Are the proposed media law changes legal?

OPINION: COMMUNICATIONS Minister Stephen Conroy is surely the first cabinet member in Australian history to be simultaneously compared with not one, but six merciless dictators.

In response to the media law changes announced by the Federal Government last week, The Daily Telegraph put Minister Conroy in the company of not only Stalin, Mao and Castro, but current tyrants Kim Jong-un, Robert Mugabe, and Mahmoud Ahmadinejad.

But if you were at all concerned that there was substance in The Tele's page one screamer, take heart: while the despots Minister Conroy was compared with have, or had, precious little time for the rule of law, our Minister does not enjoy nearly the same sort of flexibility when it comes to law-making.

Despite the blizzard of scorn heaped on the merits of the proposed media changes over the past fortnight, one issue has remained largely overlooked: are the changes legal?

The proposals were introduced to Parliament during via a six-bill package. Within this, the proposal which has arguably caused the most fury is for a new, Public Interest Media Advocate to have responsibility for declaring whether or not the Australian Press Council, the body that currently regulates newspaper content, is a "news media self-regulation body".

Without this PIMA declaration, the APC's members, the bulk of the nation's newspapers, would no longer receive the exemptions currently given to them by the Privacy Act. This is the stick in the government's media plan, as it would make information dissemination by newspapers much harder.

Under the relevant bill, there are 18 separate matters the PIMA must consider in determining whether the APC should be declared a news media self-regulation body. While one of these matters is "the need for free expression", the first matter listed is whether or not the PIMA believes the APC's self-regulation scheme for newspapers is "effective".

It is difficult to see how this consideration could be carried out without the PIMA making its own judgments about newspaper content. The PIMA couldn't surely make a useful assessment of the effectiveness of the APC's self-regulation system - the crux of which sees the APC determine whether or not a newspaper articles are accurate, fair or balanced - unless the PIMA also engages in a similar assessment.

It's this potential for the PIMA to make legal decisions based partly on newspaper content which raises possible questions about the bill's legality.

The Federal Government would appear to be aware the relevant bill is treading on potentially shaky legal ground: it explicitly states that the act will not apply to the extent, if any, it would infringe the implied freedom of political communication.

This freedom is implied from the Australian Constitution.

Just a couple of weeks ago, the High Court made its latest pronouncement on this constitutional freedom. It did so in a case involving Man Haron Monis, who was charged with using the postal service to send offensive letters to the parents and relatives of Australian soldiers killed in the war in Afghanistan.

The court dismissed Mr Monis' appeal, but only just.

Half the court actually held that the offensive mail law was unconstitutional, because it infringed the implied freedom. However because the court was split on the matter, the decision of the NSW Criminal Court of Appeal dismissing Mr Monis' appeal stood.

This is the first time since the High Court cases which first recognised the implied freedom 20 years ago that such a large percentage of the Court has been prepared to rule legislation as incompatible with the freedom.

The justices who held offensive communications could not be restricted by the Federal Government raises the question as to what attitude they would take regarding a law that based regulation of the newspaper sector partly on how the APC deals with articles not regarded as offensive, but merely inaccurate, unfair, or biased.

In the Monis case, a majority of the court held that the test to determine if a law infringed the implied freedom was to first see if the object of the law itself is compatible with our Constitutional system of representative government.

Second, the law's means must be in proportion to the objects it seeks to achieve. This involves determining if less restrictive ways of achieving the same legislative end are available.

In the context of the bill providing for the PIMA's declaration powers regarding news self-regulation, an argument might be made about whether the means employed only go as far as is reasonably necessary to achieve its end; in that there are no other practical alternatives to the regulation.

Listening to the vast bulk of media commentary, the answer to that question is unequivocally "no". Granted, it won't be the media that decide this issue.

But equally, and despite suggestions to the contrary, Mr Conroy won't decide the issue either.

A minister testing the potential limits of his government's legislative powers? Possibly. A man imposing totalitarian misery? Definitely not.

* Matt Meir is a recent law graduate of Southern Cross University. His essay, Let the Press and Government Grapple: The Constitutional Question Posed by a Statutory Right of Reply, was published in the December edition of Media and Arts Law Review.



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