As the Chairman has said, I am the new Chairman of an independent statutory authority, the Australian Broadcasting Authority. But that is not how some in the media saw it. They impugned our independence, as in the cartoon you see before you. I assume that it is my hand coming up from below the head of the table. It is both factually and politically correct, for there is no woman member there to represent Ms Kerrie Henderson.
I am unsure who it is who is bursting in demanding, "Who's the Authority here?". He is not Sir Lawrence Steet, the Chairman of Fairfax, for Sir Lawrence is far too elegant and courteous to do that.
Nor is it the President of the Federation of Commercial Television Stations, whose coiffeur is much more generous.
After some reflection, I think I know who it is. It's Mr Stuart Littlemore, QC, the ABC media critic!1
My subject, The Media and the Constitution, raises, I believe, four major issues. I propose therefore to attempt to answer four questions.
First, why is there no express guarantee of the freedom of the press in the Constitution? (I shall use the words "press" and "media" to include both the print and electronic media.)
Second, what protection does the Constitution give to the media?
Third, would the media be better protected with an express constitutional guarantee?
Fourth, do the media deserve their freedom?
1. Why is there no express guarantee of the freedom of the press in the Constitution?
An earlier contributor to this series referred the Society to this definition of the word "Constitution" once enunciated by Viscount Bolingbroke:
Mrs Wade added:
In this sense the concept of a "Constitution" transcends and means more than a single document. This concept not only includes the State and federal Constitutions, but it also includes the Statute of Westminster Adoption Act 1942 and the Australia Act 1986. But of course this is not all. It also includes the conventions which govern the exercise of power.
The Constitution thus described can only be understood in its historical context. Unfortunately, our Constitution is not widely understood. I find myself in full agreement with his Honour Mr Justice Kirby when he laments "the shocking level of ignorance about civics [which] reveals itself in what passes for the constitutional debate' in this country".3
The French are celebrated for attempting to codify the broad principles of the law, apart from administrative law. In their latest Constitution, Constitution du 4 Octobre 1958 --the sixteenth -- it seems that even the French leave certain vital matters vague or unsaid. For example, the concept of the President's domaine reservé, particularly in matters of foreign affairs and defence, or the apparently unfettered power of the President to dismiss the Prime Minister.4
One line of criticism in the present constitutional debate in Australia is that, if we knew nothing about the country and only read the Constitution, we would completely misunderstand our political system. The government would be run, it would seem, by the Governor-General. For example, he could dissolve the House of Representatives at will, and veto any proposed legislation. He could control the army. But as Justice Gaudron notes, "fundamental constitutional doctrines are not always the subject of exhaustive constitutional provision, either because they are assumed in the Constitution or because what they entail is taken to be so obvious that detailed specification is unnecessary".5
Rather than trying to fill the Constitution with the assumptions the founding fathers made, as well as with the obvious, it would be preferable to instruct our citizens, particularly our children and our immigrants, about the history of this nation. This should include a study of the institutions and laws we have imported and adapted. Although it may upset some, unless we know the history of the battle between the Parliament and the Stuart Kings, we will never understand our Constitution -- or indeed, that of the United States.
Our British forebears saw no need to put their basic law into one document. When the United States became independent, they adopted a Constitution under which they retained both the rule of law and the need for checks and balances on power. As we know, they gave constitutional effect to the checks and balances in their political system through a formal separation of powers.
This concept of checks and balances was the great contribution of Anglo-American society -- the rejection of the platonic ideal of the guardians, or the ideal benevolent dictators, a theme which flows through Plato, the French revolution, to the 20th Century totalitarian ideologies. As Lord Acton so succinctly put it, "Power tends to corrupt and absolute power corrupts absolutely".
The American founding fathers distributed state power to the three institutions or branches "to save the people from autocracy".6 They also adopted a Bill of Rights by way of a series of amendments to the Constitution. In fact, without the Bill of Rights there would have been no federation. This contained those rights the former colonists believed they already enjoyed. They now formally declared them, particularly for the purpose of restraining the new federal institutions from abusing them.
