When TV moved beyond the box

On the evening of 16 September, 1956, a hush fell over living rooms across Sydney. Families gathered around a novel piece of technology, a box that promised to bring the world into their homes.

When Bruce Gyngell appeared on the screen of TCN 9 and uttered the now-iconic words, “Good evening and welcome to television,” it wasn’t just the start of a broadcast; it was the dawn of a new era, perfectly timed for the spectacle of the 1956 Melbourne Olympics.

For the fortunate few, history unfolded in the comfort of their own homes. Yet, for many Australians, the allure of this groundbreaking technology was experienced vicariously. Crowds gathered, mesmerised, before shop window displays showcasing the flickering black and white images. Lively parties, hosted by eager television retailers and early adopters, became communal viewing hubs, buzzing with a shared sense of wonder. The arrival of television wasn’t just the introduction of a new gadget; it was a profound shift in the very fabric of Australian life, a widening of horizons previously unimaginable.

Fast-forward nearly seven decades, and that initial astonishment has seamlessly integrated into the Australian experience. From the innocent escapism of children’s programming to the compelling narratives of dramas, the shared laughter of comedies, the practical guidance of home improvement shows, and the often-addictive intrigue of reality television, the small screen has captivated and connected generations.

As a child, I distinctly remember the dire warnings: “Television will rot your brain!” Yet, my own experience (and I’m sure that of many millennials) paints a different picture. In a lot of ways, my understanding of life, politics, and pop culture was significantly shaped by a certain animated family from Springfield. The Simpsons offered a surprisingly insightful commentary on the world around us. Indeed, for many, television became a window to experiences and ideas far beyond their immediate surroundings, adding a visual dimension to storytelling and information sharing.

Even now, as I find myself engrossed in a re-watch of Mad Men, I’m captivated by protagonist Don Draper’s description of Kodak’s Carousel slide projector, “This device isn’t a spaceship, it’s a time machine. It goes backwards, and forwards. … It takes us to a place where we ache to go again … It lets us travel the way a child travels—around and around, and back home again …”

I’m taken by this line not just for its poignant delivery but also because it perfectly encapsulates the power of television (a successor of the slide projector): It can transport us to different eras, offer glimpses into unfamiliar lives, and reflect the ever-evolving social, cultural, and political landscape of the world around us. Yes, even the often heightened and seemingly outlandish social dynamics portrayed in shows like Selling Sunset, Bling Empire, or Married at First Sight can offer a discernible yet distorted reflection of certain real-world behaviours and societal trends.

The journey of Australian television, from its grainy black-and-white origins to the sharp, vibrant, high-definition digital world we inhabit today, is a compelling saga of technological advancement. However, this powerful evolution has not been without its complexities. Throughout its history, legal frameworks have been a constant necessity to govern its reach and influence, ensuring a delicate balance between fostering creative expression, upholding responsible broadcasting standards, and safeguarding the interests of viewers.

A history of regulation

In the week following the historic broadcast, the Sydney Morning Herald ran a story headlined, “The TV era has started to change Australians’ way of life.” But the seeds of change were sown decades prior, and its implementation was marred by debates about cost, value, and potential social ramifications.

On the opposing side, TV posed a significant threat to the Australian way of life, including concerns about children abandoning exercise and homework, the breakdown of family communication, and even the supposed neglect of housework by women. After all, television would enter people’s homes, positioning itself at the heart of domestic life.

The momentum to finally introduce television gained traction with the impending 1956 Olympic Games in Melbourne. This spurred a more focused discussion on the optimal model for Australian viewers. A key point of contention was whether a government-run national television service would be preferable to a potentially “tacky” and “low-brow” commercial operation that might simply import mass-produced content from Hollywood. Ultimately, the Menzies government opted for a compromise, amending the 1948 Broadcasting Act in 1953 to allow a dual broadcasting system where both public and commercial television services operate concurrently. Alongside this legislative change, the government established a Royal Commission on Television (1953-1954). Its mandate was to investigate key aspects of the medium’s introduction, including determining the optimal number of viable national commercial television stations and recommending program standards that would ensure television broadcasting served the public interest effectively.

