Economics.org.au

i. Padraic P. McGuinness, “Gallagher’s conviction a stain on our democracy,” The Australian, March 10, 1989, p. 2.
1. Max Newton, “Advance Australia fascist: The forces that make Australia a fascist country,” The Australian, November 14, 1989, pp. 15, 18.
2. Padraic P. McGuinness, “Max safe in death — but traps yawn for the living,” The Australian, August 14, 1990, p. 13.
3. Frank Devine, “Pressing on into the deadly jungle of media control,” The Australian, September 26, 1991, p. 11.
4. Padraic P. McGuinness, “Foreign ownership the key to press freedom,” The Weekend Australian, October 19-20, 1991, p. 2.
5. Frank Devine, “Sex scandals sorely lacking in toothless, bonk-shy media,” The Australian, August 17, 1992, p. 13.
6. Padraic P. McGuinness, “Victory for open debate,” The Weekend Australian, August 29-30, 1992, p. 2.
7. Frank Devine, “The right to free speech: Please sir, may we have some more?,” The Australian, October 5, 1992, p. 11.
8. Devine, “On balance, PM’s media case is biased,” 25/11/93
9. McG, “Politicians cannot be trusted with control,” 25/11/93
10. Devine, “Potency restored to neutered press,” 24/2/94
11. Devine, “Who dares loses in addled court rules,” 16/9/94
12. Devine, “Free speech given voice,” 27/10/94
13. Devine, “Divisive racial hatred Bill an insult to us all,” 14/11/94
14. Devine, “Keating’s courtiers dazzled by illusion,” 27/2/95
15. Devine, “Publish and do as I tell you,” 24/5/99
16. Devine, “Implicitness isn’t enough: empower the press,” 19/6/00

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i.
Padraic P. McGuinness, “Gallagher’s conviction a stain on our democracy,” The Australian, March 10, 1989, p. 2.

What is the price of free speech?

For Salman Rushdie, author of The Satanic Verses, it could well be his life, as well as the lives or health of some publishers and booksellers.

For Norm Gallagher of the rogue union the Builders Labourers Federation, it was $250 plus a large legal costs bill.

Of course, at least Mr Gallagher was convicted by due process of law, with justice being seen to be done. The question is whether the law by which he was punished for speaking his mind is a just one, and whether the restriction on free speech it involves can be justified.

Last week in the Federal Court Justice Pincus acquitted Gallagher of a charge relating to words he said about Justice Terry Ludeke (unlike Jim Staples, this judge is now a deputy president of the Industrial Relations Commission), but fined him $250 for having, according to section 182 of the Arbitration Act, spoken words “calculated to bring a member of the commission or the commission into disrepute”.

Since he could have been sent down for up to six months for this offence (which might be good for his health, if not his self-esteem — he is unlikely to be at risk of rape, however), Mr Gallagher not surprisingly spent a fair amount of the union funds which he still controls defending the charge.

For once, I felt sympathy for Norm Gallagher. My personal opinion is that he and his union deserve no respect whatsoever — except the right that every person should have, to speak freely and express his opinions. I detest Norm Gallagher and what he stands for, but I defend his right to express his views regarding the Arbitration Commission, the members of the commission, the Victorian and Commonwealth governments, the capitalist system and so on.

I was called as an expert witness, because I know a good deal about the arbitration system, and have written a good deal about it which is highly critical. Indeed, I plead guilty here and now to having spoken and written words calculated to bring it into disrepute. Let them send me to jail if they will.

(I have not yet offended against the similar clause in the new Industrial Relations Commission Act. But I will. I will.)

Of course, the commission, or the Commonwealth Department of Industrial Relations, or the Victorian Department of Labour (of which an officer laid the complaint against Mr Gallagher) never took me on.

Nor did they take on Senator Stone, whose newspaper articles were added in evidence as examples of writings calculated to bring the commission into disrepute.

Although I have no high opinion of Mr Gallagher, I agreed to acts as an expert witness relating to these matters. I also waived the fee offered to me; I would rather the money went back to the members of the deregistered BLF than into my pocket.

Now the circumstances were these. Norm had just had his union deregistered (deservedly in my opinion). He was approached by a number of print, TV and radio reporters and asked to comment. He let off steam, saying things about the Arbitration Commission and Justice Ludeke which were nothing unusual, but typical of the rhetoric which left-wing unionists use when they lose a case.

In the circumstances, the Federal Court might well have been moved to consider that his remarks were not “calculated”. And, after all, it is not exactly standard practice to charge a convicted prisoner being dragged off to the cells for contempt of court if he abuses the judge.

I am sure that Judge Pincus decided the case on sound grounds. What worries me, however, is that this very severe restriction on freedom of speech should have been invoked without adequate consideration of the seriousness of the offence, or what this conviction implies for future comment on the Industrial Relations Commission and its activities.

To me, it would seem that there is a common law right of free speech which is relevant in this context. Certainly the English courts in issues of contempt have taken a very robust view — that contempt of court only really occurs when there is a real attempt to intimidate or bribe a witness or party, the court itself, or otherwise interfere in the course of justice.

It may be that the Arbitration Commission was more easily lowered in repute by adverse comment than a real court. That, however, is simply the result of its own lack of willingness to insist upon or enforce its own awards. If anyone should be charged with conduct, if not words, calculated to bring the Arbitration Commission into disrepute, it is the commission itself (with the sole exception of Justice Staples), and perhaps also the Commonwealth Government.

It is not acceptable that, in the ordinary cut and thrust of industrial relations and controversy, strong words used by anyone should be punishable. The commission in the past richly deserved criticism, and effective criticism is more likely to bring the commission into disrepute.

A country that does not allow such controversy and criticism does not genuinely possess free speech.

Although I have no criticism to make of Justice Pincus, I am nevertheless shocked that he could have convicted Norm Gallagher on a charge that not even a dog should have been convicted on. While it [that] is possible, we do not have the opportunity for genuine and vigorous debate.

So while we comfortably posture and denounce the Ayatollah and the threat to the life of Salman Rushdie, we ought not forget the very real threat which our own law offered to the freedom of Norm Gallagher. And his conviction for merely expressing his own views, whether they were correct or incorrect, considered or intemperate, is a stain upon democracy in Australia.

If ever there were a case for introducing a genuine Bill of Rights, this conviction strengthens it. We clearly cannot rely on our courts to protect our freedom of speech unless they are explicitly instructed to do so.

There is no need for a referendum in this matter. The international conventions which Australia has signed are sufficient basis for a Bill of Rights protecting fundamental political freedoms, of which freedom of speech and writing are the most important.

Maybe, despite himself, Norm Gallagher will prove to have contributed something lasting and important to our democratic mixed economy. Even if he ends up behind bars again for a real offence.

***
1.
Max Newton, “Advance Australia fascist: The forces that make Australia a fascist country,” The Australian, November 14, 1989, pp. 15, 18.

The defeat of communism is but one aspect of a global reassertion of the rights and freedoms of individuals against the State and against State-sponsored gangs that began with the election of Ronald Reagan in 1980.

For the past decade in the United States there has been a recognition that State-sponsored enterprises and State-funded handouts have undermined the integrity of individual effort and personal freedoms.

The revulsion against all State-sponsored actions continues in America. Taxes are hated; widespread corruption has been revealed in the defence-industrial complex, in the savings and loans industry, in agriculture. There is a deep contempt for government and the politicians.

Almost daily, Americans are being exposed to fresh tales of corruption, fraud and waste, along with manipulation of the government apparatus by criminals in business. This is part of a far wider revulsion against the power of government — of the State — in all aspects of American business and economic life.

Ronald Reagan began the dismantling of government power. The resulting chaos and eternal rejuvenation continue.

In Japan, the situation is the same. The revulsion against the Liberal Democratic Party has its roots in the disillusionment of the ordinary Japanese — particularly the ordinary Japanese woman — that so few of the benefit’s of Japan’s 40-year economic boom have filtered down to the average household.

The Japanese consumers can see that they are paying way over the odds for food and way over the odds for goods made in Japan — on average 40 per cent above the prices for identical products in New York or Los Angeles.

So much of the wealth that has been created has been skimmed off by the gangs that control, with LDP sponsorship, the import and sale of fuel, foods and raw materials. Something very profound is now happening in Japan. The ordinary people are beginning to assert their right to a bigger share of the fruits of their 40-year-long effort.

It is the same in Mexico. The revulsion against the gangs in the IPR party, that have controlled Mexican industry for more than 70 years and which have done the deals with big business there, is spreading rapidly through the whole of Mexican business and industry.

The East Germans, the Poles, the Hungarians and the Soviets have discovered that the attempt to manipulate and micro-direct whole economic systems has failed.

In Brazil this month, the same issue must be dealt with. Do the people of Brazil want a free, privatised economic system, or do they want to stay snarled in the mania of big government-big business corruption, inflation and ripoffs?

The people of the GDR have opted for risk and freedom. Can Australia be too far behind? Can glasnost and perestroika come Down Under? Will the Australian people also decide to reject a corporate State, manipulated and micro-managed by the ALP-ACTU politburo under the all-seeing eyes of Hawke and Keating?

“Fascism” is defined in Webster’s Dictionary as “a system of government characterised by … the retention of private ownership of the means of production under centralised government control.”

May I briefly outline some of the aspects of fascism in Australia?

1.

Manufacturing industry has formed an alliance with the political and bureaucratic apparatus to impose taxes on Australian consumers through a vast and complex web of import duties, import controls, embargoes and inhibitions to trade in goods that is overseen by the most authoritarian Customs police in any civilised nation, equipped as these police are with untrammelled power of entry, search and seizure.

2.

Governments, federal and State, have seized control of the whole of the transportation system, with the exception of a depressed and exploited trucking under-class.

Until very recently, when it began to collapse entirely under the weight of its own internal contradictions, the airline industry was a government-managed monopoly, split into two parts.

State governments have run the railroad systems of Australia on the basis of a corrupt alliance with unions, to the enormous detriment of the Australian consumers. The waterfront and coastal shipping are run by union gangs who enforce their laws with terror and in many cases through the use of murder against potential interlopers, a group that sometimes includes the State police.

3.

The Federal Government controls the whole television industry, and enforced anti-competitive rules and licences by means of terror through the State Chamber apparatus of the Australian Broadcasting Tribunal. The same goes for the radio industry. Officials decide the allocation of licences. Officials hold a weapon of fear over what is broadcast.

Australia was one of the last nations on Earth to receive the manifest benefits of FM radio transmission, due to enforcement of the spurious argument by the (then) postmaster-general’s department that there was “no room” for new FM channels.

This FM freedom argument meant that Australia suffered for decades from sub-standard AM radio transmissions and the preservation of the privileged FM radio regional monopolies, the result of age-old deals done between the PMG and big business (that’s what fascism is all about, folks).

4.

Pervasive corruption exists in agriculture, where trade in grains, fruits and sugar — to name a few examples — is controlled by State marketing authorities who are free to make their own deals with waterfront and transportation gangs, including such gangs as the waterside “workers”, the seamen and the painters and dockers. In much of agriculture, imports of competitive food products are banned.

In the case of sugar, the monopoly profits from the State-sponsored system of corporate monopoly profits (enforced by embargoes on the import of sugar) provided the financing of a big industrial complex, the Colonial Sugar Refinery Company, whose wealth came from the monopoly profits of a prolonged ripoff of the Australian sugar consumer.

5.

