Freedomwatch

The Australian Financial Review says the Finkelstein and Convergence review proposals could go to cabinet as early as today. We’ve been here before. Communications Minister Stephen Conroy apparently tried to bring a package to cabinet last November but nothing came of it.

This time the reported proposals are different again, a random smattering of reforms to Australian content rules, privacy law, ownership restrictions, and a journalists’ code of ethics. A few short comments on each, with the obvious caveat that what has been reported in the AFR may not be what cabinet agrees to:

• Privacy: In his short time as Attorney-General Mark Dreyfus has already expressed some grave doubts about a tort of privacy. In his “present, personal view” it is “very difficult to legislate to enable privacy litigation without adversely affecting freedom of speech.” Robin Speed of the excellent Rule of Law Institute has made a critical point: a privacy tort is “not so much as about freedom of the press but … a matter concerning ordinary Australians who could be sued or prohibited from saying things to his neighbour”. The Gillard government might want to attack what it sees as a hostile press, but law applies to everybody. The privacy tort could be a very big deal.

• Media ownership: Further restricting media ownership has never been less necessary than today. Whatever Citizen Kane-esque idea of the dominant media mogul dictating copy and determining the agenda we may have had in the past is obviously archaic in a world of Twitter and blogs and Facebook and the Guardian Australia. Back in 2006, when the Howard government was pursuing media ownership reform, I repeatedly argued that the explosion of competition across all forms of media make media ownership laws redundant. That was seven years ago of course, and before those trends played out into our great newspaper crisis.

• Content standards: The same logic applies to increased Australian content standards. Furthermore, given the prominence that harmonising Australian content standards played in the Convergence review (I explain here) simply beefing up those standards on free to air networks would be yet another admission that the government is politically unable to regulate the media with any consistency.

• A code of ethics: Then the kicker: a “code of ethics” for individual journalists. The AFR suggests that a journalist who signed up to a code of ethics through the existing Australian Press Council would be individually exempt from some provisions of the Privacy Act (perhaps given a defence under a new privacy tort?). Certainly this is a welcome step down from Finkelstein’s regulate-every-tiny-blog or Bob Brown’s bring-back-newspaper-licensing. But trading government oversight for privileges is a form of licensing in the strictest sense. A lot rides on what that oversight would constitute (what are the penalties for breaching the “code of ethics”?) and what the rest of us would be exposed to if we chose not to sign up to the government’s scheme.

There’s a lot in there, and that’s just what has been reported. We’ll be closely monitoring any developments.

Late yesterday afternoon, the Senate Legal and Constitutional Affairs Legislation Committee released its final report following its inquiry into the exposure draft Human Rights and Anti-Discrimination Bill 2012.

The majority report recommends the removal of clause 19(2)(b), which defines discrimination to include conduct that “offends” and “insults”. We’ve written extensively about the dangerous impact this provision would have on freedom of speech.

This is a welcome recommendation but it only addresses one of many problems of the draft bill, including the reversal of the burden of proof, a costs structure that benefits complainants and the inclusion of vague terms, such as ‘social origin’. Continue Reading →