Would a Bill of Rights improve the quality of Australian journalism?

A few weeks ago, in one of those moments of serendipity, I came across a book waiting to be placed in our law library's rare book collection.

Its title was: English liberties: or the free born subject's inheritance, printed on behalf of Sarah Harris in 1691. A pocket-size book that contains the Magna Carta, Habeas Corpus Act and other "most useful statutes" with commentary and a strong articulation of the importance of the jury and the necessity to protect rights and liberties against judges beholden to the King or monied interests.

That little pocket book, a frail and flimsy protection against the power of the British monarchy and its state apparatus, brought home to me the very potent mix of a constitutional document, granting rights, expressed in simple language, linked with legislation aimed at supporting those rights and a strong ever-vigilant promotion of those rights. A protection that cannot rely exclusively on judges, lawyers, heads of state or Parliaments but must spring from an informed and active citizen.

We could do a lot worse than to give each cadet journalist a modern version of that 300-year-old book – an every citizen's guide to liberty. A copy not only for their own use but one to be imparted to others via their writings, visions and sound.

I argue that a Bill of Rights is not a gift from the gods but a charter of mutual obligation between citizens and society. A charter whose obligations necessitate an improved approach to journalism.

A Bill of Rights will remove many of the external impediments to good journalism – unnecessarily strict defamation laws, overly technical contempt laws or ones that easily hinder reporting – especially in long, drawn-out civil disputes.

More importantly it offers journalists a new chance to take on the obligations of accountable journalism as articulated by Paul Chadwick in the 1999 AN Smith Lecture. Chadwick argued that the media, as a wielder of public power, can only wield that power when it is fully accountable and fulfilling all of its purposes.

There is a close connection between the valid exercise of a right to free speech by the press and the duty to protect and promote public debate and civic conversations. Would a Bill of Rights that enshrined the Freedom of Speech transform or even enhance journalism in Australia?

The simplistic and immediate response from a Tasmanian who is confronted with the by-product of Murdoch's vision of regionalism, Packer's infotainment packaging, the short end of the stick from ABC budget crises and a benign neglect from SBS is a heartfelt "I hope so!"

The key question, however, is whether Australian journalism is ready for the demands and responsibilities of a constitutional right to free speech? My equally simplistic response is "I hope so."

However, a Bill of Rights and the public, constitutional and assertive endorsement of freedom of speech should not be bound to the uncertain capacity of Australian journalism to deliver on its civic obligations.

A Bill of Rights is not a panacea for Australian democracy but it is a necessary step to the achievement of an Australian democratic citizenship.

The first experiments, like that being considered in NSW, will need to be compromised in the areas of parliamentary supremacy and enforcement to simply gain a foothold on Australian soil but the long-term objective must be to give citizens enforceable and meaningful rights and immunities in exchange for the responsibilities of citizenship.

A Bill of Rights that sets out the right of freedom of speech does not simply grant an individual a right to speak freely but necessitates a fourth estate willing to embrace the responsibilities of a right to free speech.

The key question will be whether Australian journalists can go beyond the freedom to speak. To take on the burden to convey and protect the virtues and vulnerabilities of a nascent Australian liberal democracy. Bills of Rights are transformational documents that convert the occasional practice of free speech into a lexicon of necessity for journalists, lawyers, academics and citizens.

Much of the discussion about Bills of Rights and free speech concentrates on two topics: the desirability or dangers of lawmaking by judges and the chance for those rendered mute by defamation barriers, legislative constraints or other fears to speak out. A Bill of Rights transforms an often isolated, ad hoc and too-infrequent journalistic contribution to free speech into a minimal condition necessary for membership entry into the fourth estate.

Any Bill of Rights?

Yet the granting of such constitutional rights ought not give an unrestricted voice to those who pay lip service to the aspirational values of free speech but too willingly partake in slash-and-burn sensationalism.

A Bill of Rights that simply codifies a set of values adopted uncritically from overseas – whether the inspiration is the US, UN, UK or EC – risks diminishing values we should retain.

A Bill of Rights that is unenforceable and too dismissive of the citizen as proposed in the minimalist version being considered by the NSW parliamentary committee is too little, too late.

A Bill of Rights granted from above, that lacks enforcement and delivered to the media as a gift can only expect to end up as a piece of legislative junk.

We owe it to ourselves to fashion a Bill of Rights that recognises our own conception of an Australian free speech rather than transferring allegiance to an imported brand.