On one side of the dual broadcasting system, the government-funded Australian Broadcasting Commission (ABC), already a stalwart of radio since 1932, expanded into television. Financed by listener licence fees and operating without the need for advertising revenue, its mission was to deliver a diverse range of high-quality programming. On the other side, commercial broadcasters, their revenue streams reliant on advertising and their operations initially overseen by the Australian Broadcasting Control Board (ABCB), which regulated broadcasting standards and practices. These early regulations were primarily concerned with the fundamental aspects of licensing and establishing technical standards for this nascent industry.

The era of the TV licence

For a significant period in Australia’s television history, owning and watching television legally required holding a television licence. Introduced in 1956 with the commencement of official transmissions, these licences were initially administered by the Postmaster-General’s Department, who were also the technical backbone of transmissions, including the allocation of broadcast frequencies. The revenue generated from these licence fees played a crucial role in funding the Australian Broadcasting Commission (ABC), the nation’s public broadcaster. Over the years, the cost of the combined radio and television licence gradually increased, reaching $26.50 in the 1970s, which was 4 per cent of the average full-time annual income at the time.

However, growing concerns regarding the equitable distribution of these fees across the community and the substantial costs associated with enforcing compliance led the federal Whitlam government to make a significant decision. On 18 September, 1974, television and radio licences were abolished. Following this landmark change, the ABC’s funding model shifted to direct government appropriations drawn from general taxpayer revenue. A subsequent attempt by the Fraser Government in 1975 to reintroduce television licences, with fees differentiated based on whether the television set was colour or black and white, met with considerable public opposition and was ultimately abandoned. As a result, the licensing system that exists in Australia today pertains specifically to the broadcasting licences required for television and radio service providers to operate.

An independent regulatory body

As the Australian television landscape expanded and diversified, the need for a more independent regulatory body was identified. This led to the establishment of the Australian Broadcasting Tribunal (ABT) in the late 1970s, which took over the regulatory reins from the ABCB. The ABT’s mandate broadened to encompass a wider range of issues, including the crucial areas of program standards, advertising content, and the granting of broadcasting licenses.

A truly transformative moment arrived in 1992 with the enactment of the Broadcasting Services Act 1992. This landmark legislation represented a comprehensive overhaul of the existing regulatory framework, introducing key principles that continue to shape the industry today. The Act established a framework designed to accommodate a multi-channel environment, addressed the increasingly important issues of media ownership and control, and provided a robust basis for content regulation, including the establishment of Australian content quotas and standards for children’s programming. Furthermore, the Act led to the creation of the Australian Broadcasting Authority (ABA), which replaced the ABT and expanded its scope of responsibility to include not only television but also radio and the growing telecommunications sector.

The dawn of the new millennium brought with it the rapid convergence of telecommunications, broadcasting, and the burgeoning internet. This technological fusion necessitated a unified regulatory approach to effectively manage the increasingly interconnected media landscape. In 2005, the ABA merged with the Australian Communications Authority (ACA) to form the Australian Communications and Media Authority (ACMA).

ACMA stands today as the central regulatory body overseeing broadcasting, radio communications, telecommunications, and specific aspects of online content within Australia. Its responsibilities are extensive, ranging from the critical task of managing and allocating broadcast licenses to the intricate administration of program standards, advertising regulations, and the vital Australian content quotas enshrined in the Broadcasting Services Act and its associated codes of practice. This includes specific attention to the quality and nature of children’s programming and the promotion of Australian identity and cultural diversity on our screens. ACMA also plays a crucial role in monitoring and enforcing rules related to media ownership and ensuring diversity of voices within the industry, as well as safeguarding consumers against issues like unsolicited communications and promoting online safety. Additionally, the authority manages the radio frequency spectrum and ensures adherence to technical broadcasting standards.

