FINKELSTEIN, Hon. Roman (Ray), QC, private capacity

RICKETSON, Professor Matthew David, Professor of Journalism, University of Canberra

Committee met at 12:41

CHAIR ( Senator Cameron ): I declare opening this public hearing of the inquiry of the Senate Standing Committee on Environment and Communications into the Broadcasting Legislation Amendment (Convergence Review and Other Measures) Bill 2013, the Broadcasting Legislation Amendment (News Media Diversity) Bill 2013, the News Media (Self-regulation) Bill 2013, the News Media (Self-regulation) (Consequential Amendments) Bill 2013, the Public Interest Media Advocate Bill 2013 and the Television Licence Fees Amendment Bill 2013. The committee's proceedings today will follow the program as circulated. These are public proceedings. The committee may also agree to a request to have evidence heard in camera or may determine that certain evidence should be heard in camera.

I remind all witnesses that in giving evidence to the committee they are protected by parliamentary privilege. It is unlawful for anyone to threaten or disadvantage a witness on account of evidence given to a committee and such action may be treated by the Senate as a contempt. It is also a contempt to give false or misleading evidence to the committee. If a witness objects to answering a question, the witness should state the grounds upon which the objection is to be taken and the committee will determine whether it will insist on an answer, having regard to the grounds which are claimed. If the committee determines to insist on an answer, a witness may request that the answer be given in camera. Such a request, of course, may also be made at any other time.

The committee has authorised the recording, broadcasting and rebroadcasting of its public proceedings in accordance with the rules contained in the order of the Senate concerning the broadcasting of committee proceedings, including by electronic means. Media outlets may record the public proceedings subject to the following conditions. The committee or a witness can object to being recorded at any time and the committee can require that recording cease at any time. Recordings must not occur from behind the committee or between the committee and witnesses and must not otherwise interfere with the proceedings, and computer screens and documents belonging to senators must not be recorded. Any member of the media who does not comply with these conditions may be ejected from the public hearing.

I welcome the Hon. Ray Finkelstein and Professor Matthew Ricketson. Thank you for talking to us today. Do either of you, or both of you, wish to make an opening statement?

Mr Finkelstein : Thank you and good afternoon. I suppose I have been invited to appear before this committee so I could be of some assistance in relation to the deliberations on the media bills. Perhaps it might be helpful if I make some introductory observations, but confining myself to only some of the bills. I will begin by making a statement or two about free speech. While there are several rationales for free speech and a free press—different concepts—no­one seriously doubts the critical importance of both freedoms to a properly functioning democratic society. On the other hand, very few people regard either freedom as absolute. Simply by way of example, there have always been laws against obscenity: it is a contempt of both the parliament and the courts. There are laws against defamation. Each of those areas of the law inhibit what would otherwise be absolute free speech.

One important issue for the committee is whether there should be additional regulation of the news media. The background against which this issue might be considered is as follows. Without any doubt, the news media, whether it is via print, broadcasting or online, is a powerful institution. It shapes the nation's policy and can change the course of history. At the same time the news media can cause great harm to individuals, organisations and other groups in society. The media can cause harm when it does not adhere to the basic standards of fair and accurate reporting; hence the need for there to be some oversight of the news media. There is some existing oversight. At present the print media regulates itself through the mechanism of internal codes of conduct plus supervision by the Australian Press Council. Putting that into context, this amounts to an acceptance by the print media that its important role requires, first, the adoption and observance of codes of conduct and, secondly, oversight of their process. As a result of legislation, the broadcast media is regulated through internal codes of conduct approved by ACMA and externally through ACMA itself. On the other hand, the online news media is substantially unregulated.

