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Finkelstein inquiry too flawed to lead to real reform

A new regulatory body is not what the Australian media or public need. Instagram/sookhean

The recent Finkelstein inquiry into media regulation in Australia has suggested a new body to govern journalistic standards and handle complaints from the public, the News Media Council. But at a time when we should be looking to strengthen our freedom of speech protections, instead we are creating a body which has the potential to do just the opposite.

The flaws in the Finkelstein report are glaring, and the justifications for this new body are flimsy at best. Our focus should be on better entrenching rights to free speech before imposing an unwieldy regulatory body of this kind.

Alarm bells

In 2007, an independent audit led by Irene Moss into the state of Australia’s free speech was prompted by several Australian media organisations, calling themselves Australia’s Right To Know coalition. In the letter presenting her report she wrote that her findings “should ring alarm bells for those who value free speech in a democracy”.

Moss said mechanisms so vital to a well-functioning democracy were beginning to wear thin with “about 500 pieces of legislation [containing] secrecy provisions or restrict[ing] the media’s freedom to publish certain information.”

The alarm bells were rung. The media industry sought reform and attained some success with FOI legislation and shield protection for journalists’ confidential sources.

But the recent release of the Finkelstein Report sees the media aghast at its proposed controls. Somewhere between the two events the reform thrust appears to have changed from the media’s quest for enhanced accountability from the government, to a push from the opposite direction for enhanced accountability from the media.

A delicate plant

The Finkelstein inquiry was stricken from the start. Its tenuous justification was drawn from geographically distant events and vastly different issues – the News of the World scandal in the UK. It was also stymied by limited terms of reference.

The Finkelstein report, however, still provides good fodder for the free speech-media regulation discourse. It also proposes a one-stop shop called the News Media Council. This idea was first floated in 2000 by a Senate Committee but has already met with opposition from the media.

The report proposes “clearly defined functions” for the NMC, excluding “the promotion of free speech” from those functions. Curiously it also advocates a mechanism “not involving risks to free speech”.

Free speech in Australia is a “delicate plant” – to borrow Michael Chesterman’s words. In the Finkelstein report, however, this is a residual ideal best left to the community to patrol.

Distrust in media

A closer look at section in the report entitled “is there a problem?” is very revealing. In it the report’s authors, with disarming candour, lament that it could not address the very “first problem” – market failure. The terms of reference were narrower than “had been called for” as they did not permit an inquiry into press ownership laws.

The other problem was “the general distrust of the media”.

This “problem” is casually defined. Consumers are deemed unable to assess the “quality of what is published”. Their trust in the press’ political views is “low; many believe the news is not reported accurately, fairness and diversity of opinion is lacking, and there is a general belief that newspapers have too much power.”

This theory of a naïve consumer is a flimsy plank the report founds a sweeping statement of fact: “This adversely affects society as a whole.”

Big problems, shallow analysis

Closer scrutiny reveals five more problems in that section – all got shallow treatment. One of those problems, concerned how the media can cause wrongful harm by inaccurate reporting, breach of privacy and failure to appreciate the defenceless in the community. It listed six “striking instances” of such harm under section 11.11.

Most of the “striking instances” listed, however, did not previously attract formal adverse findings against the media. No surprise there. Privacy breach claims are notoriously difficult. In the news context they must surmount big hurdles involving questions of definition, proof, legitimate public concern and clarity in legally or ethically enforceable standards.

The next problem in that section was self-regulation’s failure in dealing with “irresponsible reporting”. Enter – a new, amorphous, class of fault without a skerrick of explanation. The report then concedes that the failings of Press Council-like bodies afflict “many democracies”.

The report contains other gems. It raises the prospect of jail arising from a court order obtained for failure to comply with a NMC ruling.

This, says the report, would deter the breaching of standards. Those standards, however, await definition. The report claims this approach would encourage settlements through mediation.

Further, the complaints timetable could see a turnaround in four days to relative eternity, the latter because of the chair’s power to extend the timeline.

These proposals assure outcomes that are likely to range from half-baked findings conjured under duress or long-drawn affairs that repeat the present delays. Enough said elsewhere about that oxymoronic idea of “enforced self-regulation”.

Reform bust

The report’s main redeeming feature thus far is the chill it sent down the media’s collective spine and its potential to foster introspection and healthy debate.

Whichever the case, the media can safely take its finger off the panic button. The report is too flawed, and needs too much fixing to trigger real reform in the near future.

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