Communication policy

Jock Given

Key terms/names

Australian Communications and Media Authority (ACMA), Australian Competition and Consumer Commission (ACCC), creative industries, data economy, digital dividend, Fourth Industrial Revolution, G20, information and communications technology (ICT), intellectual property, Internet of Everything, market capitalisation, National Broadband Network (NBN), radiofrequency spectrum

 

Communication matters to people and organisations and Australian governments do a lot to enable and manage it. Through much of the 20th century, they controlled state-owned enterprises and statutory agencies that provided all the postal and domestic telecommunications services. Government-funded broadcasters also provided some radio and TV services under Australia’s ‘dual system’ of public and private enterprises. Commercial operators dominated other media sectors – movies screened in cinemas, and printed newspapers, magazines and books – although governments were active there too, supporting public libraries to provide equitable access to printed media and eventually supporting Australians to create texts and audiovisual works. The private sector also played a big role in pioneering international telecommunications services, until these were nationalised after the Second World War, and in manufacturing equipment for networks and telephone, radio and television receivers for consumers. Parliaments passed a growing body of laws to regulate the activities of all these public and private communications enterprises.

Late in the 20th century and early in the 21st, three major changes occurred. The telecommunications market was liberalised, privatised then partly re-nationalised. New entrants were allowed to offer services and build their own infrastructure and the government’s shareholding in the incumbent Telstra was sold in three tranches from 1997 to 2006. From 2009, the National Broadband Network (NBN) returned the federal government to a large, direct role in the local telecommunications market. Second, foreign ownership restrictions were progressively removed, and particular transactions accommodated, in ways that permitted a higher level of overseas participation in media sectors that had been largely controlled by Australians. Third, from the mid-1990s, the internet transformed the social and economic processes of communication. This eventually affected all people and enterprises. For Australian policy makers, one of the most important features of the new digital economy and society was that largely new commercial organisations came to dominate it – Facebook, Apple, Alphabet/Google, Amazon, Netflix and Microsoft. They became the world’s biggest corporations, measured by market capitalisation, and they were based outside Australia. This changed some of the targets and instruments of Australian communications policy, though many of its broad themes have endured.

What’s at stake?

Communication raises at least four issues for politics and public policy. Citizens, consumers, enterprises, defence forces, elected representatives and others require information that is carried over communications networks. Those networks also convey ideas, images, sounds and stories that shape culture and identity. Communications industries contribute directly to employment and economic activity and provide vital inputs to other industries.

One of the first things the Australian parliament did after Federation in 1901 was create an information powerhouse by merging the six state post, telegraph and telephone administrations into a single enterprise run by a federal department. More than half the total sum appropriated under the first Consolidated Revenue Act, No. 3 1901 (Cth) was allocated to it. When television was introduced in 1956, expectations about its cultural impact quickly prompted demands for policy measures to ensure this new medium did more for Australian culture than the tiny local film industry at the time. The scale and value of equipment purchased for telecommunications networks encouraged governments to support local manufacturing, initially by tariff protection and later by requiring carriers to have industry development plans. Since then industry policy in the sector has continued but it has been redirected towards creative, service industries rather than equipment manufacturing.

Digital networks have accentuated the role of communications as an input to other industries. Recent analysis of investment in Australia from the mid-1960s to 2011 found a higher rate of return for information and communications technology (ICT) than non-ICT capital investment, and that the impact of ICT investment was more profound over the longer term.1 ICTs have come to be seen as ‘general purpose technologies’. These are ‘characterised by the potential for pervasive use in a wide range of sectors and by their technological dynamism’. According to Bresnahan and Trajtenberg, ‘As a [general purpose technology] evolves and advances it spreads throughout the economy, bringing about and fostering generalized productivity gains’. Earlier examples include the steam engine, the factory system, electricity, and semiconductors.2 The perceived breadth, depth and scale of the impact of networked digital technologies have attracted the attention of politicians and policy actors well beyond the domain of ‘communications’. So, for example, the initial members of the working group established in 2017 to consider 5G wireless developments included representatives from federal departments responsible for agriculture and water resources (especially for ‘precision agriculture’); infrastructure and regional development (autonomous vehicles); Prime Minister and Cabinet (smart cities and digital transformation activities); industry, innovation and science (digital economy strategy); as well as communications and arts.