The regulatory landscape remains dynamic, constantly adapting to the relentless pace of technological advancements and the ever-evolving habits of media consumption. ACMA continues to be at the forefront of this adaptation, addressing new challenges and seizing opportunities presented by the rise of streaming services and digital platforms, ensuring the enduring relevance of the regulatory framework. The Broadcasting Services Act 1992 remains the cornerstone of this regulation, with ongoing amendments and additional regulations introduced to address specific issues and maintain the framework’s effectiveness in a rapidly changing world.

The changing face of television

Since its initial broadcast, Australian television has undergone a remarkable metamorphosis. The fuzzy, often snowy, black and white images have given way to the crisp clarity of high definition and even the immersive experience of ultra-high definition. However, beyond the visual advancements, the very nature of the services offered has expanded exponentially.

Toby Yiu, Executive Counsel at the Nine Network, offers the Journal a unique insider’s perspective on this dramatic evolution, shaped by his eleven years within the industry at Nine. When he first joined Nine, the network’s offering was relatively straightforward: three channels – 9, Go, and Gem plus a minor digital presence of catch-up viewing. However, the ensuing years have witnessed a seismic shift, marked by the introduction of a multitude of new free-to-air channels, such as 9 Rush and 9 Life, the introduction of live streaming of those channels, an expanded digital offering in 9Now, plus Nine’s own streaming service Stan, each catering to increasingly specific audience segments and preferences. Yiu played a key role in navigating this changing landscape, being involved in the foundational stages of programs like Married at First Sight (MAFS), and Stan.

According to Yiu, this proliferation of platforms has fundamentally reshaped viewing habits. “The viewing environment has completely and utterly changed, even if you look at your own viewing habits,” he observes. The days of families solely gathering around the living room television at a set time are largely gone. Now, viewers seamlessly integrate television consumption into their daily lives – catching up on missed episodes during their commute, streaming online content during work breaks, or watching on tablets in the privacy of their bedrooms.

According to Deloitte’s 2024 Media & Entertainment Consumer Insights report, Australians consumed about 44 hours of media and entertainment each week across different services.

Yiu reflects on the profound and “radical” impact of streaming services on the Australian television landscape. He recalls a time when the very definition and future of this new form of content delivery were uncertain, leading to complex and sometimes speculative contract drafting. He believes that the explosive growth of the streaming market, with Netflix becoming a ubiquitous part of the cultural vernacular, could hardly have been imagined in those early days.

From Nine’s perspective, while streaming has undeniably fragmented traditional television audiences, it has also created new opportunities to reach viewers through platforms like Stan, showcasing content that might not have found a place on free-to-air television. Yiu cites RuPaul’s Drag Race as a prime example of a program that has found a dedicated and enthusiastic audience on Stan, demonstrating the ability of different platforms to cater to diverse tastes. He believes that this multi-platform environment ultimately benefits consumers by offering greater choice and that Nine’s strategic presence across free-to-air, digital channels, and streaming positions them strongly within the evolving media ecosystem.

Despite this radical transformation in how audiences access content, Yiu points out that the fundamental legal underpinnings of the television industry remain surprisingly consistent. The core of his work still revolves around navigating the intricate web of contracts associated with each production. However, the nature of these contracts has become increasingly multifaceted, with shows like The Block and the early seasons of MAFS presenting unexpected legal challenges.

Yiu has overseen the legal aspects of The Block for over 14 seasons and says as a television lawyer, he never thought he would have to look at construction, property, safety, and tax implications, as well as a myriad of commercial contracts.

Even the seemingly simple premise of MAFS raised novel legal questions, such as the need to consider family law implications given the unique Australian format compared to its Danish counterpart, where legally binding marriages actually occurred. “In the Danish format, they actually get married, but in the Australian format, they turn up to get married and there’s a wedding, but they’re not formally married under the law.”

The challenges behind the camera

Yiu sheds light on the complex regulatory framework that governs the Australian television industry, with the Broadcasting Services Act serving as the primary legislation. This act, in conjunction with the Television Code of Practice, a self-regulated code adopted by free-to-air broadcasters, establishes the fundamental standards for content and operational practices.

