There was a critical turning point in Ray Finkelstein’s inquiry into media regulation. It came in the November public hearings, when Fairfax Media CEO Greg Hywood informed Finkelstein he didn’t believe the Australian Press Council needed more funding, and that Fairfax Media was in any case not willing to provide it.

I believe that was a crucial moment for Finkelstein, who was weighing up in his mind whether to boost the Australian Press Council or abolish it and replace it with a statutory body. He decided, in the face of Hywood’s attitude, that he had no option but the latter.

Julian Disney, the head of the Australian Press Council, said as much in an address a couple of weeks ago. The industry had virtually “forced” Finklestein to go with the statutory option, he said, because they had not been able to guarantee a commitment to the existing self-regulatory body.

To my mind, it was a critical strategic error by Fairfax — and it came on the same day that Campbell Reid and John Hartigan, representing News Limited, had been nice-as-pie, prepared to consider Disney’s requests and willing to talk about all options for improving the Press Council. Ironic, given the Finkelstein inquiry was seen by some as being all about beating up on News Limited.

I think Finkelstein probably would not have recommended the statutory body had it not been for Hywood’s attitude.

Well, all that changed yesterday. After long and delicate negotiations, it was announced Australia’s major publishers had agreed to greatly increase the funding for the Australian Press Council, and also agree to rule changes that would require members to give four years’ notice before withdrawing — reducing the risk of publishers picking up bats and balls and going home in fits of pique over adverse adjudications.

The moves announced yesterday are significant. They represent most of what Finkelstein might have asked for if he were to be persuaded that a statutory body, making self regulation compulsory for major publishers, was not necessary.

A few significant things that have not so far been reported. The new funding arrangements are to be written into binding contracts. They will have the force of contractual law. Also, publishers will have to commit to funding three years in advance, meaning that any backsliding will be visible well in advance, and of course open to a response by the community and by government.

But it is one step forward, and one step back. Also yesterday, Seven West Media, publisher of The West Australian and Pacific Magazines, withdrew from the council, announcing it would set up its own self-regulation body. This was the price of the advance — leaving the recalcitrant behind. At least one commentator has pronounced this the death of the Australian Press Council and the media self-regulation effort.

Meanwhile, the spectre of Finkelstein’s statutory News Media Council stands in the wings. We have yet to hear what the media convergence review has to say on the matter, or what Communications Minister Stephen Conroy is making of the whole thing.

Seven West Media’s response is not entirely a surprise. The West Australian has been on the end of some pretty sharp Press Council adjudications. Its measured attitude to issues of media regulation can be judged by the fact group editor-in-chief Bob Cronin is among those who compared Finkelstein’s proposed system to that operating in totalitarian regimes.

I am not quite ready to pronounce self regulation dead, mainly because Disney has proved himself a doughty negotiator and I don’t think he is done yet. But the move by Seven West Media is deeply serious — even more than Hywood’s attitude (and Hywood has clearly changed his tune).

It was the ability of publishers to pull out of the Australian Press Council at will — and their record of doing precisely that — that deeply concerned Finkelstein. As he said during public hearings, a self-regulation scheme that can be brought down in a fit of pique by those on the end of its adjudications is not worth having. Which is why he recommended it be compulsory.

What options does the government now have? Basically three: either it makes membership of an improved Australian Press Council compulsory, forcing Seven West Media back into the fold, or it goes with the full Finkelstein regime to abolish the council and establish the new statutory body. Or it gives regulation of print and online media to the statutory Australian Communications and Media Authority.

I’d be very surprised if the Convergence Review, the report of which is out any day now, does not recommend making Australian Press Council membership compulsory for the big publishers.

You would think that, if only out of self respect, the news media would want self-regulation that actually works. Yet the woeful record of its blow hot and mostly cold support for the council suggests the industry simply doesn’t get it — or the idea that great power brings the need for great and real accountability.

An in-house scheme, as foreshadowed by Seven West Media, can never have the public credibility of an arm’s length process no matter who runs it. And one would think independent, reputable figures would in any case be cautious about associating themselves with something so clearly undermining of the council, particularly if I am right about the Convergence Review recommendations.

Nor can we hope all this will be put off because it is just some fit of spleen on the part of the Gillard government. Convergence makes it inevitable that these questions of news media regulation will have to be addressed within the next few years, media inquiry or not.What Finkelstein recommended was a body that would operate much as the Australian Press Council does now — but with compulsory membership, some government funding and a big stick in the background when it came to publication of apologies, corrections and rights of reply.

I am on the record as saying I don’t like this recommended regime. Although it would probably never happen, and would certainly happen only rarely, there is something obnoxious about the possibility an editor would be forced to publish an apology or retraction for a story when they were not really sorry for at all. And there is the thin end of the wedge argument. If we get this now, then what in the future?

I would prefer, and still hope for, a strengthened Australian Press Council. Yesterday’s announcements deliver on that, but are marred by Seven West’s withdrawal.

Given the proposed Finkelstein big stick is so far limited to increasing freedom of speech — by ensuring those who have been judged to be wronged are given a voice — I would prefer the Finkelstein’s regime to a continued pathetic, low-profile and under-resourced self-regulation effort.

Regimes such as what Finkelstein recommended already operate, without significant controversy, in many European jurisdictions, as spelt out by eminent media lawyer and free speech advocate Mark Stephens in an address last week. Free speech has no firmer friend than Stephens, but he said he had no particular problem with this aspect of Finkelstein’s recommendations.*

So is the Australian Press Council going forwards or backwards? Has the industry shot itself in the foot, ensuring the statutory body will be established over its protestations, because of its demonstrated lack of commitment to serious self regulation?

I really hope everyone in the industry starts to behave sensibly, because only then can we hope for best outcomes.

*Declaration: I organised and hosted these events in my role as director of the Centre for Advanced Journalism at the University of Melbourne

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Peter Fray
Peter Fray
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