Australian consumers have been spending more on communications in recent years. Even though the cost per gigabyte of data fell between 2014 and 2018, the share of household income devoted to internet services grew because more time is being spent online and much more data is being downloaded.3 For industry, communications plays a central role in future transformations encompassed by terms like the ‘Industrial Internet’, the ‘Connected Enterprise’ and the ‘Internet of Everything’. This is what consulting firm Deloitte and others call a ‘Fourth Industrial Revolution’, to follow the revolution in power generation in the late 18th century, industrialisation in the early 20th century, and electronic automation from the 1970s to the 2000s. This next phase, according to Deloitte, will be about ‘smart automation’, where machines no longer simply create products, but ‘product[s] communicate with the machinery to tell it exactly what to do’.4

A report prepared by the OECD for a 2017 meeting of the G20 found adoption and use of digital technologies varied across the group’s members, which together account for about 85 per cent of the world’s production and two-thirds of its people. This ‘rais[ed] concerns about the inclusiveness of the digital transformation’. The report’s authors made many recommendations about policies that should be pursued, including encouraging take-up of digital technologies among small and medium-sized enterprises; better access to finance for innovative enterprises; open and voluntary standards; addressing the economic and social as well as technical dimensions of digital security; improved generic, specialist and complementary ICT skills; better protection of consumer rights; and regular reviews of legal frameworks and broadband infrastructure.5

Characteristics of the policy space: what do we know

Because communication is so central to all aspects of social and economic life, it is not easy to fix boundaries around the policy space it occupies. The rhetoric of rapid, revolutionary change that so often accompanies discussion and debate is not always matched by the prosperity of the largest Australian enterprises or the industry as a whole. Networked digital services create rich sources of data about consumer behaviour but increasingly sophisticated and personalised patterns of use complicate the task of making sense of it. New policy issues arise but old themes endure.

In recent years, expenditure on communications devices and services has grown steadily and data downloaded over fixed and mobile networks has soared. Australia’s communications industry, however, has not been buoyant. According to the Australian Bureau of Statistics, ‘gross fixed capital formation’ by Australia’s ‘information media and telecommunication’ enterprises doubled from 2007/08 to 2016/17, driven by public investment in the NBN and private investment especially in mobile networks, cloud storage facilities and backhaul networks. Yet total employment in 2016/17, at 171,000 people, was unchanged from 10 years earlier, and profits (measured by ‘earnings before interest, tax, depreciation and abnormal items’, EBITDA) were just 5 per cent higher. Across the whole economy over the same period, employment grew by 15 per cent and profits by 54 per cent. That means the proportion of the workforce employed in ‘information media and telecommunication’ fell from 1.8 per cent to 1.6 per cent, and the sector’s share of profits declined from 6.3 per cent to 4.3 per cent, while its share of investment grew from 5.4 per cent to 8.5 per cent.6

The composition of the industry has also changed, with important implications for the issues and actors of policy. Traditional telecommunications, broadcasting and publishing have grown slowly or declined; internet or cloud-based services including streaming video-on-demand have grown sharply. Landline telephony has fallen steadily while fixed and mobile broadband has grown.7 The challenge of profiting from the apparent boom in communications is reflected in the share price of Australia’s largest telco, Telstra: down from over $4 in November 2008 to less than $3 a decade later, after rising above $6 in early 2015.8 The 2018 takeover of Fairfax Media by Nine Entertainment Corporation was justified as a merger of old newspaper and TV assets to create a media company for the future, but it was also an opportunistic acquisition of the currently faster-growing Domain (real estate advertising) and Stan (video streaming) businesses at a moment of ‘elevated valuation’ of Nine’s stock.9

The tech giants that have risen to such prominence in the communications and media landscape – Facebook, Apple, Amazon, Netflix and Google/Alphabet, the so-called FAANGs, as well as the durable Microsoft – are based overseas, unlike so many of the telecommunications, television and newspaper companies that dominated in Australia in the second half of the 20th century. Traditional measures of the scale of foreign involvement in domestic markets, like ‘foreign direct investment’ and numbers of local employees, are not good proxies for the level of influence achieved by US-based platforms. A large part of their power arises from the data they are able to collect and analyse about their users. This data has itself become an economic resource, ‘the oil of the digital era’. Some argue it has changed the nature of competition so fundamentally that it necessitates a ‘radical rethink’ of competition policy.10 At the same time, the corporate behemoths of the formal ‘data economy’ borrow from and interact with an informal economy of user-generated content, open source software, crowd-funded projects, unremunerated labour and organisational cross-subsidies.11 The scale and sophistication of the data and analytical tools promise new levels of knowledge for policy makers, while the complexity of online and offline behaviour reinforces the fundamental unknowability of social practices.12

Actors and politics of the domain

The Australian Policy Handbook’s summary of the institutions of Australian public policy lists various elements of government (the executive, the Cabinet, public servants, ministerial advisers) and opposition, the ‘third sector’, the ‘fourth estate’, social movements, lobbyists and stakeholders.13 In communications, several specific institutions deserve particular attention. Publicly funded regulators (the Australian Communications and Media Authority, the Australian Competition and Consumer Commission) and industry-funded complaints-handling organisations (the Telecommunications Industry Ombudsman, the Australian Press Council) play significant roles. The prevalence of state-funded organisations, discussed in the next section, means governments still play a major role in providing communications services as well as regulating service providers. The fourth estate, the media, is part of the field itself, not just the conduit for disseminating information about it. Citizens who are the ultimate focus of all policy need to be conceptualised also as consumers, users and audiences for communications services.

