FRASER, Professor Michael, Director, Communications Law Centre, University of Techonology, Sydney

SIMONS, Dr Margaret, Private capacity

[18:32]

CHAIR: I now call Dr Margaret Simons and Professor Michael Fraser. Dr Simons is from the Centre for Advanced Journalism and Professor Fraser is from the Communications Law Centre, UTS, Sydney. Dr Simons and Professor Fraser, would you like to make an opening statement?

Prof. Fraser : Yes.

Dr Simons : Yes.

CHAIR: Dr Simons, we will go to you first.

Dr Simons : I have put in a written submission so I do not intend to be at all extended in these opening comments. My basic position is that I am not opposed to and indeed support the thrust of the bills to make meaningful and effective self-regulation of the media and to make the rights and freedoms under law contingent on a willingness to sign up to self-regulation. However, I think the drafting of the bills has been very flawed, and I am unhappy with them in their present form. I have detailed my unhappiness in my written submission and also made some suggestions for improvement.

There are some other things that I would like to emphasise. We have heard a lot over this last week about freedom of speech and the right to freedom of speech. I think it pays us to remember that the right to freedom of speech is not held by organisations, including media organisations. It is a right that is held by individuals. The rights, freedoms and privileges that media organisations have in most liberal democracies are consequential. They rely on the extent to which the media outlet or the journalist serves the free flow of information in society, and the right to freedom of speech of both the individuals who make up the media organisation but also the individuals in the audience and the broad general public. While for the most part large media organisations play a vital, effective and good role in disseminating information and extending the right to freedom of speech, it is possible—and the risk is highest when media concentration is highest—for the media to actually interfere with freedom of speech. This happens, for example, if somebody requests a correction to incorrect information and they have trouble in obtaining that correction, or if they ask for a right of reply to something that has been published and they are not able to obtain that right of reply. I think there is quite a lot of evidence, which I am prepared to detail, that we do have that situation in Australia with at least some media outlets at the moment.

Given that the right to freedom of speech of large media organisations is a consequential right and it relies upon the extent to which they serve the rights of freedom of speech of citizens, it is reasonable for them to sign up to standards about accuracy, fairness, publication of corrections and rights of reply and other matters. Indeed, all of our main media organisations have signed up to such codes and standards. If there is concern that they are not taking those obligations and standards seriously, then it does not seem to me unreasonable to suggest that their special privileges under law, which are there to enable them to disseminate information, should be contingent on taking self-regulation seriously.

I think legal penalties for conscientious free speech are obnoxious. I do not like the idea of editors and journalists being able to be sent to jail or heavily fined for conscientious free speech, but that is not what is proposed here. What is proposed here is that the privileges which result from media's role in advocating freedom of speech and advancing freedom of speech should be contingent on self-regulation, which makes sure that they stand up to their own standards.

That is it from me; the rest is in my written submission.

CHAIR: Thank you, Dr Simons. Professor Fraser.

Prof. Fraser : I also am very happy to be here and contribute to this process. However, I note that the haste of this process, of the introduction of these bills, is not conducive to good lawmaking. But I am happy to contribute, it being the case that the parliament's time is so short.

The role of the media is not enshrined in our Constitution, but it is the fourth estate with the parliament, the executive and the judiciary. One cannot run a liberal pluralistic democracy without a free press—it is an essential component. The press today, the media today, with the resources is available to them, are extremely powerful and at times it appears that they are more powerful than our elected representatives in setting the agenda and the national discourse. It follows along the lines of the focus of the media. The media holds everyone to account. The press holds every actor in the community to account. I also concur that it is reasonable that the media themselves should also be held to account. Powerful as they are, they are not above accountability. In this case, what is being proposed in these bills is that the media should demonstrably and transparently live up to their own standards—no more than that.

It has been claimed by media representatives that their freedom of expression should be unfettered and unlimited, but no right is unlimited. They themselves recognise this by having industry self-regulatory standards and professional and ethical standards which they impose on themselves. Moreover, the right to freedom of expression by journalists or by an organisation that pretends to enjoy that right, which is an individual right, is limited to the extent that it conflicts with other fundamental human rights, such as the right to privacy, the right to reputation and honour of the person. These rights are equally important in a liberal democracy. So it cannot be the case that it is only the media that should not be accountable to anyone. And it cannot be the case that the essential rights of the media in serving the public's right to know cannot be limited. Indeed, as has been noted just now, these rights are limited by many other laws, such as defamation laws, privacy laws, contempt of court laws, suppression orders and other laws that apply.