And they decided, in the First Amendment, to give constitutional recognition and protection to a fourth unofficial institution, the press. This was to be a formidable check on the power of the new federal state.
They sought to ensure that the press would be free, at least from prior restraint by the federal authorities. They would have agreed with Carlyle, who later wrote:
So the First Amendment provides that "Congress shall make no law abridging the freedom of speech, or of the press". Justice Brandeis explained the reasons for the First Amendment in these words:
I have no doubt that had the founding fathers of the Australian Constitution heard these words, written three decades after their work, they would have applauded these sentiments.
And why then did they not incorporate the First Amendment into our own Constitution?
There are a number of reasons. The British had learned from their failure to grant freedom to the Americans, so that Canadians, Australians and New Zealanders did not have to fight for their freedom. (Not that the American colonists lived under the yoke of repression -- they were very much autonomous colonies. Two of the colonies even elected their own Governors!) The Australian Constitution was drafted by Australians and for Australians. I have to point this out for the record. Our Constitution was not a British creation imposed by the Foreign Office, as a former Australian Prime Minister claimed.
And in designing our federal Constitution the founding fathers had few models to choose from. Previous constitutional declarations of human rights were at best of neutral effect, at worst abused by tyrants. For example, article 11 of the Declaration des droits de l'homme et du citoyen du 26 août 1789 certainly guaranteed freedom of expression. It provided:
These fine sentiments were followed by two centuries of uncertainty and chaos. Neither the terror, the Bonaparte dictatorship, the white terror on the Restoration, the second Bonaparte dictatorship, nor later the Vichy dictatorship, respected this guarantee.
And across the Atlantic there was little in the application of the U.S. Bill of Rights which would have encouraged our founding fathers. The leading cases on human rights which we know so well were decided in the twentieth Century, and most in the last half. Perhaps later events justified this restraint on the part of our founding fathers in not rushing to copy the Americans. As Daniel Lazare observes:
But it was not only that on any reasonable assessment, Bills of Rights had not performed; they had even been used to restrain liberal government measures -- for example, factory regulation. The founding fathers rejected the need for a comprehensive Bill of Rights not only for these reasons, but more importantly, because they had confidence in the efficacy of the Westminster system. In the words of Justice McHugh:
Justice McHugh concluded:
But what then can the people do if their representatives abuse their power? The answer is in the power the people enjoy through the ballot box. As the High Court said almost eighty years ago, if ever the elected representatives were to use their powers "to injure the people ... it is certainly within the power of the people themselves to resent and reverse what may be done. No protection of this Court in such a case is necessary or proper".11
Justice Dawson explained the application of this principle in relation to any unacceptable intrusion into freedom of speech and of the media in these terms:
2. What protection does the Constitution give to the media?
Notwithstanding the absence of an express constitutional guarantee of free speech and of the media, the High Court has in recent years found a freedom of political communication in the federal Constitution, a freedom which of course applies to the media.13
After finding a freedom of political communication to be implied in the Constitution, the High Court grappled with the application of this law in two actions for defamation in 1994, Theophanous14 and Stephens.15
In Theophanous the Court established a new constitutional defence in action for defamation. They held that there was implied a freedom to publish material:
They then established the new constitutional defence in actions for defamation where such material was published. This was available if the defendant established that:
Although the Court ruled in favour of the defendant by a majority of 4 to 3, it decided three years later that the two decisions did not contain a binding statement of constitutional principle. Why? Because one of the judges in the majority, Justice Sir William Deane, would have gone further than the other three, Chief Justice Sir Anthony Mason and Justices Toohey and Gaudron. His Honour had been unable to accept the need for a defendant to have to satisfy the court on "matters such as absence of recklessness or reasonableness" -- that is, the second and third aspects of the defence. However, he decided that the appropriate course was to lend his support to the other three (Mason CJ., Toohey and Gaudron JJ.).
