Opening statement to Select Committee on the Future of Public Interest Journalism

A free press underpinned by laws and norms that respect freedom of speech is one of the foundations of liberal democracy. The fact that freedom of speech in the press has an important role in our democracy does not mean that parliament should take it upon itself to support journalism, whether it is publicly interested journalism or not. The question of how to fund journalism is a question for entrepreneurs, not the parliament. The reason I argue this is that government is not an uninterested participant in the public debate. Governments have an interest in favouring journalists and media outlets which are sympathetic to their world views and attacking those they do not. We saw how perversely this dynamic could play out during the media reform debate in 2011 and 2013, and of course we see it in our regular debates about the ABC. Further government involvement in the press would mean that governments have more leverage over the press.

With this in mind, I would like to briefly address two issues that have been raised in debate over public interest journalism so far. Right now, the government directly provisions journalism through the ABC and it has been suggested that this provision be increased, but, as Professor Sinclair Davidson at RMIT and I will argue in a forthcoming book, the ABC is not an independent media organisation.

CHAIR: What’s the name of the book?

Dr Berg: It’s at the moment called ‘Against public broadcasting’, but we haven’t actually finalised the title.

Senator XENOPHON: Senator Dastyari is good at book titles.

Dr Berg: We’ll open that up for recommendations, of course, as we would. The ABC is the only media outlet dependent entirely on the government for its operating expenses, it’s the only media outlet regularly dragged in front of parliamentary committees to answer for minor programming decisions and the ABC is regularly accused of bias by the Left and the Right. This bureaucratic one billion-dollar government owned television and radio network is not the ideal vehicle for the sort of journalism that would suit our digital age.

The second issue that I’d like to raise is the proposal to give public interest journalism outlets deductible gift recipient status. This has much to recommend it, in my view. DGR status would be available to media outlets professing any political slant. DGR status would encourage media firms to self-fund, to be accountable to their supporters and readers, and it would not constitute a direct call on public revenue. One concern with this model, however, is that it would require an authority to decide which media outlets are legitimate public interest journalism outlets and which are illegitimate ones. Poorly designed, this could easily transform into a de facto licensing body through which the government may be able to exert some influence over the press. If the committee recommends this sort of reform, it should think very clearly about how that would be done. There are concrete things the parliament could do to help journalism in the digital age. For instance, the government should review limits on the freedom of speech. You probably don’t want me to talk any further about 18C of the Racial Discrimination Act, but I would draw the committee’s attention to the heavy burden of defamation laws and our lack of fair-use exception for copyrights. I welcome the Senate review announced into the law of contempt.

More generally, media outlets will benefit from regulatory reform that reduces the burden of red tape on the Australian economy. The policies which help firms thrive in the general economy would be the same policies that help media firms and, ultimately, help public interest journalism thrive.

Submission to the Senate Select Committee on the Future of Public Interest Journalism

Introduction: It is widely agreed that a free and independent press is an essential part of a democratic order. This submission addresses itself to the implications of the words free and independent. Government intervention in the market for journalism risks undermining the reason we value publicly interested journalism in the first place – its role in providing a check on government and as a third-party watchdog on possible abuses of political, regulatory and fiscal power. When it comes to the profession of journalism and the industrial structure of the media, government is not a disinterested player. Even granting this parliament’s best intentions, government intervention in the media opens up the risk of government interference with the media from future parliaments.

Available in PDF here.

Opening statement to Commonwealth Environment and Communications Legislation Committee inquiry into the Broadcasting Legislation Amendment (Media Reform) Bill 2016

The 75 per cent audience reach rule and the two-out-of-three rule are historical anachronisms that should be abolished. They are nonsensical in an age of media plenty rather than scarcity. However, this discussion ought to spur more radical and forward-looking reform. For the last decade we have discussed in more or less theoretical terms the coming technological revolution in media production and consumption. With streaming services like Netflix, Stan and Presto, news sites like Guardian Australian, the Huffington Post Australia and so forth, as well as the shift in media consumption across to social media, which is arguably more important, these predictions have come to fruition; yet ownership restrictions, with their focus on legacy media organisations, assume a world of scarcity where consumers are forced to rely on content produced by just a few outlets. It is important to note, of course, that historically much of the scarcity in the Australian media landscape has been deliberately engineered to protect large media firms from competition, so claims that we have had to protect Australians from monopolists in the broadcast media with ownership controls have always been somewhat disingenuous.