There is little or no competition in telecommunications in Australia. This industry, which is exploding worldwide and providing the very foundation of much of the future wealth of America, is not free in Australia to compete vigorously for capital but is trammelled by political control from the apparatchiks in Canberra.

As a result, pervasive low-level corruption characterises the attempts by ordinary Australian consumers to obtain a connection to telephone, fax and data networks. “Who do you know?” becomes as much a part of getting access to the telecommunications networks in Australia as it is in any communist, or any other fascist or corporate State around the world.

6.

Above all, as in any communist or in any other fascist or corporate State, Australians have been deprived of the right to work under terms and conditions that they may individually and freely negotiate.

The right to work has been taken away from ordinary Australian workers. Their work is regulated by a mass of official controls, imposed by a vast bureaucracy in the ministry of labour and enforced by a corrupt and compliant “judiciary” in the official Soviet-style Arbitration Commission.

Local trade union soviets, with the benefit of monopoly powers conferred on them by the State and enforced by the corrupt labour “judges” in many industries regulate the employment of each individual, who may not work unless he first obtains the union card from the local union soviet. Through the resulting complex and corrupt system of wages and work regulation, ordinary Australian workers have in recent years been subject to a persistent and now accelerating process of declining real wages.

The Reserve Bank Bulletin for October 1989 reveals that between 1984-85 and the June quarter of 1989 wages for adults in Australia rose 23 per cent, as the workers attempted to flesh out their award wages by overtime and other privately negotiated “deals” beyond the control of the labour ministry soviet and the corrupt labour “judges”. In the past three years, overtime worked in Australia has risen 20 per cent, as the workers have valiantly attempted to maintain their real wages by working longer hours.

The Reserve Bank Bulletin goes on to point out that since 1984-85 consumer prices in Australia have risen by 40 percent. So the soviet system of wages and work controls in Australia since 1984-85 has produced a decline of 12 per cent in the “real” level of award wages and a decline of nearly 6 in the real level of average earnings (even after the widespread practice of overtime working, reflecting as it does the attempt by the workers of Australia to achieve at the least no reduction in their real wages — an attempt that has failed).

So, in Australia, as in Eastern Europe or in the Soviet Union itself, the ministry of labour controls on workers’ right to work, enforced by pliant “judges”, have produced declining wages.

I might also add that in Australia, as in other fascist and corporate States, the share of profits has bounded ahead. Between 1986-87 (The Reserve Bank Bulletin for September tells us) and the June quarter 1989, the level of private corporate profits rose by 37 per cent — 60 per cent faster than award wages and 12 per cent faster than average earnings. Unfortunately for Australian workers, there is no easy route to higher wages and freedom through some nearby Czechoslovakia.

Nevertheless, Australian workers clearly recognise, through the use of their manifest common sense, the corruption and inequity of the ministry of labour regulations and controls. They are fleeing to freedom through the route of abandoning jobs where unions have the power to deprive them of their right to work, and are individually opting out of the entire State-sponsored labour control and wage-fixing apparatus.

In this, the contraction of the State-sponsored and State-subsidised (through the aforesaid import tariffs and import controls) industrial sector and the expansion of the relatively unregulated services sector is providing a route to freedom for individual workers.

Like other failed communist or fascist corporate State systems, the Australian system has been able to avoid breakdown in recent years only by means of huge and unsustainable foreign borrowing. This foreign borrowing route was the one taken by communist Poland and fascist Mexico.

The enormity of the debt burdens thus permitted by Politburo in Poland and by the IPR party gangs in Mexico eventually brought down the whole system in those countries, precipitating widespread hardship, economic stagnation and eventually the destruction of the whole ruling political apparatus. This is the prospect that now faces Australia after so long a period of suffering under the corporate State.

***
2.
Padraic P. McGuinness, “Max safe in death — but traps yawn for the living,” The Australian, August 14, 1990, p. 13.

The late Max Newton could never return to his home country while he was alive, for fear of prosecution by various government authorities, including the Australian Taxation Office.

However, death caught up with him before taxes could, and so his ashes will be returning to Australia tomorrow. He would be fascinated in his urn at the reports of the case which will be stated today in the Federal Court by the Director of Public Prosecutions arising out of one of the many criticisms he made while alive of the Industrial Relations Commission.

In his article published in The Australian on November 14, 1989, he made some rather hostile comments about the commission. It was one of his more over-the-top pieces — not that Max was ever very far from the top.

Now, most sensible people, knowing Max’s style, would have laughed at his mode of expression and thought no more about it, while taking his point about the quasi-fascist nature of the corporatist industrial relations system in Australia seriously, as it deserves to be taken. But not Justice Barry Maddern and his mates in the commission. After stewing for a while, they went to the DPP and demanded that a prosecution be launched in accordance with Section 299 of the Industrial Relations Act.

This says that a person shall not among other things, “by writing or speech use words calculated … to bring a member of the commission or the commission into disrepute”. The penalty is a fine of up to $1000 or six months’ prison for a person. $1000 for a body corporate.

Early last year Norm Gallagher was fined $250 under the equivalent section of the old Conciliation and Arbitration Act. This was a pretty objectionable use of the law to punish a principal participant in the industrial relations game for using some standard rhetoric. It was certainly a gross infringement of free speech.

This time, the Commonwealth DPP was a little smarter. He did not decide to go for Max Newton personally (there is, therefore, no fear of his ashes being fined or locked up for six months), since Max was not available to be charged. Nor did he charge Frank Devine, editor of The Australian at the time, who would no doubt have willingly served a jail sentence in the place of an old friend. Instead, the charge has been laid against Nationwide News, publisher of The Australian and other newspapers.

There are a number of disturbing features about this procedure. First, it has to be said that the force of Section 299 is extraordinarily wide and strong. Virtually anything said or written about the commission or a member of it which was less than fawning in its flattery could be interpreted as bringing it or him/her into disrepute. Any effective criticism, no matter how moderately expressed, is in effect forbidden by the Act. The word “calculated” has been interpreted by the courts as meaning anything along the lines of “which may be considered by anyone” to bring the commission into disrepute.

In other words, anything which is critical of the commission risks prosecution. Moreover, as was made clear by the Federal Court last year, there is no chance of acquittal. So much for free speech in the area of industrial relations.

Another very disturbing feature of this prosecution is that it has been brought not against the author of the criticism, not even against the editor of the newspaper which published it, but against the publishers of the newspaper. Now, the company can well afford $1000 — but it cannot afford any convictions of any kind, since these can be held against it by other courts and tribunals. By prosecuting the company, therefore, the DPP is making a threat against it, and every other newspaper or book publisher, and television or radio broadcaster.

The threat is in effect a direction that such companies must not only look to normal laws of defamation and contempt, but must pay special attention to the pre-censorship of any comment which is at all critical of the commission. And the penalty for refusing to exercise such censorship is potentially far greater than the nominal fine of $1000.

It has to be realised that the prohibition of criticism of the commission is far stricter than anything contained or implied by the law of contempt with respect of a real court of law, including the High Court of Australia. It is absolute, and there is no express defence or mitigation once it is established that the comment is indeed critical or might be interpreted as being so.

By contrast, there is a famous remark by Lord Atkin, of the United Kingdom Privy Council, which makes it clear that it is not contempt of court merely to criticise the judiciary.

“But whether the authority and position of an individual judge,” Lord Atkin said, “or the due administration of justice, is concerned, no wrong is committed by any member of the public who exercises the ordinary right of criticising, in good faith, in private or public, the public act done in the seat of justice.

“The path of criticism is a public way: the wrong-headed are permitted to err therein: provided that members of the public abstain from imputing improper motives to those taking part in the administration of justice, and are genuinely exercising a right of criticism, and not acting in malice or attempting to impair the administration of justice, they are immune. Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men.”

Now, it may be that Newton’s comments were wrong-headed, and they were not particularly respectful. But the commission is less than a court. The article does not necessarily impute improper motives. There have been far worse things said about the commission than was said by Newton in the cut and thrust of debate, and its role, as a central part of a wages system which many people consider to be objectionable and harmful, and its position as an arm of government policy, makes it necessary to express quite strong criticisms.

But now it appears that the debate on industrial relations, on the Accord, on the wages system, on the role of the commission, and on the behaviour of the commission at any point of time, may be stifled. That is totally incompatible with any concept of free speech in a democratic society.

In fact, the very outrageousness of Section 299 may be the only defence open to Nationwide News, and any other company which may wish to publish, or individual who may wish to utter, any critical comment concerning the commission.

For the only possible defence is on the grounds that the section is unconstitutional, going far beyond the powers of the Commonwealth, which cannot have the right to abrogate the right of freedom of expression simply because it is convenient to do so, “incidental” to the conciliation and arbitration power.

***
3.
Frank Devine, “Pressing on into the deadly jungle of media control,” The Australian, September 26, 1991, p. 11.

As one who struggles incessantly against the Darth Vader side of his nature, I was pleased to be assigned an untainted Luke Skywalker role at a seminar held at the Library of New South Wales recently on the subject of the federal Parliament’s inquiry into the print media, which begins hearings in Canberra next Tuesday.

My assignment was to argue that there should be no government intervention whatever in the affairs of the media, so it goes without saying that the Force was with me.

Mind you, I would have been more comfortable delivering my homily to a crowd of street demonstrators, enraged by the Government’s effrontery in proposing to investigate the media (a 180-degree reversal of nature’s design), than to a group whose majority, it was clear, instinctively turned to government as the primary agent of progress and reform on all fronts.

But, given the assignments of some of the other speakers, I had no cause for complaint. Poor David Bowman was cast in a Jabba the Hutt role by being required to argue in favour of government subsidies for newspapers, and was so disconcerted by the horror of it that he kept citing the experiences of Sweden rather than of more apropos countries like Romania and South Yemen.

In any case, no attempt was made by anybody to set the seminar scene by justifying government intervention in the media. It was taken for granted that justification exists — just as government chutzpah has caused most of us to swallow the line that, even in the absence of legislation, regulation or perceptible public demand, the federal treasurer (meaning, in practice, his party) has the right to set arbitrary quotas on foreign ownership of the print media.

Such recklessness! To open the door to government control of the media even by the merest crack invites early efforts to blast it off its hinges.

The media may have their rough edges, but at least you can switch them off, throw them in the rubbish bin, skip the annoying bits and withhold money from them so that you don’t have to see or hear them at all.

Governments are immeasurably harder to deal with. And if they get any kind of grip on the media — well, Napoleon summed it up when he said: “The old nobility would have survived if they had known enough to become masters of printing materials.”

Australia’s old nobility seem to have been well aware of this, although furious over their failure to do much about it. I am indebted to Rodney Tiffin, of Sydney University’s Department of Government, for having assembled in his excellent book News and Power a rich sampling of the nobility’s reflections on the subject.

Joh Bjelke-Petersen: “The greatest thing that could happen in the State and nation is when we get rid of the media. Then we could live in peace and tranquility and no one would know anything.”

Sir Arthur Tange: “The power of journalists to divert the executive from seriously addressing real national problems is great and destructive.”

John Gorton: “Journalists! Slimy white things that crawl out of sewers.”

Arthur Calwell: “The allegedly, so-called free and democratic press! What a press! It is owned for the most part by financial crooks and is edited for the most part by mental harlots.”

No journalist could fail to be moved by such tributes, and it is especially heartwarming to note that Dr Tiffin’s selection (there are many more in his book) span at least 40 years.

