The art of the sub-editor

News Limited is not happy about the proposals emanating from the Finkelstein Inquiry.

The Daily Telegraph today published an opinion piece by Paul Kildea.  He says “there has been little attention on the possible constitutional barriers to the inquiry’s proposals.”  He identifies four.

1.   Gaps in the commonwealth power: – “it will not apply to media entities that operate as sole traders or partnerships.  And a body that is currently a corporation could escape the reach of the power by changing its status.  Likewise, where online services did not operate as a corporation, “the scope of the Commonwealth’s broadcasting power to apply to internet regulation is uncertain.”

2. Giving powers to the proposed News Media Council which rightly belong to the courts.  Kildea concludes that this won’t really be a problem.

3.  Falling foul of the the constitution’s protection of political speech.  Kildea doesn’t doesn’t seem to think this will be a problem because “even if a court agreed that the council did limit speech, it may decide that it was for the legitimate purpose of improving journalistic standards.”  He comments (and I agree) that the proposed threshold of 15,000 hits a year seems low, but that is more of an aside.

4.  The federal parliament’s inability to put in place a truly comprehensive regime.  State co-operation will be required to plug the gaps in Commonwealth power in (1).  “Only then will media outlets and the public have the certainty that they require.”

All of which hardly seems to justify the headline:

Constitution could bite news watchdog.

I’ve yet to form a view as to the merits of the proposal as a whole, but as to Kildea’s points as numbered above:

(1)  I would have thought that with suitable drafting, the capacity of corporations to divest media assets to non-corporate entities could be effectively constrained.  If s 51(v) extends to broadcasting then it’s hard to see any problem with the internet. The gap seems limited to newspapers published by individuals.  Not a very big gap in the scheme of things or the gap which is of greatest concern for I hope reasonably obvious reasons.

(4)  What certainty do media outlets need?  They can always accept such a body’s ruling.  On Kildea’s argument, it seems the public’s uncertainty is likely to be whether print media published by natural persons will be covered, whether the posts and telegraphs power extends to the internet and whether a news website has more than whatever threshold of traffic might be settled on.


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