As regards the Australian Press Council and ACMA, neither form of regulation has worked well. Three of the last four chairpersons of the Australian Press Council have spoken of its failings. The most significant failings I can list: a lack of public awareness of the Press Council, a lack of powers of investigation, a lack of resources, a lack of powers of enforcement, a lack of independence from publishers and slow procedures. Regarding ACMA, it is hamstrung by limited statutory powers of enforcement and slow statutory procedures. So, if oversight is required—and both the print media and parliament regarding the broadcast media think that it is—then the committee might easily accept that the existing models are inadequate.

In considering whether the current proposal for a media advocate is an appropriate model, one important question is whether that model will restrict press freedom. The media advocate's role is to make sure that there are in place proper codes of conduct based on existing codes in Australia and elsewhere. A proper code will at least require fair and accurate reporting; it may also require the correction of serious error. Hence enforcement of the code of conduct might require an editor or a publisher to publish an apology, a retraction or a correction. In reality, that is the extent of the potential encroachment on a free press.

One other issue that I wanted to make a few observations about is the diversity issue. I do not have very much to say about it other than to remind the committee—if it needs any reminding at all—that economists explain that there is market failure from the concentration of news services. Concentration often results in a lack of diversity in views that are given voice, the possibility that only a handful of people, media owners and journalists, will unduly influence public opinion and the potential for a decline in standards because of the absence of effective competition. Many commentators think that democracy loses out with undue concentration. They are the only opening comments that I wished to make.

CHAIR: Thank you, Mr Finkelstein. Professor Ricketson?

Prof. Ricketson : Thank you for this invitation to appear before the committee today. The situation, as it is in Australia at present, is that the print news media is among the most concentrated in the developed world, with two media companies accounting for 86 per cent of daily print circulation in Australia. The rise of new communication technologies, such as the internet, mean that today there is a much wider diversity of information and opinion available to citizens. But, if you look at the most widely used news and current affairs websites in Australia, they remain the mainstream news media brands. Further, newspapers remain the engine room for bringing newsworthy information to the general public. Radio and television outlets continue to draw heavily on the original reporting, especially investigative journalism, that is generated by newspapers.

There is a good deal of interesting, important and relevant newsworthy material available outside the mainstream news media, but the difficulty is that it rarely reaches a mass audience. That is one of the many lessons for us of the rise of WikiLeaks, which began in 2006 but which did not actually reach global prominence—and, for some, global infamy—until it began collaborating with major media companies such as the Guardian in England, the New York Times in the United States and Der Spiegel in Germany. It would be a welcome development if the federal government were to spend more time and energy positively promoting diversity of news and current affairs by introducing schemes to assist or support new online start-ups.

Finally, the overwhelming evidence presented to the independent media inquiry was that the system of voluntarily self-regulation for the print media has not worked and will not work unless important changes are put in place. Improvements in the certainty of funding arrangements for the Australian Press Council have been put in place after the delivery of the media inquiry report, but a key weakness of voluntary self-regulation has been exposed again with the withdrawal of the Seven West Media Group from the Press Council and the prospect that some have raised of the further splintering of the members of the council. This would be a retrograde step that would take us back to the beginnings of the Press Council in 1976, when the then John Fairfax newspaper company refused for several years to join the council. Thank you.

CHAIR: Thank you, Professor Ricketson. Mr Finkelstein, I am sure that you were an interested observer in some of the evidence yesterday or, if not, you have read some of the press reports over the last few days. Would that be correct?

Mr Finkelstein : That is correct, yes.

CHAIR: I suppose one of the threshold issues in the arguments we have heard is that the legislation before this inquiry is antidemocratic, will destroy the freedom the press and will lead us to being some sort of authoritarian society where the minister can direct editorial content and the content of the media. Is there anything in that legislation you see that could achieve that purpose?

Mr Finkelstein : Whether those allegations are right or wrong depends wholly and exclusively on the legislation and the power that it gives, in particular, to the media advocate. Those powers are—at least just reading the text—quite limited. The media advocate can declare that a body is a self-regulation body only if certain criteria are satisfied. Most of the criteria, I imagine, would be unobjectionable—that it is an effective regulator of its members and that it has a code of conduct that deals with issues which the legislation sets out: privacy, fairness, accuracy and so on. Most of the topics that are dealt with in legislation are covered by existing codes of conduct. So the legislation prima facie does nothing new in that regard.