The owners and editors of today are not the same individuals Calwell castigated, but it would be surprising if the consensus among politicians and control bureaucrats was not that financial crooks and mental harlots remain in charge.

One hopes, on aesthetic and sentimental grounds, that the politicians and bureaucrats are mistaken and that this is not actually the case, although in the larger social context it hardly matters.

Even scum in the media contribute to the public good simply by taking different positions from those of government, thus denying citizens the peace and tranquility politicians like Bjelke-Petersen desire for them and diverting bureaucrats like Sir Arthur Tange from giving people what they judge to be good for them.

In principle, a newspaper can be capricious, ideologically rigid, corrupt, frivolous, dopey and constantly wrong — and still serve a useful purpose so long as government cannot count on its compliance. Even if a periodical lies a lot, it has marginal value by virtue of challenging government’s monopoly on lies.

In practice: a newspaper or magazine with all (or several) of these faults would quickly go out of business. Not being mugs, people demand better of something for which they voluntarily pay good money.

One of the most sinister aspects of our growing complaisance about government interference with the media is that no aspect of it looks particularly sinister. Our government is not a dictatorship sustaining itself with torture chambers and storm-troopers. No revolutionaries are waiting in the wings to smash the printing presses and seize control of the TV stations.

Practically nobody, except the Marxist-Leninist apostate John Halfpenny, advocates the Pravda route to media reform. Most people who attend seminars on the subject believe Halfpenny (and some of his ACTU colleagues) are going too far when they urge the creation of State-funded media collective and free carriage by the post office of virtually anybody’s propaganda.

But it is okay, surely, to grant government just enough power to put Rupert and Kerry in their place? And keep foreigners out? And do just enough overseeing to make sure our views are hard in preference to those of our enemies and rivals?

Surely none of that is okay.

By its frenetic meddling and conniving in the matter of who should own Fairfax, its shameless, abusive, menacing assaults on the ABC (which it seems to think it owns) for exercising its democratic right to be dopey, its unscrupulous attempt to ban political advertising and its efforts to preserve the British publishers’ monopoly on book imports, the Government has demonstrated that it cannot be trusted with even a fingertip touch on media control.

Nor would there be much change with a change of government. The primary instinct of all governments when they achieve power over the media is to hush things up, to stop information getting out.

Their secondary instinct it to put in the fix so that their activities and those of their mates are shown in the best light.

Taking a moderate position on government intervention in the media is like being even-handed about necrophilia.

The fact that the chairman of the committee of inquiry into the print media, Michael Lee, the ALP Member for Dobell in NSW, seems a reasonable bloke is a seductive irrelevancy. One is seldom blessed with a Saddam Hussein to sharpen one’s focus.

Lee is positively engaging and looks rather like Luke Skywalker. He jokes about the time when, quite recently, Australia enjoyed exceptional media ownership diversity and about how this era ended with the more or less voluntary withdrawal of Bond, Lowy and Skase.

He recalls, while a student at the University of NSW, attending a meeting of the campus ALP Club at which two proposals were offered as solutions to Labor’s post-1975 problems — first, that all ALP supporters bequeath their worldly goods to the party when they died, and second, that the party start a Labor newspaper.

“The first suggestion met with lukewarm response from the mainly middle-class audience,” Lee says, “but the second triggered general approval and an outpouring of emotion directed mainly at Rupert Murdoch.” Plus ca change, and all that.

However, the engaging Member for Dobell starts his inquiry with terms of reference that enable him to consider (among much else) the need for a press ombudsman, government subsidies to encourage diversity, “specific legislation for the print media as is the case for the electronic media, the relationship between proprietors, editors and journalists … (and) the powers of the Commonwealth Parliament over the print media …”

Lee wants to finish his inquiry by December 19 so legislation can be considered early in the new year. This government is really taking Napoleon seriously.

***
4.
Padraic P. McGuinness, “Foreign ownership the key to press freedom,” The Weekend Australian, October 19-20, 1991, p. 2.

One of the many admirable qualities of the late Sir Robert Menzies is that when he retired from the prime ministership he retired from politics, and he did not keep sticking his bib into matters which no longer concerned him.

This was despite the fact that, for all his faults, he was clearly intellectually head and shoulders above any of his successors as leader of the Liberal Party and had a fund of accumulated experience and wisdom they would put any of his prime ministerial or party leader successors to shame.

His discretion and acceptance that when his days in power were over so was his usefulness as a contributor to public life and debate has not been shared by lesser men or women. Particularly not by the collection of political has-beens who signed the letter published last Wednesday that was intended to interfere in the process of the financial rescue of the Fairfax newspapers, and to add more weight to the campaign against the Black-Packer and O’Reilly bids for the Fairfax group.

This letter was organised by Mr Peter Nixon, a former minister in the Coalition government prior to 1983, and noted chiefly for his willingness to attack the independence (as distinct from the notorious bias) of the Australian Broadcasting Corporation. There is nothing whatsoever inconsistent in Mr Nixon’s former intolerance of independent media in past years and his present stance.

For what the letter represents is a classic united front between politicians of different political parties, all of whom are agreed on one issue — their dislike of an independent, critical and uncontrollable press.

Broadcasting policy for all sides of politics has always been a pushover, since they have been able to lay down conditions for the granting of access to the limited public resource of broadcasting frequencies.

Thanks to the breadth of the interpretation of the constitutional provisions of the High Court, successive Commonwealth governments have been permitted to interfere in the freedom of the broadcast media in a way that was clearly not felt acceptable at the time of federation for the Commonwealth with respect to print media.

This has meant that radio and television became the plaything of a few privileged licence holders, whose commercial interests have made them beholden to the government of the day, and who have been subject to the meddling of the broadcasting tribunal and the Mrs Grundies of the community — with the exception of the ABC, which has been responsible to no one in any way.

Thus the genuinely free broadcast media — that is, those totally independent of public funding — have been subject to censorship, control and threat, while the government-owned ABC has been nagged but allowed to go its own way no matter how misguided, subject only to financial limitations.

This is the reverse of freedom of the print media. But at least there has, except through manipulation of cross-media ownership rules, been little opportunity for governments of varying political complexions to blackmail newspaper proprietors, much as they have wanted to do so. The Commonwealth has no power to control the print media, and the State governments have always known that any attempt to muzzle metropolitan newspapers could be circumvented by the entry of newspapers published in other States, protected by the guarantee of freedom of trade between the States under section 92 of the Constitution.

State governments have, of course, been able to apply the normal laws of defamation and so on to newspapers, since it is quite proper that such offences should be punishable through the courts (whatever the defects of the present defamation laws). But what politicians really want is the power to influence what is published in the newspapers before it hits the streets and reaches the public. This they can only do by establishing some kind of power over newspaper proprietors, editors and journalists.

In a relatively small community, where the economic base of the newspapers is closely related to government policy, this is possible. Personal influence and the fashions of the day can count for a lot. When a newspaper proprietor has business interests outside newspapers, he can be affected by government policy changes designed to benefit or damage those interests.

(Usually, critics of the media would charge that such business interests will lead proprietors to influence government policy, but the causation in fact runs the opposite direction, when there is any connection at all. Mr Kerry Packer has clearly been unhappy about the Government’s economic policy of lowering protection, which adversely affects his cotton industry and engineering industry interests. This has had no impact at all on government policy.)

However, Australian governments cannot exercise any influence over powerful business interests based on other countries. The best guarantee of a free press is therefore a press which is at least in part foreign-owned. If the publishers of The New York Times or The Wall Street Journal or The Toronto Globe and Mail owned an Australian newspaper, threats to them by an Australian government would be merely derisory. There would be no possibility, in a democratic system, for an Australian government to influence the proprietorial or editorial policy of a newspaper owned by an international company of great financial strength. It could laugh at such threats.

This is, of course, what politicians hate most — people who can laugh at them and dismiss their threats and say “publish and be damned”.

It is not only tired, failed and chagrined rejects of the political system who resent the freedom of the print media. So, also, do all the smelly little orthodoxies, all the groups of frustrated authoritarians posing as democrats, all the Tory clubmen who believe that charity is all right so long as they hold power, all the leftovers of the old leftist political movements who cherish a deep desire to exercise control over the media to ensure that their views are disseminated whether or not the public actually wants to pay to read them.

Such people know that the more our media are integrated into world markets, the more there is the possibility of a foreign-owned corporation laughing at attempts to blackmail it in terms of Australian newspaper editorial control and content, the less is their political power.

They do not believe in the freedom and diversity of the press. They want to control it.

There is no difference in principle between the way in which the authoritarian Government of Singapore penalises foreign newspapers that criticise Singaporean policy by restricting their circulation and the way in which Australian governments restrict potential newspaper competition in Australia by preventing the entry of foreigners. For make no mistake, it is not just a matter of preventing foreigners from buying existing newspapers. No foreign company would be permitted to start a new newspaper from scratch to compete with existing newspapers.

This is an unhealthy and undemocratic restriction on freedom of expression in Australia. That is precisely why the signatories to Mr Nixon’s letter favour it. They hate the free press because it has criticised them in the past, made fun of their pretensions and exposed their failings. That is why they are determined to prevent the press in Australia from gaining any more freedom from control by Australian politicians.

***
5.
Frank Devine, “Sex scandals sorely lacking in toothless, bonk-shy media,” The Australian, August 17, 1992, p. 13.

The British certainly react more cheerfully than Americans to revelations of sexual misbehaviour by their political leaders. This may be because British politicians who misbehave are, on the whole, so unattractive that their constituents feel pleased for them when they are caught even in the vicinity of the act.

Fleet Street wallowed merrily last month on the adulteries of Heritage Minister John Mellor (“one of John Major’s closest pals”) with Antonia de Sancha (“stunning half-Spanish actress”). The media in the United States are, by contrast, dragging themselves around with ostentatious lugubriousness on the track of President Bush’s alleged affair, while vice-president circa 1984, with Jennifer Fitzgerald.

The New York Times, Wall Street Journal and Washington Post have all declared that they really hate doing it, but are forced to dig for dirt because of The New York Post’s vile conduct in bringing the matter up, on its front page, in the first place.

The Australian reaction to the bonking exposes of New York and London has been to count our blessings as the Lucky Country, lucky that we: (1) are not afflicted with such foul rags as The New York Post and London tabloids; (2) are not as prudish about sex as the Americans; and (3) do not treat our prime ministers with the exaggerated reverence Americans accord their presidents.

All of the above conclusions are fallacious.

The weeping and wailing of The New York Times et al seems to have left the impression that Americans consider it sacrilegious to pry into the sex lives of presidents.

Not so. Jack Kennedy put an end to that taboo — which waxed and waned in the strength of its observance anyway. The total veil that enfolded Frank Roosevelt’s Lucy Rutherford was rare, and to some extent a concession to the couple’s own discretion. Above a certain rank in public life, giving scandal is the worst offence.

But the American media brood guiltily about Kennedy. Even correspondents for Australian newspapers knew enough to watch Daily Variety’s list of travellers between the east and west coasts to plot convergences between the president’s travels and those of certain actresses (all of them stunning but not, so far as I know, half-Spanish).

We are now all aware that Kennedy’s sexual promiscuity was so reckless that it compromised his ability to be president. But he held office during the early 60s, when the Pill and the sexual revolution seemed to offer new roads to salvation. It was party time in Washington, and the men and women of the American media were honoured guests. So none of them wrote about it.

