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Leveson lays the spectre of control

Date

Jack Waterford

A government can ask for accountability to the public from the media, just as it does from many other civic bodies

<i>Illustration: Pat Campbell</i>

Illustration: Pat Campbell

One would expect that Communications Minister Stephen Conroy is closely watching the debate following Britain's Leveson inquiry, because it contains within it clues for how he might achieve what he says he wants - greater accountability for the media, without the spectre of government licensing or controls.

The British report on the media has the added weight, compared with a not dissimilar Finkelstein inquiry in Australia, of being seen to tackle clear abuses by sections of the British media, particularly in Rupert Murdoch's British tabloids. These have been found to have invaded privacy by illegally accessing voicemails, to have engaged in multiple illegal or unethical deceptions in order to obtain news, to have bribed and corrupted the British police force, and to have used its political power to cow and intimidate politicians, sometimes in what have appeared to be efforts to gain licences and monopolies, or exemptions from competition laws, at the discretion of ministers.

This is abuse of power on a grand scale, and opinion polls have indicated that the public is not buying any excuses, and that it expects action.

By contrast, there are many politicians, particularly on Conroy's side of the fence, who are very critical of the Australian media - particularly with the open campaigning by News Ltd papers for regime change. But the public at large is by no means as exercised, nor are clear illegalities, as opposed to bias, evident. Most Australians, I believe, remain to be persuaded that action is necessary.

By contrast, the polls show serious anger and dismay at British abuses, something recognised by Rupert Murdoch when, in an unsuccessful attempt to limit the damage, he closed down the News of the World.

Anticipating that Lord Leveson would call for government action, various media companies, led by the News organs, began preemptive lobbying over the past months against any form of government controls, arguing that these would inevitably diminish freedom of the press and freedom of speech, and cause more damage than the evils such changes would be designed to counter. This pleading has deliberately confused the concept of state controls over the media (and accountability of the media to politicians or the bureaucracy) with concepts of public accountability and the operation of the media within the public domain.

If there must be some statutory or semi-statutory body to police the media for misconduct, as well as factual inaccuracy, unfair or misleading behaviour, or breach of privacy, it would clearly be better that the judge and the jury - and the executioner - not be the government itself, or direct agents of government. No one says that they are looking for controls of the sort which have operated in the Soviet Union, or Germany under Hitler.

But there is the world of difference between that and a body composed of a representative sample of the great and good among the public, charged with supervising whether media conduct has been in the public interest or whether it has offended generally accepted standards of taste, privacy or fairness. Media organisations that would resist to the death accountability to government must have an entirely different argument if the proposal is accountability to the public and to the public interest.

The ABC, for example, is a government corporation, directly funded by government. No one suggests that it is an instrument of government, or that, because its board is appointed by government, its employees must be regarded as subject to government direction about what they say and do. To the contrary, the board of the corporation is seen as a bulwark of the independence of the ABC from government direction.

While newspaper organisations have denounced as probably unconstitutional any attempt to subject newspapers to statutory press councils, and insisted that they sit on a slippery slope leading to government control, many of the very same organisations (including News, Fairfax Media and Consolidated Press) seem to have survived the supervision by such bodies of their radio and television interests. This is because although bodies such as the Australian Communications and Media Authority have made some silly decisions that have not enhanced their reputations, no one has persuasively argued that they are mere tools of an interventionist government.

Likewise, no one suggests that members of the Administrative Appeals Tribunal - strictly speaking public servants - are subject to government control or direction; or that members of the Medical Board of Australia are. Such people or such bodies are given explicit charters about acting in the public interest rather than at the behest of government.

In some cases, government is capable of compromising the appearance of independence - perhaps by appointing friends and cronies of the minister to positions, but where that occurs it is usually obvious and politically embarrassing for government. If needs be there can be - and sometimes are - mechanisms for keeping even the selection of board members at arm's length from government.

Another example of a practical distinction between regulation by politicians and regulation by reference to the public interest is with the general rule of law. Australian judges are continually called upon to make value judgments about concepts of public interest, or other vague phrases such as ''in the best interests of the child'' or ''a fit and proper person'' without being accused of being ruled by governments.

As it happened, Lord Leveson did not recommend for Britain a statutory press council, as did, more or less, the Finkelstein report for Australia. He was rather too cunning for that, perhaps even with some knowledge of the way that Finkelstein's recommendations had been monstered here. Rather he recommended a beefed-up, but essentially voluntary press council, if one with wider jurisdiction, and with the power to make orders for damages, including exemplary damages - perhaps in the millions, depending on the revenue of the publication.

Such a council would be independent of government in terms of appointments, with a majority of lay members not associated with media organisations, and would have to be independent in its funding base, operating a speedy complaint handling service and an arbitration service, and operating to the standards expected of those it was regulating. It should, probably, have some power to investigate compliance of its own motion, rather than being simply responsive to complaints. But in a bow to those who had said that the media had often demanded one more chance at self-regulation, he recommended that the voluntary scheme be underpinned by legislation, so that the operation of the council could be recognised in legal processes.

It is this second recommendation that has been rejected by Prime Minister David Cameron, spooked at suggestions that it may be the first step on a slippery slope to totalitarian controls over journalists. He's a soft touch - perhaps living proof of the fact that politicians can be - and often are - cowed by media interests.

What if, instead, Lord Leveson had recommended his voluntary press council, but also recommended some draconian new privacy laws that rendered, prima facie, trespass, intrusion, telephone tapping, and the obtaining of information by fraud or deception illegal?

Whenever such legislation is proposed or enacted, media organisations usually ask for a public-interest exemption. What if that public-interest exemption said that such practices would be regarded as being within the public interest only if they were reasonable in the circumstances, and within professional guidelines of a sort issued by the voluntary press council? Would that amount to improper or dangerous government control over the press, or a threat to free speech?

In fact, both British and Australian common law on issues such as defamation have already, pretty much, come to such formulations. The ''freedom of political communications'' defence to a libel case in Australia already speaks of the reasonability of journalistic conduct and, in determining reasonability, courts have looked to ''ethical journalist'' concepts such as reporting both sides of an argument, rights of reply and so on. Likewise in Britain where ''freedom of speech'' has been discovered both in the European Convention on Human Rights and by the common law in the Reynolds decision.

If Britain, or Australia, went in this direction, the ''stick'' part of the legislation need have very little to do with establishing a press council. It should, instead, proscribe conduct of a sort with which no truly professional journalist could or should agree.

It might even be able to find a formulation which took out of excessive scrutiny public figures who are ''public'' only in the sense of being starlets, socialites, sports stars and their partners and children. The best way of achieving this would be an explicit requirement that the reporting be in the public interest. That plainly covers the deeds and misdeeds, acts and omissions of politicians, judges, officials, commentators and people exercising great power. It is not so clear that it covers every aspect of the life of Lara Bingle.

Jack Waterford is Editor-at-Large.

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