One area which is different, which has the potential for requiring a media owner or an editor to do something which the media owner or editor does not want to do is that a body will only be declared to be an appropriate body—I am picking up the language of clause 7(3)(e) of the bill for news media self-regulation—if it provides for remedial action. One asks: what is remedial action? I suppose there are obvious things that remedial action will include, probably limited to apologies, retractions and corrections. A fourth possibility—but one never knows until one sees the code of conduct which is to be approved by the media advocate—is that there might be a right of reply. They are areas where, in a properly working, functioning code, mistakes made by the media—by and large, serious mistakes: serious factually incorrect reporting and that kind of thing—require rectification and the body which is to be declared as an appropriate body must have appropriate mechanisms. So if you are looking at any encroachment on press freedom as opposed to free speech—because there is a difference between the two—this is the one area where an editor may be told what he or she should publish; that is, the editor should publish an apology, the editor should publish a retraction or the editor should publish a correction.

As I read this legislation, that is the beginning and end of any imposition on a free press. It does not affect free speech, funnily enough, because the editor and the journalist can say what they like. There is no restriction on what they say, how they say it and when they say it. But if they say it wrongly or if they say it badly, the Press Council, or an appropriate body that has Press Council type functions, can say, 'What you said was false and you should correct it,' and there is a mechanism here that would require that to be done.

In a very technical sense, that is a restriction on free press because it restricts the editor's freedom not to publish whatever the editor wants, because many people accept that part of press freedom as opposed to free speech is the editor's freedom to do nothing—that is, to ignore what might be the truth or to ignore facts and that kind of thing. There is that imposition. But I would be very surprised if any serious commentator would regard that as bringing democracy to an end. That is a long answer to a short question.

CHAIR: Thank you. I welcome that response. Mr Finkelstein, you do not feel as though you are a pawn to assist in the abolition of democracy and the end of free speech?

Mr Finkelstein : This bill does nothing towards ending democracy and it is a relatively minor imposition on press freedom and probably no restriction on free speech. That is just looking at the text.

CHAIR: Professor Ricketson, some of the other argument says that there is no need for this to be done and that the Press Council has reformed itself and is working effectively and that this is simply an attack on News Ltd predominantly. Could you outline some of the examples where ordinary Australians have suffered under the existing process with no right of reply, no fairness and no justice at the hands of the media?

Prof. Ricketson : Certainly. The first thing I would like to say about that is that the idea that there is no problem with our news media in this country strikes me as an odd one in the sense that comparisons are made with the situation in England where there has been entrenched phone hacking and so on; ergo, if we do not have entrenched phone hacking here in Australia, we therefore have no problem with our news media. We did not find evidence in the inquiry of phone hacking occurring, but we did find problems with the news media in a variety of ways and from a variety of sources—and you referred to a couple of those. Also I would like to say that it strikes me as an odd argument to say that because we in Australia have not suffered the worst scandal of media ethics in living memory, therefore everything is okay with the media in this country. It seems to me that is suggesting that you are prepared to accept journalism that ranges from average to poor to very poor to falling just short of phone hacking, which clearly in my view is not a satisfactory situation.

At annexure (i) of the media inquiry report, one of the things we did—drawing on some academic research that was in process at that time—was detail anonymous comments by people. For example, they had been the victim of rape or somebody in their family had been murdered or something of that nature and then that had been reported on in the news media. We have anonymous comments from them because they were given anonymously in the academic study. I will quote one to begin with. It is someone who was a survivor of rape and was being hounded constantly for an interview. The quote from the person was:

I did have someone from the media call me, but she was just a hungry animal. I found her quite a lovely person but eager to get a story. I was in tears but she didn't care. She was happy to throw my case all over the TV and magazines, and I kept saying, 'No, no, no, you don't understand; you know nothing about me; don't do this.'