Their successors scorn them for this and crouch like ninja in ambush, ready without fear of being struck down by divine lightning to decapitate any president who engages in hanky-panky in office.

They are not motivated by prudishness. Prudery is no more prevalent among Americans than among, say, Australians. However, American society is based on a number of specified ideals, one of which is the stable family as the essential social unit.

Philanderers like Gary Hart and Bill Clinton (and Jack Kennedy) go to great lengths to masquerade as family men and thus bring media retribution upon themselves. How they handle the crisis, once exposed, becomes a second-chance test of character.

Hart failed the test in 1988 and Clinton may have passed it in 1992 — though that insincere hair and his fake Partridge Family bus tour with his wife, running mate and running mate’s wife makes me doubtful.

The American media has also taken to digging deep into the private lives of presidential candidates because many of them come to the campaign as virtual strangers. The decay of party structures and the power of television mean you can become a candidate just be saying you are one. The media has an inescapable responsibility to dig for dirt in such circumstances.

Ross Perot is the most preposterous stranger so far to have been taken seriously. Avarice, egomania and miserliness had been racked up to his discredit by the time Perot quit. His sex life, if any, was unquestionably under scrutiny.

The biggest fallacy Australians embrace in pondering recent foreign scandals is, however, the belief that they are lucky to be free of Fleet Street tabloids and The New York Post.

I had the honour to be, for a couple of years, editor of the Post, founded in 1801 by Alexander Hamilton and the oldest continuously published newspaper in the US. I thought Americans were lucky to have the Post. So was The New York Times. It might have choked on its own gentility without us to stir it along.

The Post was never corrupted by middle-class morality. The floors of commuter trains taking the respectable home to the affluent suburbs of Westchester County would always be littered with copies of the Post, keenly read but not to be caught dead with in country club precincts.

On the other hand, Donald Trump, a noticeable billionaire of the period, once met me in a fashionable Manhattan restaurant carrying the Post under his arm. He explained that he could not possibly be seen with the Daily News, a more demure but proletarian rival tabloid. “But you have a certain evil chic,” he said.

Good coinage, Donald! The Post’s evil chic enabled it to do much valuable work. We were frequently the pathfinders to Gary Hart’s and Teddy Kennedy’s bonking extravagances. In the course of my duties I met numerous strange bimbos. Tammy Faye Bakker’s husband’s girlfriend was keen to become my secretary. It made you wonder about the taste of the powerful and celebrated.

We had a go in 1988 at connecting George Bush and Jennifer with a J, but could find no evidence.

Abandoning all decency, the Post took aim at the first woman vice-presidential candidate, Geraldine Ferraro, and connected her husband very firmly to the Mafia. Mrs Ferraro, interesting to note, accepted the rules of the game and was wryly forgiving of the Post subsequently.

We did our damndest to hook potential presidential candidate Mario Cuomo to the Mafia, but found no guilty links. Cuomo accepted the rules, too.

While the Post’s digging for dirt was proceeding, he showed me a large office next to his own smallish one that his predecessors as governor of New York had occupied. It had French doors leading on to a balcony overlooking a portentous mall.

“Nelson Rockefeller could stand there,” Cuomo said fatalistically, indicating the balcony. “But I step on it for a second and what does everybody say? Mussolini!”

British politicians don’t accept the rules of the game. The phoney efforts of the wicked to suppress the media on behalf of the innocent are incessant. Fleet Street’s mockery of Mellor brought new threats to silence the tabloids with stringent privacy laws.

The Sun, epitome of British evil chic, responded to the threats with a frontpage editorial reporting the call it had had from a Conservative Cabinet minister during the recent election campaign, making untrue allegations of bizarre sexual behaviour against Paddy Ashdown, leader of the Social Democrats.

Australia is dangerously exposed by the absence of a disreputable, outlaw media faction to keep the powerful and celebrated anxious and indignant.

Future generations will wonder at the debaucheries with which a media paralysed by gentility let the Victorian and West Australian governments (to name but two) get away. Nor can a media that chooses “micro-economic reform” over “bonking” as its catchcry for an era be entirely well.

***
6.
Padraic P. McGuinness, “Victory for open debate,”
The Weekend Australian, August 29-30, 1992, p. 2.

Yesterday the High Court struck one of the greatest blows for free speech in its history, and in effect warned the Commonwealth that it could not get away with legislating away the right under the guise of exercising the explicit powers given it under the Constitution.

There were two decisions announced by the court. That which will receive the greatest publicity is the decision which struck down the amendments to the Broadcasting Act which would have prohibited political advertising on television and radio for the duration of an election campaign.

But just as important is the striking down of the section of the Industrial Relations Act (inherited from the old Arbitration Act) which made it an offence to criticise the Industrial Relations Commission or any of its members.

This was the section under which Norm Gallagher, the former secretary of the Builders Labourers Federation, was convicted in 1989 of having in so many words called the commission a bosses’ court. This was, of course, just standard Left rhetoric, but Justice Pincus (then of the Federal Court) ruled that virtually anything critical of the commission was a breach of the Act. Thus free comment on and critical analysis of that body, its decisions and its procedures was virtually outlawed. Subject to the law of defamation, there is now open season on the commission — as should be the case in a democratic society.

The prosecution thrown out yesterday was that of Nationwide News Limited, publishers of The Australian, for having published a piece by the late Maxwell Newton which in rather extravagant terms berated the arbitration authorities. Newton’s arguments are not now vindicated — but his right to put them forward, and The Australian’s right to publish them, are. That is a great victory for open and vigorous debate about our institutions.

The Industrial Relations Commission is not a court — it is less than a court — and certainly should not have a degree of protection from criticism which no court these days would claim.

As for the attempt by the Commonwealth Government to ban political advertising, that is also dead meat in any of its forms. Originally, it will be remembered, the Government wanted to ban broadcast advertising at all times. The Democrats, not out of any principle but simply the self-interested realisation that minor parties must suffer from a total bar to paid television advertising, insisted that the ban be restricted to election campaigns only (with compensating free time provisions).

The objectionable nature of the ban, total or partial, lies in the fact that as well as forbidding the free expression of political views it would penalise new and little-known parties, give far too much power to journalists and editors, and leave open “non-political” advertising by pressure groups, unions, or industry associations which would benefit one side. To say that speech is not “free” when it has to be paid for is merely a play on words — there is no such thing as cost-free publication.

The really intriguing aspect of the High Court’s decisions is the arguments which underlie them. The court, seized by the urgency of the advertising matter in the context of two State election campaigns, has acted quickly to announce its decision and will give its reasons in the fullness of time. But there was no such urgency in the Nationwide News case, which was, however, decided at the same time, apparently on the same principle.

As far as can be determined, this is a principle which the Commonwealth will find very restrictive in the future. There were three main lines of argument put to the court in the course of each of the two cases by the critics of Commonwealth power.

In the instance of the News case, these were, first, that section 299 (1)(d)(ii) of the Industrial Relations Act, which forbids a person from using “words calculated to bring the commission or a member of the commission into disrepute” was an invalid exercise of the conciliation and arbitration power of the Constitution; second, that there is an implied right of free speech in a democratic constitution like ours; and third, that any restriction on free speech is tantamount to a breach of section 92 of the Constitution which provides that “intercourse” between the States shall be absolutely free.

Australian Capital Television and the NSW Government did not intend to argue this third ground and were taken aback when the court asked for argument in terms of it.

The principle on which both laws were declared invalid was the first, namely that both laws were an invalid law of the Commonwealth within the provisions of the Constitution. The court felt it unnecessary to deal with the other two. (This is a longstanding principle of economising on a court’s ruling, saving up decisions for a future date unless it is absolutely necessary to make them now. But watch for the obiter dicta, or passing expressions of opinion.)

Why were the two laws invalid exercises of the Commonwealth’s power? To understand this we have to go back to a judgment of Justice Mary Gaudron in 1988 (written in her accustomed impenetrable and sometimes totally incomprehensible prose — perhaps this time she will take the trouble to translate her judgment into English), on an attempt to prevent an Aboriginal group selling T-shirts saying nasty things about the bicentenary. The Australian Bicentennial Authority argued that under its Act it had a monopoly on the use of terms such as “bicentenary”.

In effect, the court ruled that there was a limit on the power given by the last provision of section 51 of the Constitution to the Commonwealth to make laws “incidental” to the execution of any of the other powers. That is, although the Commonwealth could make laws relating to the celebration of the bicentenary it could not make laws incidental to this of any nature it liked.

Thus a prohibition of free speech is not a legitimate law incidental to the exercise of the conciliation and arbitration power of the Constitution, nor to the exercise of the broadcasting power (which has been construed to follow from the power relating to “postal, telegraphic, telephonic and other like services”).

This conclusion must depend on a line of argument about just how far it is allowable to go in the way of “incidental” law-making. It would hardly be considered “incidental” to the exercise of, say, the banking power to say that a person could not criticise a bank; or “incidental” to the exercise of the quarantine power to prohibit free movement of healthy Australian citizens.

The judgment therefore has quite incalculable implications for many existing laws or sections of laws. The High Court is in effect saying that it remains the judge of what is incidental to the exercise of a power, and what goes beyond any reasonable exercise of the power. It is quite possible that the whole elaborate structure of the broadcasting regulation, especially the limitation in the number of television licences and the powers of the Australian Broadcasting Authority, to set standards (or interfere with journalists) could be ruled invalid in terms of yesterday’s decision.

Thus while the court has avoided invitation to accept that there are any implicit guarantees of rights in the Constitution, it has been prepared to rule that in terms of one fundamental right, free speech, it is beyond the power of the Commonwealth to infringe it by means of legislation incidental to the execution of any other power.

And since there is no explicit power in the Constitution to legislate with respect to freedom of speech or any limitations to it, it may be open to the court to rule on some future occasion that the Commonwealth has no power to abrogate common law rights of free speech.

It seems that the High Court may be well down the path of establishing a bill of rights by piecemeal decision. In any case, something for which we must all be grateful, it has warned the Commonwealth that it cannot do anything it likes incidental to any head of power; and above all it cannot exercise pre-censorship or bans on speech without explicit authority.

***
7.
Frank Devine, “The right to free speech: Please sir, may we have some more?,” The Australian, October 5, 1992, p. 11.

“Parliament shall make no law abridging freedom of speech or of the press.” Imagine this — no more, no less — being added to the Constitution as its 129th clause. It would transform the nation.

This 129th clause (closely related, indeed, to the First Amendment of the American Constitution) goes far beyond people being “allowed” to criticise the Industrial Relations Commission or buy television time to make political pronouncements, and newspapers being “given” licence to wallow in excess.

It challenges basic notions of State supremacy over the individual, of governments being the “owner” of authority. It undermines our penal colony heritage of governments that see themselves as empowered to command and victual the inhabitants.

Unfortunately, last week’s High Court judgments on two matters involving government restriction of free speech — the ban on political advertising on TV and an attempt to punish the publishers of The Australian for printing harsh comment by the late Max Newton on the IRC — seem to have moved us little closer to recognition of the innate and inalienable rights of individuals.

A majority of justices claimed, in their written opinions in the political advertising case, to have detected an implied guarantee of free speech in the Constitution. Since they based their decisions on other considerations, however — mainly constitutional provisions for the conduct of representative government — it seems open for other justices in the future to fail to detect such implications.

References to a right of free speech in the Max Newton-IRC decisions are elliptical in the extreme and are made only in the context of propriety and value of having the actions of judges and courts exposed to public comment.