I would like to make a few points, however, about media diversity in this light. The relationship between ownership diversity and content diversity is non-linear. Parliament might act on one without necessarily changing anything about the other. Given the plentiful media choice we enjoy today, there is a more fundamental conceptual issue, however, that the Senate ought to grapple with when it considers questions of ownership and diversity—that is, the distinction between diversity of availability and diversity of choice. There ought to be no disagreement that a plurality of voices is available to Australian media consumers. There is a near-infinite range of news and views distributed via the internet—and, again, the effect of social media should be front of mind here—but it is often claimed that, despite this choice, many Australians still only listen to a few radio stations, read a few newspapers and watch a small slice of mainstream television, uninterested in the amazing media things going on around them. If this is the real problem consuming parliament’s attention then senators should realise that they are adopting an approach which is fundamentally paternalistic, asserting that despite the best efforts of entrepreneurs and independent producers Australians are still watching the wrong things and policy is needed to change that.

I would like to make two final observations: first, it is not the responsibility of the Australian government, nor Australian taxpayers, to find new business models to support legacy media; second, any consideration of regulatory changes should be assessed in the context of the media landscape as a whole, including some consideration of the policy purposes of the more than $1 billion we spend on the ABC. These reforms before parliament are, in our view, very welcome, but the hard work of reforming Australian media regulation to adjust to this new world, which would include things like structural changes to spectrum allocation, the elimination of red tape like antisiphoning laws and content standards, unfortunately has not begun.

Turnbull’s Weak Media Reform Plans Aren’t Fit For The Modern Age

One of the pleasant things about being prime minister, I suppose, would be pursuing your own little hobby horses. Especially when those hobby horses had been cruelly stymied by your predecessor.

And so the Turnbull Government looks to be pushing ahead with the reforms to media ownership and control that had been quashed – or at least shelved – by Tony Abbott when Malcolm Turnbull was communications minister.

Now the communications minister is Mitch Fifield and the Government is talking about a media reform package being announced this month. Perhaps even this week.

Yet it is striking how limited the reforms being publicly discussed actually are.

The Government has floated eliminating the reach rule (which prevents firms from owning commercial television licenses that cover more than 75 per cent of the population), eliminating the two-out-of-three rule (which prevents a firm from owning more than two of a commercial television licence, a radio licence and a newspaper in the same area) and abolishing television broadcast licence fees.

Each of these reforms could have been done by any government in the last 20 or 30 years.

In his recently published diaries, Peter Reith records a Howard cabinet debate about eliminating cross-media ownership rules all the way back in April 1997. (An unhappy Reith, who wanted more comprehensive liberalisation, complains “we are busily contemplating a highly interventionist approach”.)

The media landscape is completely different in 2015. Here’s what the ABC’s page looked like then. Just 13 per cent of Australian households had home internet access in 1998.

Anyway, we all know how much technology has changed over the last decade. But even in a much shorter time-span the media environment has changed dramatically.

The last time I wrote about the prospects for media ownership reform was in March 2014, when Turnbull first floated the idea of regulatory reform. Since then our viewing choices have expanded to the streaming services Stan, Netflix and Presto. We’ve seen the launch of Buzzfeed Australia, Daily Mail Online Australia, and Huffington Post Australia.

Even the way we conceptualise media has shifted. A larger and larger number of media consumers use Facebook as their primary news source. Wikipedia’s page on “binge watching” was only created in September 2013.

All those technological and social changes materially affect the old arguments for media regulation. Populist fearmongering about press barons and broadcast moguls might have been effective in the 20th century, but only fantasists claim the media is monopolised today.

Nothing prevents media consumers voting with their feet. Nothing prevents consumers migrating rapidly onto new services and shifting their allegiance to more interesting news organisations. Consumers do not lack for choice.

These transformative changes make the Turnbull Government’s proposed reforms look embarrassingly modest. Even the Greens support the elimination of the reach rule. The two-out-of-three rule is absurdly anachronistic. There’s something comic about a regulation in 2015 that conceives of the media as divided between print, radio and television.

As to the elimination of television licence fees, this is more fraught. The Government apparently believes broadcast licences are effectively worth zero, and that charging for the use of a valueless asset is unfair.