In the next few years, it became clear that some of the other Justices wished to have the question reconsidered. That opportunity arose in two cases, Lange16 and Levy.17
In these cases the Court accepted the argument that the earlier cases, Theophanous and Stephens, had in fact established no constitutional principle:
The reasoning which gave rise to the answers in Theophanous therefore had the direct support of only three of the seven Justices.
Lange was a unanimous decision. The Court confirmed that the Constitution intended to provide for the institutions of representative and responsible government. This, Their Honours observed, was made clear by both the Convention debates and by the terms of the Constitution itself. Freedom of communication concerning political or government matters between the electors and their representatives, electors and candidates, and between electors themselves, they ruled, is central to the system of government. The Constitution protects freedom of communication which enables the people to exercise a free and informed choice as electors. This cannot, Their Honours held, be confined to the election period, otherwise electors would be deprived of the greater part of the information necessary to make an effective choice at an election. They then held the common law rules of defamation, and any statutory law on this, must conform to the requirements of the Constitution.
Whether Lange gives a better protection to the media than Theophanous has been debated, and will be debated elsewhere. I interpret Lange as a counsel to lower courts on the interpretation of defences such as that contained in s. 22 of the Defamation Act 1976 (NSW), and on qualified privilege at common law.
Lange differed from Theophanous in one particular aspect. The Court now said that the Constitution did not confer personal rights. Rather, it acted as a restraint on legislative or executive power. This case may well have signalled the end of the Court's flirtation with the concept of implied rights.
3. Would the media be better protected under an express constitutional guarantee?
Let me raise the question whether some express guarantee should now be inserted into the Constitution. Today most countries do so, even including dictatorships. For some time even the British have enjoyed access to the European Court of Human Rights, under the European Convention on Human Rights. This is now to be incorporated into Britain's domestic law. Australia will then be one of the few countries without a comprehensive Bill of Rights, either in our Constitutions or in our laws. I doubt, however, whether this difference from other countries is of much importance in itself.
The Australian people have only once had the opportunity, since federation, of including a guarantee of free speech and of the press in the Constitution. A proposal was made in 1944 to amend the Constitution to prevent any Parliament from making "any law for abridging the freedom of speech or expression".19 But this was part of a wider proposal to transfer, for five years, certain State powers to Canberra and was rejected.
The principal issue in the current constitutional debate is whether to remove the Crown from the Constitution. This is proposed to be done in such a way that we will not notice. Under the minimalist proposal there will be an election at a joint meeting of the Parliament with only one candidate, nominated by the Prime Minister. In effect, the candidate will be chosen after a deal between the leaders of the political parties. The proposition that without further and substantial amendment this will not significantly change the office of Governor-General or President is hotly challenged by some, and not only constitutional monarchists. They say that under a minimalist change there will be a significant empowerment of the new President.
But if the change to a minimalist republic were to be benign, as the minimalist Republicans argue, a Bill of Rights would presumably have a more tangible effect. It would affect rights and responsibilities. But there would be a long debate as to what rights should be incorporated into the Bill. When the Government proposed three rights for inclusion into the Constitution in 1988, the right to trial by jury, to freedom of religion, and to fair terms for government acquisition of property by the State, the referendum was overwhelmingly rejected.
But if a referendum to provide an express constitutional guarantee were approved, much would depend on the form of the guarantee and, above all, its interpretation. Perhaps the widest protection for the press is contained in the First Amendment to the U.S. Constitution as presently interpreted by the Supreme Court. It would be more likely that any guarantee would be along the lines of Article XIX of the International Covenant on Civil and Political Rights, which provides:
Whatever the form, Parliament could enact this by statute. This of course could be repealed, expressly or by implication. A federal statute, relying mainly on the external affairs power, could restrain the State Parliaments. If the guarantee were along the lines of Article XIX, it is however doubtful whether the States' powers to legislate would be much more restrained than they already are by the present implied freedom of political communication restated in Lange.
