David Salter’s analysis in Crikey yesterday of a speech I gave to the South Australian Press Club fundamentally misunderstands the principles which have underpinned broadcasting legislation for over 80 years, underestimates the threat to press freedom Finkelstein’s recommendations represent and offers misplaced legal opinion.

Salter does not accept that licensing scarce public spectrum to free-to-air broadcasters is one of the key elements for regulating broadcasters differently from other media. He makes the incorrect assertion that: “Spectrum regulation is purely a technical matter.” This is simply wrong. As the Productivity Commission has pointed out:

“Differences in media regulation can be attributed to differences in the way television platforms operate. The FTAs use a scarce public resource. The licence fees they pay, and some other regulations to which they are subject, reflect the benefits they derive from having preferential access to that public resource.”

The fact is that the centrepiece of our broadcasting policy has been built around the government licensing a limited number of companies scarce public spectrum together with a set of regulatory protections to those licensees. In return these companies have certain obligations such as broadcasting Australian content and oversight of complaints by the media regulator. Print media does not use scarce public spectrum, has never been licensed and is rightly not subject to the same regulatory obligations as the broadcasters. The 80 years of regulation of users of spectrum whilst print was not so regulated is explained by the fact that those spectrum users use a scarce publicly owned resource. Does David Salter explain his mischaracterisation as legislative and policy amnesia?

Salter also claims that News Limited “over egged” our claims Finkelstein’s recommendations represent a threat to press freedom. He said we say the threat to press freedom arises because the regulator would be government funded and therefore controlled — a proposition with which he does not agree. In doing so Salter mischaracterises our argument.

Sadly, Salter assumes that what is at stake is nothing more than extension of current rules applicable to TV and radio to print — I am drawn to an inevitable conclusion that he, like so many other commentators on these matters, has not actually read the Finkelstein Report for that is not what is proposed in the report.  The threat to press freedom arises from the combination of draconian measures contained in Finkelstein: including the super regulator’s ability to seek orders to jail or fine journalists, the fact the regulator does not have to publish reasons for its decisions and the fact that decisions by the regulator would not be appealable.

The point that the government funds such a body — which opens it to control — is only one component in the overall disturbing picture.

Salter appears to conflate democratic accountability with media accountability. A pillar of democratic accountability is that the government is held accountable, including quite fundamentally by media scrutiny. How effective can that scrutiny be if those who are scrutinised can discipline the scrutineers (and ultimately control them) over that very scrutiny? Inter alia Salter is naïve to believe that “accuracy” is always objective — a disagreeable view will often be lambasted as “inaccurate” as anyone in the media knows all too well.

Salter should also take care with his lay legal assertions — if he considered what the Finkelstein Report actually proposes even he would identify serious issues of free speech and appropriation.

The only thing we can agree on is Salter’s point that we are talking about recommendations to government rather than any firm government proposal. We hope that good sense informed by facts and real understanding of the policy settings will drive sensible responses including understanding the very significant enhancements to the operation of the Australian Press Council which were adopted earlier this year after an extended process of review and negotiation.

Peter Fray

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