Naive hubris pervades media inquiry

Eric Lobbecke

AUSTRALIA is now on the threshold of enforced statutory regulation of all media justified in a 470-page report that proposes a new body to adjudicate on media performance and fairness with power to order remedies enforceable by courts and punishable under contempt of courts provisions.

This report is a watershed in Australia's political history. The anger of the Gillard government towards media criticism has resulted in a blueprint for enforced media regulation never before seen in Australia.

This is the report by former judge Ray Finkelstein QC, assisted by a media academic, Matthew Ricketson. The report is compiled in haste, shoddy in argument and evidence and, above all, a deeply ideological document revelatory of our times.

Finkelstein asserts that the media must be held accountable and he has decided current mechanisms "are not sufficient to achieve the degree of accountability desirable in a democracy".

His quest is honourable in its utopianism: to protect our democracy from unethical and biased journalists, notably at News Limited.

This report is a fusion of three elements: Labor's sabre-rattling against the media; a judicial-legal culture dedicated to new laws and controls justified by an alleged public interest; and rich ammunition provided by academics in university communications schools about media bias and taken by Finkelstein at face value.

The warnings were laid on the table. Fairfax chief executive Greg Hywood said: "I don't tell an editor where to publish a story and when to publish a story and I would clearly object to that power being provided to an outside agency."

Ken McKinnon, a former chairman of the Australian Press Council, says: "Australia does not need a legal accusatory body."

The ABC's Paul Chadwick said: "All roads from a purpose-built statutory tribunal to govern media content lead back through a parliament, through a partyroom, to a cabinet where people nurse resentments, real and imagined, about the media that are going to be regulated. This is a reality and that is why I oppose that kind purpose-built, tailored statutory regulation."

Finkelstein dismisses such warnings with the assertion: "The other view, which is the better view, is that there must be some effective means of raising standards of journalism and of making the media publicly accountable."

This penetrates to the ideology of this document. Finkelstein's arrogance is supreme: he asserts that he can devise a statutory system that does not infringe press freedom and he claims his model "will right wrongs perpetrated by the media" and make the media "accountable to their audiences". It is astonishing stuff. He has his eye on the British scandals (which did not occur in this country) and, speculating on what recommendations the British Leveson inquiry will make, says: "It would not be surprising if statutory regulation were top of the list." So Finkelstein gets in first.

His attitude towards the public is deeply patronising. He dismisses any notion that a media marketplace of ideas is viable and says people even armed with "full information" have trouble evaluating what it means. What do they need? Statutory remedies, of course. The idea of "market failure" invoked by the Gillard government to re-regulate the labour market, impose carbon pricing and launch the National Broadband Network is now used to direct the media what to publish.

At a time when the Productivity Commission laments the scale of rent-seeking at the taxpayer's expense, Finkelstein wants new government subsidies to maintain "quality" news. He decides, at present, against government support. But he wants the situation kept under review. He floats the idea of the 40 per cent tax rebate for film producers applying to "investigative and public service journalism". Indeed, he received submissions seeking taxpayer support for media including from online publisher Eric Beecher, who argued the "market failure" of the quality journalism model and backed public support, admitting he was not a "disinterested party".

The lure of raiding taxpayers' funds is now in play. Can you imagine the rorts and special deals for Labor's fellow travellers this would unleash? Finkelstein wants the Productivity Commission to devise the principles to guide such support and ensure funding does not lead to "political patronage". It typifies the naive hubris that pervades this report.

Even as a professional observer, I find it impossible to read this document without being shocked at the corrosive decline in our political culture that it so unconsciously exhibits.

Deciding that self-regulation through the press council has failed, Finkelstein proposes a News Media Council to set and enforce journalistic standards. It will cover all platforms and have the statutory power to require a media outlet to publish an apology and retraction and afford a person right of reply. In a newspaper the enforced reply would have prominence "commensurate" with the original report.

Finkelstein says that while this "is an interference with editorial freedom, it is not censorship".

The NMC will have a full-time chairperson and 20 part-time members. Another committee will be created, dominated by academics, to appoint NMC members. Its findings are binding without appeal. If a media outlet refuses to comply, a court application can be sought compelling compliance at the risk of contempt of court that could lead to fines or possibly imprisonment.

Finkelstein's justification is that both the public and the political classes now distrust the media. He says there is a "widely held public view" that reporting is no longer fair. He relies on ad hoc public opinion polls dating back to the 1960s from many polling organisations including academic studies to show a low level of trust in journalists.

A report last year by the Australian Centre for Independent Journalism led by Wendy Bacon is emphasised with its finding that the public did not receive fair or impartial reporting on Labor's carbon policy. Some of the polling material is contentious; witness the finding that one-third of journalists felt obliged to take their proprietor's politics into account when writing stories.

Sadly, public distrust of media has been a feature of our culture for most of the past century. What has changed now? The evidence is not public attitudes but the demands of politicians. It is Labor that feels threatened. It is Labor that wants retaliatory action. Finkelstein's report invokes the public interest to serve Labor's political interest. The Greens love his report and have called for its implementation this year. Labor is silent to this point. The best solution is a revived press council.

This document is another threat to freedom in Australia. It testifies to the extent that elite opinion is fixated on legal controls of institutions and people whose ideas it dislikes. It is vital that the media challenge this report and then resist its implementation if it becomes law.