In fact, in any case, the story was run. That is one of numerous examples in annexure (i) about that particular issue. We did highlight some others—some of which involved ordinary people and some of which involved more high-profile members of the community—in chapter 11 of the report, and I will just list them briefly. A minister of the Crown: his homosexuality was exposed and he was forced to resign. A second one involved a chief commissioner of police who was the victim of false accusations about his job performance being fed to the news media by a ministerial adviser and, following publication of the articles, he was forced to resign. A third one was that a woman was wrongly implicated in the deaths of her two children in a house fire. Her grief over her children's deaths was compounded by the intrusive news media coverage. A fourth one was that nude photographs said to be of a female politician contesting a seat in a state election were published with no checking of their veracity. The photographs turned out to be fakes. Finally, a teenage girl was victimised because of her having had sexual relations with a well­known sportsperson. So those are some.

We also, as you may know, looked at not simply one or two opinion polls about the news media but at many opinion polls over many years looking at the way the news media operates from a variety of perspectives. Overwhelmingly, it was found that there was a low level of trust by ordinary Australians in the functioning of the news media in this country.

CHAIR: Just before we go to Senator Birmingham, Mr Finkelstein, I have to ask you this question. Your report deals with an incident with Professor McKinnon where he was approached by a media editor and was told that, if they dropped any cases against them, they would double their subscription to the Press Council. I have asked Fairfax, I have asked News Ltd and I have asked Seven West whether any of their editors or employees made that offer to Professor McKinnon. They all deny it and they all say, 'It may have been before our time,' or, 'It's lost in history; this was a long time ago.' It is obviously a very serious charge. Can you elaborate a bit on Professor McKinnon's statement to your inquiry?

Mr Finkelstein : I can elaborate, but I cannot add to what he told the inquiry. I did not see it as part of our function, given the time constraints we had, to check out the veracity, to see whether there was an opposing view and that kind of thing. I took it from the way that the professor gave the evidence—and bearing in mind that he was a former chair of the Australian Press Council himself—that he was relaying to the inquiry what had happened. I had no reason to doubt his word. But because it was likely to have occurred such a time ago, it would have been very difficult to track down the personnel. In the end, although it might assume importance today, it was not really of overwhelming importance to me during the course of the inquiry, which is one of the main reasons we did not take the trouble to take that matter any further.

I do want to add one thing to what the professor has said about regulation needed by reason of misconduct in the press. One could get terribly distracted if the object of the exercise were to look for particular press failings. There might be, from the senators' perspective and from the community perspective, a different approach, which is the one that I took in the report. Essentially it is this: there was common ground during the course of the inquiry between me and the newspaper proprietors that they wield enormous power. It struck me as being very odd that any group in society that wields enormous power should be wholly or substantially unregulated. There are no groups in society, or no powerful groups in society, that can come along to governments or anybody—the community—and say, 'We can do what we like when we like, and there is nothing you should do about it.'

That strikes me as being a very surprising approach and one which, in my report, I rejected. I suggested that, even if there were no evidence of press misconduct, misbehaviour or however you might want to characterise it, there was good reason for any powerful institution to be regulated. Part of that process was that the press regard that to be true because they regulate themselves. They developed codes of conduct to regulate how journalists should behave. At the forefront of all of their codes—and there are dozens of them around the country, and they seem to adopt common language throughout the world—is 'fair and accurate reporting'. The journalists regard that as important and the press owners regard that as important, and they set up the Press Council to oversee themselves.