It’s certainly true that electromagnetic spectrum rights are worth less than they were. But they’re not worth nothing. It’s a big leap from “traditional broadcasting is no longer special” to “traditional broadcasting is worthless”.

Anyway, if the Government really believes that, then where’s the proposal for a fourth free-to-air commercial television network? Or a fifth? The incumbent broadcasters, no longer benefiting from the valuably scarce spectrum, would have no cause to complain.

One “high level spokesman” was quoted in The Australian yesterday saying that “if the Government believes one law needs to go, then they all need to go”. Indeed. The technological changes that make some media reform possible also allow for more dramatic media reform.

For instance, anti-siphoning laws, which regulate the broadcast of sporting events, should be eliminated. The spectrum should be privatised, not licensed at no charge. Local content requirements – those archaic remnants of cultural protectionism – should be removed.

Each of these existing regulatory constructs assume a media world where content is scarce, where production and distribution is expensive, and where consumers are locked into free-to-air broadcasting.

Not a world where we browse Twitter on our iPads while Netflix plays on that screen in our lounge room that we still call a television but is really a computer monitor.

Parliament always lags behind technological and social change. But the Turnbull Government wants to be all about innovation. Boldness, not timidity, in media reform would be a good place to start.

The Abbott Government’s Chance For Real Reform

The word “deregulation” has been steadily degraded over the last two decades. Like the word reform, it is both overused and overly abstract.

Earlier this month Malcolm Turnbull’s Department of Communications released a discussion paper on the way the government manages the radiofrequency spectrum.

The paper has received little attention. That’s not a surprise. Spectrum governance is about as interesting and accessible as how the tax office calculates franking credits.

But what’s being proposed is rather radical and incredibly important – a move away from the Soviet-style command-and-control regulation of spectrum to market-orientated governance.

It is, in other words, the sort of deregulation that the government is going to have to pursue if it wants to be remembered as a reforming government.

Spectrum is one of the economy’s most valuable assets.

We need spectrum for everything from broadcast television to mobile internet access.

The services and technologies that rely on spectrum add billions to the Australian economy. One British estimate of the economic value add of spectrum in that country was AU$90 billion.

Yet for all its economic significance we regulate and control it in an incredibly retrograde way – through central planning and government allocation.

Think of spectrum a little bit like land. There’s a limited amount of it, but it can be divided up almost infinitely and used in different ways.

And of course, some ways are better value than others. We’re using spectrum more efficiently than we used to (the spectrum that once could only fit one broadcast television channel can now fit many) but we’re also demanding more of it as new technologies are adopted.

The Australian Communications and Media Authority (ACMA) dictates how spectrum is allocated – which parts are used by broadcasters, which are free for domestic uses like WiFi, which parts are for military or law enforcement use.

Nobody seriously suggests that ACMA allocates spectrum efficiently – that is, to its best use. And basic economics tells us that inefficient resource allocation is an unnecessary burden on the economy, on long term growth, and ultimately on our living standards. And it slows the spread of new technologies.

Indeed, it is the government’s tight control of spectrum which has kept the entire broadcast sector so farcically protectionist. This archaic system of spectrum allocation is why there is so much rent-seeking and crony capitalism in broadcasting.

The commercial television broadcasters have long lobbied against a fourth television network which would undercut their profitability. When broadcasting moved from analogue to digital, the government gave away masses of spectrum to the existing broadcasters – shirking this once-in-a-century opportunity to inject some competition into the sector.

If you’re unhappy with the quality of commercial television in this country, well, blame the government’s spectrum protectionism.
Likewise, centralised spectrum management gives the government a stick to control the free speech of broadcast media. All those hapless ACMA investigations into Alan Jones are based on a threat – however distant – that station broadcasting licenses might be revoked.

Turnbull’s discussion paper raises a number of proposals to simplify spectrum management.

But the most important is number 8, under the rather bland title “Facilitate greater user involvement in spectrum management”.

Under this proposal, ACMA would devolve spectrum management to users and private spectrum band managers.

Users and private firms would decide how spectrum was allocated, the rules under which it was used, figure out pricing mechanisms, and they’d adjudicate disputes. ACMA would be reduced to a spectrum watchdog.

Imagine band managers with a financial incentive to allocate spectrum to the highest value. This would be a big step towards treating spectrum like an economic asset like any other.