The absence of any penitence by the Federal Government for its outrageous efforts to suppress free speech makes it unlikely that the High Court rebuffs have jolted it into a sudden vision of power being vested in the people.

Senator Nick Bolkus, the minister who forced the advertising ban legislation through Parliament, could conjure up only mild sheepishness about his defeat.

He even claimed, after the High Court had published its opinions: “The outcome is, quite ironically, something we have been fighting for.” Really? How subtle his tactics, then.

It seemed to virtually everybody else, when he started his ill-fated mission, that Bolkus was fighting to prevent expression of political opinion any time, anywhere, through paid-for TV announcements, instead of just during election campaigns — which was the best he could eventually extract from the vacillating Democrats in the Senate.

The fortunately short-lived Bolkus regime was most vividly on display during the Tasmanian election. The ban on advertising had just come into force and a ration of “free” two-minute spots had been compulsorily distributed among the parties by all Tasmanian TV stations. Non-party interest groups did not get a look-in.

Party spokesmen were required by law to appear alone on camera, against a plain background, without theme music or graphic support, pictured from about mid-chest up and refraining from extravagant gesture.

Michael Field, Bob Brown and Ray Groom (especially) all looked as if they had come from make-up sessions dominated by taxidermists. It was funny in a way but lacking the vitality of authentic comedy.

Indeed, I found myself troubled by a suggestion of the sinister in these Tasmanian telecasts, but could not place the reason for it. Weeks later I realised that Field, Brown and Groom had reminded me of unfortunate people forced before the TV cameras in countries more violent than ours after a night in the interrogation cells, or with men with machine-guns standing in the studio out of camera range.

Max Newton offended against rules quite as pinioning as those employed to choreograph the Tasmanian election campaign. Section 299 of the Industrial Relations Act forbids anybody (under the pain of fine or six months in prison) to “use words calculated … to bring a member of the commission or the commission into disrepute.”

In an article appearing in this paper in November 1989, Newton, a man of flamboyant expression, described the commission Bench as (intellectually) corrupt and “Soviet-style” in its working. The offended IRC sought action by the director of public prosecutions.

Max had, alas, died in the interim — or, as it soon seemed to the incumbent editor of The Australian, had taken the coward’s way out. A telephone message asked me to contact a detective-sergeant at the Special Branch, which I did. Could I call upon him at the Sydney office of the Special Branch and discuss the Newton article, about which a prosecution might be pending?

Responding that I would consult my busy schedule and let the detective-sergeant know, I fluttered to the office of Brian Gallagher, a fearless solicitor who said I might as well go to the Special Brand. Otherwise they would come to, if not for, me. Gallagher would keep me company.

The Special Branch office proved to be a convivial sort of place, not unlike the squad room in Barney Miller. The detective-sergeant and a young assistant took me to an interrogation room to make a statement. Guided by Gallagher, I told them all I knew.

Evidently discouraged from seeking empty victory over such a bland person, the DPP prosecuted my corporate employer, won the first round and then resoundingly lost the appeal on constitutional grounds. All’s well, etc.

But is it? No blood was spilled, but what sort of country is it where the Special Branch interrogates editors about insults directed at labour arbitrators, and governments suppress political disputation?

Protection against this kind of thing can only be achieved constitutionally. The government has little idea what “rights” are.

Bolkus was a member of a Senate subcommittee which, in 1985, helped frame an Australian Bill of Rights. It recoiled, during its inquiry, from the American example on the ground that it permitted individuals to exercise rights irresponsibly. We didn’t want that here. No, sir!

The proposed legislation failed in the Senate, fortunately. Otherwise our “Bill of Rights” would have been an Act of Parliament enabling government to give us hand-outs of “rights” from its proprietorial store of them. Moreover, a government agency, not the courts, would have had charge of distribution.

***
8.
Frank Devine, “On balance, PM’s media case is biased,”
The Australian, November 25, 1993, p. 11.

Conrad Black may be loose-tongued, but it is Paul Keating’s macho blabbermouthing that has made a celebrated cause of his pre-election attempt to win from Black a promise of “balanced” reporting by the Fairfax papers.

All Black said in his memoir, A Life in Progress, was that Keating had told him “If he were re-elected and Fairfax political coverage was ‘balanced’ he would entertain an application to go higher” than the 15 per cent of Fairfax Black then held. In the event, Labor won and Black was allowed to lift his stake to 25 per cent.

Asked at a press conference in Seattle, where he was attending the leaders’ meeting of the Asia-Pacific Economic Co-operation forum, how he could be the judge of what was “fair” in a newspaper, Keating replied: “Well, I am Prime Minister. That’s how I became the judge.”

How preposterous. What makes the Prime Minister’s opinion in such matters more valuable than that of a reader who pays 70c for a copy of a newspaper?

In this particular instance, his view is of less importance than say mine, since I am a Fairfax shareholder — albeit with a holding not easily visible to the naked eye.

Keating demonstrated what he meant by “balance” by denouncing Australian journalists based abroad for “negativism” in pointing out that APEC leaders did not agree with some of his proposals.

“When are they ever going to say that it was a great thing Australia put together, and it has actually come off?” he demanded.

In a democracy, Prime Minister, the answer is that they will say it when they are good and ready. A more courteous response, alternatively, is that the Government has been warmly praised by the press for its APEC initiative throughout the four years of skillful diplomacy that reached a climax in Seattle this month.

Keating is not the only national leader to let off steam about an under-appreciative media.

In an interview in the current issue of Rolling Stone, President Bill Clinton complains: “I have fought more damn battles here for more things than any president has in 20 years with the possible exception of Reagan’s first budget and not gotten one damn bit of credit from the knee-jerk liberal press.”

A suitable answer to that is: Tough shaving-cream, Mr President, but you knew the score when you applied for the job.

What, I wonder, would Keating and Clinton make of the late Max Newton’s inspiring aphorism: “True journalism is devoted entirely to the revelation of facts which someone does not want revealed”?

Keating’s initial proposal to Conrad Black at least had the perverse virtue of being manipulative. Clinton’s outburst to Rolling Stone and many of Keating’s subsequent observations on the Fairfax matter reek of vanity and egotism.

Perhaps the time has come for the media to buy into the practice a 1991 proposal by P.J. O’Rourke, who believes “politics are a lousy way for a free man to get things done … like God’s infinite mercy, a last resort.”

O’Rourke’s idea is that the media should never mention a leader of government by name, or publish his picture except when it is essential in the depiction of a real event — and then only by photography from behind which provides a glimpse of shoulder and back of head.

And to complete a trinity of learned references, how about Juvenal’s Quis custodiet ipsos custodes? (Who guards the guardians?) If Keating is to be the judge of “balanced” and “professional”, as he concedes to be another quality he sought from Black, who is to be his judge?

The fact is that the Government avidly sought to tune the voice of Fairfax publications from the moment the company’s collapse putatively delivered them into its hands through a regulation spun off from the Foreign Acquisitions and Takeovers Act. It requires that “all proposals by foreign interests to establish a newspaper in Australia or buy an existing newspaper business are subject to case-by-case examination, irrespective of the size of the investment”.

Under the Act, the federal treasurer also has the power unilaterally to overrule “in the national interest” any purchase.

Corporate Cannibals: the Taking of Fairfax by Colleen Ryan and Glen Burge describes Stephen Loosley, then national president of the ALP, glaring across a table at a representative of Australian Independent Newspapers, a Melbourne group put together to bid for Fairfax, and snarling: “In 150 years The Sydney Morning Herald has never written an editorial in favour of the ALP in NSW.”

In a Caucus debate over a proposal to freeze foreign investment in Fairfax at a level that would effectively have driven out the foreign contenders and left only AIN in the running, communications minister Kim Beazley demanded: “Why should we do any favours for an uptown Melbourne establishment lot?”

Trying to turn treasurer Ralph Willis away from approving Black’s financially successful bid, backbencher John Langmore argued: “In order to have a diversity of opinions in the print media, it is inappropriate to allow in a man who is a capital ‘C’ conservative. You can’t allow him.”

ALP backbencher (at the time) Chris Schacht persistently pressed on Black his own candidate for chief executive of Fairfax, implying that this man’s appointment would damp down left-wing Labor opposition to Black’s acquisition of the company.

Keating, in one of his recent expansions on his pre-election conversation with Black, recalled that he told the Canadian, “If you barracked for the Opposition on the basis of your conservative proclivities in other places, there is no way you would qualify as the owner we would like.”

The Opposition’s reaction to the Black-Keating discussion of what it takes to get government permission to publish a newspaper in Australia has been extremely dim. “That’s out of court,” has been John Hewson’s fiercest comment.

Personally I find this unsurprising and have no doubt that the Coalition, given the same opportunities to pull the strings on the Fairfax contenders with the “case-by-case examination” regulation, would have attempted the same fool tricks.

Nothing in the record of the conservative parties suggests they have any passion for a free press, or genuine understanding of its role.

If we are in the mood for constitutional amendments, the one that would transform the country — and for the better — can be expressed, as it is elsewhere, in a single sentence, “Parliament shall make no law abridging the freedom of speech or of the press.”

***
9.
Padraic P. McGuinness, “Politicians cannot be trusted with control,”
The Australian, November 25, 1993, p. 11.

So we are going to have yet another parliamentary inquiry. I hope that the people involved have the sense to look at the videotape, and read the transcript, of the appearance of Kerry Packer before the House of Representatives committee. It might save them from a lot of foolishness.

The best thing about the Senate select committee on the Paul Keating-Conrad Black relationship is that it might help educate the Democrats in the absurdity of their policies with respect to media ownership. At the very least, they will have to read Conrad Black’s autobiography, which will teach them quite a lot about how things happen in other countries.

The occasion of the inquiry is, of course, the naive account given by Conrad Black, principal shareholder in John Fairfax Holdings, publisher of a number of Australian newspapers, the London Daily and Sunday Telegraphs and a string of minor Canadian and American newspapers, of his dealings with our Prime Minister. Black speaks highly of Keating and is convinced that the latter’s pretensions to culture and wide reading have a real basis. Perhaps they have. Certainly, Black as a man of considerable educational and literary achievement himself (his autobiography is well written and interesting) has some credentials to make such a judgment.

But it is more probable that he has simply been taken in by the considerable charm which Keating can exercise when he wants to and when he has not been crossed. What Black actually writes about the famous interview is simply that Keating offered to allow him to increase his shareholding in Fairfax if The Sydney Morning Herald’s coverage were “balanced”. What he almost certainly did not know is that the Prime Minister’s idea of balance is slavish loyalty and admiration for Paul Keating, a state to which the latter would, if he could, reduce all the Australian media and especially the Canberra press gallery (where he has been pretty successful anyway).

Let there be no illusions concerning what Conrad Black is about — he is disarmingly frank about it. “Newspapers,” he writes in the final chapter of his autobiography, “especially quality newspapers, remain powerful outlets for advertising, information and political influence.” He is perfectly clear throughout the book that the political influence he can exercise through his newspapers is important to him; just as he makes no bones about his participation in editorial policy. (However, when he strongly disagrees with something in the newspapers he is likely to write a letter for publication saying so instead of thundering behind the scenes.)

Now there are no surprises in this. The only media outlets in Australia that do not have an element of proprietorial influence are those owned by the taxpayers, where the owners and the public have no say at all and the management and staff treat the enterprise as their own property to be fought over, publicly and privately.