I think it is agreed by everybody that the best mechanism for accountability by the press is self-regulation. I think many disinterested persons, including previous Chairs of the Press Council, have acknowledged that self-regulation by the Press Council has to date not been sufficiently independent and effective and that their decisions have sometimes been ignored by their members. Or, when their members have not liked the activities of the Press Council, their own body, in limiting their unfettered role, that they have walked away and withdrawn their funding and their membership. This bill attempts to maintain industry self-regulation but holds the industry to account to ensure that that self-regulation is genuine and lives up to its own standards. The other aspect of the public interest media advocate is ensuring diversity. Unfortunately, I have not had the opportunity to hear the earlier parts of the hearing, but I am sure that it is well established here that we have one of the most concentrated media in the world. There are many commercial reasons for that, but it is certainly in the public interest that news and current affairs should not be monopolised by only one or two voices. That is in the public interest.

Finally, I would make one further point. The public interest media advocate is proposed to be established by statute. There seems to be some argument that by establishing an office by statute that means that that office is not independent. But that is a false argument. There are many public officers that are established by statute to be independent, and this is intended to be one such office.

Senator BIRMINGHAM: Thank you both and particularly Dr Simons for providing a comprehensive submission at short notice, which everyone has had to prepare such things. Senator Conroy has put to the parliament and to the people that we should adopt these reforms on a take it or leave it basis. If they are unamended, should we take them or should we leave them?

Dr Simons : Regretfully, if they were completely unamended I would say leave them. But I think that some very simple amendments, particularly to the first two points that I mentioned in my submission—that is, the criteria that the PIMA must apply in deciding whether or not to give the heart foundation tick of approval to the industry self-regulation body and also the independence of PIMA's appointment. If those two points were addressed, and I think that that could be done quite easily, then I would say take them.

Senator BIRMINGHAM: Professor Fraser?

Prof. Fraser : I think with one or two simple amendments to ensure that the independence of the PIMA not only exists but is seen to exist, and that the factors within which the PIMA would operate are clear so that critics of the PIMA could not attack it for lack of independence because it seemed to be operating on a whim, if there were a framework there, then I think that it ought to be passed.

Senator BIRMINGHAM: The Australian Federation has operated happily for 113 years without these types of reforms in place. Why do we suddenly need them now?

Dr Simons : I would not say this is sudden. I would actually say that we could have had this argument at any time over the last 10 years. And, indeed, it has been had, although it may not have come to this forum. As was previously observed, we have one of the highest concentrations of media ownership in the world. It has steadily got worse since the mid-1980s. We are now talking about withdrawing the 75 per cent reach rule, which would see instant further concentration, particularly in rural and regional areas. That is one reason why we need it now. Secondly, there is no controversy about the standards. As the Finkelstein report observed, they are very similar the world around. There is no controversy about what the standards should be. I think that there is also quite a lot of evidence that while all the main media organisations sign up to commonly accepted standards, they are not taken seriously in newsrooms. I can draw your attention to some evidence of that if you wish.

Senator BIRMINGHAM: That would be useful because, frankly, one of the challenges coming into this is that the government has not exactly made the case for why these reforms are necessary.

Dr Simons : Certainly.

Senator BIRMINGHAM: If you think there are specific examples of how reforms like this could actually fix particular problems and particular examples, that would be helpful.

Dr Simons : Well, several recent adjudications of the Press Council go to this issue of the ability to get corrections published when false information has been published. Obviously— and I heard Professor Disney make this point earlier this afternoon—if false information is published to that extent, the media's role in promoting freedom of speech is compromised. So too, I would say, are its rights on special privileges also compromised. Adjudication 1558 concerns selective information on climate change being published. There was a difficulty in getting a correction published. Adjudication 1553 concerned Andrew Wilkie and the Launceston Examiner. An editorial that misrepresented the impact of his agreement with the Feds on the Hobart Hospital. He had trouble getting a correction published. Now, if an MP has trouble getting a correction published, imagine an ordinary citizen. Adjudication number 1550 concerns the Gold Coast City Council and the Gold Coast Bulletin. A front-page article about loan costs and so on, again the council had to go to the Press Council to get action taken because they could not get a correction published. I will not go through the others in detail, but adjudication 1549, adjudication 1547 and adjudication 1554 are also relevant. The Press Council has published its own statistical overview of the nature of complaints and those that are upheld. All this information is on their website. It is not like this evidence is hard to find. Furthermore, one of the—

Senator BIRMINGHAM: Are you saying that in all of those cases the Press Council rulings were rejected?