While he notes that a dedicated colleague typically handles the finer details of these regulations at Nine, his own work frequently intersects with them, particularly in areas such as advertising and the integration of goods and services within programs like The Block. He emphasises that the regulatory environment is not a monolithic entity but rather a “patchwork” of rules and guidelines drawn from numerous legal domains that converge on a single television show.

“What I have said in the past, is that you’d be surprised at how many areas you pull from your prior experience … and that all sort of comes together in a melting pot of what you see on television …” This intricate web of regulations necessitates that legal counsel in the television sector possess a diverse skillset, extending beyond the specificities of traditional media law.

From a legal perspective, Yiu describes the process of bringing a television show to life as a complex undertaking that involves categorising a multitude of potential issues into distinct “buckets.”

He illustrates this with the employment challenges that arise when engaging both the on-screen talent, from shows like MAFS and The Block, and the extensive behind-the-scenes crew.

Yiu emphasises that the sheer volume of legal considerations inherent in creating a television program necessitates a meticulous approach, breaking down each potential issue into its fundamental components to ensure thorough and effective resolution. While acknowledging the initial steep learning curve, he notes that with increasing experience, these challenges tend to become more manageable for lawyers working in the field. This knowledge often becomes integrated into a more intuitive and holistic understanding of the legal landscape. The ultimate objective remains ensuring that the final product that reaches viewers’ screens is fully legally compliant, often requiring the application of principles drawn from diverse areas of law.

Beyond the complexities of creating original content, Yiu also sheds light on the significant legal work involved in the acquisition and licensing of content from major international studios. “Obviously, they’re [the international studios] very protective of their content, and you’ll find that if you ever saw an actual Hollywood contract, it’s a gazillion pages in font size six,” he quips.

These agreements, often spanning many pages and filled with intricate details, demand meticulous attention to commercial terms, usage rights, and territorial restrictions. “I think a lot of people don’t realise the depth of detail that we really need to work through, what we can, and we can’t do …”

These details include restrictions known as “holdbacks”, a period of time during which a movie or TV show, is not allowed to be played on a specific platform or in a specific medium after its initial release. This allows for a more controlled rollout and maximises potential revenue streams, especially in different media like theatrical release, streaming, and physical media.

“In the old days, you’ll see that content will go on to the theatre first, and then it might go to pay TV, for example, then it might come onto free-to-air,” he says.

“Whereas now, the timing of traditional exploitation periods, which they call ‘windows’ are being recalibrated, especially with studios more recently owning their own direct to consider streaming platforms or where we might pay an extra amount for an earlier window.”

“That’s the jargon that we use to say, ‘well, actually, I’m buying an earlier window, so I get eyeballs on this content before everybody’s watched it’…”

It illustrates the complex timelines and exclusivity periods negotiated for the distribution of content across various platforms, ranging from traditional free-to-air television to subscription-based streaming services and the emerging landscape of FAST (Free Ad-Supported Streaming Television) channels.

The legal team plays a pivotal role in ensuring that the acquired rights seamlessly align with the network’s overall programming strategy and that the content is delivered and protected in accordance with the terms of the agreements, navigating a complex landscape of technological requirements such as Digital Rights Management (DRM) and content protection measures. Ultimately, Yiu characterises the legal process as a methodical and commercially driven endeavour to address a multitude of interconnected issues, striving for outcomes that satisfy all stakeholders and ensure the seamless delivery of engaging content to Australian viewers.

“There’s a lot of inputs that go into a contract, and it really, unfortunately, doesn’t sound very exciting, but it’s just working through all of those issues methodically and commercially, getting to an outcome that everybody’s happy with, that’s ultimately, what we do best as lawyers.”

The unseen world of legal involvement

Yiu provides a fascinating glimpse into the often-unseen world of legal involvement in television production. He clarifies that the legal team’s role extends throughout the entire lifecycle of a program, with the intensity of their involvement varying depending on the specific show. For projects in their earliest stages, even before a concept has fully formed, lawyers play a crucial role in assessing potential legal and commercial risks.

“[T]here’s always going to be a gap between development, when it’s [the program] shot and when it actually gets to air.”