An important addition to the list of public policy institutions in communications are international organisations like the Universal Postal Union, International Telecommunication Union (ITU), and World Intellectual Property Organisation (WIPO) – all of which are United Nations agencies – and the World Trade Organization (WTO) and Internet Corporation for Assigned Names and Numbers (ICANN). Domestic policy has to be co-ordinated with these organisations. For example, local laws have to be amended to translate commitments made in international agreements; auDA manages the .au domain space allocated through ICANN, the non-profit corporation, incorporated in California that, among other things, manages the internet’s global domain name system. These institutions reflect the longstanding international dimensions of communications policy. From the earliest days of postal and telegraph services, protocols were needed to manage and share the costs and revenues of delivering physical articles across national borders and interconnecting electronic networks. The ITU now also co-ordinates the international management of radiofrequency spectrum and satellite orbits as well as standardisation of technologies for things like internet access, transport protocols, home networking and video compression. WIPO and the WTO oversee the global agreements put in place over many decades to manage intellectual property and trade. They also handle disputes that arise under them.

These global arrangements are complex and overlapping: there are many regional (like the Trans-Pacific Partnership Agreement) and bilateral (like the Australia–New Zealand Closer Economic Relations Agreement) trade agreements as well as the WTO’s multilateral ones, and trade agreements now often include detailed provisions about intellectual property that are not necessarily consistent with WIPO agreements. Alongside these longstanding international dimensions, networked digital technologies have accentuated the global nature of many other policy issues. Global communication is not new – Australians have always read books, listened to music and watched movies from elsewhere and sent messages over networks owned and controlled by overseas-based organisations – but the current phase has rendered nationally based policy measures less effective in areas like taxation of multinational corporate activity, competition, consumer protection and policing child pornography.

High-level public policy goals for communications in Australia are expressed in the objects of legislation, the outcomes specified for government funding programs and the charters of public institutions. Statutory objects emphasise several broad areas: first, equitable access to reliable basic services and innovation in the development of new services; second, content that reflects Australian identity, character and cultural diversity, covers issues of local significance, treats matters of public interest fairly and accurately, and respects community standards; and an industry that is efficient, competitive and responsive to Australian needs. These are enduring themes, articulated in distinctive policy responses in different eras. So regular mail deliveries and public payphones have been overtaken by fast fixed broadband and wide mobile coverage as the most important basic services. Broadcast radio and television are now less important to emerging generations than to older media users. The High Court’s 1992 Mabo decision14 rewrote the political and cultural framework within which ‘Australian content’ needs to be imagined. Existing mechanisms for dealing with fairness and accuracy in news and current affairs have been overwhelmed in the digital era: policy responses to ‘fake news’ are a work-in-progress.15 Communications networks have always been instruments of defence, national security and law enforcement but the rules and tools of surveillance have changed constantly: foreign shareholding in Telstra is still capped at 35 per cent and in 2012 and 2018 the federal government banned Chinese telecoms equipment makers Huawei and ZTE from supplying equipment for the NBN and 5G networks.16

There is a strong element of bipartisanship in these broadly expressed goals but communications is often a heavily contested, highly political field. This is partly because the goals themselves sometimes conflict with each other: introducing a major overhaul of broadcasting law in the early 1990s that introduced statutory objects for the first time, the minister acknowledged ‘there are some tensions between the objects that will need to be balanced by the regulator and the courts’.17 Suppliers, regulators and customers can legitimately disagree about the benchmark set in the Telecommunications Act 1997 (Cth): ‘accessible and affordable carriage services … supplied at performance standards that reasonably meet the social, industrial and commercial needs of the Australian community’.18 The National Classification Code says ‘adults should be able to read, hear, see and play what they want’, but also that ‘everyone should be protected from exposure to unsolicited material that they find offensive’. The Australian Broadcasting Corporation (ABC) is ‘by far the nation’s most trusted media organisation’, according to a Roy Morgan survey in May 2018,19 although some in politics deeply distrust it: ‘our enemies talking to our friends’, said former Howard government adviser Graeme Morris in 1997.20