Eventually the vast bulk of ACMA’s regulatory apparatus should be replaced by a property rights based spectrum regime. In other words, the market would decide how spectrum is allocated.

The idea that the market could allocate spectrum better than government planners is an old one in the history of economic thought.

The economist Ronald Coase won his 1991 Nobel Prize for a program of work that begun with an examination of how the Federal Communications Commission in the United States prevented the efficient allocation of spectrum.

A paper commissioned and published by ACMA itself in 2007 acknowledged some benefits of granting property rights in spectrum – not least in reducing the inefficiencies caused by command-and-control allocation.

And we’ve been inching towards a property rights based spectrum regime over the last few decades.

The government has been allocating some spectrum licences through competitive auctions since the early 1990s. The Gillard government’s Convergence Review called for “a market-based pricing approach” for all spectrum, broadcast and non-broadcast. And the Communications Department is trying to figure out how to create deeper secondary markets in spectrum trading.

In other words, fully embracing the property rights model of spectrum management would be reform in the direction we are already travelling.

The Abbott government has trumpeted loudly its deregulation and red tape reduction agenda. But it’s likely that the real reforms will come outside those highly publicised “repeal days”.

Government spectrum management dates back to the Wireless Telegraphy Act 1905, when the Commonwealth decided it wanted absolute control over the new communications technology.

That makes spectrum control one of the oldest and most stubborn regulatory constructs in Australian history.

For more than a century it has been a burden on the economy, a handbrake on the adoption of new technologies, and a weapon for suppressing free speech.

Deregulating spectrum might be one of the most important things the Abbott government could do.

Time To Ditch Antiquated Media Regulations

It is incredible to think the Australian government imposes largely the same regulations on media ownership that it did in the 1930s.

Waves of change in Australia’s economic system have come and gone in that time. Not to mention technologies.

Indeed, television was in its experimental infancy when the first broadcasting ownership limits were imposed.

Statutory Rule 104 of 1935 allowed no more than one metropolitan broadcasting licence per state, two metropolitan licences in the country, three regional stations per state, and so forth.

How different a world was it? When a joint parliamentary committee examined Australia’s broadcasting regulations seven years later, the other big topic was whether to nationalise the commercial broadcasters outright. (The committee was divided on this sensitive issue.)

Communications Minister Malcolm Turnbull is looking at finally eliminating some of the antiquated rules that limit how much traditional media one company can own.

The two major descendants of Statutory Rule 104 are the 75 per cent rule – which prevents a firm or individual from broadcasting to more than three quarters of the Australian population – and the two-out-of-three rule – which limits a firm or individual to owning only two of three out of television, radio, or newspaper in any given market.

There are a couple of others – and of course all mergers in all industries are subject to general competition law – but it is those two rules that are apparently in Turnbull’s sights.

As they should be. It is fundamentally absurd that the same restrictions, based on the very same arguments, are being applied to our media-rich world as were being applied to the media-constrained world of 1935.

The 1942 parliamentary report spoke of “the inherent dangers of allowing the control of commercial broadcasting to become a monopoly or a partial monopoly.”

A 2013 parliamentary report into media law changes made the same argument in different words: media ownership restrictions were all about protecting “diversity” in the media sector.

The shift in language is slight, but it’s also amusingly wrongheaded. Diversity is the one thing we now have in spades. The head of the press council, Julian Disney, even complains of the”cacophony” of voices on the internet.

Just a few years ago supporters of media ownership restrictions would argue that Australia’s narrow media landscape meant that Australians had little choice but to get their news and views from the big corporate media conglomerates.

Of course nobody could seriously make that argument anymore.

So now the argument is that while there might be lots of diversity online, most Australians still consume content produced by the big newspapers and broadcasters. As a consequence, the mainstream media still leads the discussion. The reasoning seems to be something like this: you can lead a horse to water, but you can’t make them drink.

The patronising paternalism of this argument should be obvious – as should be the implicit suggestion that the real media diversity problem is that Australians don’t want media diversity.

But it is not novel to point out that the internet has made all the old arguments for media ownership restrictions into laughable anachronisms. At Crikey, Bernard Keane and Glenn Dyer are right: It’s hard for the Government to claim it’s purely motivated by digital libertarianism in media ownership considering it also has plans for a social media censorship scheme and a “three strikes” policy for file sharing.

