[83] Attorney
General’s Department, Submission no.28 p 199
[84] See
Pryles M, Waincymer J & Davies M, International Trade Law: Commentary
& Materials, 1996, p 877
[85] Australian
Film Commission, Submission no.29 (b)
[86] Attorney-General’s
Department, Submission no.28 p 195
[87] Australian
Screen Directors Association Ltd, Submission no.27 p 179
[88] Australian
Film Commission, submission 29 p 247, quoting DFAT submission to ABA Local
Content on Pay TV Inquiry, December 1996
[89] Screen
Producers and Directors Association [NZ], Submission no. 12 p 42. Similarly G
Randal (New Zealand High Commission), Evidence 4 December 1998 p 25
[90] Australian
Writers’ Guild, Submission no. 30 p 277,280
[91] Australian
Broadcasting Authority, Review of the Australian Content Standard - Proposed
Standard, November 1998, Attachment D p 7
[92] Government
of New Zealand, second Submission to ABA review, 1988, p 3
[93] Screen
Producers and Directors Association [NZ], Submission no. 12 p 46
[94] Federation
of Australian Commercial Television Stations, Submission no. 25 Attachment
(Submission to ABA, September 1998), p 10
[95] Australian
Film Commission, Submission no. 29 p 237
[96] W
Campbell (Attorney-General’s Department), Evidence 4 December 1998 p 17 see
also L Osborne (ABA), Evidence 4 December 1998 p 16
[97] Note re
“side letter”: The Attorney General’s Department advised the Committee thus:
“It is not uncommon for letters (usually referred to as ‘side letters’ if done
at the time of treaty adoption, signature or ratification) to be exchanged
between countries to record a common understanding of the meaning and
application of particular provisions of treaties, particularly bilateral
treaties such as the CER Services Protocol. Attorney-General’s Department,
Supplementary Submission no. 28 (b)
[98] Australian
Broadcasting Authority, Review of the Australia Content Standard, Proposed
Standard, November 1998, Attachment D, p. 7
[99] G Randal
(New Zealand High Commission), Evidence 4 December 1998 p 18
Chapter 3 - Implications of repealing paragraph 160(D) of the Broadcasting Services ACT 1992
[1] For
example, Samara Films, Submission no. 9 p 68
[2] Attorney-General’s
Department, Submission no. 28a p 1
[3] Project
Blue Sky vs Australian Broadcasting Authority, HCA 28 (28 April 1998),
footnote 31
[4] Attorney-General’s
Department, Submission no. 28a p 15
[5] W
Campbell (Attorney-General’s Department), Evidence 4 December 1998, p 12
[6] J Wise
(Department of Foreign Affairs and Trade), Evidence 4 December 1998 p 12, 23
[7] Government
of New Zealand, Submission no. 24 p 152
[8] Federation
of Australian Commercial Television Stations, Submission no. 25 attachment
(Submission to ABA review, September 1998), p 2
[9] N Herd
(Screen Producers Association of Australia), Evidence 4 December 1998 p 24,26
[10] Department
of Foreign Affairs and Trade, Submission no. 35 p 1
[11] See also
J Wise (DFAT), Evidence 4 December 1998 p 22
[12] G Randal
(New Zealand High Commission), Evidence 4 December 1998 p 25
[13] Federation
of Australian Commercial Television Stations, Submission no. 25 p 154
[14] Australian
Film Commission, Submission no. 29 p 248-9
[15] Screen
Producers and Directors Association [NZ], Submission 12 p 42. Similarly G
Randal (New Zealand High Commission), Evidence 4 December 1998 p 25
[16] J Wise
(Department of Foreign Affairs and Trade), Evidence 4 December 1998 p 12
[17] Department
of Communications, information technology and the Arts, Submission no.32, p 4