Legal advice sinks bloggers' Finkelsteinian Nightmare

Part of UNSW

Scouring the internet for opinions on the constitutional powers of the Commonwealth to regulate the media in the manner proposed in the Finkelstein report, I came across a submission to Finkelstein’s own inquiry from the Gilbert + Tobin Centre of Public Law, part of the University of New South Wales (website here).

The submission is dated 14 November 2011, and does not appear in the official list of submissions (as far as I can see, let me know if it is there) and deals precisely with the issue in question: namely, to what extent the Commonwealth has the power to regulate traditional and new media.

One question that must be asked immediately is why the submission is omitted from the list on the Inquiry web site. It was sourced via the Gilbert + Tobin Centre’s own index of submissions. There may be a reasonable explanation for this, but in the interests of transparency it should be stated.

UPDATE: The Inquiry responded to my email about this, stating:

“It is an oversight that the submission has not been published.  The submission will be published shortly.”

The submission now appears on the consultation page.

Here are a few relevant extracts (my emphasis):

The Australian Constitution does not confer upon the Commonwealth any general power to regulate the all types of news media. Instead, the degree to which the Commonwealth can regulate in this area varies across mediums. 

PRINT MEDIA

The Commonwealth has no direct head of legislative power with respect to the print media. However, the Commonwealth may nonetheless regulate the print media by virtue of indirect heads of power such as those relating to trade and commerce, taxation, corporations, external affairs and the Territories. The most significant of these is the corporations power – its potential application to news media regulation is expanded on below. In addition, the Commonwealth may regulate print media where doing so is incidental to the exercise of a direct head of power – for example, it can limit ownership and control of print media as a condition of radio and television broadcasting licenses issued by virtue of section 51(v).

THE INTERNET AND ONLINE JOURNALISM

The extent of Commonwealth power over matters concerning the internet, including journalism that is published online, is yet to be considered by the High Court. However, it is likely that the internet falls within the scope of section 51(v) either as a ‘telephonic’ or ‘other like service’, and that federal regulation could validly extend to the means of online communication, such as infrastructure (eg, the installation of fibre optic cables) and the conduct of internet service providers (ISPs). Other heads of power, such as those mentioned above, may also support Commonwealth regulation of online content. The potential for this is explored further below. 

So far, then, the Commonwealth has the power to regular print media indirectly, through the corporations power, or incidentally to the postal and telegraphic power. It also appears the Commonwealth may regulate internet and online media through the means of communication. However, the following paragraph reveals that Finkelstein’s desire to regulate every blogger in Australia with more than 15,000 hits is beyond the powers of the Commonwealth:

To the extent that online journalism is carried out by constitutional corporations, it will be open to federal regulation via the corporations power in the same way the print journalism is. However, the extent of federal power is less certain where the online content is published by an entity that is not a constitutional corporation. A large number of individuals and bodies fall into this category, including any news outlets that operate as sole traders or partnerships, individual bloggers, and individuals posting on social media sites such as Facebook and Twitter. 

So where an organisation is a corporation, it can be regulated under the corporations power, but apart from that, there is no power to regulate their activities.

The extent of Commonwealth power to regulate online journalism of this nature is unclear. As noted above, it seems likely that section 51(v) authorises regulation of ISPs as bodies responsible for the transmission of online content. However, on current authority, it is doubtful that it extends to the regulation of the creators of content such as individual bloggers. Where news or other content appears online through a service such as Facebook which is controlled by a foreign or for-profit corporation, this could be regulated under the corporations power. 

“Doubtful that it extends to the regulation of the creators of content such as individual bloggers” – this means that if Finkelstein’s regime were to be enacted, it would have to place the burden on ISPs to censor content from blogs which fell foul of the regulatory framework, since there would be no power to act against the blogs themselves (unless they were corporations, and let’s face it, few are).

Furthermore, the submission concludes:

The Commonwealth has extensive, unrealised potential to further regulate the Australian media, including the print media. The corporations power in particular provides a basis upon which to establish new regulation in this field. However, such regulation is subject to the limits of existing powers. In particular, the corporations power only extends to entities that are incorporated and operate as a financial, trading or foreign corporation. In the circumstances, it must be recognised that, although it has extensive power, the Commonwealth does not possess the legislative power to comprehensively regulate the media in Australia. The only means of achieving this would be via cooperation with the States. 

And with New South Wales, Victoria, Western Australia and Queensland (any day now) controlled by Coalition state governments, they can kiss that idea goodbye.

Any such federal legislation presuming to regulate individual bloggers who did not fall within the corporations power would be ruled unlawful in any court challenge, and it appears that Finkelstein’s “tenuous connection with Australia” test is little more than fantasy.

Furthermore, Finkelstein’s “finger in the air” figure of 15,000 hits a year is meaningless in the above context, since the advice above points out that regulatory legality is dependent upon the legal status of the entity (corporation or not) rather than the size of its internet readership.

Surprisingly, nowhere in the report’s 400-odd pages does it acknowledge the vast constitutional mountain the regime would have to climb in order to be lawful against bloggers, which is set out clearly in the above submission. Maybe someone should let His Lordship know.

