I quite like the terms of reference of the media inquiry announced yesterday. I say that while recognising that the inquiry is political in origin and motivation, and that it has been thrown together under such pressure, and in such hurry and confusion, that even very senior people in government are still struggling to work out what to make of it, and are largely irritated by the effort required.

But the terms of reference in themselves seem to me to be on the money, and to cover the issues that have not already been claimed by previous Law Reform Commission reports and the current Convergence Review.

I particularly like the fact that attention will be paid to the impact of the internet on journalism business models, and how the production of news might be supported, and diversity encouraged, in the future.

That issue is worthy of government inquiry and community concern. In fact, not before time, given the imminent civic crisis this country faces due to the collapse of the business models that have financed most journalistic efforts.

Yet it is also the case that the terms of reference are open to interpretation and Justice Ray Finkelstein and Matthew Ricketson will have trouble doing anything other than indicate broad directions if they are to stick to their planned reporting date of February next year — which they will have to do if their findings are to feed into the Convergence Review report, due a month later.

How important will this inquiry be? We can judge, perhaps, from the fact that with this very tight reporting deadline, nobody yet knows how the inquiry will do its work, whether there will be public hearings and submissions and exactly what the terms of reference might mean. It all looks a bit thrown together. On the other hand, Finkelstein is not to be trifled with — an acute and progressive legal mind, and a reputation for finding out-of-left-field solutions.

What do the terms of reference mean?  On Lateline last night Greens leader Bob Brown pronounced that the door was “wide open” for the inquiry to consider concentration of media ownership issues. Yet in its coverage today, The Australian pronounces that “media ownership” and “media bias” are “out” of the inquiry terms of reference.

I’d say the Oz might have it wrong, at least on bias. What is clearly “in” are media standards and codes of practice, and if we are talking about the Australian Press Council standards, they cover everything from privacy to bias, fairness, accuracy, right of reply and a great deal else. So too News Limited’s own Code of Professional Conduct. Working out whether such codes actually work and are adhered to is a very big and significant thing to try and do. Bias is certainly “in” on my reading.

When I rang around last night, there was concern from within government and media organisations to keep  this new, highly political and as one observer described it, “wild” inquiry from polluting the allegedly high and pure deregulatory public policy approach of the much bigger beer Convergence Review.

For those who are coming in late, the Convergence Review is very important indeed, conceived and structured to be seminal to the new media century. It has broad terms of reference that will certainly allow it to consider issues including concentration of media ownerhip, and a great deal else besides. That would have made explicit mention of media ownership in the inquiry announced yesterday rather redundant — a point that many commentators seem to be missing.

The convergence review is where the big money decisions will be made on issues such as media diversity, sports rights, Australian content requirements and suchlike. In this game, journalism is the poor relation and an after thought in the minds of many broadcast media bosses.

Whether or not it was intended, the inquiry announced yesterday could act as a corrective to this. The inquiry will report to the Convergence Review, meaning that journalism and its public interest role will have to be considered alongside more purely commercial considerations. So too how diversity in news content might be encouraged — something that might well not have been high on the Convergence Review agenda until now.

So if the new media inquiry operates as an influence on the Convergence Review, it could be good.

The big winner in yesterday’s announcement is clearly the Australian Press Council, with a term of reference all to itself about strengthening its role. It is a measure of the success of chairman Julian Disney’s reform efforts, and his political influence and acumen,  that the council has in a short time moved from looking in need of euthanasia to being clearly on the way to greater strength and relevance.

Disney is involved in advising government wearing numerous hats. His influence is clearly considerable. At the same time, it was also clear last night that the publisher members of the Press Council are less than happy to find Disney has got them into a position where their former poodle of a self-regulation body might grow teeth and attitude.

The favoured approach of Disney and Communications Minister Stephen Conroy would appear to be, not to make the Press Council a statutory body, but to give publishers in all mediums strong incentives to join up, and stay joined up.

Deciding which internet sites and bloggers should fall within its ambit is clearly a minefield. But if, by signing up, services such as Crikey gain statutory benefits — such as rights to protection of sources and exemptions from privacy laws — then the regulation becomes a matter of very large carrot as well as stick. It sits in a middle ground between legal role and nimble non-legalistic sanction. That might not be a bad place to be.

On the other hand, there is little evidence that the Press Council actually understands how the internet works. Witness its recent attempts to engage the community in discussion over standards. Where is the social media presence, the Facebook page and the Twitter account?

In the recent Presss Council roundtable I attended, there was a distinct flavour of the internet being regarded as the source of all evil, due to the impact of rapid publication. Yet it is also a potential engine of transparency and interaction. If it wants to regulate internet publication, the council, in particular its public members, will have to become much more new media savvy.

In commentary today, newspaper publishers are talking about the Press Council as though they have always loved it — meekly submitting to its judgments over 40 years. They are pointing to their membership as evidence that more regulation is not needed.

But in fact they have in recent times been prepared to mercilessly cut its funding, and even walk away from it altogether. The publishers have  treated the Press Council and its adjudications with contempt. Sometimes, admittedly, it has deserved little else.

Interesting that yesterday, after the announcement of the inquiry, the Press Council took down from its website the earlier draft version of its submission to the Convergence Review, which I reported on yesterday.

Instead a more recent and less interesting draft has been posted, which does not include the earlier references to an overarching government body with real legislative clout, (presumably the Australian Communications and Media Authority, with fresh powers over print) to which the Press Council could refer matters.

Any attempt to regulate news media is fraught with legitimate concerns about freedom of speech. Yet it is also the case that the present mix of medium-specific regulation in Australia is fragmented and ineffective.

The Press Council covers only print and the online version of print outlets. It has no powers, and pathetic funding.

The Australian Communications and Media Authority has power over broadcast media and some internet, and in theory legal clout, but is hidebound by the requirements of administrative law, and the limited range of sanctions at its disposal, which leave large gaps between lethal power and raps over the knuckles.

The journalists’ union and professional association, the Media Entertainment and Arts Alliance has a code of ethics, but it applies only to members of that body — and most media executives are not members.

All these bodies lack effectiveness because they are low profile. Most members of the public are not aware of them, or of how to make a complaint about media content. Research by my colleague Dr Denis Muller a few years ago proved that the ABC’s Media Watch was the only media complaints body that had anything like a public profile.

For quite a long while there has been a strong argument for a stronger and more coherent system covering all media. It needs to be non-legalistic, nimble, independent and have real impact, for the most part short of legal sanctions.

Media convergence strengthens the long-standing  arguments for a more coherent and effective system. Just last week, we had Fairfax boss Greg Hywood say that his company will be about video as much as about print in the future. Why, then, should the standards regulation be platform based?

To sum up, the new inquiry is certainly messy in conception, and nobody really has any idea as to how it will do its work. But it could be good.

Peter Fray

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Peter Fray
Editor-in-chief of Crikey