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).

Delingpole on the Finkelstein report


JD

James Delingpole has devoted his column today to Australia’s teetering on the brink of a Finkelsteinian Nightmare. He argues that we must suffer the full totalitarian reality of the progressive Left in order then to comprehensively reject it:

But as far as I’m concerned, the man’s a total bloody hero and when I come to Oz in mid-April I’d like to buy him a pint. Why? Because thanks to good old Raymond I’m going to sell loads more copies of my book Killing The Earth To Save It: How Environmentalists are Ruining the Planet, Destroying the Economy and Stealing Your Jobs (Connor Court).

Raymond – or Pinkie Finkie, as I’m sure he’d preferred it if I called him, because the Aussies do love a bit of informality, don’t they? – has produced a report on media regulation in Australia so terrifyingly authoritarian it makes the Leveson Enquiry look like a model of balance, sanity and restraint. (According to Mark Steyn – via Jo Nova – the Chinese have been eyeing Pinkie Finkie’s report with gobsmacked admiration, wondering whether they could ever get away with producing something quite so extreme…)

But let’s allow lefties like Pinkie Finkie and Gillard and Tim Flannery and Bob Brown their hour in the sun because the longer they stay there, the more damage they do and the more damage they will be seen to have done. This is important. (The same applies to Obama’s US; sadly it’s not going to work here, not with Cameron poisoning the wells for Conservatism for ever). If Australia is to get the government it needs (and deserves) it must first experience the full horror of the government it doesn’t deserve. The more easily ordinary people can see just how authoritarian, petty-minded, bullying, meddling and grotesquely biased the left can be when it holds the reins of power, the more enthusiastic they’ll be about throwing the bastards into the croc pit come 2013. (Or sooner, if we’re lucky). (source)

Read it all. And just to repeat, James’ excellent book is here. Full review to follow.

Media report recommendations 'would make any communist dictator proud'


Finkelstein

An excellent examination of the potentially draconian powers of the News Media Council is undertaken at Kangaroo Court of Australia and is well worth a read:

Former Federal Court of Australia judge Ray Finkelstein QC has handed down his report into the media which having a quick read seems to have been co-signed by Julia Gillard and Craig Thomson.

Make no mistake, it is a political document designed to protect corrupt politicians and dodgy policies from scrutiny and outing by the media. If The Fink’s recommendations had already been in effect we would not of heard about a lot of the dodgy dealings of the politicians because the reporting would have been closed down in record time.

The recommendations by The Fink would make any communist dictator proud.

When complaints are made against media organisations they will be denied natural justice and procedural fairness in their attempt to defend themselves against the compliant. Yep, you guessed it, just like a Kangaroo Court.

The new laws would also apply to bloggers so it is from this perspective that I mainly write about as I am what is considered a blogger. (source)

I am too. It’s a frightening read.

Censorship comes to Australia


The Australia of the future?

UPDATE: Regarding jurisdictional issues, the following extremely concerning paragraph stands out:

11.69 Another aspect of jurisdiction concerns how the News Media Council will exercise its power over all internet publishers. Foreign publishers who have no connection with Australia will be beyond its reach. However, if an internet news publisher has more than a tenuous connection with Australia then carefully drawn legislation would enable the News Media Council to exercise jurisdiction over it. 

“More than a tenuous connection” with Australia? Wow. This is really scary stuff.

——-

Reposting from Menzies House email from Timothy Andrews:

Late yesterday afternoon, I read something that sent chills down my spine.

Mr. Ray Finkelstein QC, a left-wing former Federal Court Judge with no media experience, at the request of the Gillard Government, issued a 400 page report which calls for a Big Brother Super-Regulator to ‘regulate’ political speech and – among other things – impose new laws with the power to stop climate change realists from speaking up.

Its “recommendations” will sicken every single Australian: They actually call for a Big Brother Super-Regulator to censor not just the newspapers and TV, but websites, personal blogs, and even what you say on Twitter!

This is a proposal that would seem right at home in North Korea or Zibmabwe. I never thought – as dark as things seemed- we could stoop this low here in Australia.

