WE CAN regulate unsatisfactory professional conduct of chiropodists, dentists, chiropractors, doctors and lawyers. “So why should journalists be exempt from that?” Stuart Littlemore asked the federal inquiry into media independence.
Good question. Complicated answer.
Littlemore, barrister, former journalist and front for the ABC’s Media Watch, answered his own question by saying: “There is no rationale except the power that newspapers have always enjoyed.”
Yes, but we must ask why have the newspapers always had that power? And do they still have it?
Until very recently, newspapers have been treated very differently from broadcasters in Australia.
The reason lies in the Constitution. It provides that the Commonwealth may make laws with respect to “postal, telegraphic, telephonic, and other like services”. TV and radio have been held by the High Court to be “other like services”.
It has meant that the Commonwealth has been able to regulate radio and TV heavily.
Not so newspapers. Ostensibly, the Commonwealth had no power over them. Moreover, the states’ power was also limited mainly because state governments were reluctant to get newspapers offside and because nearly all of them had at least some interstate circulation and the Constitution says that trade and commerce between the states must be “absolutely free”.
But things changed in 2006 with the High Court’s decision in the Work Choices case. Essentially that case said that the Commonwealth could use its power to make laws with respect to corporations to regulate the finest detail of corporate activity and relationships with their employees (including journalists!).
Hitherto, it was thought the corporations power did not go that far and all industrial-relations regulation had to rely on the more limited and problematic power over interstate industrial disputes which depended on federal unions and employer groups – an anathema to the enterprise-focused Howard Government.
So all the wringing-wet lefties who detested the Work Choices legislation might well now relish its newfound constitutional underpinnings to support some regulation of the viscerally rightwing Murdoch newspaper empire.
It’s a wide power. Watch out newspapers. The law could take the form: A corporation shall not publish a newspaper unless it conforms with all sorts of conditions.
In effect, the newfound corporations power brings the Commonwealth much the same power over newspapers as it has always had over broadcast media (and internet) through the “post and telegraph” power.
It would support quite heavy regulation, subject to, however, one significant caveat. The High Court has held that the Constitution provides for a system of democratic representative government. Implied in that is a requirement for free political communication. So any new regulation of newspapers could not be so heavy as to unreasonably restrict political communication.
Herein lies part of the answer to Littlemore’s question. It might be fine to prevent an incompetent lawyer or doctor from continuing to practice, but another matter for a journalist. If you prevent a journalist from practicing, you are curbing freedom of speech, or so the argument runs.
However, as with doctors and lawyers, journalists, too, get set loose on the public and can do a lot of damage.
The trick is to isolate the elements of journalism which go beyond the ordinary exercise of freedom of speech and to concentrate any regulatory regime on that.
There are two elements: first, the stamp of authority that comes from appearance under the masthead or logo of a print, broadcast or online news organisation, and second, the wide dissemination of a journalist’s work.
These, of course, are the things that can make a poor journalist’s work so damaging.
Joe Blow on a soap box, or even in a blog on the net, is exercising freedom of speech and almost invariably harmless. Jill Scribe, on the other hand, writing for The Canberra Bugle or broadcasting for the ABC may be exercising freedom of speech, but she is also practicing journalism.
Hitherto, only broadcast authorities have visited punishment and restraint (however weak) on individual journalists (for example the Jones and Laws cases).
A united media authority (embracing print using the corporations power) could visit penalties – fines, suspensions, retractions — on individual print journalists as well.
Some proprietors might secretly welcome it. An editor of The Times reputedly once likened himself to a circusmaster – he could hire the acts but could not control their performance. Maybe a newly empowered external authority might help make journalists take their professional responsibilities more seriously.
It might require some sort admission to practice or signing up to professional standards – something many journalists have been opposed to. Some argue that they want nothing more than to be treated the same as any member of the public.
However, journalists are not treated like the public – they go behind police lines; they get the best seats in crowded courts; they get access to officials and so on. The quid pro quo might be some public regulation. And it may be that that would not offend the implied constitutional freedom of political communication.
But even with powers over print and individual journalists, a media body would be hard put to overcome the indirect media distortion which comes through undue prominence given to some stories. Crime might be falling, but people think it is rising because of the prominence given (albeit with complete accuracy) to individual gruesome crimes.
A given government program might be a great success, but people think it is a wasteful flop because of the prominence given (albeit with complete accuracy) to a few isolated glitches.
This, of course, was a major complaint at the Melbourne hearings of the inquiry – market dominance and political bias by the Murdoch media.
In all, it may make sense to have a single regulatory body for all media that can develop ethical and professional principles. Print media could easily fit within the semi-self-regulatory regime that broadcast media are now under.
However, one should not expect too much. The regulatory regimes of other professions have their limitations. They do not stop lawyers charging for their mistakes or doctors from quietly burying theirs. Journalists, of course, of necessity, publish their misdeeds (or the fruits of them) to the whole world. And that, in the end, might be the most effective regulation. After all, in Britain, the Murdoch press ultimately got caught.
CRISPIN HULL
This article first appeared in The Canberra Times on 26 November 2011.