The broadening and deepening of the social and economic role of networked digital technologies has changed the politics of communications in at least two ways. First, the political power of particular media forms, especially commercial TV, newspapers and talkback radio, has diminished, along with the unrivalled influence of their owners. Former editor-in-chief of the Herald and Weekly Times, Les Carlyon, described Australia’s media policy in the 1980s and 1990s as ‘founded on notions of mates [especially Kerry Packer and Rupert Murdoch] and enemies [especially the old owners of the Fairfax and Herald and Weekly Times newspapers], just like the third world’.21 The decline in the power of old media’s owners was especially apparent through the long process of switching broadcast television to digital transmission from 2001–13, which freed a large amount of radiofrequency spectrum for mobile broadband.22 The technological migration enabled both an economic and a political transition.

Second, the libertarianism of the early internet has moderated. In 1996, Electronic Frontiers Foundation co-founder John Perry Barlow asked the ‘Governments of the Industrial World’ to leave cyberspace alone: ‘You are not welcome among us. You have no sovereignty where we gather.’23 Since then, as the internet has been integrated into almost every aspect of life, communication and commerce, governments have moved to treat online and offline activities more consistently, even in areas like taxation and content regulation which were once argued to be firmly off-limits. The ACMA’s chair, Nerida O’Loughlin, said in 2018: ‘Government regulation has started, particularly in Europe. I think the days of saying we won’t do anything because of a US-based view of free speech are well and truly over.’24

How policy is made for communications

Communications policy uses three main tools: law, money and ownership. It is made by governments and parliaments that make and amend laws; regularly decide to allocate money through annual budget processes; and occasionally decide to create, redesign, privatise or otherwise disband the activities of public institutions. Laws can directly prohibit or require certain behaviour, or permit it subject to conditions. They can also create markets for commodities like radiofrequency spectrum and intellectual property, and rules to be observed by anyone trading them. Money can be allocated to individuals or organisations as grants, investments, loans, minimum guarantees or tax concessions to meet the cost of doing particular things: making a movie, erecting a mobile phone tower, conducting research about consumer needs or advocacy on behalf of specific types of consumers. Institutions can be created to carry out public missions with varying degrees of independence from the governments that establish, fund and oversee them: public broadcasters, a national library, a national broadband network.

Laws

Parliaments pass laws to prohibit or require conduct by individuals or organisations. General prohibitions about communications are set out in the Commonwealth Criminal Code. It outlaws many kinds of interference with ‘national infrastructure’, including tampering with or stealing mail, intercepting electronic communications and accessing data on a computer without authorisation.25 In recent years, federal and state laws have been introduced to deal with various forms of cyberbullying and online abuse, including ‘revenge porn’. Legislation passed in 2015 established a complaints mechanism and an eSafety Commissioner to administer it, under which individuals, websites and social media services can be asked or required to remove cyberbulling material targeted at an Australian child. Amendments in 2018 established civil penalties and criminal offences for sharing intimate images without consent. Perpetrators can be imprisoned for up to seven years and substantial monetary penalties can be imposed on individuals and corporations that do not remove offending content when directed by the eSafety Commissioner.26

Some forms of interference with communications that would otherwise be prohibited are allowed for law enforcement purposes, subject to safeguards. Communications service providers are now required to keep records to assist enforcement agencies. The government argues these ‘data retention’ rules are necessary to support serious criminal and national investigations: data gathered can be used to identify suspects and networks, rule out innocents, and support applications for warrants needed for more intrusive forms of investigation. From April 2017, the scheme has required telecommunications service providers using infrastructure in Australia to retain and protect specified data about individual communications for at least two years: subscribers’ names, addresses, phone numbers, email and IP addresses, as well as the source, destination, time and duration of any communication, and the physical location from which they are made, though not the content of messages. More than 20 law enforcement and national security agencies can generally obtain access to this data without warrant; a warrant is required to access journalists’ data. The scheme is subject to independent oversight by the Commonwealth Ombudsman, or, for ASIO, by the Inspector-General of Intelligence and Security. The attorney-general reports annually to parliament on its operation.27

The main bodies of law about telecommunications, radiocommunications and broadcasting services in Australia pursue policy goals through licensing schemes. These work by prohibiting certain conduct without a licence, and then imposing conditions on different licence types. For example, it is unlawful to use particular parts of the radiofrequency spectrum known as the ‘broadcasting services bands’ without a licence. One form of licence permits holders to transmit ‘community broadcasting services’. These are only available to non-profit corporations, who can accept revenue from sponsorship but not advertising. Another example is the ‘class licence’ that authorises the use of mobile and cellular telephone handsets. Each device does not need its own licence: instead, manufacturers have to ensure their handsets comply with the conditions of the single, standing licence for that class.