Not only do I take the perspective that powerful groups in society cannot be unregulated; this particular powerful group also regards regulation as important. But the difference or the issue is whether that regulation should be wholly self-regulation or whether there should be some additional regulation—in this case to make the self-regulation work. That is really, as I see it, the key question. I would raise that as a central issue, whether or not there was a catalogue of misbehaviour, misconduct or breaches. Codes and effective codes and disciplines by press councils that are effective act on journalists and act on media owners in a way that society expects—that is, they will do their job as best they can in accordance with quite noble sentiments in the various codes of conduct, and I do not know why the public should expect any less.

CHAIR: Mr Finkelstein and Professor Ricketson, I noticed that you read from a prepared opening statement. Is that in a form that could be tabled?

Mr Finkelstein : With one correction; I have 'four out of five' instead of 'three out of four'. But subject to that, yes.

Prof. Ricketson : Similarly.

CHAIR: It would be handy if you could table those documents; thank you.

Senator BIRMINGHAM: Thank you both for your time today. Mr Finkelstein, perhaps I can pick up where you finished. Are you telling the committee that your opinion is that, even if there were no demonstrable issues in the media sector or, indeed, in any other sector, of any influence or power, there should still be regulation to govern it in some way, shape or form?

Mr Finkelstein : If there were absolutely none, I probably would not say that, because then the answer would be that there is no need and you would have to investigate why there was no need. So if there was an absolutely clean slate and there was never any misreporting, false reporting or anything of that order, I suppose that you could say that there does not need to be any regulation. If, however, that were the position—just assume it to be the case; it is not true but assume it were true—one answer might be because the journalists association, the union and the newspaper proprietors had put in codes of conduct because they understand that there ought to be some rules against which standards of journalists should be judged. I do not know that we have had in our world—or at least in any democratic world with which I am familiar—journalists operating under no rules whatsoever anywhere.

Senator BIRMINGHAM: I suspect there has been an evolution of industry rules and self-government rules and, absolutely, journalists' codes of ethics and so on that obviously have been adhered to but, importantly, set by the profession themselves, rather than by governments of the day

Mr Finkelstein : Correct.

Senator BIRMINGHAM: So having gone through 113 years of federation, why does Australia now suddenly need to start regulating print media when we seem to have survived quite happily for the previous 113 years with a robust system where the press criticise each other, where politicians criticise the press, where everybody is free to have their view on these matters and where, indeed, the industry has responded in that time with advances in terms of their own self-regulatory conduct?

Mr Finkelstein : That is a fair question. One of the reasons that I reached the conclusion in my report that there ought be additional regulation was that those who were asked to regulate the press, the people who ran the Press Council, including the current chair of the Press Council, all bar one, said that the regulation was defective. I took them at their word. They explained why it was defective and I believed them. Each of them said there was a need for improvement. I accepted their evidence.

I thought that it would be almost flying in the face of common sense if I said to the three of the four former chairpersons of the Press Council, 'I know you think the system doesn't work but I don't care.' They suggested improvements. I bought some and suggested others which they might not have agreed with. I could not see what merit there was in a system of regulation which the participants said did not work.

Senator BIRMINGHAM: Do you believe the changes that have been made to the operation of the Press Council in recent times are an improvement?

Mr Finkelstein : I cannot answer that question because I do not know in detail what the changes are. Professor Disney—

Senator BIRMINGHAM: Surely, Mr Finkelstein, you have a fairly strong interest in this area, now having authored this report. You must have had a chance to have had a look at some of them.

Mr Finkelstein : You should not assume that, Senator. I have a very strong interest but I do not spend my time keeping up to date with reforms in the media. What I do know is that Professor Disney outlined in some detail the kinds of changes he intended to make and, if I may say so, with respect to Professor Disney, those changes were all, I think, overdue and likely to improve the position.

Senator BIRMINGHAM: So if those changes have been made, it is likely we have a better Press Council today than we had a few years ago?

Mr Finkelstein : I think that is true.

Senator BIRMINGHAM: Why do we then not enter a period where we should give that model a go? Why do we need to step beyond the self-regulatory approach into a world of government intervention?