Dr Simons : No. The Press Council ruling was that corrections should have been published. The information was false and corrections should have been published. But in all of those cases the complainant had tried to get a correction published before they took Press Council action.

Senator BIRMINGHAM: So the Press Council action then took effect.

Dr Simons : But all of these media organisations have already signed up to standards saying that they accept the responsibility to publish corrections. But in practice they are not playing it out. Can I give you another example, which has not been to the Press Council. This is an article from the Daily Telegraph of 4 March. It contains photos taken surreptitiously of the Bulldogs rugby league star Ben Barba in a rehab facility. The photos on the website also showed his children, who were with him. Those pictures were pixelated. News Limited's own internal code of conduct would rule this out. Certainly Press Council principles do. And yet, it is published. How can this happen in an organisation which is committed to its own self-regulation? Now, there has been no complaint in this case. I do not think that is because the individuals concerned are happy with this happening. I think it is because there is a price to complaining. I have worked as an educator both in the industry and in universities with journalists for many years and as a media commentator. I know that until very recent times, the industry's own internal codes of conduct did not form part of the training in newsrooms. This has changed over the last few years, but under intense political pressure which is also one of the reasons why we are here today. So what we are talking about—

Senator BIRMINGHAM: You are saying that they were a breach due to a breach of privacy issues?

Dr Simons : In this case it is a breach of privacy. I do not actually think that privacy is the hot button issue here, as it is in the UK. I think it is fairness and accuracy which is the hot button here. I do not have the empirical evidence for that. That is an observation on the basis of my experience in the industry, and as a media commentator. There are other examples as well. There have been articles published on The Conversation by the Winthrop professor in Western Australia about accuracy of reporting on climate change across the media. And I can give other examples.

Senator BIRMINGHAM: Some would say that that is a contestable issue.

Dr Simons : Well, it is a contestable issue. In many cases the Press Council has made findings on these things and yet the errors are repeated time and again. And ordinary citizens, including highly credentialed academics and MPs, cannot get corrections published. And yet the organisations in their internal codes and in their membership of the Press Council say that they will correct inaccurate information. Yet they fail to do it.

Senator BIRMINGHAM: So how do you foresee these particular reforms as actually changing these issues that you claim to be instances of media abuse?

Dr Simons : The Press Council has been under a considerable reform process over the last few years, and we heard Professor Disney detail those, including long-term funding agreements under contractual law. I would make the point that if those contracts were ever broken, that too would be a legal process, presumably, through the courts. It is not that it is a law free approach at the moment. But all of that has been done under pressure. I have no faith that the publishers would not sabotage that reform process once the pressure is off or taken away. I think history suggests that that might well happen. But in any case—

Senator BIRMINGHAM: Publishers have had to provide funding upfront for three years. That is a fairly significant long-term commitment.

Dr Simons : That is true, but certainly among some of the people I talk to in the industry, it is not out of the question that they would give their four years of notice. It is not out of the question, I think, that contracts might be broken.

Senator BIRMINGHAM: Is there any reason, given the significance of these reforms, and they have been significant changes, that that process shouldn't be allowed to be tested?

Dr Simons : I think it is reasonable in this context to say that, given the whole right of a large media organisation to freedom of speech is contingent on the degree to which it serves the interests of citizens to accurate information and the free flow of ideas, to the extent that you are not prepared to sign up and take seriously standards which hold you to that mark, to that extent your special rights and privileges are also contingent.

Senator BIRMINGHAM: So, Dr Simons, to go to the specifics of the legislation, you have described the News Media (Self-regulation) Bill as giving dangerously wide discretion. You go on to indicate that the application of community standards in this context is wrong in principle in relation to the types of terms that are being used.

Dr Simons : Yes.