Broadcasting is one of the most highly protected sectors of the economy. The business is built almost entirely on rent-seeking. You can bet there’s a stream of media lobbyists filing in and out of parliament house every day. The media firms know exactly what they hope to get out of the next round of regulatory change. The deals have probably already been made.

None of that has changed since media ownership laws were last seriously revisited under the Howard government in 2006. (Labor tried to change the 75 per cent rule as part of its media regulation package early last year but that was fumbled along with the rest it.)

Then, as now, broadcasters were self-interested. The arrival of new online media firms was slightly more hypothetical eight years ago, but it was pretty obvious which way the wind was blowing.

What has changed since 2006 has been the incredible implosion of the legacy media firms. The slow erosion of newspaper profitability has become rapid disintegration. In 2012, Fairfax announced it was shedding an incredible 1900 staff. News Limited has been a bit more circumspect but the job losses are huge there as well.

Industry consolidation may be the only way to save some of our legacy media outlets.

The loss of classified advertising revenue makes the idea of a free-standing, traditionally-structured, independently-profitable newspaper a thing of the past. There has never been a more important time to ensure that the industry is institutionally flexible – capable of experimenting with ownership structures and capable of forming new alliances if necessary.

As Michelle Grattan puts it, there are big prizes about. And this is a sector that has found few prizes in recent years.

The irony is the 1930s rush by newspapers to buy radio broadcasting licences – the rush that inspired media ownership regulation in the first place – was out of fear that advertising revenue would migrate from print to the airwaves.

In the 1930s and ’40s the fear that newspapers would lose their rivers of gold was misplaced.

Now that fear has been completely, irreversibly realised.

Why keep ownership regulations that were so manifestly designed for another age?

Media Reform And A Missed Opportunity

Has Stephen Conroy forgotten why he began this media debate?

It wasn’t because of the phone hacking scandal in the United Kingdom. Nor was it Bob Brown describing News Limited papers as the “hate media”.

And it certainly wasn’t any discernible community unhappiness about the Australian Press Council. (Media Watch might be obsessed with newspaper codes of ethics but please try to remember that Media Watch is not a representative sample of the population.)

No, none of that. In 2010, Conroy launched an inquiry that the communications and media sector had long been desperate for – the Convergence Review.

This review was meant to take a holistic look at the way the technological change was undermining the regulations that govern media, telecommunications, and broadcasting. It was quite an undertaking. We’ve more than a century of built-up regulatory frameworks which limit what media we can enjoy and the circumstances in which we can enjoy it. It is universally agreed these frameworks are out of date and counter-productive. I covered some of the issues in the Drum in 2011.

Indeed, the Convergence Review was everything the Howard government’s 2006 media reform changes should have been. It was forward-thinking and technologically aware – rare qualities for government inquiries. Politicians like to talk about future-proofing but they’re always focused on the politics of the day.

(There was a smaller, now-forgotten review into converging media back in the days of Richard Alston. Nothing came of it. The government was mired in the grubby politics of the switch to digital television broadcasting.)

Sixty-nine separate organisations, from Skype to Blind Citizens Australia, gave submissions on the Convergence Review’s draft terms of reference alone.

The review released five comprehensive discussion papers and one interim report. There were hundreds of submissions along the way. There were public hearings in eight cities. The final report, published in March 2012, was 200 pages long.

I don’t want to be too complimentary. That final report had many problems. It had been given an impossible task. The Convergence Review had to a) radically overhaul the current regulatory framework to meet future challenges, and b) please all beneficiaries of the existing system. These two demands conflict. And then it tried to shoehorn itself into the debate about newspaper standards, exceeding its mandate and undermining its broader purpose.

Nevertheless, from a purely public policy perspective, dealing with the winds of change brought about by technological innovation was the main game. It still is.

We have to be much less generous about the Independent Inquiry into Media and Media Regulation, known as the Finkelstein Review. The end result – a 400-page report that traversed history, sociology, political science, psychology and media studies at a barely-undergraduate level – was in equal parts patronising and authoritarian. It recommended extraordinary government regulation of the free press.

Still, very little of all that effort comes out in the final media reform proposals. Last Tuesday Stephen Conroy supposedly announced his response to the Convergence Review and the Finkelstein review.