Some laws are designed to influence behaviour indirectly by creating markets or rules that participants must observe. In communications, two crucial examples are the markets for radiofrequency spectrum and intellectual property. The laws about spectrum empower the minister and the regulator, the Australian Communications and Media Authority (ACMA) to decide who gets to use spectrum, for how long, how much they pay, the technical conditions and whether or not they can trade their rights. Intellectual property is created by law: without statutes that give rights to those who create copyright works, patentable inventions and protected designs, these forms of intangible property would not exist at all. Within bodies of law that apply across the whole economy, special rules are sometimes written for particular industries thought to have unique characteristics. Australia has a national ‘access regime’ allowing third parties to seek access to ports, airports, railway tracks and sewerage pipes,28 as well as an ‘industry-specific’ access regime for telecommunications, designed to promote easy interconnection, competition, and efficient use and investment in fixed and mobile networks.29 In this way, ‘mobile virtual network operators’ can offer services over other telcos’ networks without having to build their own.

Money

Money can be spent or collected to encourage or discourage behaviour. Hundreds of millions of dollars have been spent since the late 1960s supporting Australians to make and distribute films, TV programs and other forms of audiovisual content that governments thought would not be produced otherwise. Concerned about the decline of mainstream news media, the federal government established a Regional and Small Publishers Innovation Fund in 2018 to assist ‘innovative and transformative’ public interest journalism projects ‘with an Australian perspective’: money is being given to projects designed to help publishers increase revenue, reduce costs or broaden audiences through new digital applications. Government money need not be provided by direct expenditure from the budget; it can also be provided by offering concessions on taxes that would otherwise be due. Most of the assistance to the film and TV industry is now provided this way, as tax ‘offsets’ or rebates encouraging production (‘Producer Offset’), large budget film and TV projects shot in Australia (‘Location Offset’) and post-production, digital and visual effects production in Australia (‘PDV Offset’).30

Institutions

Australian governments have created many organisations to undertake communications activities. Their forms differ widely. Australia Post and National Broadband Network Co are government-business enterprises whose shares are wholly owned by the Commonwealth. One is old, the country’s oldest continually operating organisation; the other is young, created only in 2009. The national broadcasters (the ABC and SBS, into which the National Indigenous TV service was merged in 2012), the National Library and the Australian Film, Television and Radio School do not have shares, but are corporate Commonwealth entities set up under their own legislation. Their boards are appointed by the responsible ministers and funding is provided mainly from the federal budget. Another, different kind of organisation is the National Relay Service, a non-government organisation that has a contract with the federal government to run a call centre enabling people with hearing disabilities to make telephone calls. The contract is re-tendered when it expires and is funded by a levy on telecommunications carriers imposed under federal legislation.

Making policy

The ‘Australian policy cycle’ described in The Australian Policy Handbook31 is a useful way of conceptualising the way issues are identified and responses developed, implemented and evaluated, but it is rare for communications policy to proceed in so orderly a manner. The field is rife with large, detailed reports from government agencies and parliamentary committees that had little immediate impact, and relatively brief ministerial media releases that announced fundamental changes. In telecommunications, the NBN, announced by the Rudd government in April 2009, was an example of the latter. The ‘Beazley Statement’ that ended Telecom Australia’s monopoly in the early 1990s was another, although it can also be interpreted as a delayed response to the recommendations of the Davidson Committee, which was shelved by the Fraser Coalition government that commissioned it.32 The big changes to spectrum management implemented in the Radiocommunications Act 1992 (Cth) were a rare example of a neat ‘policy cycle’: a report from the federal government’s Bureau of Transport and Communications Economics, then a public parliamentary inquiry, then draft legislation attracting bipartisan support.33

