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Economics occasional paper 114, quoted in Papandrea F, Trans-Tasman Blues: Australian Content on Television,  1998, unpublished, p 3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