Yiu recalls instances where unconventional ideas brainstormed by the programming team required significant legal vetting right from the outset. This early engagement contrasts with the later stages of production, such as post-production, where lawyers might review near-final cuts and provide feedback on potential legal concerns.

Beyond these proactive measures, the legal team also handles ongoing contractual issues that can arise during filming and, although thankfully rare, manages any litigation that may occur after a program has aired. This comprehensive involvement stresses the fundamental and often underestimated role that legal counsel plays in every stage of bringing a television program to Australian screens, from its initial spark of an idea to its final broadcast and beyond.

Stop being polite, start getting real

Whether a guilty pleasure or openly enjoyed, reality TV has been a constant presence on our screens. Its roots stretch back to the early days of television with Candid Camera in the 1960s, followed by the groundbreaking The Real World in the 90s, and the explosion of the genre in the early 2000s with shows like A Simple Life, Keeping Up with the Kardashians, the Real Housewives of everywhere, MAFS, and The Block – the list goes on. Viewers are often initially drawn in by the novelty, but it’s the unfolding drama that keeps them hooked.

However, behind the on-screen theatrics lies a complex reality, as Yiu reveals.

“There’s just so many wacky things that happen behind the scenes that most people would just never know,” Yiu explains. “Stuff that you won’t ever see on TV was the first time when The Block contestants, walked off set and they said, ‘we’re not coming back’.”

Yiu continues, highlighting the production team’s response to such situations: “And they have to deal with that and ask ‘What can we do? What can they do?’ And all this happens behind the scenes whilst the shoot continues. Of course, our audience is none the wiser unless we show it in the program. The show must go on, and ultimately, it’s working through a solution that works for TV. And for The Block, the shoot does go on … we keep the cameras rolling, it doesn’t affect production.”

Addressing the often-sensitive area of viewer complaints, particularly concerning reality television programs like MAFS, Yiu emphasises the need for a careful and considered approach.

“I guess it’s a balance. We don’t let the tail wag the dog in a sense …” He says while the network is acutely aware of broadcasting regulations and codes of practice, not every expression of viewer dissatisfaction warrants a change in creative direction. Some complaints, Yiu suggests, simply reflect personal unhappiness with the unfolding drama. He indicates that the network strives to deliver the program as it was filmed, acknowledging that a range of audience reactions, both positive and negative, is an inherent part. “We don’t want to encourage viewer complaints. But I think it’s just part and parcel of reality, especially reality TV, that participants are going to complain when they don’t like what they see. And I think we’re also cognisant that reality TV is a reflection of what is happening in society.”

Yiu uses the example of bullying accusations on The Block in a previous season. “The Block is a human show; there’s going to be conflict, it’s challenging, and there’s lots of pressure. People are ultimately going to bump heads. If that leads to people treating each other poorly, we’re not going to cut that out of the program and basically say, well, that doesn’t exist.” “That’s part of what it is. That’s why it’s reality TV.”

Brett Oaten, Principal Solicitor at Brett Oaten Solicitors, offering a different perspective from his work representing artists and participants in unscripted television, highlights the often-challenging legal landscape that individuals enter when they decide to participate in reality TV. He emphasises the critical importance for contestants to fully understand the implications of the contracts they sign, which are typically very broad and heavily favour the producers. Oaten points out that the interests of the producers in crafting a compelling narrative for television may not always align with the individual’s desire for how they are portrayed. With extensive hours of filming often distilled into a much shorter on-screen representation, a dramatic narrative can emerge that participants may find unflattering or inaccurate.

“I think it’s really important to understand what you are entering into, and the contracts that you sign as a participant on those shows are typically very, very broad.”

“They might film you for 16 hours in a day and 45 minutes might make it to TV and a particular narrative that is very dramatic for TV purposes might emerge that you might not be happy with,” he says. ”[Y]ou’ve got to think about that very carefully if you decide to go on,” Oaten warns.

Oaten stresses that these contracts often include comprehensive releases, where participants effectively waive any future claims related to defamation or misrepresentation. “People are often very unhappy with how they’re betrayed. But if you enter those shows, you will have signed a release where you sign away any claim that you might have had on that basis to say that you’d been defamed or presented in a manner that you’re unhappy with.”

