Burke gets Netflixed. Secret lobbying did the trick for the big streamers

Arts Minister Tony Burke has promised we will have Aussie content on our streaming TV services like Netflix. But it did nothing… except spend tens of thousands of taxpayer dollars trying to keep the streaming service’s lobbying activity secret. Transparency Warrior Rex Patrick reports.

It’s nice to be a foreign broadcaster in Australia. You sell your product to 27 million customers via the National Broadband Network for which you haven’t paid, you generate billions in largely tax-free revenue from Australia, and in return you don’t have to support the local arts industry.

The Federal Government promised to fix the local content part of the scam and was on track to deliver on that promise, but its activities have come to a complete halt. When Senator Jacqui Lambie set out to investigate why, she requested access to correspondence between the publishers and Arts Minister Tony Burke.

Responded to a Freedom of Information request with an ‘R’ rating – corrected!

Lambie couldn’t stand it and took Burke to the Administrative Review Tribunal. He hired taxpayer-funded lawyers and spent $32,000 to resist transparency through August 19 of this year.

Starting in August things picked up and more money was spent, probably around $50k now. Burke belatedly realized that he was doomed to lose, so he gave in to revealing most of the information. And this is all pretty self-explanatory.

Flickering on local TV content benefits global broadcasters

Legal requirements

Commercial (free-to-air) TV licensees are required to comply with Australian content obligations under the Broadcasting Services Act. They must ensure that at least 55% of the total program hours aired between 6am and midnight on their main channels throughout the year are Australian programmes.

They must also comply with genre-specific obligations set out in the Broadcasting Services (Australian Content in Advertising) Standards 2018 and Broadcasting Services (Australian Content and Children’s Television) Standards 2020.

These requirements create jobs in arts, drama, film and production in Australia. They allow Australians to see Australian culture and products on television.

Subscription Video on Demand (streaming) services such as Netflix, Stan and Disney+ are not required to meet any Australian screen content requirements and have never done so.

Promises, promises

During the 2022 election campaign, the Albanian opposition pledged to “work with all stakeholders” on a National Cultural Policy “to identify ways in which Australian content can be increased for both Australian music and on-screen content on streaming platforms.”

After winning government in May 2022, they published a policy document in January 2023 and began consultations with stakeholders (including the screen industry peak bodies, free-to-air TV and broadcasters). By March 2023, they produced the Targeted Stakeholder Consultation Paper, which presented two regulatory models for content quotas. Regulation models improved and updated in November 2023.

Shortly thereafter, Disney, Netflix, Paramount Prime and Stan wrote to Burke to express their views on the regulations. Everything suddenly came to a halt. The elders have spoken.

manufactured privacy

Burke was politically arrogant about his secrecy, pushing the idea in his original Freedom of Information (FOI) decision that all information was obtained confidentially.

This is a clear trend of the Albanian government. As well as trying to shut down the FOI, it has made consultation under non-disclosure agreements a routine practice. The government does not want companies to give away any public policy information, let alone politically embarrassing secrets, and perhaps most importantly, it wants to be able to claim that confidentiality agreements are in place to block any FOI requests from journalists or the public.

But the Government has no right to manufacture secrecy to prevent transparency to the public it is there to serve.

The issue of whether public officials can usurp transparency by arranging for secrecy or simply agreeing to do so is one that will be tested in the Full Court in March next year (Rex Patrick – Secretary for Climate Change, Energy and Environment and Water and Ors).

Legal costs of Snowy 2.0 snowball – more public money spent to silence more public information

But for now, the Minister used the sword of secrecy and disclosed most of the information. Maybe it’s the fear of the showdown between Lambie and Burke at Court. Maybe it’s because Transparency Warrior is handling the case. Perhaps his legal advisors, the Australian Government Solicitor, had whispered ’emptiness’ into the minister’s ear.

Whining. Documents reveal everything

Documents that have been reluctantly released so far show that the publishers are deeply unhappy. In their collective letter to Minister Burke, they wrote:

“We were deeply disappointed by the two models put forward. “They ignore the feedback we give.”

They continued as follows:

“These models will have serious negative consequences on the diversity of content produced, as well as significant inflationary effects that will affect the sustainability of the production sector.”

And with that the Government stood its ground.

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[Insert FOI documents]

Industry reaction to FOI disclosure

Simon Nasht, one of the few documentary story makers willing to speak, posted on LinkedIn.

A series of FOI documents today reveal how effective lies and misdirection from largely US-owned streaming platforms have been in scaring the Labor government from delivering on its promise of local screen content quotas.

Labor went into the 2022 election promising to make Australian content mandatory on broadcasters. Nothing happened. They later promised that the quotas would be implemented by July 1 last year. Nothing happened. Labor has reiterated its determination ahead of the 2025 election… you know what it is. Nada. This is 4 years of broken promises and in the meantime thousands of jobs have been lost in the screen industry. This means careers are ruined and lives are ruined.

The documents show how Labor succumbed to an intense lobbying campaign from broadcasters who claimed they were ‘deeply disappointed’ by the quota plans and upset that their ‘feedback’ was being ignored. The lobby hypocritically claimed that quotas would reduce viewing options for Australian subscribers and threaten the sustainability of the industry.

Some pretty breathtaking stuff is coming just days after the news that Netflix somehow failed to turn a profit and paid zero tax despite reporting $1.2 billion in revenue in Australia in 2023-2024. They certainly know a thing or two about how to run a business; tax avoidance is the #1 priority. Priority #2 – Leak of a public asset on the NBN. Priority #3: Hire an army of lobbyists to maintain the status quo. #4-Invite Arts Minister Burke to the opening of your local office and claim with a straight face that you are 100% behind Australian production, then bid farewell to your entire local commissioning team.

You won’t find many products this bold in the domestic Australian industry. They are desperate to get the next round of Federal funding from Screen Australia and fear the consequences of telling the truth.

Brazilian wax for Netflix Nrofits

While Burke failed Australian culture and local industry, Brazil took a different position.

The Brazilian Government recently withdrew US$619 million ($950 million) from Netflix in response to domestic tax practices.

Burke has no such courage.

difficult throats

1,200 display industry workforce participants responded to a survey on the state of gaming in Australia. More than 500 respondents reported a significant decline in business; of these, 71.6 percent reported experiencing financial stress or significant income loss in the past 1 to 2 years, and 45.1 percent reported losing more than half of their income.

About 5 percent were forced to sell their homes, while others were forced to go on welfare (6.8 percent) or close their businesses entirely (3.7 percent).

Almost a third of those surveyed also reported serious mental health problems resulting from workload collapse.

Meanwhile, the Government capitulated to multinational broadcasters. Minister Burke sits comfortably in his ministerial office, unable to grasp the seriousness of the situation. He is convinced that the complaints in the arts sector are a big fiction.

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Rex Patrick is a former South Australian Senator and formerly a submariner in the armed forces. Known as an anti-corruption and transparency warrior, Rex is also known as “Transparency Warrior“