Senator BIRMINGHAM: So, for the particular section that goes to how a news media self-regulation scheme would be accredited, that section needs a complete re-draft, does it, to meet any kind of standard?

Dr Simons : Yes.

Senator BIRMINGHAM: As a pointed question, just having described the news media self-regulation scheme as it is described, do you believe it is possible for newspapers or online news sites to effectively do their jobs without the Privacy Act exemptions?

Dr Simons : I have given a lot of thought to this, and I am not a privacy lawyer, so this is not a lawyer's answer. There are some sorts of journalism which I think would be possible, but it would be under an immense bureaucratic burden of having to contact everybody mentioned, get permissions and so on. Some kinds of journalism I think would not be possible, and that is particularly the investigative journalism, the journalism that annoys people and so on. That would not be possible in anything but the most sporadic fashion.

Senator BIRMINGHAM: Okay. In that case, in terms of this being a self-regulatory scheme, really that self-regulatory nature will be taken away by these reforms, won't it, because it will be impossible to do your job if you are not signed up to a scheme? And there is a government arbiter looking over the scheme to say whether or not it meets a range of government conditions, which at present are terribly vaguely defined.

Dr Simons : Well, it is a self-regulation with a statutory underpinning. Self-regulation because the body is financed by the publishers. The standards are very similar to the system that currently applies to broadcast media. The codes of conduct under the broadcasting act are agreed by the broadcasters and then given approval by ACMA. That is the system that has existed without much controversy or claim that it is a limit of freedom of speech for broadcast media for many decades. So the codes of conduct are developed by the industry, they are approved by ACMA, or in this case the PIMA. With broadcast media at the moment, a licence can actually be withdrawn or a condition imposed if they are found to be in breach of standards. Now, this is much more liberal than that. You are just saying you will lose your special rights and privileges under law. They are not talking about withdrawing a licence.

Senator BIRMINGHAM: Do you believe that it is appropriate for newspapers to run campaigns?

Dr Simons : In some cases, yes. It is certainly within their rights.

Senator BIRMINGHAM: Even though those campaigns may choose to take a side on an issue?

Dr Simons : Yes. Indeed, some of the finest journalism has resulted from campaigning journalism, yes.

Senator BIRMINGHAM: How does the notion of fairness fit into such an approach?

Dr Simons : The facts have to be accurate and the distinctions between fact and opinion should be clear. Exactly what the Press Council principles say.

Senator BIRMINGHAM: And when those facts are contestable?

Dr Simons : Well, all facts are contestable at a fundamental philosophical level. But there is the simple case of whether something did happen or didn't happen, something was said or was not said and whether the evidence says this that. These facts one can assess.

Senator BIRMINGHAM: The first two points of those three examples—something did happen or did not happen, something was said or was not said—are usually relatively black and white. Whether the evidence is of course were often times you will enter a grey zone.

Dr Simons : Yes, that is right.

Senator BIRMINGHAM: Should newspapers running campaigns be held to account in having to justify that their evidence is bullet-proof in that sense?

Dr Simons : I think that where there is controversy and a diversity of views or contestable evidence, that needs to be fairly represented. For example, climate change is the example everybody uses now, but 30 or 40 years ago it might have been the health impact of tobacco. Where there is a weight of scientific evidence in one direction and also some disputes and controversy, that needs to be fairly represented. Campaigning journalism is often not a matter of campaigning for one lot of evidence. It is a matter of bringing a particular issue to light. For example, in the early years of my journalistic career at the Age, there was a campaign to clean up the Yarra. That was not an issue that was on anybody's agenda before that. So a campaign is not necessarily pushing for one particular world view; it can simply be saying that here is an issue that should be brought to public attention. The Australian has done some terrific work on Indigenous affairs in this way, saying that these issues have been neglected and they should be brought to attention. That, too, is campaigning journalism.

CHAIR: Senator McKenzie

Senator McKENZIE: Dr Simons, section 8 of the Public Interest Media Advocate Bill says that PIMA will be appointed by the minister. You raise this as an issue in your submission. I would appreciate it, as I am sure that others would, if you could expand on why that is an issue.