Mr Finkelstein : There are two reasons for that. First of all, the way that I approached the problem was that I did not confine myself just to the Press Council and its jurisdiction, because, as everybody explained to me in a way that I think I came to understand, the world is a different place now from the time when the Press Council first began its oversight of the print media. Now we have journalists who work for a newspaper online. We have people who are news commentators on television who are online. There are three basic platforms for news broadcasting. One is substantially unregulated. That is the online media. It is a growing segment of the provision of news services.

So I thought that there would be real sense in three basic propositions. The first is that there should be single oversight of the news. It didn't make any difference to me whether it was platform A or platform B or platform C. I still think that, no matter what the commentators might say or what the commentary might be, because one thing that is always bad for any system is inconsistent decision making. If you have one set of oversight for the same conduct, you don't have inconsistent decision making, you don't have inconsistent rules, except to the extent that different rules are necessary to accommodate a different platform. For example, you might have a take-down requirement for the Internet but you cannot have a take-down requirement for a newspaper. That was one factor.

That was really two propositions. That is to say, there should be one set of rules for everybody and it should be administered by one group so that there would be complete consistency in the application of the standards.

Senator BIRMINGHAM: I want to come back to some of the reasons why we need these reforms. Given the answer you have just given—one rule for everybody—if these laws are passed, we will have different rules, won't we, for radio and television media outlets, a different rule for print and online and different rules for online outlets, depending on their size? They can be very significant. They can be pretty large and not be captured by these. They, of course, are often the growing segments while the traditional newspapers are seeing declining market shares. How do these reforms actually meet with your objective of one rule for everybody?

Mr Finkelstein : I looked, during the inquiry, at dozens and dozens of codes of conduct—most of the codes that had been adopted by Australian media—compared them with codes of conduct adopted by English media, compared them with codes of conduct adopted by European and eastern European media, and spent some time reading some books on codes of conduct. I found common themes throughout the world or at least that part of the world in which I looked, which was eastern and western Europe and basic common-law democratic countries.

I do not accept that in a proper set of rules, whether developed for print or for online—when I say 'rules', I mean codes of conduct, which is what this legislation is about—there are likely to be great variances between the codes. There has not been. When they have been developed in South Africa, New Zealand, Australia, England, there are minimal variances. So the premise on which you operate, Senator, I do not think is likely to come about—

Senator BIRMINGHAM: But the regulators are completely different constructs that are proposed here—ACMA versus the PIMA, a well-established, a well-resourced regulator where a group decision will be made, in a sense, versus a solitary individual as regulator.

Mr Finkelstein : I do not accept that that is how the legislation works. I am sorry, Senator, that is not how I understand the legislation works.

Senator BIRMINGHAM: We will come to that.

Mr Finkelstein : Sorry.

Senator BIRMINGHAM: Time is tight. Professor Ricketson, you gave a list of examples that you said provided some justification for this intervention into the operation of the media. In each of those examples, had the anonymous individuals taken a complaint to the Press Council?

Prof. Ricketson : In the case of some, I think yes; in the case of others, no. One of the issues with the Press Council—there is another annexure dealing with complaints to the Press Council—is that they are not always dealt with to the satisfaction of the complainant.

Senator BIRMINGHAM: Generally speaking, complainants will not be satisfied unless their complaint is upheld. Did you do any analysis of the merits of those complaints?

Prof. Ricketson : The ones we were looking at?

Senator BIRMINGHAM: Yes.

Prof. Ricketson : Yes. We looked at those and we thought they were all prima facie complaints. As Mr Finkelstein has said, we didn't follow these sorts of matters through to the nth degree because that was not the purpose of the inquiry, but we were satisfied prima facie that there appeared to have been a problem in the way these matters were reported in the news media. And that was enough for us at that stage.

Senator BIRMINGHAM: So there was no particular checking with the media outlets in question?

Prof. Ricketson : No.