The NBN was a response by a new Labor government frustrated about the state of play in fixed line broadband. All three of the main tools of communications policy were deployed. The legislative changes that opened up the local telecommunications market to new players in the 1990s had not generated rapid take-up of high-speed broadband. Successive governments offered to provide money by way of co-investment with Telstra to build a ‘next generation network’ but had been unable to agree terms. Better broadband was an important element of Labor’s pitch in the ‘Kevin07’ election campaign which emphasised ‘the future’ to contrast Rudd and his agenda with ageing incumbent John Howard. Even more frustrated with the state of Australian broadband after two years in office, Rudd announced the NBN, a wholly new, state-owned institution that would build the mainly fibre network itself, as well as new constraints on the infrastructure others could build. This was a striking return to the days of infrastructure monopoly that had ended with such policy fanfare just over a decade earlier, effectively a renationalisation of the last mile of the fixed line network connecting exchanges to customers.34 At the 2010 federal election, the expensive commitment to an all-fibre network reaching more than 90 per cent of Australian households and business premises was a decisive policy for independent members of parliament representing traditionally conservative-held country seats. It persuaded them to support Labor ahead of the Coalition, enabling Prime Minister Julia Gillard to form a minority government. An analysis of the selection of NBN early release sites and voting patterns at the 2007, 2010 and 2013 elections found significant political economy dimensions to this big public intervention into infrastructure planning: the selection process was ‘skewed up for potential political gains’ and the heavy swing against Labor in the 2013 election was ‘highly mitigated in the NBN early release sites’, although the authors acknowledge their research method identifies correlation, not necessarily causation.35

A further example of a complex communications policy demonstrating the challenges of long-term planning and implementation in a fast-changing and politically charged field was the migration of TV broadcasting from analogue to digital transmission. Formal policy reports were produced in the 1990s by the broadcasting regulator (then the Australian Broadcasting Authority); major packages of legislation were passed in 1998 and 2000; a formal review of the policy was undertaken by the Productivity Commission as part of a wholesale reconsideration of broadcasting law;36 large amounts of money were provided over many years to fund new equipment required by the ABC, SBS and country commercial stations, and to track the take-up of digital receivers and assist low-income consumers; and legislative changes were made to remove some of the original constraints and impositions on broadcasters and others. Analogue TV transmissions were eventually switched off progressively from 2010 to 2013 and vacated spectrum was reallocated. Total revenue from the sale of that ‘digital dividend’ spectrum was $3.7 billion in 2018/19 dollars, $1.3 billion more than the total government expenditure outlaid to make the whole project happen. The experience provided at least three lessons for communications policy. It showed that a long-term government policy project could be undertaken, and achieve its major objectives, despite considerable disagreement over the detail. It also showed how much past policy decisions (in this case, about spectrum allocation) shape future possibilities, and the potential benefits and conceptual difficulties of early cost–benefit analysis, which was done in some countries but not Australia.37

These two examples demonstrate both the possibilities and the limits to radical policy action. Established institutions, infrastructure and people exert profound influence over policy decisions, especially through often long-running processes of transition from the old to the new.

Federal, state, local and international interactions

Communications is generally seen as a federal government responsibility in Australia. Using its constitutional power to make laws about ‘postal, telegraphic, telephonic, and other like services’,38 the body of law that began in 1901 with post, telegraphs and telephones soon expanded to cover wireless telegraphy. Radio broadcasting was initially regulated as a form of wireless in the 1920s and 1930s before specific legislation was passed, first to create the Australian Broadcasting Commission in 1932 and then to regulate radio and later television broadcasting as a whole. High Court cases confirmed that the constitutional power encompassed these novel forms of communication, while leaving some doubt about pre-existing forms, especially printed media.39

Three principal statutes now cover telecommunications, radiocommunications (including the allocation of spectrum for mobile telephony and broadband) and broadcasting services. The power has also been used to make other federal laws; for example, prohibiting tobacco advertising from the 1970s, and to restrict interactive gambling from the early 2000s. The Constitution also empowers the Commonwealth to make laws about intellectual property, which it began to do in 1905 when the first copyright legislation was passed.40 By ‘covering the field’ in these areas, the exercise of Commonwealth power has effectively excluded the states from policy measures that might, for example, have given the institutions of broadcasting a more regional flavour, as occurred in Germany.41

Beyond these areas, the Constitution leaves considerable room for the states to make laws about other matters relevant to communications. In areas such as classification of content, defamation and advertising, separate state laws were eventually integrated into more-or-less uniform national schemes. In areas like racial, religious and other forms of discrimination and vilification, the reporting of court proceedings, whistleblower protections, and freedom of information (or ‘right to information’), significant differences in state and territory laws remain.42 Federal, state and local laws interact in regulating the construction and maintenance of networks by telecommunications companies, especially mobile towers and overhead cables. The aim here is to strike a balance between the communications policy goal of reliable, affordable services and the desire of landowners, local communities and councils to shape the sometimes intrusive infrastructure of their own spaces.43