Dr Simons : Well, the bill also says that the PIMA cannot be directed by the minister and yet the minister appoints the person and also has the power to dismiss them, presumably. This is a very important position. Freedom of speech is a very important issue. The government should not be involved in licensing journalists. So, I think an arm's-length process similar to that which has been employed for the ABC and SBS boards for similar reasons would be more appropriate—or appointment by parliament. I heard Professor Disney this afternoon propose a three-person panel. That is another option which had not occurred to me.

CHAIR: Thank you for your submissions, and thank you, Dr Simons, for actually putting yours in writing. It is helpful. You raise the issue of Section 7(3) about what you describe as 'dangerously wide discretion'. You say PIMA must have regard to “amorphous criteria such as 'community standards'”. That is not how it is in the legislation, is it? It is not like that. What the legislation says—

Dr Simons : “The PIMA must 'have regard to' the 'extent to which' the body—”

CHAIR: The standards reflect. So that is not quite what the legislation says, is it?

Dr Simons : Sorry, what is not quite what the legislation says?

CHAIR: You are saying that these amorphous criteria such as community standards. So it gives the impression that the PIMA has to have this reliance on community standards. But what the legislation says is that the self-regulation body must have regard to community standards.

Dr Simons : My reading of the bill is that the PIMA must have regard to the extent to which the regulation body reflects community standards in order to decide whether or not to give it the tick of approval.

CHAIR: That is 7(3)(c).

Dr Simons : I do not have it in front of me, I am sorry. You have the advantage of me there.

CHAIR: Would it make any difference if the determination by PIMA was in relation to the community standards that applies to the self-regulation rules?

Dr Simons : I am sorry; I do not follow the question.

CHAIR: You have raised the issue.

Dr Simons : Yes, but I do not understand the question.

CHAIR: The legislation says at 7(3)(b):

the extent to which standards formulated under the body corporate's news media self-regulation scheme deal with the following:

(i) privacy;

(ii) fairness;

(iii) accuracy;

(iv) other matters relating to the professional conduct of journalism;

No drama. No problem. Then it says at 7(3)(c):

the extent to which those standards reflect community standards;

Well, there are community standards, surely, in terms of privacy—

Dr Simons : Well, yes.

CHAIR: fairness, accuracy and professional conduct.

Dr Simons : How is the PIMA to determine what the community standard is on whether a journalist should protect the confidentiality of a source? Or whether a journalist should conduct an aggressive interview? Community standards in the sense that you and I might meet over a coffee would suggest that there is a certain standard of polite behaviour. If I were interviewing you as a journalist I may well not be very polite. The term is so vague.

CHAIR: You have actually been in Aussies then, have you?

Dr Simons : Frequently! The term is so vague that it could mean anything and we have a single statutory officer who has to in some way divine what the community standard is on these contentious issues.

CHAIR: But isn't there statutory officers making these determinations on national interest, on public interest matters, all the time—all over the world?

Dr Simons : If you look at people like Auditors-General, for example, it is usually in a fairly well defined field where they are bringing professional expertise to bear, for example on an annual report or a statement of accounts. To bring this single statutory officer's understanding, I assume, of what community standards are to bear on a news media self-regulation body is the wrong standard. There are professional standards recognised internationally—well written up in professional literature and reflected in things such as the Media Alliance code of ethics and the Press Council statement of principles.

CHAIR: Do those reflect community standards within the industry?

Dr Simons : They reflect professional standards—the norms of journalism.

CHAIR: So if (c) was changed to 'the extent to which those standards reflect professional standards', would that satisfy you?

Dr Simons : I am not a legal drafter and I am not going to say yes, they are the words.

CHAIR: No, I'm not asking you for a legal opinion. You have had an opinion on it, so I am simply asking you for an opinion. You have said that it should be about professional standards. So if 'community' was changed to 'professional', would that be more comforting for you, let me put it that way?

Dr Simons : Something in that direction or along those lines. I am not going to commit to those precise words.

CHAIR: Because you said that minor changes were required. This is the type of drafting changes that we have to look at.

Dr Simons : I think you need to have a simple list of as objective as possible standards, and I referred to a page in the convergence review which I think is a good starting point for that. I do not think that that is very difficult to do. I would probably take out any reference to community or professional standards. But, as I say, I am not trying to draft the bill.

CHAIR: Okay, Thanks. Professor Fraser, have you followed the history of the Press Council?

Prof. Fraser : Yes.

CHAIR: How would you describe their approach over a number of years?

Prof. Fraser : Before saying that, I too would like to acknowledge Julian Disney's role since he has taken over as chair. He has been trying to bolster the Press Council. But there is no regulatory body that is effective without enforcement powers. Unless those regulated fear the regulator, that the regulator has an armoury of weapons with which to enforce their decisions, that they are binding and that they can't be walked away from, then any form of regulation is not worth the paper it is written on. The Press Council has had a role as a self-regulatory body, but it has been weak.

CHAIR: People spoke earlier about carrots and sticks. We have a hugely influential and powerful press in this country. Is that your estimation as well?

Prof. Fraser : It is, and if I could just say a few words as to why they should be regulated now. I think that they are far more powerful than before. As a community we had norms that were well established and recognised by all kinds of corporations, including media corporations. But now we see extreme invasions of privacy using long lenses and surveillance techniques and we see prurient interest in people's personal and private lives far beyond what would have been unimaginable only a short while ago—within our own lifetimes. The media now have such powerful techniques and technologies and propaganda skills that they are feared by everybody if they focus these techniques. As we have seen in the UK, even the most senior politicians have feared the power of the media. The lack of ability of an ordinary citizen to get a right of reply or correction or to be able to even be consulted sometimes before a story touching on them is run, I think that is why these issues have come up. Although we have avoided the most egregious examples such as in the UK, I think there is a general feeling in the community now that this great power of the media is unsettling our civic life and the ability of others to go about their duties.

I would like to see some more clarity around the factors that the public interest media advocate would need to advert to. However, I do not think that you have to drill down far, because some of the most effective changes in our society have been with the introduction of very broadly based new laws, like the competition and consumer laws. They introduced broad concepts of fairness in contracts and abuse of market power. Nobody knew what they meant at first and lots of corporations objected to them. What do these very broad terms mean? But if you have a conscientious office—in that case the ACCC—who publish the reasons for their actions, you come up with a body of understanding as to what these terms mean and how they can be applied consistently. To drill down into too much detail in setting the parameters would limit the ability of the PIMA to respond to unimagined changes in the way that the media operate.

CHAIR: Yesterday, News Limited threatened High Court action if these laws went through the parliament. There is an issue of case law as well. Some of the issues that Dr Simons is raising and how you would interpret some of the issues that the PIMA has to have regard to may also be subject to case law. I don't know that you can ever say that when you draft legislation and have it passed in parliament that everyone is clearly of the understanding of what it means. There is always litigation to get case law to determine exactly the meaning. So aren't we sort of throwing the baby out with the bathwater? Because of the pressure from the media groups, we get ourselves spooked to say, 'Well, we have to get this exactly right'. And yet in other areas of legislation, the legislation goes in and then there are challenges, there is case law and there are practical developments. Is that to be discarded when you are talking about the press? That is the point I am making.

Prof. Fraser : That is right. It is new. But this problem can also be ameliorated actively if the regulator, the PIMA, which is really a recognition body, is proactive and publishes best practice guidelines and it publishes its opinions. It can build up a body of advisory material that will serve as a guide so that perhaps you can avoid doubt and you can avoid litigation.

CHAIR: Wouldn't you think that most of, not the case law, but the practical application of the laws would be determined by the Press Council itself actually applying their own standards. And if they apply their own standards then PIMA has got no job to do, have they? Other than in terms of mergers and concentration of the media. But in terms of overseeing the work of the Press Council, the best practice would be that PIMA does nothing.

Prof. Fraser : It has an initial role, does it not, in declaring the self regulatory body that its code does deal with this issue of fairness and accuracy. It looks at privacy, it looks at professional journalistic standards and it looks at these community standards as well. If the code adverts to those and deals with them, and if there is a complaints mechanism that people can directly access, including access to the PIMA, then it can declare that organisation. So it does have a role as providing a checklist that the industry self-regulatory body must meet. But it can meet and address those standards in its own way.

Dr Simons : If I can just add to that, the PIMA does all of that and can also withdraw the authorisation. That is a concern. Everything you said, Senator Cameron, about the legal process and case law and so on is of course true, and is true whether the law is well drafted or not. I mean, it is not a reason to be relaxed about the drafting.

CHAIR: No, I am not saying that we should be relaxed.

