STEVE PRICE: Now, forgive me if I sound confused over this next issue. As we all know, the Prime Minister, Julia Gillard, in what is seen as a highly unusual move, announced a fortnight ago the election date will be September 14. Depending on who you talk to, it’s either a masterstroke or a moment of madness. Well, for radio broadcasters and TV networks this has created a legal minefield. We operate under the Broadcasting Services Act [Broadcasting Services Act 1992]. Now, that act says quite clearly that whenever an election is called or the writs are issued for a poll, whatever happens first, we then need to make every attempt to give equal airtime to all sides of politics. Now, that’s designed to give some airtime largely to fringe parties like the Democrats in the old days, even now the Greens and Independents. For this radio station or certainly for my program, equal time’s not a problem. I ask daily for senior Labor ministers. We talk to senior Coalition frontbenchers all the time. Since that date was nominated, I’ve spoken with Anthony Albanese, Joe Hockey, Mathias Cormann, Kate Lundy – I could go on – and we’ll talk with Craig Emerson sometime this week. Don’t hold your breath for Wayne Swan or the Prime Minister but we’ll keep asking. I raise this because amazingly today the Commercial Radio Australia organisation sent us a note. They’ve been contacted by ACMA [Australian Communications and Media Authority], who police commercial radio, to tell us we’re not in an election period. Now, strangely, this advice came from the Government but – can you believe this? – they won’t release that legal opinion because ACMA says to do so would reveal too much about the advice received. How ridiculous! Now, the Coalition’s Senator Simon Birmingham has been doing some work on this, particularly in relation to the ABC [Australian Broadcasting Corporation]. He’s on the line. Senator, it gets crazier and crazier.
SIMON BIRMINGHAM: Good evening, Steve, and good evening to your listeners. It certainly does and it is incredibly frustrating, having spent yesterday and today in Senate Estimates hearings trying to get straight answers from Government officials on this matter of the legal interpretation of when the election period commences and it’s just baffling that they won’t clarify this by releasing their legal advice and just this afternoon I was asking the Australian Communications and Media Authority – ACMA – to make clear the advice that they’ve put on the table here, to make clear the advice they are basing their decision on, and ACMA but more importantly Stephen Conroy, the Communications Minister, have simply refused point blank to release that advice.
STEVE PRICE: Yeah, they say they won’t waive legal privilege over the document because it would reveal too much about the advice received. I mean, that’s plain stupid.
SIMON BIRMINGHAM: Well, it is, Steve, and this whole issue actually should be fairly simple and, for your listeners, I wouldn’t normally burden them with quoting from an act but the Broadcasting Services Act makes it extremely clear that an election period is deemed to commence either when the election date is announced or when the writs for the election are issued. Now, Julia Gillard has made clear the writs won’t be issued until the 12th of August for the September 14 election. That much is fine but, equally, as we all know, she has announced September 14. She announced that was the date way back now on the 30th of January and, indeed, the regulator ACMA’s initial instinct, they confirmed today, upon hearing that and seeing the Prime Minister’s words, was that the election period had commenced, so there are a lot of questions here as to what it was that led them to overturn that decision and, given they won’t release the legal advice they’ve based it upon, why is it that they overturned that decision and is that advice, in fact, clear cut or equivocal?
STEVE PRICE: I’m no lawyer but it seems pretty plain English to me.
SIMON BIRMINGHAM: Steve, I’m no lawyer either and it’s always struck me as very plain from the moment it was pointed out and, in fact, it was pointed out first to me by an Adelaide community radio station, a multicultural station, who said to me, because I have Arthur Sinodinos, a great New South Wales Senator who speaks Greek, coming to Adelaide in a couple of weeks’ time and we tried to arrange an interview for Arthur and they said ‘Senator, we’d love to talk to him but the requirements now we’re in this election period are just too cumbersome for us to actually meet all of the balance and reporting requirements; it’s fine for the bigger commercial stations but we’re a little not-for-profit community station and, aside from anything else, we might get Arthur to come on and talk to us in Greek but where are we going to get somebody from the other side to do so?’
STEVE PRICE: Now, Mark Scott, the managing director of the ABC, is no lawyer either. He’s a journalist, like me. He didn’t even need to take legal action [advice]. He just took a decision where the ABC was going to wait until the writs were issued. Now, you weren’t happy about that. Explain why.
SIMON BIRMINGHAM: Well, I have a concern there that the ABC Act [Australian Broadcasting Corporation Act 1983] has exactly the same definition of election period as does the Broadcasting Services Act which applies to commercial broadcasters, so the ABC certainly has the same period to work with and really should be getting its own advice and Mr Scott made very clear yesterday that the ABC has not received any advice in relation this question of when the election period commences. Now, the ABC beyond that can set some of its own rules, unlike the commercial broadcasters, as to how it regulates itself during an election period and, of course, they could choose to differentiate between the period prior to the issuing of the writs and after the issuing of the writs if they so wanted but I think they should be getting advice themselves to clarify for themselves whether they are operating in accordance with their own act or whether, in fact, they are potentially in breach of it and I’m disappointed that Mr Scott has chosen not to do so.
STEVE PRICE: You’re whistling in the wind thinking you’re going to get evenness from the ABC anyway, surely.
SIMON BIRMINGHAM: Well, it’s a battle at times…
STEVE PRICE: What makes you think you’re going to get balance, regardless of whether they follow the broadcast act or not?
SIMON BIRMINGHAM: It’s a battle at times, Steve, but we’ve got to fight the good fight as we go along.
STEVE PRICE: So, where’s it left? They wait until the writs are issued. We’re now told we can’t have the legal advice, so we wait, but I understand that from a commercial point of view, as in advertisements played, we are actually operating… and television, Free TV Australia made this clear today, they’re operating in a climate the election’s been called.
SIMON BIRMINGHAM: Well, it will now be interesting as to how the commercial television broadcasters and the commercial radio broadcasters respond to this advice today from the regulator that says, despite all common sense interpretations of the Act, the election period has not commenced and it may be that industry says ‘well, if they’re the regulator and they’re saying that, that’s good enough for us and we can go back to operating without the bureaucracy of an election period until we get closer to the campaign’ and we should remember all of this has only come about because of Julia Gillard’s most unusual and, many would say, perverse decision to announce the election date and essentially kick off the campaign some eight months in advance, so it may be that today, despite the fact that the legal arguments will continue to rage, there’s a bit of a let-off for the commercial broadcasters and I hope that’s the case because, in the end, it would be quite cumbersome for them to have to meet these requirements…
STEVE PRICE: Oh, no, I’m happy…
SIMON BIRMINGHAM: …for a prolonged period of time.
STEVE PRICE: Senator, I’m happy to be completely balanced. I mean, I’ve got an open invitation to Wayne Swan, Julia Gillard, any of the rest of the frontbench who try and dodge this program whenever they can: you can come on any time you like. We’re happy to balance it up and have both voices on the air.
SIMON BIRMINGHAM: Well, perhaps Stephen Conroy could come on and explain this legal advice to you.
STEVE PRICE: That’s a very good suggestion. Senator, thanks for your time.
SIMON BIRMINGHAM: An absolute pleasure, Steve.