Senator BIRMINGHAM: I am being called to ask my last question here. Professor Finkelstein, can I go to your report, particularly paragraphs 2.92 and 2.93—

Mr Finkelstein : Can I do this from memory or am I allowed to look at it?

Senator BIRMINGHAM: You can have a look and I will read at the same time.

CHAIR: It is not a test.

Senator BIRMINGHAM: That is right.

It could not be denied that whatever mechanism is chosen to ensure accountability speech will be restricted. In a sense, that is the purpose of the mechanism.

The mechanism proposed by the government today is a mechanism to try to, allegedly, ensure some level of accountability. Do you stand by that statement, that that means that speech will, to some extent, be restricted?

Mr Finkelstein : I have explained earlier that the editor's freedom not to publish is affected if you have a code of conduct which has remedial provisions in it. That's a necessary consequence. Does it restrict free speech in the broad sense? No, because the editor can still say what he wants. She can say what she wants. They can say whatever they want.

Senator BIRMINGHAM: What about at the other end of the equation where a journalist's exemption under the Privacy Act is removed? Does that restrict their capacity to do their job, compared with a fellow journalist?

Mr Finkelstein : Yes. I think that's the object of removing the restriction, the method by which what is at the moment voluntary—that is, 'I'll be a member of a press council and pay my subscription fees if I feel like it and not otherwise'—has added what I think the English would call some 'carrot and stick'. I would say that too. It is intended to impose a reason why an organisation will be part of a press council group. As I read the draft bill, that is its purpose.

CHAIR: Thank you.

Senator BIRMINGHAM: If time permits, I have others.

CHAIR: Can I just indicate that I notice that Mr McGinty has arrived. His time was set down for 1.20. We will need another 10 minutes, I think, with Mr Finkelstein and Professor Ricketson. Senator Ludlam, if that gives you time, go for it.

Senator LUDLAM: Thank you. Thanks, gentlemen, for coming in. Apart from Professor Fraser yesterday, you are the only people we have heard from so far who are not representing some kind of commercial interest. With your background in the report, it is important that you are here.

You indicated before that you have had time to review those bills that relate to the work that you did on the press sector last year. Setting aside the broadcasting aspects of the package, how closely does this package of bills that the government has brought forward follow the findings of your report last year?

Mr Finkelstein : In my report, I gave two possible approaches to remedy what I thought was a failure in the existing system of press oversight. I had, as one, a statutory body which would, in its structure, mirror the Press Council but would have statutory powers and its membership would not be voluntary.

I had as a fallback, which I said was a second-best option, repairing the Press Council by putting in place mechanisms like taking away statutory protections that exist in favour of the press unless the organisation remained a member or was a member of the Press Council. That was my fallback. I explained why I thought that was not as effective.

The proposed legislation is different again. No doubt there are another two or three or four different ways in which what I think needs to be achieved—that is, some reform of the process—can be achieved.

I just read only a sentence or two of what the legislation was that was enacted in the UK overnight. It is another royal charter company which I had not thought of. I do not think we have had a royal charter company in Australia for a very long time. The possibility escaped me. It is just another way of achieving the same result.

CHAIR: That is probably a good thing.

Mr Finkelstein : I think so.

Senator LUDLAM: The government does appear to have delivered a model—it is before this parliament now—that sits closer to your fallback option in that you have a statutorily recognised regulator. It is recognised by law. Its only sanction, as far as I can tell, is withdrawal of exemptions from existing privacy laws.

Mr Finkelstein : None of my models had any sanctions such as fines or damages or anything like that, which the English have picked up. I stayed away from that.

Senator LUDLAM: I am more interested in how close the Australian government has come in what it has drafted to your proposals. It sounds like they are within the ballpark of your fallback option.

Mr Finkelstein : Yes, closer to my fallback option than my primary option.

Senator LUDLAM: Maybe it is a bit unfair to put you on the spot. Is the model which you described as second best, or whatever your language was, better than nothing—what the government is putting forward to give some teeth to the Press Council?