So would an express constitutional guarantee give greater protection to the media than now exists? Let us assume for the sake of argument that we did import the American constitutional guarantee. In the final analysis, its meaning would still depend on the High Court.
Justice Potter Stewart has explained the purpose for the American First Amendment as part of a deliberately created internally competitive system.20 These checks and balances were put there to save the people from autocracy. The purpose of the constitutional guarantee of a free press was similar -- to create a fourth institution outside government. This was to be an additional check on the three official branches.
Potter Stewart further says that the Constitution frees the press to do battle against secrecy and deception in government. As Justice Black observed in the Pentagon Papers Case:
Potter Stewart also warns the press not to expect any help from the Constitution so that it will succeed in its battles with government. Thus the Constitution forbids prior restraints on publication -- except in the rarest of cases. But there is no constitutional right to freedom of information. Nor does the Constitution protect journalists from having to divulge confidential sources except perhaps in limited cases.
While the Constitution therefore frees the press, it does not help it in its battles with the state.
Whether the High Court would interpret a constitutional guarantee any more generously than the present implied protection is not at all clear. Certainly the guarantee would extend to non-political matters. In the United States the doctrine of the "public figure" plaintiff in defamation and privacy cases goes far beyond political figures, which I believe is a weakness. And the U.S. media's protection against defamation actions seems at first glance to be wider than in Australia. Here it is limited to material published in the course of political communication.
But in practice, is the American defence more useful? The freedom is lessened by the propensity of jurors to find in favour of a plaintiff. As a result, the media often appeal on the constitutional aspects of the case.
Now a "public figure" must prove the newspaper acted maliciously. This means the newspaper must have known that the publication was false, or that it was recklessly indifferent as to its truth or falsity. So the trial typically involves a minute examination of what happened during the news gathering and editorial process. Worse, there is usually a long and highly expensive interlocutory phase. This seems to allow a scattergun approach, indeed a fishing expedition. And the plaintiff's hidden weapon -- or should I say, his attorney's hidden weapon -- centres around the cost rules.
Costs are not awarded against a losing plaintiff. With contingency fees, a plaintiff can litigate without responsibility. Imagine teams of "ambulance chasing" lawyers suggesting to potential clients that they sue for some slight, and being able to offer the plaintiff a complete indemnity from any liability. I can imagine the proposal. "Listen, you stand to gain up to $2,000,000, less of course my percentage. Don't worry, it won't cost you anything. Just sign the contingency fees agreement." So of course the media settles libel cases -- the earlier, the better. The actual burden on the media is heavy.
So in defamation cases at least, I am not confident that the importation of American constitutional law, even with its jurisprudence, would better protect the media -- at least if other aspects of American law and practice came with it.
It could be that in the area of contempt law, and parliamentary privilege, the courts could offer some winding back of the restrictions on the media. Once again, there is no guarantee that this would occur.
A glance at some recent cases where judges have aborted trials because of media reports shows no readiness on the part of at least those judges to allow some relaxation in this area, if such a relaxation were thought desirable.
The one definite advantage of an express guarantee is that it would lock in the protection. The likelihood however of the High Court reversing its unanimous decision in Lange is, I suspect, not high -- at least for the foreseeable future.
4. Does the media deserve its freedom?
The Act which established the Authority which I have the honour to chair indicates that the role of the media is to provide entertainment, education and information. To paraphrase the Letter to the Corinthians, the greatest of these is to inform. After all, what is the purpose of media freedom if it is not the right of the people to be informed?