The Government wants a new Public Interest Media Advocate to regulate newspaper standards bodies (like the Australian Press Council) and to impose a public interest test on media mergers. He also wants to legislate a permanent cut in broadcasting licences, marginally increase Australian content requirements, and to tinker with the ABC’s charter.

Conroy says we’ve spent the last few years debating media regulation but these proposals are entirely new.

There’s no “Public Interest Media Advocate” in either the Convergence or Finkelstein review.

Admittedly, the idea of a “public interest test” did appear in the Convergence Review. But it was a tiny sliver of a much broader proposal to rationalise media regulation across all platforms. To rip three words out of the Convergence Review is to miss the point entirely. The purpose of the public interest test, as conceived in Convergence Review, is to completely remove “the old platform-specific media ownership rules”. Conroy doesn’t plan to do anything of the sort.

The Government has offered nothing – absolutely nothing – to deal with the issues raised by technological change.

For its part, the Finkelstein report inadvertently showed how far the media policy debate had moved from media reality.

The final Finkelstein report was released in March 2012. It had two jobs. The first was to investigate standards and media codes of practice. This received all the attention. But its second job was to look at technological change and how that affects media business models. Here’s an exact quote from the final report:

major newspaper publishers confidently presented a positive assessment of their future prospects.

Of course, just over three months later Fairfax media announced one of the single biggest restructurings in Australian media history, shedding nearly 2,000 staff. News Limited cut staff as well. Finkelstein was released in March. By June it was an anachronism.

And now we’re here. Conroy’s proposed Public Interest Media Advocate has serious freedom of the press problems. Those have been well-canvassed over the last week.

But of greater long-term importance is how a much-needed investigation into regulation and technological change turned into little more than a platform for politicians to express their feelings about Rupert Murdoch.

And what on earth is the use of that? All this sound and fury could achieve is just an extended exercise in political gamesmanship.

Another wildly missed opportunity. Another government distracted from necessary reform in the pursuit of its political agenda.

Opening statement to Commonwealth Environment and Communications Legislation Committee inquiry into the News Media Reform Package 2013

With Simon Breheny

The news media reform package 2013 is nothing less than an attack on freedom of speech and freedom of the press in Australia. It is absurd to claim that the government could institute a regulator to regulate media self-regulators like the Australian Press Council and pretend that doing so would not constitute substantial new government oversight of the free press. This is a fundamental conceptual error with very disturbing consequences and, in our view, government oversight of the press is unacceptable in a liberal democracy. The government has no business deciding what constitutes fairness or balance in a media whose job it is to hold them to account. That ought to be a bedrock principle accepted by all sides of political debate.

We have a number of specific points we would like to raise about the proposed public interest media advocate. The government-appointed PIMA would be responsible for deciding which news media self-regulation bodies’ members would receive an exemption from the Privacy Act and which would not. This regime means that news outlets will never be able to write about things that are claimed to be personal or sensitive. The news-gathering functions of a news media organisation would be shackled for fear of breaching the Privacy Act. To us, the coupling of Privacy Act exemptions with regulated membership clearly makes this a de facto licensing system, further emphasising the significance of the attack on free expression that the proposal represents.

The minister can directly and unilaterally appoint any person to the public interest media advocate role. Government members of this committee might reflect about whom a future government could appoint and whether instilling such significant powers over the press on a political appointee is democratically desirable. This is doubly so because of the entirely undefined concept of public interest that this entire project seems to be founded on. I am sure that our idea of what is in the public interest is different to the ideas of some members of the committee.

The proposed regime also undermines fundamental legal rights. The bills provide no avenue for appeal of a decision of the PIMA, they reverse the burden of proof in cases of proposed media mergers and they use ambiguous terms that give the PIMA enormous discretionary power.

The most disappointing part of this process is how the government has completely shirked the necessary reform to regulatory frameworks governing media and communications. There is almost nothing in these bills that deals with the serious and important problems in media regulation brought about by technological convergence. Instead, the process seems to have been entirely diverted by a partisan battle between one side of politics and one media company.

We have one final, broader concern. Chris Berg and I appeared before another Senate inquiry into another bill less than two months ago, on 23 January 2013, to defend freedom of speech against another real threat posed by legislation that this government proposed. That bill was the draft Human Rights and Anti-discrimination Bill 2012. Both pieces of legislation seek to shrink civil society by restricting free speech, one under the guise of human rights and the other under the guise of fairness and accuracy in the media. For these reasons, it is our view that the bills should be rejected.