“[I]f you emerge from that experience wanting to make a defamation claim about the show, that would be a very, very difficult thing to do.”

He underscores that while reality TV can provide significant opportunities and platforms for some, it can also lead to disappointment and negative experiences for others. Furthermore, Oaten highlights the inherent risks involved for both the producers and the participants in these often-unpredictable productions. 

Just as participants on shows like Married at First Sight face unique personal risks, those on physically demanding shows like Survivor or Alone are required to sign very broad releases, accepting the risks associated with their participation and relinquishing the right to take action against the producers. While producers have a duty of care to provide necessary medical support and communication, unforeseen events can still occur. Oaten suggests that while participants are generally aware of what they are entering into, given the requirement for independent legal advice on these detailed contracts before they are allowed to participate, the inherent nature of reality television means that outcomes and portrayals can still lead to significant personal distress.

“The producers of these shows will typically not allow a participant to enter into the very detailed contract that they’re required to sign without independent legal advice from a person experienced in that area before they will let them on the show,” says Oaten.

The ongoing evolution of media and law

Looking ahead, the symbiotic relationship between media and law will continue to evolve. As technology continues to reshape media consumption, the legal framework will undoubtedly adapt to address challenges such as regulating misinformation, ensuring media diversity in a digital age, and the delicate balance between free expression and the protection of vulnerable audiences. Yet, underpinning this future landscape is the enduring need for Australians to see their own stories reflected on screen.

Beyond the entertainment value, prioritising local Australian content on streaming services and free-to-air platforms addresses the crucial desire for relatability and connection to narratives grounded in their lived experiences.

Currently, free-to-air broadcasters operate under the Broadcasting Services Act, which mandates that 55 per cent of programming on their primary channels between 6 am and midnight must be Australian, with their non-primary channels required to broadcast 1460 hours of Australian content annually. However, this obligation does not apply to streaming services like Netflix, Disney+, and Prime.

Anna Potter and Amanda Lotz, from Queensland University of Technology, argue that Australia’s media policy is outdated and requires significant reform to prioritise Australian voices and interests over the commercial goals of broadcasters and streaming giants. They point to the decline of commercial broadcasters, who now commission very little Australian drama and have seen a significant drop in viewership.

Meanwhile, Australians consume a vast amount of media weekly, much of it global content from streaming services. “Commercial broadcasters aired more than 500 hours of original Australian drama each year in the late 1990s when viewers around the country gathered to watch Blue Heelers, the funeral of Princess Diana and Hey Hey It’s Saturday ended after 28 years on air,” Potter and Lotz wrote in an article titled, Australians deserve broadcast policy for the 21st century, in March.

“Last year, the commercial broadcasters commissioned only nine hours of drama between them aside from Home and Away and Neighbours and the number of Australians who watched free-to-air television in the preceding seven days dropped below 50 per cent (46 per cent) for the first time ever.”

Potter and Lotz contend that the current system, including government subsidies, often benefits international productions and requires viewers to pay for access to Australian stories. They call for a shift in policy towards a post-commercial broadcast world that still obligates surviving linear broadcasters to serve Australians, ensures the creation and accessibility of distinctly Australian stories, and reassesses the role and governance of the ABC and SBS to reflect their expanded importance in a diminished commercial media landscape.

“Now much of the media attracting Australians’ attention prioritises global rather than local audiences at a time of rising misinformation and fracturing social cohesion,” they said.

One way to combat this is to introduce local content quotas for streaming services. However, plans for their implementation have been stalled by concerns the policy might violate the free trade agreement between Australia and the United States. While the proposed extension of these quotas to streaming services faces complexities, the demand for authentic Australian stories, including amplifying First Nations voices and those of diverse minority communities, remains compelling for a truly representative media landscape.

From the shared experience of those first flickering images to today’s on-demand world, television has indelibly marked Australia, and ensuring local content thrives is vital in reflecting and nurturing its unique identity in the evolving world of media.