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Tuesday, 17 February 1987
Page: 119


Senator COONEY(10.40) —Though much has been said about the Press in recent times, not enough has been said about those issues that are most vital to society. Too little has been said about the essential nature of the Press, about its cardinal function and about its proper place in the constitutional structure of society. Too little has been said about those rights that the community is entitled to have satisfied by its Press: Its right to all the pertinent news, its right to free and full expression of various ideas and opinions, its right to all relevant information and its right to the truth. Too little of what has been said has been made public.

The Press is different in nature from other industries. The quality of steel produced, the quality of meat slaughtered, the quality of bread baked and the quality of services rendered affects the well-being and comfort of our bodies. The quality of what we read affects our minds and souls. The Press is a force bearing on our aspirations, our attitudes, our ideas and our culture-on all those things that are generally labelled the higher attributes of humanity. Given these premises, it has a character that is fundamentally distinct from most other enterprises.

The major Press has as one of its functions the making of profits. That is right and proper. However, it is not the cardinal function of the Press. That is to bring a full and accurate account of the news to the public, to allow the expression of varying views, to disseminate information needed by the community and to provide a vehicle for comment and analysis. Its function as a producer of income should never usurp its cardinal role. The legislature, the judiciary and the Executive are essential parts of the constitutional structure of society. One makes the laws; one interprets them; and one puts them into operation. Ideally they provide a happy balance within which citizens and their community are afforded well-being and freedom. In England this constitutional structure evolved over the centuries. It was given formal expression in the Constitution of the United States of America. It is implied in our Constitution.

In England, especially during the eighteenth century, events brought about a free Press which enhanced the liberty of the citizen. In France during 1789 the National Assembly, by Article XI of the Declaration of the Rights of Man and of Citizens, proclaimed:

The unrestrained communication of thoughts and opinions being one of the most precious rights of man, every citizen may speak, write, and publish freely, provided he is responsible for the abuse of this liberty in cases determined by law.

In the United States during the same year the First Amendment was made to the Constitution. It reads.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The Press is akin to the legislature, the judiciary and the Executive. The Press is part of that structure which determines the well-being of society, its character and the quality of its freedoms. Being part of this structure, the Press should be in balance with it, but is it? Parliaments must act within their powers as defined in the Constitution. The courts interpret that Constitution. The courts must accept the supremacy of parliaments acting within their powers. The Executive must carry out its functions according to the laws made by parliament. Parliament cannot interfere with the operation of the Executive acting within its powers. Presently there are no provisions specific to the Press guiding its operations within the constitutional balance.

The worth of the Press is to be measured primarily by the quality of its service to the community. Freedom of the Press exists for the sake of the community, not of the proprietors. Otherwise its classification with the three arms of government is a nonsense. The Press ought to have prestige, privilege and powers, but in circumstances where it performs its high purpose. Liberty of the Press developed through reaction to parliamentary and Executive oppression. In the seventeenth century barbaric penalties were imposed on authors and publishers, reflecting adversely on the Executive. The Press was made subject to a licence. Master printers and apprentices were strictly limited. In 1662, the Licensing Act gave control over printing entirely to government. The Act operated with intervals until 1695. In 1712, the Stamps Act was passed. Repressive legislation persisted for an extended period.

On 23 April 1763 a newspaper, the North Briton, launched a robust attack on the Executive. This occasioned the prosecution of its proprietor and editor, John Wilkes, member of parliament for Aylesbury. He won his case. Parliament, however, was adverse to its member. It voted him down 237 to 111 votes. He became a popular hero amongst the people. The English Parliament reformed the law applicable to the Press for mundane reasons. In volume 3 of his History of the English Speaking Peoples Sir Winston Churchill wrote:

Parliament's decision was taken, not on any high ground of principle, but because the detailed working of the Act was causing vexation.

Though liberty of the Press was born of conflicts with the Parliament and the Executive, it means more than immunity from oppressive laws and overzealous administrations. It means that the Press is free of all unwarranted restrictions, whether imposed publicly or privately. In the Tribune of 7 December 1945, George Orwell wrote of the English Press:

The degree of freedom of the press existing in this country is often overrated. Technically there is great freedom but the fact that most of the press is owned by a few people operates in much the same way as a state censorship.

In the same paper, on 12 January in the same year, Orwell wrote:

It is only when there are large numbers of newspapers, expressing all tendencies, that there is some chance of getting at the truth. London has only twelve daily papers and they cover the whole of the south of England and penetrate as far north as Glasgow.

Freedom of the Press operates for the good of all the community, not for a particular section of it. Private forces can curtail that freedom just as effectively as public ones. Giving judgment in Associated Press v. United States of America, Mr Justice Black said:

Freedom of the press from governmental interference under the First Amendment does not sanction repression of the freedom by private interests.

A free and democratic society is dependent upon there being a happy balance between the legislature, the judiciary, the Executive and the Press. The balance is maintained by its components checking and counterchecking each other. Mr Justice Black, in his judgment, said:

It would be strange indeed however if the grave concern for freedom of the press which promoted adoption of the First Amendment should be read as a command that the government was without power to protect that freedom. The First Amendment, far from providing an argument against application of the Sherman Act, here provides powerful reasons to the contrary. That Amendment rests on the assumption that the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public, that a free press is a condition of a free society. Surely a command that the government itself shall not impede the free flow of ideas does not afford non-governmental combinations a refuge if they impose restraints upon that constitutionally guaranteed freedom.

There is concern for jobs when enterprises within a particular industry become aggregated into fewer and fewer hands. There is concern for jobs when the control of newspapers and the print industry becomes concentrated; in addition, there is concern for the range of news, views and comments which would otherwise be published. In Australia constitutional, legal, cultural and commercial factors make the question of what, if anything, should or can be done about the Press problematic. The community truly has a fascinating, if awesome, task before it.