News Media Council proposal: be careful what you wish for #ausmedia #MediaInquiry #Finkelstein

Yet, they would face a hefty fine or jail – or risk losing their home in an expensive court appeal process – if they chose to stand their ground.

This proposal effectively converts the MEAA Code of Ethics and the scores of in-house and industry codes of practice into laws – enforceable, ultimately, in the courts.

I suggested in my personal submission (PDF) to the inquiry and in my appearance at its Melbourne hearings that Australia already has enough of those laws. Hundreds of them. I suggested alternative mechanisms using existing laws. I argued that we did not need more media laws and more expensive legal actions and that a government-funded statutory regulator would send the wrong message to the international community. It is the approach adopted by the world's most repressive regimes.

Which brings us to the matter of duplication. I have seen few serious ethical breaches that could not be handled by existing laws like defamation, contempt, consumer law, confidentiality, injurious falsehood, trespass and discrimination. There are existing mechanisms to pursue them properly through established legal processes.

All of the serious examples cited at 11.11 of the report could have been addressed using other laws such as defamation, ACMA remedies or breach of confidence (or the proposed privacy tort). But the new regulator would do away with all the normal trappings of natural justice, dealing speedily with matters on the papers only without legal representation a media defendant would expect in a court of law.

Small publishers and bloggers might well be bullied into corrections or apologies because they would not have the time, energy or resources to counter a contempt charge in the courts.

This proposal (bizarrely titled "enforced self-regulation" at 11.33) risks duplicating the offences via ethical code breaches, with a big stick of a contempt charge hanging over a media offender who might well have been able to defend an action taken through the traditional channels.

The cost of this inquiry and its $2 million proposed annual funding would be much better spent on media literacy campaigns for the community, law and ethics training programs for journalists and bloggers, and the establishment of a one-stop referral service within the ACMA so complainants can get help in making their complaints through existing channels.

The budget would probably even cover a means-tested advocacy service to help poorer complainants pursue the most serious breaches of existing laws through the courts.

Australia is rare among Western democracies in that we do not have free expression or media freedom enshrined in our Constitution or in a Bill of Rights. Other countries like Britain and New Zealand proposing similar regulating mechanisms have free expression as an explicit right informing their jurisprudence.

The High Court demonstrated this week (PDF) that it is in no rush to progress its so-called "freedom to communicate on matters of politics and government".

While rejecting the notion of licensing news media, the proposal quite rightly points out the problems in deciding the 'news media' that will be policed – in itself a defacto system of licensing journalists. It admits it could have no jurisdiction over foreign news outlets, which means the paparazzi and hundreds of offensive bloggers need only operate under an offshore enterprise.

Supporters of this News Media Council proposal should look again at the scenarios that could play out under a tough new regime of media regulation duplicating the court system. They might well heed that lyric from Australian songwriter Paul Kelly: "Be careful what you pray for. You might just get it."