It’s About More Than Just Phone Hacking … Unfortunately

If you want to know what actually happened in the British phone hacking scandal, you won’t find it in the Leveson inquiry report released last Thursday.

The report comprises almost 2,000 pages; it’s spread across four volumes and has 59 separate chapters. It has a lot of stuff about media history and ethics and philosophy; a lot of hand-wringing about press “culture” and personal friendships between Fleet Street and Westminster.

But not a lot about who committed what crime and when.

For instance, the fact that Rebekah Brooks and Andy Coulson (both ex-News of the World editors) are in court this week facing charges of corrupt payments to public officials does not inform the report.

Nor the fact that at least three public officials have been arrested for misconduct in a public office – that is, corruption.

Lord Justice Leveson is recommending statutory regulation of the press before his inquiry has gotten to the bottom of the phone hacking scandal.

Even by the woolly standards of judge-led policy advocacy, this is pretty stark. Especially considering his proposals would be a reversal of the four-century-old victory of free press over state power.

The Leveson inquiry’s terms of reference are split in two. Part 1 looks at the “culture, practices, and ethics of the press”. Part 2 investigates the specific allegations of unlawful conduct and corrupt payments between press and police.

This is the real issue, as I argued in July last year. Criminal acts are a bad thing and should be punished. But criminal acts with the assistance of police are much, much more disconcerting. Thursday’s report is Part 1. Part 2 hasn’t even started yet.

Operation Elveden – the Metropolitan Police Department’s investigation into corruption in the police force – is ongoing. Leveson writes that he doesn’t want to step on its toes. Repeatedly throughout the report, witnesses suggest serious things. For instance, unnamed senior officers are “rumoured to be corrupt”, but the story ends there, “for fear of undermining what could be an ongoing investigation”.

Still, the first report reveals a litany of errors, misjudgements and bureaucratic backside-covering that allowed the scandal to build before it exploded in 2011.

Between 2001 and 2003, the Devon and Cornwall Police discovered a ring of retired and serving police officers selling information from police databases to private investigators. The investigators were then selling that information to various clients, some of whom were journalists.

Such privacy breaches are not unusual. Over the last decade, more than 200 Metropolitan police officers and civilian administrators have been disciplined for wrongfully accessing the Police National Database. The current commissioner described this to the Leveson inquiry as a “chronic problem”.

But when the Devon and Cornwall Police cases went to court, the judges let the accused go with conditional discharges. They didn’t even get fined.

When the story surfaced again in 2006 (this time the Royal family was claiming its private phone messages were being listened to) memory of the pathetic sentences given to the earlier cases meant the London police were reluctant to aggressively push their investigations. It just wasn’t worth the effort. That, and Britain was at the height of the anti-terrorism campaign. In the wake of the London bombings, chasing privacy prosecutions was less a priority than hunting violent Islamists.

Still, one reporter – News of the World’s “one rogue reporter” – was prosecuted. As part of its investigations, the police found a huge list of potential victims, but it failed to notify them.
Three years later, the Guardian and the New York Times published allegations of widespread phone hacking. This time, the police stonewalled. The issue had already been dealt with. To admit that there was more to the case was to admit that they were wrong to draw a line under the rogue reporter in 2006.

The Milly Dowler story erupted in July 2011. The police had been in possession of seized documents with her name – and Hugh Grant’s name – since the first investigations in 2003.

I’ve dwelled on this timeline because it is the closest the Leveson report gets to an exploration of the specific failures that led to the phone hacking scandal.

It’s all well and good to wax lyrical about ethics and press culture. But if we want to link problem to solution – a basic requirement in the development of good public policy – we have to know what actually caused the events we’re concerned about.

And too much of the Leveson report is divorced from the phone hacking itself. You can understand why David Cameron offered Leveson such a wide brief – he was embarrassed about his relationship to the now disgraced Andy Coulson. But the distance between scandal detail and regulatory proposals undermines the point of the whole inquiry.

To be fair, Leveson’s effort is far better than Australia’s Finkelstein inquiry. Here, Justice Ray Finkelstein wasn’t even given a scandal to work with – he had to construct a justification for press regulation out of thin air. Where Britain had the Milly Dowler case, Australia had the vibe of the thing.