The impropriety in the Keating-Black exchange is wholly one-sided — it was the Prime Minister who was proposing to peddle political influence. That he is prone to misuse the power of his position in matters great and small has become all too obvious since the election; that he is prepared to misuse the foreign investment review process as a means of exercising arbitrary personal power, whether over Woolloomooloo Bay or the Fairfax newspapers, is clearly established.

This very fact is precisely what is wrong with all the paranoid fear of foreign ownership that pervades the Australian political and media scene. Of course it is not the editorial independence of the media which is the issue but the ability to interfere with that independence of various Australian power bases, including politicians, unions, pressure groups and vested interests operating through all these. The truth, as Paul Keating makes clear, is that the main reason for limiting foreign ownership of the media is to enhance the power of the government of the day. (The fact that self-appointed media critics think that one day they too might be able to usurp some share in this power is only a trivial sideline.)

The only effective check on the power of the media is to open it up totally to domestic and foreign ownership, with none but the minimum technical regulation of means of dissemination. In the case of the print media, new technology is already beginning to fragment its market dominance (what Black delightfully calls “franchises”); in the case of electronic media, it is clear from the shemozzle of the pay TV affair that government has no business shoring up established licences or blocking technology.

Politicians rarely accept this, even when they think they are acting from the best of motives. They want to exercise control to the extent that they can, even if, as with the Democrats, it is to impose high-minded and boring “information” on a public that wants entertainment. They also have no understanding of what actually happens within the media.

An excellent example of this is in the memoirs of a former minister for communications, Neil Brown, which could hardly provide a better contrast with the Black memoirs. The Brown memoirs are parochial, ill-written and interesting only to the extent that they illustrate the poverty of talent in the Fraser government.

He recounts a meeting of the Australian Advertising Council about 1982 with John Fairfax, then, of course, a director of Fairfax: “I had scarcely set foot in the room when he started, ‘Sometimes I think your party does not believe in free enterprise,’ he cried.” Surely a fair comment about the Fraser government, which Brown freely admits elsewhere.

Quick as a flash came the response: “‘Sometimes I think that your company does not believe in free enterprise either, when I see all of the left-wing causes you take up,’ I replied. I also had in mind the outrage his family newspaper, The Australian Financial Review, had expressed at the apocalyptic effect on the Overseas Telecommunications Commission if I should allow ‘private users’ of satellite dishes to break OTO’s monopoly.”

This apparently left John Fairfax devastated. I am not surprised, since at no time during this period, when I was editing this paper, did we ever express such outrage, as distinct from reporting other peoples’ views on the subject; nor did the Fairfaxes at this stage ever interfere with editorial policy. That is, Brown cannot distinguish between editorial comment and reporting and he assumes, like most other politicians, that proprietors do in fact behave as badly as he would like them to do in support of his side.

In a word, there is not a single politician who can, any more than Paul Keating, be trusted with power over media ownership or content.

***
10.
Frank Devine, “Potency restored to neutered press,”
The Australian, February 24, 1994, p. 9.

Ros Kelly doesn’t realise how lucky she is to live in Australia instead of the United States or England. What a walloping she would have taken from the media in either country immediately she was caught rolling around in her underwear (figuratively speaking) among mountains of $100 notes.

The showbiz-oriented New York Post would certainly have drawn attention to Rubout Ros’s striking resemblance, when unamused, to Louise Fletcher in One Flew Over the Cuckoo’s Nest. I doubt the Chicago Sun-Times would have been able to resist: 30 Million Questions — And a Tale for Every One.

God knows what Fleet Street would have got up to, had Ros been one of theirs. Golly! Look What I’ve Found in My Handbag. Her Spree. Your Bill. Anybody for $30m Tennis? Smelly Kelly Fun and Games.

And that is not to mention the metres of razor-gang reporting there would have been of ratbaggery on the bowling greens — by a distinguished supporting cast, as well as by Kelly.

In contrast, the Australian media collectively has been almost culpably decorous. Some of us even added grunts of assent to the odious contention that Kelly’s mismanagement of our money was okay because all politicians did likewise.

Genteel behaviour by the Australian media is ingrained habit forced upon us by defamation and confidentiality laws that are oppressive because of their basis in precedent and case law, rather than on constitutional foundation, and consequent capriciousness.

For the past year or so, however, the High Court has been hearing cases and making decisions which, cumulatively, may thrust freedom of speech and of the press upon us. After generations of meekness while being shouted down by upstart politicians and a bullying judiciary we — media and public — may not even welcome the responsibility.

However, the High Court will be hard to stop.

Last November it issued a little-noticed by definitely boat-rocking judgment on a free speech matter in favour of North Queensland Newspapers. It will soon make known its decision on an application by West Australian Newspapers.

Both of these cases dwell in the shadow of a historic 1992 decision by the court, in which it linked two separate appeals — one by the publishers of The Australian against a finding that an article by the late Max Newton had defamed the Industrial Relations Commission, and another by a television station against a new law restricting political commercials. The High Court allowed both appeals on the grounds that relevant laws infringed a guarantee of freedom of expression implied in section 92 of the Constitution.

The 1992 decision was a poke in the eye with a sharp stick for the then communications minister Kim Beazley, who, introducing the political commercials legislation, conceded that Australians had a right to freedom of expression, but ominously added, “This right is not absolute.”

Such unchallenged hints that freedom of speech is a favour measured out in doses by authority, rather than an absolute right, have contributed greatly to the constipation so noticeable in public debate and discourse.

The High Court’s North Queensland decision knocked authority’s grip loose from another dose-control mechanism.

The case arose from a 1986 speech made in the Queensland Parliament by Max Menzel, in which he alleged that the chairman of the Johnstone Shire Council works committee, George Pervan, had “misapplied cyclone relief funds” and had been “feathering his own nest”.

The local newspaper, The Innisfail Advocate, reported Menzel’s allegations and replies to them.

Subsequently it published an advertisement about a forthcoming public meeting: “Councillors feathering their own nests? Funds being misappropriated? This is doing irreparable harm to the image of our shire. It is now more important than ever to attend a ratepayers and residents meeting at the Grand Central Hotel.”

Pervan claimed the advertisement was defamatory and won modest damages from the District Court. The newspaper publishers appealed to the Supreme Court, which overturned the first verdict. Pervan went to the High Court.

By a majority of six to one the court rejected his appeal. The most potent aspect of its decision was the confirmation that privilege (protection against defamation action) extends to fair comment on statements made under privilege — in Parliament or courtrooms, for instance.

There was no obligation on the commentator to establish additional facts, or guarantee the accuracy of allegations commented on. “There was a clear substratum of fact on which the publication was based,” the court ruled in The Innisfail Advocate case, “consisting of the statements made in Parliament, and that is all that is required.”

In the past, rulings by judges made from the position that comment can’t be fair if the facts are wrong has caused qualified privilege to be a virtually worthless defence in libel actions. Now, if something is talked about in Parliament, it can be talked about in public.

The pending West Australian decision may have even farther-reaching consequences.

In 1992, The West Australian described as “a junket of mammoth proportions” a trip by a Liberal member of the State Upper House, who with five colleagues went on a 22-day trip to Sydney, Canberra, Melbourne, New Zealand, the US and Canada. All six MLCs sued the newspaper for defamation.

In its application to the High Court, The West Australian challenges the basic right of members of Parliament to sue for defamation over comment on their job performance, including expenditure of public money.

If the newspaper succeeds, we will have taken a vital step towards achieving what I believe to be the totally desirable American situation of preventing public figures from suing for defamation unless they can prove personal malice or deliberate untruth.

In a lively new book about the history of libel and censorship in Australia, Guilty Secrets (Pascal Press), Robert Pullan publishes a selection of the names of public figures who have sued the Melbourne publishers, Herald and Weekly Times.

In a country where freedom of speech and of the press were truly taken for granted, they wouldn’t have dared try it on. They might have been ashamed even to think about it.

***
11.
Frank Devine, “Who dares loses in addled court rules,”
The Australian, September 16, 1994, p. 15.

If Ivan Milat, the man charged with the murder of seven backpackers, had emulated O.J. Simpson in leading police on a grotesque expressway car chase, Australian media could — as American media did — have reported and filmed every moment of it. Who Weekly could have published as many pictures of events as it wished, including an arrest.

Up to the moment of the arrest, while no legal proceedings were in motion, a contempt of court action would not have been possible under Australian law.

Once proceedings against Milat were initiated, it became, as Who Weekly discovered in the NSW Court of Appeal yesterday, illegal to publish a single picture of him.

Full of anomalies, and a product of a time when the public was more docile about being told and shown only what officialdom decreed was suitable for general exhibition, contempt of court laws are in need of overhaul.

Freedom of the press being an oddly unpopular cause in this country, it is a bit risky to suggest law reform on that basis. But it is a risk that needs to be taken.

Where there is a real commitment to freedom of the press and of speech, citizens (including those of the media) are entitled to say and publish whatever they wish, unless specifically proscribed. Proscription is an effortful process where the commitment exists.

Unfortunately, I don’t think it does exist in Australia. The conviction of Who Weekly for contempt of court is a classic Australian example of the law putting a squeeze on the media, just in case something bad happens as a result of being “given” its head.

Contempt of court law is notoriously arbitrary. Chief Justice Gleeson conceded in yesterday’s judgment that “a tension exists … between the desirability of bright line rules, which enable people to understand their obligations with reasonable certainty, and the need to sustain sufficient flexibility to allow for the variety of circumstances that exist”.

This is not good enough. It is paternalistic and patronising. Publishers and journalists are being told, in effect: the law will tell you what you’ve done wrong after you have done it.

The letter of the law under which Who was found guilty of contempt for putting Milat’s picture on its cover after he was charged with murder is clear enough. The benefits of having such a law are hard to see, and instances are numerous of failure to apply it in the same real-life circumstances.

The basis of the NSW Attorney-General’s case against Who was that seeing Milat’s picture on the Who cover might pollute the memory of witnesses called on to identify him at his trial.

Identification is a tricky thing. I have heard of an American law professor who paid somebody to rush into his lecture room and apparently club him unconscious. On miraculously recovering, the professor asked his students to write a description of the intruder. Each student, it turned out, had apparently seen a different individual.

Yet it is questionable whether a photograph could subsume personal memory of a dramatic event or personal memory summoned up in dramatic circumstances, such as a police interrogation or an appearance in the witness box. As for juries, Justice Michael McHugh, of the High Court, noted while Chief Justice of NSW that the experience of being sequestered while considering a case dimmed images of events occurring outside the courtroom.

It was argued in the Who case, as it has been in others, that the sight of Milat’s picture might turn up new witnesses to testify at his trial. So it might. But who is to say that they would be witnesses testifying to his disadvantage or ones able to help him establish an alibi?

It was argued that Who editors should have known Milat’s face wasn’t to be shown by the fact police put a coat over his head after his arrest. Is this to suggest we need another level of arbitrariness to confuse contempt law? (In any case, I think I would rather bluff my way to an appearance of bare-faced innocence than hide guiltily under a cloak draped about me by the police.)

Police got a big break over Who being free to distribute photos and composite sketches of suspects as widely as they wish. This may not be contempt of court, if done before legal proceedings begin, but it is likely to have a far more damaging effect on somebody’s prospects of a fair trial than publishing, as Who did, a picture having no association with purported crimes.

And suppose an indicted criminal escapes? Are the police expected to conceal what he looks like? They never have, thank goodness, and the arbitrariness of contempt of court proceedings has made it possible to let them be spared prosecution.

The fact is that the law under which Who has been convicted is one of those measures that seek to defend against a rare eventuality by imposing blanket prohibitions.

If pressing need is seen for no pictures of a particular defendant to be published then let his representatives apply for a special-case injunction. To handle such situations otherwise is to leave the law in contempt of freedom of speech.

***
12.
Frank Devine, “Free speech given voice,”
The Australian, October 27, 1994, p. 11.

Peculiar is the word for reaction to the recent High Court ruling that makes it difficult for politicians and some other public figures to win defamation actions against their critics.

A federal member of Parliament, Dr Andrew Theophanous, had sued the Melbourne Herald Sun for publishing a claim that Theophanous had a pro-Greek bias in immigration matters. Thomas Stephens, a member of the West Australian Upper House, had sued The West Australian for suggesting he had gone on a junket.

The High Court ruled that, irrespective of the truth of the statements, the newspapers were entitled to make them because the Constitution gave citizens, by implication, special privilege to say what they thought of politicians — as well as some lobbyists, officials and political commentators.

Theophanous is entitled to his opinion that the decision might discourage Australians from entering Parliament, although, on the face of it, unbiased Australians who do not go on junkets will be fine.

But much peculiar comment has come from legal academics. Astonishingly, few of them have been able to resist the temptation to give the media a dressing down for expecting to benefit from the High Court ruling.

“Seat-of-the-pants journalism, that which lurches from sensation to sensation, will find it hard to bring itself within the freedom of speech defence … The confidentiality of sources is extremely important, but it is only responsible confidentiality that will survive.

“This is not a defence that will protect irresponsible journalism … These rulings are not going to lead to an open season on politicians and officials. Journalists may have to give evidence and their work habits will come up for examination … (Chief Justice) Mason is going and the majority decision may not prevail for long.”

On the ABC’s Media Watch last week, Stuart Littlemore QC focused on the use television news made of a videotape of a police interview with an accused murderer and an audiotape of an apparently demented person running amok, both tapes supplied to the media by police.

With a full spray of music-hall sneers, Littlemore proposed that such reporting showed the media to be undeserving of greater freedom. (In fact, I thought the news segments Littlemore replayed gave useful information about law enforcement the public was entitled to have.)

In Darwin this week, a barrister acting for a former police sergeant in a defamation action against the ABC asserted that the “Theophanous defence” would not work in this case, and described journalists as “arrogant and powerful … ever ready to distort the truth and tear down ordinary and good Australians.”

Apart from the ignominy for journalists of being given lectures on good conduct by, for God’s sake, lawyers, the lecturers are tuned to the frequency when they suppose the recent High Court decision to be, other than collaterally, about freedom of the press. It is about freedom of speech.

So were the court’s 1992 decisions overturning the Government’s partial ban on political advertisements on TV and the Industrial Relations Court’s outrageous claim to enjoy legal protection from being insulted. Opponents of the High Court’s free speech directions are, it seems to me, using the media as surrogate recipients of their bile.

Thanks to the High Court, the individual citizen has acquired much enhanced (though not enough) freedom to criticise publicly the performance of local, State and federal politicians and to challenge their worthiness for office. He or she might also be privileged to denounce the actions of trade union officials and spokespersons for, say, environmental and ethnic groups. He or she can buy television time to do this, or rent a speaker van for a Saturday morning of speaking his or her mind or climb on to a soap box.

These are desirable developments. They are also profoundly disruptive in a society that has been cajoled into accepting that those in authority are freer to speak than anybody else and that it is okay for elites to ration information.

Where else, among democracies, could John Elliot have sought (as he did last year) an injunction against being charged with fraud in a closed hearing so secret that no mention could be made of its existence?

The systematic suppression of free speech that has come to be taken for granted here was cogently addressed in a brief prepared by the solicitors for Who Weekly magazine, Allen Allen and Hemsley last month.

The magazine was appealing to the NSW Supreme Court against its conviction for contempt of court. It had published a photograph of Ivan Milat, the man accused of the backpacker murders.

Who magazine intends taking the matter to the High Court. That ruling will, indeed, have bearing on freedom of the press.

In its Supreme Court submission, Allen Allen and Hemsley argued that contempt law “originated not so much from an aspiration towards fair and uncontaminated justice” as from “a currently irrelevant notion that authority must be preserved at all costs”.

The brief added, “The desire to protect established authority (is) in conflict with current notions promoting and giving constitutional recognition to freedom of communication”.

However, it is hard to see where such notions are current in Australia. It sometimes seems to me that, despite the restrictions of defamation law and on access to information, a Watergate scandal could be exposed here (although it wasn’t in Western Australia during the 1980s), but that Nixon would survive. The public, resigned to having little voice in affairs, would be insufficiently indignant.

More than changing laws, the High Court’s judgments on freedom of speech might have the cumulative effect of changing attitudes. This is understandably alarming to people who want nothing to do with the view, expressed on several occasions by Justice William Deane, that sovereignty resides with the people.

***
13.
Frank Devine, “Divisive racial hatred Bill an insult to us all,”
The Australian, November 14, 1994, p. 11.

The mind reels when opposition to the Federal Government’s Racial Hatred Bill 1994 is characterised — as it frequently is — as “right wing”. It seems only yesterday that freedom of speech was the treasured cause of small-l liberals.

As for the pathetic attempt by the big-l Liberals to establish a position of any kind, a rising gorge conjoins with a reeling mind. The waffle of Alexander Downer translates as: We will oppose the Racial Hatred Bill 1994 but introduce legislation of our own that will repeat its worst features. Ours won’t pass but it will show ethnic voters our heart is in the right place.

Heart-schmeart! What are the Liberals doing for a brain?

The Racial Hatred Bill is insupportable (if, alas, not necessarily unsupportable) on several specific grounds, as well as the overall one that the Government simply must not be allowed to dictate what we may or may not say.

No need for the legislation has been demonstrated. The Attorney-General tacitly concedes it cannot be demonstrated when he claims the Bill will “protect Australian values by rejecting behaviour which undermines our fundamentally tolerant society”.

Australians reject such behaviour of their own grown-up accord. Otherwise this society would not be fundamentally tolerant.

In an “explanatory” pamphlet, the Government attempts to illustrate with an imaginary and extreme scenario the need for the Bill’s provision of prison terms for inciters of violence against people and property: “The leader of an organisation at a public rally urges members to purge Australia of ethnic impurity by killing non-whites.”

Fantastic speculation is surely inappropriate in a public information program aimed at explaining a radical new law. Anyway, suppose an imaginary leader of an imaginary organisation of crazies urged at a public rally the killing of priests, or the physically handicapped or (in homage to Pol Pot) people who wear spectacles. Are we to believe the law could not touch her?

If our laws against public incitement to violence are inadequate to protect “ethnic groups”, or any other groups or individuals, then let them be amended to protect everybody.

The Government makes a feeble attempt to justify its Bill by claiming the NSW Anti-Discrimination Board would have been “powerless to help more than 400 people who have complained about racist incidents” had the State not introduced “similar legislation” in 1989.

Here the powerlessness of a State instrumentality is presented as an evil in its own right! No effort is made to measure the social consequences of the absence of power — nor to assess the significance of 400 complaints over five years as an indicator of a need for draconian federal legislation.

The Racial Hatred Bill is discriminatory and divisive. The NSW Liberals are reported to have warned their federal colleagues that too vehement an opposition to the Bill in Canberra would damage their prospects in the coming State elections — because there are some 1.3 million voters in NSW for whom English is not the native language.

When you untangle the thinking behind this, a grotesque proposition is uncovered: racial vilification is only conducted in English, and its victims don’t have English as their native tongue.

This is also the underlying motif of the government Bill, with its frequent references to the race, colour or national or ethnic origins of “groups” of people.

Only racial minorities can be thought of as “groups” in this context. So the Government’s proposed law is primarily an offer of protection from vilification to minorities, whether they need it or not.

Leaving aside the question of the Government’s true motives, there is a certain plausibility as to good intent in such an undertaking. No matter what the mob at the end of the bar is saying in Cantonese about us Anglo-Celts, it is minorities that have most reason to be fearful when they are racially vilified.

Yet any legislation aimed selectively at benefiting minorities is inimical to a concept of one nation. It is a last resort, defensible only in a crisis. If passed, the Racial Hatred Bill 1994 will isolate Sikhs, Jews and Muslims (to name only the groups specifically mentioned in the official outline of the draft Bill), and probably foment hostility where it did not previously exist.

The Bill, proscribing public utterance, will prevent Australians from keeping tabs on the state of racist activity. Back rooms and beer cellars are the nurseries of racist violence, not public platforms. What grounds does the Government have for its insolent assumption that Australians would be seduced by, rather than contemptuously reject, racist propaganda?

By its designation of exceptions to the Bill’s proscriptions, the Government lays claim to authority over the media, the arts and the universities.

Racist remarks are okay if made reasonably and in good faith in relation to artistic works. Serious drama and comedy acts are both covered by this proviso. Gee, thanks, government.

The media is entitled to report events as they happen. The publication must be fair. The Bill would not affect the accurate reporting of debate on matters of “acknowledged sensitivity” — for example, policy on native title or migration. O, benevolent masters!

Publications “and the like” made for academic or scientific purposes, “or for other worthwhile purpose in the public interest”, are also likely to get the concessional nod. A lot, I guess, will depend on who is appointed Commissioner of Worthwhileness.

If the National Party is the only institution with sufficient liberal conscience to oppose this legislative atrocity, may its shadow grow longer.

Australia will suffer intellectual atrophy until freedom of speech is established as the cornerstone of society, and government attempts to curtail it are resisted as unconstitutional and unacceptable.

***
14.
Frank Devine, “Keating’s courtiers dazzled by illusion,”
The Australian, February 27, 1995, p. 11.

Paul Keating has spooked a lot of us into thinking he always has something up his sleeve. If he came to dinner and urinated in the vichyssoise tureen there would probably be some mug at the table asking, “I wonder what he meant by that?”

Of course, if people believe Keating has something up his sleeve, then he has, even when there is nothing there. Political gossips of ancient Rome used to worry themselves sick thinking immense thoughts like that. Dieprologia [or is it dietrologia?] was their game, seeking the truth behind the truth.

Roman thinking has abounded since the Prime Minister shagged his way once more into the media control arena.

Could anything be more straightforward than these statements: “I told Kerry Packer I was in the conflict business …”; “I don’t take the troubles, I give them to people like that …”; “It would take more than a dozen Kerry Packers to put pressure on me”?

That was surely Keating going over the top yet again, a well dressed but weedy person pounding his chest like Tarzan, frothing with rage because Packer had defied him, not only by declaring his desire to own the Fairfax newspapers by insolently saying what an honest bloke John Howard was and what a good prime minister he would make.

It certainly looked that way to me.

But no, say the Romans, Keating knew exactly what he was doing. He deliberately picked out a powerful and noticeable opponent and mugged him in public to demonstrate to voters that he, Paul, was the ruggedest Roman of them all.

But that is the most elementary of the dieprologia theories I have heard. There is also the proposition that Keating, in preparation for an election, is methodically separating himself from individuals and institutions with whom he or his party have been too close for comfort. His edging away from the greens — so far evidenced mainly by “leaks” about the rude names he calls them in private — is cited as another example of this tactic.