Mr Finkelstein : I said in my report that, at least in my view, the 'do nothing' option was not an option. Then I said there are two and that I preferred one of the two. But if there are third models or the UK model, I would still stick to the position I took in my report that 'do nothing' is not an option.

Senator LUDLAM: You acknowledged in your answers to the chair earlier that you do not think anything in this package, on your reading of it, poses a fundamental threat to freedom of speech. Where has that come from? One of the most interesting responses, I guess, to the tabling of your report was that it provided a brilliant illumination of how we will not ever get any straight reporting of media reform proposals, which is ironic. It seems to be the environment that we are in.

Mr Finkelstein : I had assumed that the reporting of my report was a warning to the parliament of what would come next. That is a layperson's view.

Senator LUDLAM: That is exactly what has occurred. Do you have a view on whether the legislation appears to entrench what has already occurred? We are hearing from Mr McGinty shortly. Seven West has effectively established its own body to perform the functions of the Press Council. Do you have a view as to the risk of multiple press councils? Was that something you canvassed in your report?

Mr Finkelstein : No, I did not. I canvassed the possibility of people leaving the Australian Press Council. But nobody had suggested the possibility that they would set up their own—although in my report I did discuss notions that exist in some places and from time to time existed in Australia, like a media ombudsman, where a newspaper would have its own person to whom complaints can be brought, who would be delegated the task with some authority to deal with complaints.

Senator LUDLAM: That is the situation we have. Do you believe that kind of model could survive in the West, for example—because that is an example that we have to deal with here—without undermining the basic premise of a single national press standards body?

Mr Finkelstein : In theory, there is no reason why parallel bodies cannot survive. The question really is whether it is desirable. This legislation assumes that as a possibility and as a matter of logic it can work. You will have the problems of different approaches, maybe different standards—although, as I said earlier, the standards that the newspapers adopt and that the media generally adopt are pretty uniform. You will have differences in implementation. One might take three months, the other one will take three weeks—that kind of thing. But then I have always been a great proponent of competition, and some competition might not be a bad thing.

Senator LUDLAM: Competition and self-regulation. It strikes me as—

Mr Finkelstein : It is an odd concept.

Senator LUDLAM: It is not ideal.

Mr Finkelstein : No.

Senator LUDLAM: Sorry, that is my view, not yours—I have put words in your mouth. Finally, because we are short of time, I think all three of the key proprietors who spoke yesterday at this hearing implored us, the parliament, to identify the problem we were trying to fix as though the government's proposal is a solution in search of a problem. They begged us to identify it: 'What is the problem here? We cannot see it.' Could either of you spell out what, in your view, the problem is?

Mr Finkelstein : To be fair to the media proprietors, I think they put the same propositions to me, saying something like, 'If there is no deficiency which you can identify, why intervene?' I said earlier that I do not accept the general proposition that one of the most powerful institutions in the community should be unregulated. I simply do not accept that. But then that is a political question and my politics on that issue might be different to many other people. The second proposition is that when the press accept some regulation—that is, they set up the Australian Press Council as an oversight body for the print media—it strikes me as being somewhat odd, when it is clear to everybody, or at least objectively clear, that the system did not work, that anybody would say, 'We are very happy with a system of oversight that does not work very well.'

Senator LUDLAM: We did hear a bit of that yesterday. I will leave it there.

CHAIR: Senator McKenzie, I have tried to give everyone in the coalition a fair go as well. I just cannot take any more. If you have some questions we can put them on notice.

Senator McKENZIE: I will—around definitions.

CHAIR: Professor Ricketson, Mr Finkelstein—thanks very much for coming here. Did we table those documents?

Mr Finkelstein : Yes.

Prof. Ricketson : Can I make one correction?

CHAIR: Yes, that is fine; thank you. Thank you very much for being here. It has been very helpful.