So it is not insignificant that the Finkelstein and Leveson recommendations were so similar: statutory regulation of the press disguised as “self-regulation”. In the UK this is apparently the solution to widespread criminality. In Australia it is apparently a solution to … well, what exactly? The strongest case Finkelstein could come up with was that newspapers gave an unbalanced presentation of climate science.

But there’s a vocal group of people who want a new regulator backed by government, so that’s what gets recommended. Is there anybody who didn’t think Leveson or Finkelstein would call for new regulation? The only suspense has been for the details.

Last week David Cameron rejected those details – he would not cross the Rubicon into press regulation. Hopefully, Julia Gillard and Stephen Conroy will do the same.

Stay tuned for the red underpants theory of bad TV

Occasionally, usually by accident (sometimes if they think nobody is listening) politicians say what they really believe.

“I have unfettered legal power,” Communications Minister Stephen Conroy told an obscure conference in New York in September. “If I say to everyone in this room, ‘If you want to bid in our spectrum auction you’d better wear red underpants on your head’, I’ve got some news for you. You’ll be wearing them on your head.”

Conroy was clearly having a bit of fun. But he’s right. He has complete, arbitrary and absolute control over who broadcasts on the airwaves and the circumstances in which they broadcast, and that control has been disastrous for television consumers.

Let’s call this the ”red underpants” theory of why Australian TV is so bad. Australia seems to have completely missed the great television renaissance. In the US and Britain, audiences are being treated to some of the most brilliant high-quality television the world has ever seen – think of everything from Mad Men to Breaking Bad to The Thick of It.

But Australian commercial TV is languishing. The networks are producing nothing comparable to what’s being made overseas. Their biggest problem is how quickly they can show foreign programs before everybody downloads them. This week Channel Ten announced both a full-year loss and voluntary redundancies. Channel Nine is buried in debt and flirting with receivership.

It’s easy to feel sympathy for those whose livelihoods are threatened. It’s hard to feel sympathy for the networks. The television broadcasting industry is probably Australia’s last, greatest vestige of crony capitalism.

Mr Conroy’s unfettered red underpants power – and that of the communications ministers who’ve gone before him – has been used to protect broadcasters from competition, lock out new technologies and entrench tired business models.

Basic economics tells us that when you deliberately limit competition you lower quality. Basic politics tells us when governments and corporations get into bed, consumers lose.

Broadcasting was a protected industry from day one. In 1905 the Commonwealth government took absolute control over the airwaves with the Wireless Telegraphy Act. The government had delayed passing the legislation for a few years. It was worried that the new wireless technology would be a competitive threat to the existing telegraph cable companies.

From then on, anybody who wanted to broadcast had to apply to the government for permission.

Throughout the 20th century, politicians forged close relationships with media moguls. Each scratched the other’s back. Politicians who played ball were treated kindly by the broadcasters. In return, governments kept away competition and protected advertising revenue. As one broadcasting regulator said in the 1970s, all decisions about the airwaves were ”very substantially influenced by political considerations”.

The number of radio and television stations has been strictly limited. It is extraordinary that in 2012 we still do not have a fourth television network.

New technologies were deliberately held back. The US had FM radio in the 1940s. There were experiments with FM transmission in Australia in 1947. But AM broadcasters didn’t want the competition. The government only licensed FM stations in 1974.

The delayed introduction of pay television was just as scandalous. There were several proposals to offer Australians pay TV services in the 1970s, but it wasn’t until the early 1990s the government relented. Even then it banned pay-TV advertising for the first few years – just to keep existing free-to-air broadcasters happy. Free-to-air television is still protected by laws that give it first dibs on the best sporting content. Don’t imagine this is done for the public’s benefit.

When the government finally got around to introducing digital television – a technology that allows the broadcast of dozens more channels on the same limited spectrum – the spectrum was offered exclusively to the three existing commercial networks. This is effectively a gift of hundreds of millions of dollars to a broadcasting cartel.

In 1959, Nobel Prize winning economist Ronald Coase proposed a way to get politics out of the airwaves. Treat radio spectrum like property, he argued, and let broadcasters use and trade their property as they see fit.

Because a government with unfettered power to force people to wear underpants on their head also has unfettered power to make deals with its media mates against the interests of the public.