It is clear from the report, in particular paragraphs 4.31-4.42, that silencing climate realists is a major reason for these regulations: it is unashamedly explicit in this (and even uses the dirty trick of using polls from – wait for it – 1966 as evidence the media is pro-climate skeptic, and that – wait for it – only the ABC is unbiased!)

The size and scope of the proposed Super-Regulator is breathtaking. They will have the power to impose a “code of ethics”, force you to print views you don’t agree with as part of a ‘right of reply’, take you to court, and even make you take pieces down! Even personal blogs that get only 40 hits a day will be covered! To make matters worse, the SuperRegulator “would not have to give reasons for its decisions” and the decisions “would not be subject to appeal.” Even climate change websites in other countries like Watt’s Up With That will be covered by this!

We need to speak out now – while we are still allowed.

This is why I just created www.FreeSpeechAustralia.com so we can work together to help stop this nightmare from becoming a reality. .

It includes an online petition, which I STRONGLY urge you all to sign and to pass onto all your family and friends, as well as an “Action Centre” detailing what other activities you can take, a resource toolkit, and links to a Facebook page and Twitter account.

It certainly looks like we should be very concerned by this move. Commenter Baldrick kindly pointed me to some key sections of the report, namely this on bias:

4.25  To deal with the difficulties of identifying and measuring bias the polls reported here attempted to measure bias as diversions from fairness and diversity of opinion, on a scale presenting bias as a polar opposite to ‘balance’. On this basis:

  • bias is much more commonly perceived to exist in the conduct of newspapers than in television or radio
  • the ABC is perceived to be the least biased media organisation in Australia, and
  • there is perception of persistent bias against the Labor Party particularly in pollsconducted in the earlier years of the period covered by this analysis. 

If ABC is perceived as balanced, then the report’s authors must be more deluded than we could possibly give them credit for. Balanced if you’re a lefty ex-judge, I guess? It also reports favourably on criticism of News Ltd’s tabloids on climate change issues:

4.33  One of the conclusions reached in the report was this:

The two biggest News Ltd tabloids—the Herald Sun and the Daily Telegraph—have been so biased in their coverage that it is fair to say they ‘campaigned’ against the policy rather than covered it. 

Furthermore, and in a clear indication that the report is horribly skewed, it cites Robert Manne, a well known alarmist and sympathiser towards the climate consensus when discussing the coverage of climate issues in the media:

4.40  For instance, the Inquiry heard from Professor Robert Manne who, earlier in 2011, had written an extensive critique of The Australian newspaper in Quarterly Essay entitled ‘Bad News: Murdoch’s Australian and the Shaping of the Nation’ that examined seven case studies of the newspaper’s coverage of issues.
4.41  One of his case studies concerned coverage of climate change policy and his findings mirrored those of the Australian Centre for Independent Journalism. Professor Manne’s research found that articles unfavourable to action on climate change outnumbered favourable articles by a ratio of four to one.
4.42  In his response to Professor Manne’s work, Paul Kelly who is The Australian’s editor-­‐at-­‐large, did not refute Manne’s statistics. Instead, he argued that Manne’s position was based on a ‘rejection of debate’ about the science of climate change:

One reason for the public’s backlash making carbon pricing so unpopular was the precise attitude [Manne] took. While pretending to be rational his rejection of debate was really faith-­‐based dogmatism and the Australian public didn’t like being told what to think by patronising experts. 

All this will amount to little short of censorship of views which criticise the Government, and it will apply to blogs as well. I highly recommend getting behind the Menzies House campaign if you wish to see free speech remain as a fundamental right in Australia.

I haven’t yet had a chance to read it in full, and I won’t be doing so in the near future, but there are jurisdictional issues here which I would be very interested to understand further. Despite what is said above, the Australian government cannot legislate regulations to take effect over media organisations outside Australian jurisdiction, without bipartisan agreements between those other states. I do not foresee this happening – for example in the US, the First Amendment prohibits any law infringing on the freedom of speech or the press.

I therefore would have thought that overseas organisations, or blogs hosted overseas, cannot be subject to domestic Australian legislation. Further information required to determine its precise effect.

The report is online here.

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