Dr Simons : All of that will happen regardless, and I am sure that Senator Conroy would have had some legal advice on the potential for a High Court challenge by now as well. But it is not a reason not to draft as tightly as possible. Also, of course, when one is anticipating laws that are for the long term, one should think about what would happen if you had the wrong person in that job—somebody who says that community standards are that journalists should not be rude in interviews and the Press Council has not been holding that up adequately and that is a problem. Of course, it seems unlikely but we have had some very unlikely people dealing with these sorts of things in the past.

CHAIR: But, Dr Simons, that is not what the legislation says. The legislation says that the Press Council set the standards.

Dr Simons : It says that in deciding whether or not to give and maintain an authorisation, the PIMA will have regard to the extent to which the media self-regulation body applies community standards.

CHAIR: Sure. Before I hand over to Senator Ludlam, you mentioned some of the adjudications by the Press Council. I was waiting to hear 1555. I am not sure if you are aware of 1555, which is the Blair Donaldson and the Australian.

Dr Simons : I am broadly aware of it.

CHAIR: I have raised this. I wish I had had this yesterday when News Limited were in the room, but I received some stuff on it today. This goes to basically a number of issues. Basically quoting a sheep farmer who said that the 'wind-farm business is bloody well near a paedophile ring. They're f..king our families and knowingly doing so.' And there were a couple of other areas in that. The Press Council concluded that that was a breach and that certain things should be done in relation to that. The IPA, which you would not be bothered about I am sure, came out and criticised it, so I will not go there.

But after the Press Council made this determination—and they made a determination 20 December 2012—on 21 December the person who wrote the original article, a James Delingpole, wrote another article and basically repeated the same position. So it was in direct defiance, basically, of the council. Then on 21 December the Australian ran an editorial basically saying, 'Press Council: up yours'. Then on 22 December we had Christopher Pearson defending the position of saying to the Press Council, 'We don't really care'. How could any anyone have confidence, even in the Press Council now with the good people that are there, if the Australian and the Murdoch press treat them with absolute contempt?

Dr Simons : Indeed. And this is not new. Senator Birmingham earlier asked 'Why now?' Well, I remember when I was writing a book on the Australian media which was published in 2007—so this must have been around 2005 or 2006—when there was a very similar controversy in which there was a Press Council adjudication against, I think, the Herald Sun. Do not hold me to these details. They published the adjudication, but alongside it an article which defied it, basically. There have been other examples as well. Again, I would say that this is an example that demonstrates that all the rhetoric about currently adhering to standards and media organisations being the judge and jury in their own case about whether standards are being observed, can be a bit hollow. Not in every case. Excellent work is done. But the example you have raised, I think, like this one in an organisation in which its own internal standards on privacy were inculcated and were spread through the organisation and understood by photographers and journalists and editors, how would this happen? It is very telling about the newsroom culture.

CHAIR: Thank you. Senator Ludlam.

Senator LUDLAM: Dr Simons and Professor Fraser, I'm sorry that I missed the first part of your evidence. I am interested in some of your comments later in the document—and thanks for putting this submission together on such remarkably short notice—on using the privacy clauses as something of a hook or something of an incentive, I guess, for media companies to stay within the Press Council. I believe overseas it is defamation law that has been used in similar schemes. Here it is privacy.

Dr Simons : That was Leveson's recommendation, yes.

Senator LUDLAM: You have made what could be described as a cautious approval that that might be the appropriate way to keep companies in the tent.

Dr Simons : It is a very difficult balancing act between freedom of the press and holding journalists to account for their own standards. It is seriously a difficult balancing act and you can see that from the way that jurisdictions all around the world wrestle with it. Obviously most prominently the UK at the moment. Different balances have been struck. So I do not think you are going to get the perfect solution. The Privacy Act exemption is a privilege that is given so that the media can better serve the interests of freedom of speech. It is reasonable to make it contingent on the extent to which they observe standards in the area of freedom of speech. But I do think there are big problems with the way that bill is drafted, as I have detailed.

Senator LUDLAM: In the first part you have some quiet strongly worded concerns that the chair was teasing out just before on community standards and so on.