Mercifully, we hear no more today of the cultural cringe. But it still lingers, I suspect, in Australians' attitudes to the Australian political system and to our media. The occasional survey of peoples' perceptions of different professions, particularly politicians and journalists, undertaken by The Bulletin illustrates this. I shall return to this. In the latest Silent Majority Report,22 six media related issues are identified as among the top 40 problems perceived by Australians. Media issues were never before identified in the 30 years during which the series have appeared.
When I last visited Sir Henry Parkes' office in Macquarie Street, and saw the Old Cabinet Room, I was struck by one thing: that, only a few decades after the founding of the penal colony, our forefathers had established a society which was soon to be in the forefront of the world's advanced democracies.
Almost 170 years ago the sky of Sydney was bright with fireworks and bonfires. Governor Darling had been recalled. The people were not saying a fond farewell. They were saying good riddance.
Governor Darling's attempts to muzzle the Australian press in various ways had proved a failure. His liberal predecessor, Governor Brisbane, and the founding fathers of the free Australian media had triumphed. We should remember them, especially Edward Smith Hall of The Monitor, and William Charles Wentworth, who with Robert Wardell together founded The Australian.
Not only are we one of the six or seven countries in the world which have enjoyed such a long uninterrupted period of democratic government, we are also one of the few countries which have enjoyed a free media for the greater part of the 19th and so far all of the 20th Centuries.
We are world leaders in political culture and in the media. I read in The Economist that the world's media is dominated by the Americans, the British and the Australians! Well, I for one am not ashamed of that. I am proud that Australians are so successful and so innovative. When broadcasting itself was established, we soon moved to a regime where both commercial and independent quality public service broadcasting co-existed. Other countries were to follow us, some of the leading countries of Europe doing this only in the last few years.
And we also lead in self-regulation. I have constantly seen reference to and use of Australian research and experience, including that of the Australian Broadcasting Authority and the Australian Press Council.
We have to accept that the price of a free press is that some of the press will be irresponsible.
Nevertheless, the press, the media has done a great service to this nation. In its best moments it has covered itself in glory -- for example, its work in exposing corruption. Fortunately, corruption is still an aberration here. The media plays an important role in alerting us to this, and of course to any mismanagement in public life.
The only consistent and objective reports on the responsibility of the press and the media generally are in the reports of the Australian Press Council, the Australian Broadcasting Authority and its predecessor.
Those of the Press Council do not indicate a practice of consistent or gross irresponsibility on the part of the press as a whole, or in any section of the press. The Press Council has attempted to verify its own performance, most importantly through an independently managed survey of complainants it undertook in 1996.23 This showed that 69 per cent were glad that they had complained to the Press Council. This demonstrates a considerable degree of confidence in the objectivity of the Press Council rulings.
One litmus test of media responsibility is the degree to which it intrudes into personal privacy. Unlike the press of some other comparable countries, the Australian media cannot be said to be an intrusive one. Nor is there a section of the media which practises intrusion to the degree that significant parts of the British and American media do. The recent media intrusion into the personal life of the British Foreign Secretary is inconceivable here. Australian public figures need not lie awake at night wondering whether the media will expose their private lives. (Although the media may well investigate whether they actually paid for their beds from their travel allowances.)
Having praised the Australian media, let me register two reservations.
The first is the phenomenon of the "feeding frenzy" -- which is not only Australian but is a worldwide phenomenon. The second is the need for fairness, especially when the journalist has strong personal views on the matter reported.
The rise of Pauline Hanson is an example of a "feeding frenzy". Now I disagree with the fundamental tenets of Mrs Hanson's policies. For example, I see every advantage from our immigration programme.
But Mrs Hanson is entitled to have a different view. As I have said, the reporting of her rise constitutes, I believe, an example of the phenomenon which Professor Larry J Sabato describes as a feeding frenzy.24 He defines this as "press coverage attending any political event or circumstances where a critical mass of journalists leap to cover the same embarrassing or scandalous subject and pursue it intensely, often excessively, and sometimes uncontrollably".