But we are still barely scratching the surface of Keating’s purported complexity. It is said that some of the personal or institutional enemies has has bad-mouthed, or will bad-mouth in the near future, are actually friends, for whom he supplies deep cover by abusing them.

That is not all. The punch-up with Packer was, it has been said (and written), choreographed by the former senator Graham Richardson, master of mystery and now an employee of Packer’s.

Richardson arranged for Packer to let Keating slap him around in return for future favours — to be granted, ostensibly, over Keating’s dead body. Talk about an infinity of mirrors!

On second thoughts, this kind of Roman theorising is more like a video game, in which you have to identify and avoid layer after layer of decoys in order to arrive at the desired destination. Only the highly skilled get any kick out of it.

The good news is that we don’t really need the Roman game. The best way to arrive at the truth in politics is to listen attentively and skip the hunt for hidden truth behind what you hear. This method always works, though it occasionally takes a while to do so.

Prime ministers are especially prone to inadvertent truth-telling because citizens are entitled to take their words at face value — about the economy, the republic or media ownership. They are free to be tricky on their own time, but this often earns them damaging nicknames like Tricky Dicky and Slick Willie.

My personal observation is that, when it comes to ownership of newspapers and TV, most people share the view of a shearer accosted by a lost traveller in Western Australia. Signposts on diverging roads told the traveller it was 300km to Geraldton by either route.

He hailed a passing truckload of shearers and asked: “Does it make any difference which road I take to Geraldton?”

“Sure as hell doesn’t make any difference to me,” said the lead shearer.

The quality of information and entertainment is all that matters to most of us. But to Keating it really does make a difference who controls their dissemination. He believes it should, for the most part, be him.

His definitive statement on the subject was delivered, you will recall, after Conrad Black reported that Keating had told him he might be allowed a bigger share of Fairfax if the Fairfax newspapers provided “balanced” coverage of the 1993 election.

Asked subsequently what gave him to the right to determine “balance” in reporting, Keating replied, as you will also recall: “I am the prime minister. That is what gives me the right.”

I feel comfortable about taking these words at face value. They are too unequivocal to leave room for Roman conjecture. There was nothing up the Prime Minister’s sleeve when he uttered them.

Keating has displayed his right to control by, for example, making my granddaughter stay up late to watch Terminator II — an old-fashioned romantic melodrama about a noble, if robotic, knight who sacrifices his life to save a young boy and his gritty mother — so it won’t be screened early and upset his daughter.

Spared the bollocks Keating’s government made of its introduction here (a truth behind which there is no other), even New Zealand — as Australians used to say — has had pay-TV for four years. Even the English, who can’t play it, can watch cricket in the West Indies — a regulated improbability for most Australians this year.

With nothing up his sleeve, the Prime Minister indulges himself in exercising power over the media through regulations that appear to be iron-clad, but allow the Government almost unlimited discretion to vary their provisions.

Because the regulations are based on a concept of allocating limited resources, the power to control is rapidly slipping out of Keating’s grasp. How maddening this must be for him. Probably it is sheer frustration that makes him willing — with nothing up his sleeve — to wrestle more than 12 Kerry Packers.

But how does he have time for such games? Hasn’t he any work to do?

***
15.
Frank Devine, “Publish and do as I tell you,”
The Australian, May 24, 1999, p. 13.

Politicians pushing a free press? That would be news

Paul Keating’s amazing chutzpah in making a submission to the Productivity Commission’s media competition inquiry helps explain his living legend status.

Naturally he wants regulation retained — in fact, tightened, with the existing 15 per cent limit on cross media ownership holdings cut to 5 per cent.

Media regulation, Keating explained in The Sydney Morning Herald, “isn’t just a debate for the business pages. In the end, it is not about the efficient operation of the market, or even about media diversity, but about the health of Australian democracy.” The irony of it!

No Australian politician has demonstrated more vividly than Keating as treasurer and prime minister the risk to the health of Australian democracy of even vestigial government control of media.

Passing over as too well-known to bear recounting his notorious use of official position to squeeze the Fairfax organisation financially, his odious and repeated efforts to get journalists fired, and much else, we come to the ultimate revelation in 1993 of his position on democracy and media.

In his memoir, A Life in Progress, published that year, Conrad Black revealed that prime minister Keating had offered to consider Black’s raising his share in Fairfax above the allowed 20 per cent if the Fairfax press provided “balanced” coverage of the 1993 election.

“What gives you the right to decide what is balanced reporting?” Keating was asked at a press conference.

“I’m prime minister. That’s what gives me the right,” Keating snarled.

It is a statement never to be forgotten. Sometimes I wonder if it is a symptom of a cowed press that not much of it was made at the time and that it has been allowed to slip from public memory.

Much as you may fear and loathe Rupert, Kerry and Brian (Johns, chief executive of the ubiquitous multimedia conglomerate, the ABC), they constitute a liberation front against this kind of threat from government.

Keating uttered it with characteristically reckless forthrightness. All Australian politicians harbour more dimly and furtively the same smug belief in the media’s being theirs to control.

I doubt there is even one holder of substantial office who recognises a free press as an important social institution. They see the media as a conduit for their own ideas. Maybe no backbencher thinks otherwise.

The corruption of Australian politicians began in the 1950s when they found themselves in charge of distributing priceless TV licences and dealing with suddenly supplicant press barons. Growing bolder by the decade, they have woven a skein of regulation in which to enmesh the media and assert that what they say goes.

Even bit players — such as, recently, Immigration Minister Phillip Ruddock — feel no discomfort about taking over the editor’s desk.

Reporters would have strictly limited access to Kosovar refugees coming here, Ruddock ruled. They were not “circus animals to be dealt with and photographed as a matter of perverted interest”.

The minister’s action and words are so preposterous and Pythonesque that inclination to argue dies on the lips.

Politicians have a chance for ethical renewal through the Productivity Commission inquiry. In a way it is unreasonable for Rupert and Kerry and Fred (Hilmer, chief executive of Fairfax) to have to approach the commission pleading for an end to regulation. The Government should be there presenting justification of dedicated laws for the media. They would have their work cut out.

For all the maundering about misuse of power and influence by Kerry and Rupert, neither has committed a sin to compare remotely with the unscrupulous manipulation of media regulation by politicians to increase their power and influence.

Not to mention their incompetence. Recollection of the Feydeau fiasco of pay TV licence tendering brings tears to the eyes.

Rupert has founded The Australian and supported it through many storms, reintroduced Australia to the intelligent big city tabloid and built the Fox movie studio in Sydney.

Kerry has brought cricket back to life, given The Bulletin more reincarnations than it can probably take, and made the Nine Network Australians’ primary news source — including from the outstanding Sunday program. What have the regulators achieved? Well, they have blocked Kerry from getting Fairfax and kept it in the hands of …? It is hard to remember who.

Their local content rules have created a TV production industry. Really? With hindsight, it seems likely that popular demand would have done that. Regulations resulted in mountains of quota trash and have got Australians into trouble over its international trade commitments. Hard to protest about US protection of its sheep raisers when we protect our TV producers.

The News Corporation has put forward the best submission, arguing that “content diversity” survives the dominance of a few media companies. That is at least possible. “I am king of the universe,” director James Cameron declared the night Titanic won all the Oscars. He was, too. Rupert only got the money.

The “content diversity” concept strengthens the hand of journalists, which suits me. What we should do is organise a proper professional association to lobby for us on important matters such as education and training. Rupert can have the money.

Some will claim that, as a News Corporation employee and shareholder, I would say all this. Would I? Only at my most insouciant.

***
16.
Frank Devine, “Implicitness isn’t enough: empower the press,”
The Australian, June 19, 2000, p. 13.

Paul Keating doesn’t understand the media’s role

Who said, “Were it left to me to decide whether we should have a government without newspapers or newspapers without a government, I should not hesitate a moment to prefer the latter”?
a. Thomas Jefferson
b. Paul Keating
I considered throwing in Hansie Cronje to make the question harder. But it wouldn’t have.

Who do we recognise instantly as the dead cert to reverse Jefferson and pounce on the idea of government without a press? Keating confirmed that he was the man in a speech at the Sydney Institute last Wednesday.

He delivered a long, resentful grumble about the media’s inequities. Why Keating should be resentful, I don’t know. He has been cosseted and flattered beyond his due by nearly all the media.

The press seems not to be a subject Keating can think about clearly.

I would have been happy to let his latest failed attempt pass, if he hadn’t dragged me into it by taking as his text my expression of doubt (made last century) that there was even one holder of substantial office in Australia who recognised the media as an important social institution.

This, Keating said, was “one of those glib lies that the right-wing punditocracy that dominates the opinion pages of the newspapers and radio waves uses to de-legitimise public life”.

A liar? A right-winger? A punditocrat? Dominant? Pish!

Keating, in any case, then demonstrated his profound misunderstanding of the press’s role.

For instance: “The media is the only effective way of getting the message through to the people.”

It is not the non-government media’s task to carry messages from the government. On the contrary, its purpose is to present alternative interpretations of events and affairs.

Governments have their own powerful medium. It is called parliament. Were the governments to lift the quality of information and analysis delivered to it, their medium would be a mightily effective message carrier.

Free television’s digital technology allows for live broadcasts of the entire sittings of both houses. With the will, Hansard has the means to provide better indexation of its online reports. Or to offer some bargains on its top print version subscription price of $1060 a year, delivered with full committee reports.

With evident relish, Keating recalls that “the Senate committee on information technology recently recommended the establishment of a media complaints commission to deal with public complaints about the media”.

He could understand exactly why people want it, but he did not personally favour such an approach.

Keating not in favour of a government tribunal overseeing the media? Come on.

Most incautiously, Keating compares Australian media practice with that in the US. He denounces the refreshingly malevolent parliamentary press gallery veteran Alan Ramsey for once falsely accusing him of having lunch with Graham Richardson. A single call to Keating’s office would have established that there was no such lunch. But the call wasn’t made.

By contrast, “the other day I received a fax from an American publication to check two facts about me that were to appear as a small part of a story they were printing”.

Well, if Keating wants his US anecdote, let me offer mine.

Starting a new day at the Chicago Sun-Times, of which, in my relative youth, I was the editor, I walked through the newsroom just as Fran Spielman, our chief city hall reporter, was finishing a phone call. She is a cool, beautiful blonde of great intellectual acuity and high principle.

I heard her say in icy tones: “Very well, then. But … never … lie … to … me … again.” Click. I don’t know who she warned. Probably the mayor.

Stalactites tinkled as I walked on. Inside my luxurious office I put another log on the fire and huddled in my overcoat, brooding about the possibility of Spielman asking me an awkward question at the morning news conference.

I can’t begin to imagine a situation in which an Australian journalist might address an untruthful government information keeper so threateningly and with such genuine indignation.

The US constitution’s brilliant First Amendment gives journalists a constitutional responsibility for informing the public, and this is universally recognised and respected. Even withholding information without strong cause is considered questionable conduct by government.

Here, government (and industry, for that matter) employs thousands of media spokesmen whose principal tasks are to lie, conceal, evade and obfuscate. The legendarily corrupt Burke government in Western Australia used to boast it was the second biggest employer of journalists in the state.

Justice Lionel Murphy is credited by many with discerning in the Australian Constitution an implied guarantee of freedom of the press. Implying is a feeble way of guaranteeing anything. Why not be constitutionally explicit about such an important matter?

The fewer generalisations heard from politicians about the shortcomings of the media, the better. Guerrillas are often forced into untidiness.