The thin thread of Australian liberty

Australia has relied on an interesting mixture of common law (heavily influenced by the sentiment of the Magna Carta and the Bill of Rights 1689), executive restraint, a sense of "the fair go" and an acceptance that free speech is at the heart of our democracy.

The constitutional elevation of this interesting and dynamic conception of an Australian variant of freedom of speech would add a new and energising element to the pre-existing mix.

That spark can take place without a Bill of Rights but the current intellectual climate makes that less probable. The current arrangements rely too heavily on a parliamentary system where many principles and important values are surrendered to political expediency, too heavily on a judicial approach that lacks democratic legitimacy, too heavily on a media whose primary obligation is to a handful of corporate (public and private) managers and where citizens are occasionally dragged on from stage right for a cameo role.

Nicholas Rothwell in his article "The Road to Nowhere" (The Weekend Australian 14-15 October 2000 at 21) depicted an Australia where the "field of public argument is left uncontested" and "public discussion is so muted". Donald Horne, argued that the term Australian is not one depicting a type of ethnicity but is a civic term – that needs to be explored and debated. (Donald Horne, "Drop Those Divisive Cliches" The Australian, Monday 16 October 2000 at 13).

Terry Lane, in the Sunday Age, in one of the rare defences of free speech, argued that the response to those who object to Dr Toben's Adelaide Institute's web site that disputes the Holocaust, is not to ban or silence him but to test his assertions. A strong civic society should be able to withstand the handful of people "who choose to hold and disseminate improper opinions." (Terry Lane, "A Big Hammer for such a little Nut", The Sunday Age 15 October 2000 at 18).

These reflections and episodes worry me. In the absence of a Bill of Rights that establishes freedom of speech as a right we have been left with a loose amalgam of laws that more often attempt to control speech rather than being primarily concerned with its protection and development as an essential ingredient of our civic society.

Is Australian journalism ready for the next stage of the journey in pursuit of free speech?

Despite all the odds, including: a long period of autocratic and paternalistic colonial government; the debilitating impact of White Australia; concentrated media ownership and control (government and private); deep religious differences and long periods of "strong-man" state rulers (Askin, Wran, Bolte, Kennett, Playford, Gray, Reece, Court and Bjelke-Petersen); and a High Court that has too often settled for excessive legalism and/or a complete deference to the concept of parliamentary supremacy, Australia has emerged with the idea that free speech is one of our core values. Australian journalists have contributed enormously to the shape and dynamics of that freedom. However, in my mind that contribution has appeared to be more incidental rather than a day-to-day focus of their work.

A Bill of Rights is both a symbolic assertion of an already established value – freedom of speech – and, more importantly, it is a means to remind ourselves of our obligations and responsibilities to our civic society.

The withdrawal of ABC production staff and journalists from regions like Tasmania can be justified by cold economic rationale. Yet has the withdrawal of such services and personnel diminished freedom of speech in my home state? Could a national broadcaster (or any other key media player) where a constitutional right to free speech exists be able to justify the removal (without replacement) of a significant contributor to civic conversation in this country such as AM and PM?

Many journalists and organisations view free speech as the opportunity to loosen the shackles of defamation, contempt of court, parliamentary privilege and privacy. A Bill of Rights ought to inspire journalists and organisations to lift their sights above the immediate benefits and find ways of returning a dividend for that freedom.

A Bill of Rights should be seen as building upon and extending what we already have - it should not be seen as an escape from civic responsibility.

Certainly, a Bill of Rights would assist effective journalism by transferring the primary focus away from the protection of reputation (defamation) or judicial sensitivities (contempt) to the promotion and development of democratic interests.

More importantly, it would concentrate journalists’ minds on some of the other key purposes of the media (outside of making money, increasing market share or living within a limited budget). These other key purposes were depicted by Paul Chadwick as being to help civil society to cohere, to lubricate democracy and to help to create and recreate the civic meaning of Australia.

If a Bill of Rights only creates a wild expectation that journalists and others can speak their mind without restraint it has failed.

Australian democracy has come a long way on the simple reliance of the occassional and voluntary contribution of journalists, and others, to free speech.

It is my view that a Bill of Rights would make such contributions the norm rather than the treasured exception. I hope that another Tasmanian can stand here in a 100 years time and debate a more provocative topic:

"How come after a 100 years of a Bill of Rights Australian journalism hasn't improved?"