State governments have also chosen to spend money to pursue communications policy goals where federal government policy is regarded as falling short, or where co-investment can deliver better outcomes. For example, the Victorian government has invested in free public wi-fi in large regional centres. It has also funded mobile base stations in areas with poor or no mobile coverage and to improve coverage along busy regional rail lines. Aiming to support community activities, to assist public safety particularly during emergencies, and to boost economic activity and employment including through the ‘visitor economy’, state and territory governments have often co-invested in such programs with telecoms carriers, local councils and the federal government. Around 35 local councils in NSW hold equal shares in Southern Phone, a provider of commercial fixed and mobile phone and internet services designed to bring competition, and hence improved services and lower prices, to regional areas. It was set up in 2002 with federal funding from the Telstra sale proceeds. Councils have also used their planning and licensing powers in creative ways to support cultural activities and infrastructure, such as the Special Entertainment Precinct in Brisbane’s Fortitude Valley.

Research into the relationship between the federally funded NBN and local government, especially in the areas of e-governance, socio-economic development and spatial planning, found ‘a raft of mostly unscrutinised policy initiatives’ developed to guide the early rollout and post-construction phase. This included ‘some policy development regarding the socio-economic implications of the new infrastructure’, but ‘limited understanding’ of the possibilities of e-governance and lagging focus on land use planning.44 The findings highlight the policy challenges that digital networks provide to political structures that were crafted a long time ago – a feature shared with other overarching issues like climate change.

Debates and non-agenda issues

New forms of media and communication have often had dramatic impacts on existing practices and institutions. The rise of social media platforms is particularly significant for politics and policy in Australia for at least three reasons. First, these platforms have undermined the business models for news organisations, broadcasters and telcos that have been such important vehicles for achieving public policy goals. The seriousness of the challenges was demonstrated by the decision to have the ACCC conduct a Digital Platforms Inquiry in 2018, with a final report published in 2019. Second, social media have changed the ways issues make it onto and off policy agendas and how people and politicians respond. Mainstream media remain important but they are less dominant conduits for communication between electors and their representatives. Third, social media platforms have themselves become important policy-making institutions. Facebook and Google and their wholly owned subsidiaries Instagram and YouTube, for example, are now among society’s most powerful information and cultural intermediaries. The terms and conditions of service they specify and the decisions they take in response to complaints now comprise jurisdictions with at least as much influence as law, the courts and formal systems of industry co- and self-regulation. An example of this agenda-setting and policy-making role is the decision by the rental accommodation app Airbnb to remove listings in Israeli settlements in the occupied West Bank ‘that are at the core of the dispute between Israelis and Palestinians’. Acknowledging Airbnb itself was ‘certainly not the experts when it comes to the historical disputes in this region’ and that the listings were not illegal under US law, Airbnb nonetheless developed a five-point framework to guide decisions about listings in occupied territories generally and decided, in this case, to remove the 200 listings on its site.45

Much of the revolution in digital communications has not been controllable by the telecommunications and broadcasting institutions that managed so much technological change in Australia in the 20th century. New services like online and mobile search, streaming audio and video, social media and smartphone apps arrived without the government policy inquiries, public funding or legislative change that accompanied direct-dial telephones, AM and FM radio, television, the domestic satellite and digital TV. Yet old debates about the role of government – to intervene in markets or let them take their course – are never far from the surface. To the extent that the internet and Australia’s most popular social media platforms all originated in the USA, it is unsurprising that policy debate about them occurs against a background of American ‘First Amendment’ jurisprudence: ‘Congress shall make no law … abridging the freedom of speech, or of the press’. The USA, however, is also home to antitrust laws, first enacted in 1890. When finally replicated in Australia in the 1970s, these imported a similar principle (consumers are best served when businesses compete freely) along with a different policy stance – the state might need to intervene in markets, rather than stay out of them, to ensure competition is free. In communications policy, aggressive antitrust action, like the break-up of the dominant telephone company AT&T in the 1980s, offer American precedents as significant as the long line of Supreme Court decisions striking down laws held to infringe free speech. ‘Free markets’ and ‘government’ intervention’ are not universal policy solutions but ‘two caricatured abstractions’.46

Tracing the development of the policy settlement in Australian broadcasting from the 1950s, when commercial stations and their interests dominated, regulatory agencies were weak, public trust obligations were unevenly applied, and the forces for change were weaker than those favouring institutional continuity, Terry Flew argued more than a decade ago that the scale of changes in the media landscape meant it was already inadequate to construct a social-democratic media policy that was ‘essentially defensive’.47 Considering communications policy in the future, policy makers may have less – and less-effective – tools available to address challenges, because so many of Australia’s most influential communications services are now provided by corporations that are not licensed, funded or owned by Australian governments. The liberalisation and privatisation of communications markets and enterprises and the migration of broadcast television from analogue to digital transmission provided once-off opportunities to recraft policy settlements – to spend some of the proceeds of Telstra privatisation improving communications in under-served communities, and to create a satellite platform that finally equalised the availability of free-to-air TV services across the country. Beyond the likely privatisation of the NBN once construction is complete, big moments of rupture like these, providing scope for sweeping policy change and especially trade-offs among different constituencies, may be harder to identify.

