'Never waste a crisis' and other inexorable laws of political nature

THE Finkelstein report is a textbook case of the political laws of nature. Media regulation ought to be tested against one simple measure. Will the suggested regulation improve our democracy?

Will it serve us better than we are presently served? Us means we, the people. Not the media. Not the government. Not a new bureaucracy. Alas, such simple logic has collided with a set of stubbornly entrenched political laws of nature.

Start with the law of governments and their insatiable need to "do something". A media scandal breaks in Britain where phones are tapped. Few would defend what happens except to say that surely we must first rely on laws that prohibit the illegal tapping of private conversations and prosecute those who breach them. Unfortunately, such humble logic cannot trump the law of politics. When faced with a scandal, government must always "do something" grand.

In the corridors of power, doing something is fuelled by a subset of additional laws. First, the seductive nature of power means most politicians will succumb to the hubris that governments can and must right every wrong. Remember Rahm Emanuel telling us: "You never want a serious crisis to go to waste. And what I mean by that is an opportunity to do things you think you could not do before." The then chief of staff to US President Barack Obama was simply following one of the political sub-laws of nature.

The second sub-rule is that it is much easier to point to this or that action as proof that government is governing, rather than explaining to the people why the government ought not act. Just as a good baker bakes, a good government governs. A government that admits it should govern less makes no sense in the mind of a politician dizzy with power. It takes a very humble, hard-working politician to explain that extra government regulation is not the answer to every scandal or crisis.

So powerful and seductive is the "do something" urge when teamed with the "never waste a crisis" mentality, it reaches right across the globe. No phone hacking here. Just a few opportunist politicians who have been waiting for the right bait to regulate the media. Communications Minister Stephen Conroy and Greens leader Bob Brown latched on to the phone hacking scandal in Britain as reason enough to attack those parts of the Australian media they didn't like, such as News Limited newspapers, which have been scrutinising their policies and politics far more than other media outlets. And so the Finkelstein review of media regulation was born.

Handed to the government last week, the Finkelstein report proves the operation of the second law of nature in the political realm. When was the last time a review into regulation recommended no need for further regulation? Like politicians, experts conducting reviews enjoy their 15 minutes of clout and their long-burning ambition to leave a mark. Just look at the recent report to recognise indigenous people in our Constitution, which recommended sweeping changes unlikely to secure the agreement of voters.

The Finkelstein report is equally deluded. Once again, a seemingly clever chap has recommended a new government-funded body comprised of "independent" people appointed by government to regulate print, radio, television and online media. Only an "expert" who understands little about the media could dream up this chimera of independence.

How does this serve the people given that a truly independent and genuinely curious media is so critical to the functioning of that democracy? And what precisely was the problem within the Australian media to warrant such wide-ranging new regulation?

Finkelstein's recommendation for a new super-regulator, funded by $2 million from government coffers, raises yet another political law of nature: the law of bureaucracies. As sure as power seduces more people than it repels, a modest $2m body will soon enough morph into something much bigger at taxpayer expense, of course. In the private world, when a business fails, it is wound up by investors who can ill afford to lose more money. In the public sphere, when an enterprise fails to achieve its aim, more money is pumped in, the number of bureaucrats is bumped up and the body grows inexorably bigger. Whereas growth in the private sphere is predicated on success, it's the other way round in the public sphere. Bureaucracies are likelier to grow larger if they can point to regulatory failures that require more regulations and money to pay for extra bureaucrats to apply the new regulations.

For an example of these political laws, look no further than the Racial Discrimination Act.

In the multicultural world of the mid-1970s the urge to "do something" kicked in with gusto under then prime minister Gough Whitlam. Cloaked in the usual language of benevolence and protection, the 1975 act seemed, at face value, to be the kind of law demanded in a civil society.

In fact, when "tolerance" triumphed as an absolute virtue, more important values, such as free speech, took a back seat. We now have judges ruling against the "tone" of Andrew Bolt's writing: a severe blow to our democracy and our freedom.

Inevitably, the law of bureaucracies kicked in too. Australia's Human Rights Commission has grown from administering one piece of legislation -- the RDA -- to applying four major sets of laws and regulations. Unusually, Alan Borovoy, founder of the Canadian Human Rights Commission, has lamented the empire-building frolic of these bodies. Writing in the Calgary Herald some years ago, Borovoy admitted: "During the years when my colleagues and I were labouring to create such commissions, we never imagined that they might ultimately be used against freedom of speech."

Those who support a new super-regulator of the media ought to take note.

The operation of the RDA proves another political law of nature: the law of unintended consequences. When a set of laws such as the RDA can morph into something entirely illiberal despite emanating from the best of intentions, we should be very concerned by suggested regulations born of blatant political retribution against sections of the media that the likes of Conroy and Brown find distastefully critical of them. One thing we can be sure of: illiberalism begets illiberalism.