Prof. Fraser : Forgive me please. May I just interrupt on that particular point and make a contribution to that question about the sanction of not having the privilege of the exemption from the Privacy Act? Obviously, there has to be a sanction for breaches, otherwise, as we have said, they are meaningless. But in my view this sanction would effectively stop a media organisation from functioning in large part, from doing any investigative journalism. So it is a very powerful sanction. In that case I think that the PIMA will rightly hesitate to use it, and it may not be used, just as one sees in broadcast the revocation of the licence not used. So I think for effective regulation it is important to have a range of graduated sanctions.

Senator LUDLAM: What do you have in mind? My reading of the bill is that the PIMA will not be saying to this and that particular newspaper or online platform, 'You lose the right to privacy. You can keep the privacy exemptions.' It is accrediting or deregistering the entire Press Council, not on an individual case-by-case basis.

Prof. Fraser : Yes, but its members would then not have access to this privileged exemption from privacy law.

Senator LUDLAM: None of its members?

Prof. Fraser : That is right. You have to be a member of a self-regulatory body in good standing with the PIMA to be able to enjoy this privilege of the exemption from the Privacy Act. That would mean that the individual media organisations, in effect, could not function properly. While that might be a sanction that would be applied for the most aggregious kinds of breaches, if that is the only kind of sanction it may render the PIMA powerless to deal with all the day-to-day issues that come up. It may need a broader range of tools.

Senator LUDLAM: My understanding is that you do not really want the PIMA worrying about day-to-day issues. That graduated sanction, I would have thought, is something for the Press Council. They would not particularly want a government regulator poking its nose into the day-to-day operation of whether a particular journalist or a particular platform is ahering. I thought the whole point of self-regulation is that you leave the Press Council to do that.

Prof. Fraser : I agree with that. But, if they want to say that the self-regulatory body is not effective and their only way of dealing with that is to kick all their members out of the media game, that may be something that is ineffectual.

Senator LUDLAM: I think it was Mr Hywood who yesterday declared that as the nuclear option. Are you proposing that as a sanction it is so great that it simply would not be used, in effect—that it is not a credible threat?

Prof. Fraser : If it is the only threat—

Senator LUDLAM: My reading of the bill is that that is the case.

Prof. Fraser : Then it may just be held in abeyance. It is almost unimaginable that such a threat could be used. I am not saying that it should be removed; I am saying it needs be part of a range of responses that meet the actual severity of the problem in an apt, appropriate and measured way.

Senator LUDLAM: It sounds simple when you say it quickly like that.

Dr Simons : The member media organisations of the self-regulation scheme have some choices. They can reform the self-regulation body to meet the standards of the PIMA, which I would argue should be simple, objective and clear. It is not necessarily accepting that they are being put out of business; there are some options.

Senator LUDLAM: You have gone into a bit of detail in your submission. You offered some regret that we seem to have lost any concept of a converged regulator. That was left by the side of the road some time ago, I suspect. You say: 'There should only be one news media self-regulation body.' For the committee, could you sketch why you have been so strong on that, because we have two at the moment?

Dr Simons : Yes, there are two at the moment. One of the interesting things is that Seven West Media left the Press Council, as we heard this afternoon, at very short notice, in the middle of the reform process. I think that is indicative. Partly because we are talking about media convergence, a very common thread in evidence before the Finkelstein inquiry and the convergence review is that one of the problems as to why self-regulation is currently less effective than it should be is that the public is confused about who to complain to: is it the media alliance, judiciary committees, ACMA, the Press Council or Media Watch? Having many bodies is likely to add to that confusion. There is the problem of being able to maintain standards in a real sense under these bodies. There will be pressure to have more than just two, I think. If you leave that open, everybody will want their own. It will be very difficult. You then have a single funder funding them. The difficulties with keeping independence are extremely difficult. So, for reasons both principled and pragmatic, I think we need one. Australia would be extraordinarily unusual in world terms if we had this proliferation.

Senator LUDLAM: In a large market.

Dr Simons : Yes.

Senator LUDLAM: We are out of time. Thanks so much for coming and giving some independent views on these things. We have mostly heard from folk with very strong commercial interests. Your evidence is appreciated.

CHAIR: Thanks, Senator Ludlam, Dr Simons and Professor Fraser. It has been very helpful. Thanks for coming along and helping us.

Dr Simons : Thank you.

Prof. Fraser : Thank you, Chair.

Proceedings suspended from 19:25 to 19:50