Conclusions

Networked digital communications and the liberalisation, privatisation and partial renationalisation of Australia’s communications markets and institutions have changed some of the targets and instruments of Australian communications policy while preserving many of its broad themes. In a sector typified by rapid change in technologies and social and economic practices, policy makers, politicians and the Australian people need to be aware of the possibilities of both radical transformation and incremental adaptation along familiar lines. Old orthodoxies can provide irrelevant templates as well as durable wisdom.

The dramatic rise of networked digital media platforms has undermined business models for communications incumbents, fundamentally altered the processes of political communication, and created new corporate behemoths that are now potent policy actors in their own right. Predicting the political impacts of these changes is highly uncertain. Arguing for Indigenous recognition to be at the heart of any Australian republic, Megan Davis notes that no referendum has been held in the era of social media. ‘It can happen quickly with campaigns’, she says. ‘The old adage that, by and large, Australians trust and defer to politicians’ judgement on referendum questions may not hold up to scrutiny … Being afraid of the constitutional amendment process in section 128 is to be scared of the demos.’48

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About the author

Jock Given researches, writes and teaches about media and communications policy, business, law and history. He is professor of media and communications at Swinburne University of Technology and was previously director of the Communications Law Centre, policy adviser at the Australian Film Commission and director of legislation and industry economics at the federal Department of Transport and Communications. His work has been published in journals including Telecommunications Policy, Media and Communication, Business History, Historical Records of Australian Science, and the online magazine Inside Story.

1 Shahiduzzaman and Khorshed 2014.

2 Bresnahan and Trajtenberg 1995, 84.

3 Thomas et al. 2018, 12.

4 Sniderman, Mahto and Cotteleer 2016, 2–5.

5 OECD Directorate for Science, Technology and Innovation 2017, 6–10.

6 Author analysis of data in ABS 2018. This publication provides annual estimates of the performance of Australian industries by combining data from the ABS’s annual Economic Activity Survey (EAS) and Business Activity Statement (BAS) data provided to the Australian Taxation Office.

7 ACMA 2017.

8 Australian Stock Exchange 2018.

9 Hewett 2018.

10 ‘The world’s most valuable resource’ 2017.

11 Lobato and Thomas 2015.

12 Given 2012.

13 Althaus, Bridgman and Davis 2018, 18–31.

14 Mabo and others v Queensland (No. 2) [1992] HCA 23; (1992) 175 CLR 1 (Mabo).

15 Nelson and Taneja 2018; Viner 2016.

16 Slezak and Bogle 2018.

17 Collins 1992, 3600.

18 Telecommunications Act 1997, section 3.

19 Roy Morgan 2018.

20 Hartcher 2009.

21 Cited in Barr 2000, 1.

22 Given 2009.

23 Barlow 1996.

24 Day 2018.

25 Chapter 10, Criminal Code Act 1995 (Cth).

26 Enhancing Online Safety Act 2015 (Cth); Enhancing Online Safety (Non-consensual Sharing of Intimate Images) Act 2018 (Cth).

27 Telecommunications (Interception and Access) Amendment (Data Retention) Act 2015 (Cth).

28 Part IIIA of the Competition and Consumer Act 2010 (Cth).

29 Part XIC of the Competition and Consumer Act 2010. Part XIB sets out further telecommunications-specific rules about anti-competitive conduct and record-keeping by telcos.

30 Screen Australia n.d.

31 Althaus, Bridgman and Davis 2018, 43–53.

32 Raiche 1997, 2.

33 Productivity Commission 2002, 41.

34 Given 2010.

35 Tooran and Farid 2017.

36 Productivity Commission 2000.

37 Given 2018.

38 Commonwealth of Australia Constitution Act 1900 (Cth), section 51(v).

39 See La Nauze 1968.

40 Section 51(xviii) of the Constitution covers ‘copyrights, patents of inventions and designs, and trade marks’.

41 Tworek 2015.

42 Pearson and Polden 2019 is a detailed, practical account of these and related laws and ethical principles.

43 Australian Government, Department of Communications and the Arts 2018.

44 Tooran 2015.

45 Airbnb 2018; Kershner 2018.

46 Gruen 2018.

47 Flew 2006.

48 Davis 2018.