Sometime in the late 1940s two High Court judges left the Sydney Town Hall after one of the ABC’s splendid “live” symphony concerts.
Justice George Rich thought the performance wonderful and turned around to Justice Owen Dixon and said, “Splendid concert, don’t you think?”
To which Dixon replied, citing the words of Section 51 of the Constitution, “Yes, indeed, but I cannot see the connection with ‘postal, telegraphic, telephonic, and other like services’.”
This has been the head of constitutional power that has enabled the Federal Parliament to regulate broadcasting.
It has meant that newspaper ownership has been largely unregulated by federal media law, except when it has been related to broadcast ownership, because broadcast is a “like service”.
It has meant, for example, that when Fairfax bought the Border Mail in Albury-Wodonga it did not fall foul of media ownership rules.
Nor will the Fairfax-Rural Press merger announced this week be affected by cross-media ownership laws because neither of the companies has broadcast licences.
How long the Federal Government stays out of direct print-ownership regulation, however, might well be affected by what happens after the merger.
Incidentally, the merger is unlikely to fall foul of the law on mergers of all kinds – the Trade Practices Act — because Fairfax and Rural Press have operated in different markets so competition will not been lessened in those markets as a result of the merger. Nor can the merged company be branded an overall Australian monopoly in, say, advertising or news provision, when the highly competitive Murdoch newspapers are breathing down its neck.
With media, however, competition, is not the only issue. Diversity also counts. This is why media is different from other industries.
If dozens of factories are pouring out margarine, it does not matter that the margarine is much the same, provided there are several competing factory owners.
But if dozens of media outlets are all producing the same sort of material, it does matter – irrespective of whether there is one owner, two owners or many. Diversity is critical for democracy.
Competition, to a certain extent, guarantees some diversity, but monopoly does not necessarily put an end to it. You can have diversity of opinion and news judgments within a monopoly media outlet.
You can also have diversity among the several different outlets of the same organisation. It is here that you see the major difference in attitudes between Fairfax and Rupert Murdoch’s News Ltd papers.
Fairfax has always allowed its editors freer rein in editorial opinion and news and opinion sourcing and Fairfax papers regularly publish a wider range of views than News Ltd papers. Also, Fairfax does much less syndication than News Ltd.
The debate over media ownership laws, particularly among politicians, has concentrated on diversity of opinion within cities and towns and between print, television and radio. The new laws reflect that because they prevent one owner taking all three mediums in one city and insist on a minimum number of owners in each city.
What seems to have escaped their attention is the importance of diversity within print across Australia as a whole, especially as print often drives what is run in broadcast.
After the Fairfax-Rural Press merger, just two print companies will publish virtually every daily in the nation and the vast majority of weeklies and suburbans.
Ordinarily that would be a matter of major concern. But the concern is allayed in this instance because one of the companies is Fairfax which has a long history not only tolerating, but actively encouraging, editorial independence.
It does not mean editors can go wild. They have to work within budgets and deliver reader satisfaction, which precludes forays too far from the mainstream. But is does mean that the owner’s opinion and the promotion of other business interests are not foisted (directly or indirectly) on the readership across all titles.
It is unlikely in the immediate future, but if the new Fairfax Media started to tighten editorial reins, you might find a federal government seeking to break up the empire.
For a long time, Labor, wanted to do something about the Herald Weekly Times Group because it thought, with some justification, that it was anti-Labor. The bias was such that every title even supported the hapless Billy McMahon in the 1972 election.
Small wonder that the then Labor Government did nothing when the group was swallowed by Murdoch in the mid-1980s.
But Labor probably thought it could do nothing about newspaper ownership anyway because newspapers are beyond the reach of “other like services”. At least until now.
The corporations power, which was given another shot in the arm with the High Court’s industrial-relations ruling last month, might now well support a law demanding greater diversity of opinion and ownership within the newspaper industry. And the power might well be exercised in the hands of a Labor Government.
Further, internet communication is almost certainly a “like service” within the meaning of the Constitution. And the Fairfax-Rural Press merger is as much a merger of internet companies and newspaper companies.
In short, there is ample power for a Federal Government to insist on diversity and, indeed, editorial independence and standards of journalism if it thought media proprietors were becoming too monopolistic. There is a long history of actual and desired regulation of the media by federal political parties.
In the meantime, all newspapers have to face growing competition from the internet – for advertising dollars and editorial matter.
The Fairfax-Rural Press merger can be seen in that light. As can, oddly enough, Murdoch’s call for an ultra-high-speed internet network across Australia. He might well like to create the equivalent of a fourth television network or even a multi-media service through it — TV-quality internet with a remote control rather than a keyboard.
In that event, you would be bound to see federal politicians thinking about further regulation of those “like services”.