The submission (PDF) is available here (G + T site) or backup here (ACM).

Comments

  1. Hi Simon,
    Good work. There are going to be more and more attacks on the skeptical blogosphere by the left and it is gratifying to know there are limits to the Fed Governments powers in this area.
    Baron

  2. BrownOut says:

    Interesting find !

    Perhaps the removal of this submission is to avoid the larger corporations preparing a strategy in advance to push messages via blog sites. For example, if you look at a site such as WUWT which has a large global following, then you could conclude that since it’s basically a one man show and not a corporation, it would be hard to shut down, despite having more hits than MSM sites.

    Also, in the print media, smaller community based local papers would probably be exemp for the same reasons. – Time for the Bush Telegraph to go viral :-)

  3. Baldrick says:

    There’s absolutely no mention of the Gilbert & Tobin Centre of Public Law submission on the ‘Meja’ Inquiry website.

    It’s strange how such a relevant submission would be missing … then again, we all remember what happened to ‘skeptic’ submission on the carbon dioxide tax being rejected!

  4. This is where Conroy’s Internet filter comes in – critical blogs will be “filtered” out. No need to bother with legality, the Constitution etc or any of those other nuisance things…

  5. Lou Coppola says:

    The Finkelstein Report states, ‘The Australian Centre for Independent Journalism found that negative coverage (of the carbon tax) across News Limited papers (82 per cent) far outweighed positive coverage (18 per cent). For Fairfax Media papers, the ratio was 57 per cent positive coverage to 43 per cent negative coverage’.

    Seemingly based on the News Ltd figures, it deduces ‘the reporting of news is not fair, accurate and balanced’.

    How bizarre, considering Fairfax reported dogmatically and naively in favour of a scientifically discredited tax, ultimately even refusing to print negative views. A more factual coverage of the unscientific source and real economic impact of the tax, would have spiralled its ‘per cent positive coverage’ into freefall.

    Fairfax’s continued decline in readership represents a stinging public rebuke of such trite, journalistic endeavour.

    For Finkelstein to then parade left-wing patsy Robert Manne as a credible source, the report condemns itself to a farrago of politically motivated tripe.

  6. michaelc58 says:

    You’re on fire, Simon. I will be giving this to Paul Fletcher and Chris Pyne tonight and gently asking why a blogger has to do the shadow attorney’s job.

    • Thanks, Michael. I have emailed Paul and TA about this, but a prod would be good! Best, Simon

  7. Baldrick says:

    You know there must something sinister with the Finkelstein ‘meja’ inquiry report when Greens Leader Bob Brown welcomed the report saying, “The Greens are very pleased with the recommendation that a News Media Council be established to set journalistic standards … This is a good strong outcome for both the media and the public interest in Australia.”

    If Bob likes it, you can best most Australian’s won’t!

  8. bushwanker says:

    Simon,
    I’m in awe of your work here. It’s heartening that there are individuals such as yourself who can help protect Australians against the evil work of Finklestein and his political masters.

  9. I don’t know…. It seems where they can’t use “legal” means to quash free speech, they’ll use activists to bring charges of vilification causing offence, similar to what was done to Andrew Bolt, or use the “regulatory” process to engage your limited time and use up your meagre resources, while their activists possess the legal aid resources of unlimited tax money.(Greenpeace documents were recently leaked stratigizing a similar process to make coal mining unviable, etc) They hold all the cards in their whip hand, to mix my metaphors…. Until we can defund this unelected bloated ecofascist bureaucracy that white ants our Australian democracy and bleeds our tax funding off to activist causes….. the slow slide to a broken, dysfunctional, unprotected society will continue.

    People like Gillard have called the Australian public’s bluff. They stand boldly now and lie to our very faces, knowing that there is not a damn thing we can do about it, we may vote them out… but that is not where the activism stems from nor the power lies….. and they know it. Elected Governments are becoming almost meaningless, they have no power anyway. A vast bureaucracy, too big to fail and pensioned on taxpayers money, implements everything it needs to survive. It allocates funding. It teaches our children, it elevates our future journalists, lawyers, business leaders….. there is little left that it doesn’t control, regulate or manipulate… But isn’t that what every government does, you say?…. Yes, but in this one we no longer get to debate, criticize nor have a say in it and that is the crux.

    We barely resemble a free society…… It is no wonder that free speech is under attack or that a pseudo scientific fraud reins supreme.

  10. Great post! Missed it earlier.

  11. Excellent!!
    Global warming is the greatest FRAUD in the history of civilization!!
    These COMMUNIST TRAITORS will never silence us nor will they win!
    ELECTION NOW !!!!!!!!!!!

  12. old bloke says:

    Interesting information, I thank you.

    Comrade Conroy is one dangerous individual.

Trackbacks

  1. [...] Well, in less than five days I have surpassed 16,000 hits–more than enough to qualify for Australian Censorship. But no sooner do I accomplish this while still leaving 2k-3k hits/per day at the old address, I find out the OZ Constitution does not allow any such “regulation.“ [...]

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