L'affaire Hanson was and may still be such a feeding frenzy. A good portion of the reporting exaggerated her message, which was presented in some quarters as if it were the voice of Satan. In fact, her policies are more moderate than those of many right wing parties in Western Europe. Jean Marie Le Pen, for example, is not only against immigration; he wants immigrants sent back, and their children! Worse, the reporting exaggerated her importance.
Mrs Hanson is, after all, only one independent Member of Parliament. She is in the House of Representatives, where she enjoys no balance of power and where her vote is of no importance. Of our many State and federal politicians she is alone, or almost alone. We shall see how many votes "One Nation" polls in the next elections. I doubt if she will achieve nationally the votes recorded by much more extreme parties in recent elections in Europe. Yet she has been portrayed as if she were an extremely significant politician.
We have had media commentators calling on the Prime Minister to come out hard, to stop her. I asked one how any Prime Minister could have stopped her, what were the few words he should have said. The reply:
That such a statement would have had any effect in restraining Mrs Hanson from continuing to advance her views is extremely doubtful.
The unfortunate result of this feeding frenzy was that Asian English language newspapers, which serve an élite, finally took notice. How could they not? The frenzy had dominated our media. And the word was passed on. Mrs Hanson was portrayed as a significant and powerful Australian politician, who was enunciating racist views. There was a suggestion that such views were widely held in Australia.
Any damage to Australia was not the result of inaction of the Prime Minister, or indeed of the Leader of the Opposition. It was not even the direct result of Mrs Hanson's words. It was the media indulging in its own fantasies, believing its own stories, which turned Mrs Hanson into a spectre stalking the land.
My second reservation is the need for fairness, especially where journalists and editors feel strongly about the issue. An early example was during the last months of the Whitlam Government. The press was fully entitled to publish the news, which was often unfavourable to the Government, and to take editorial positions. But some went overboard, so determined were they to see the end of that Government. Another was the report that, when the native title legislation passed the Senate, the press gallery stood and applauded. If so, it was both unwise and unprofessional.
As I mentioned, The Bulletin regularly publishes surveys of the public's assessment of the integrity and honesty of different professions. Professors, I must say, are ranked quite high, as are judges. But journalists are ranked low, especially print journalists. I think, unfairly so. Yet it cannot be that they intrude excessively into people's privacy -- they have a much better record on this than those of other countries.
Perhaps it is because of the feeding frenzies. But these are not so common. I suspect that it may be a perception of unfairness, perhaps of bias.
There is obviously a fine line between reporting the news and great national debates, and weighting that reporting too heavily on one's own side.
Professor Henningham's survey of journalists suggests a substantial difference of opinion between journalists and members of the public on a wide range of issues.25 For example:
If there is such a divergence on an issue, then there is a corresponding obligation on the media to present the news on any such issues fairly, and to report both sides of great national debates.
Let me give a current example. We are about to elect our Constitutional Convention. We know that much of the media today supports a change to a republic. There is then an onus on the media to ensure that their reporting of the campaign, and of the issues, is fair. That is, after all, the essence of our national identity, expressed in the argot -- "a fair go".
If the story were merely about a factional branch in a political party, we would still expect that it be reported fairly.
But this is about a fundamental aspect of our Constitution, about the removal of one of the pillars of the "indissoluble federal Commonwealth under the Crown" which our forefathers established. A change of such importance needs not only to be carefully considered. It also needs to be reported fairly. The public is entitled to be informed, particularly on that part of the debate which relates to the checks and balances in the Constitution. (I must admit a personal interest in this -- I am a candidate in the election.)
But I return to my original assessment. That is that, while not perfect, the Australian media has acquitted itself well.
Let me conclude with one point that I made frequently as Chairman of the Press Council. Whatever the faults of the media in departing from the highest ethical standards, they cannot be cured by state regulation, which in any event would run the risk of breaching the Constitution.
As that great liberator, himself a journalist and a lawyer, Mahatma Ghandi wrote: