SENATE ENVIRONMENT AND COMMUNICATIONS REFERENCES COMMITTEE

Media Diversity in Australia

SUBMISSION

1 This submission, made in my personal capacity, responds to the Committee’s invitation for written submissions addressing the terms of reference as formally set out on the Committee’s World Wide Web site.1

Personal details 2 I was admitted to practise as a Barrister and Solicitor of the Supreme Court of Victoria on 4 April 1969. Prior to the establishment of the national scheme for admission to legal practice, I was admitted by the High Court of Australia (1969) and by the Supreme Courts of the ACT (1972), New South Wales (1998) and Tasmania (2001).2

3 I remain in active practice, chiefly in Victoria and Tasmania, specialising in media-related advice and litigation. I have been involved in numerous defamation disputes/cases. As a barrister, I have appeared for both plaintiffs and defendants in defamation cases. I have appeared for plaintiffs in cases which have gone to verdict by a jury and some which have led to appeals.3

4 For many years, I was a member of the Law Council of Australia’s Melbourne Media and Communications Committee. In my last five years or thereabouts on the Committee, I was Chairman. I have had involvement in many legal professional activities, in law reporting and ad hoc law reform projects.

5 For about two decades, I was a participant in ad hoc committees of specialist lawyers in Victoria who considered the need for a uniform State and Territory Defamation Act including committees which were consulted by the then Commonwealth Attorney-General in the lead up to the presentation of the Bill which was enacted as the uniform State and Territory Defamation Act in 2005/2006.

1 If the Committee accepts this Submission, I have no objection to it being published. 2 Further personal details can be found in my 2018 Joint Parliamentary Committee submission. 3 Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1 (Special Leave to Appeal refused, 28 May 2004); Hore-Lacy v Cleary (2007) 18 VR 562; Cleary v Hore-Lacy (No 2) (2009) 21 VR 692; Akras v Mora (Judge Murphy and Jury, County Court of Victoria, 23 August 2012). 6 I have been a member of the former Historic Buildings Council and the Legal Aid Commission of Victoria.

7 I have published articles and book reviews on Cold War legal history and other subjects in scholarly journals in Australia, the UK and the USA. I co-authored with Michael Sexton a book for a public audience about lawyers and society, The Legal Mystique: The Role of Lawyers in Australian Society (Angus & Robertson, 1983). I have contributed entries to The Australian Dictionary of Biography, The Oxford Companion to the High Court of Australia, and The Oxford Companion to Australian History.

8 My contributions to discussions of matters of public controversy and/or public interest have been published in The Age, The Weekend Age Magazine, Australian Quarterly, Australian Society, Current Affairs Bulletin, The Australian Rationalist, Dissent (Australia), OnLine Opinion, Quadrant, Quadrant Online, The Spectator Australia and The Spectator Australia Online.

Earlier submission 9 In 2018, I made a submission to the Australian Parliament’s Joint Parliamentary Committee on Human Rights Inquiry into Freedom of Speech in Australia.4 That submission sets out at length my position on freedom of speech and it underpins this submission.

Four specific elements of the Committee’s reference 10 This submission deals with the following four elements of the reference:  Diversity of speech about ideas should be at the forefront of “Diversity”: The preamble and paras (g), (i) The individual’s right to freedom of speech is the paramount right in a democracy. No sensible citizen can (or does) argue that freedom of expression is absolute. It is an ingredient of the rule of law that every limitation must be precisely categorised and defined so that any person can be sure, in advance of expressing an idea, whether it crosses the line between what is legal/illegal.

4 Joint Parliamentary Committee on Human Rights Inquiry into Freedom of Speech in Australia (9 December 2016) (Submission 132). 2 Until about 1970, political, artistic, literary and other forms of State censorship had markedly declined over more than a century in line with the steady evolution of democratic government. The contemporary free speech debate in Australia and elsewhere has been largely provoked by the emergence of new justifications for content-based censorship arising from an ideology which insists that specific personal characteristics (some innate and some a matter of personal preference – so-called “identities”) can only be discussed within restrictions based on the perceptions and sensitivities of the select (privileged) identity groups.

This has led to the emergence of the new legislative censorship of “hate speech” – the expression of ideas and opinions which particular “identities” regard as “contemptible”, “harassing”, “humiliating”, “insulting”, “intimidating”, “objectionable”, “offensive”, “incitement”, “threatening”, “blasphemous”, or otherwise productive of emotional reactions.

Those prohibitions (the most notorious being section 18C (inserted in 1992 as Part 2A) of Racial Discrimination Act 1975) have been artificially tacked on to legislation making invidious discrimination in employment, the supply of goods and services and related matters unlawful.

“Hate” is an ordinary English word meaning intense dislike. Bad ideas such as racial supremacy invite intense dislike. Moreover, as Justice Nettle (then a member of the Victorian Court of Appeal) observed in 2006:

“… there are any number of persons who may despise each other’s faiths and yet bear each other no ill will. I dare say, for example, that there would be a large number of people who would despise Pastor Scot’s perception of Christianity and yet not dream of hating him or be inclined to any of the other stipulated emotions.5

The ideological version of multiculturalism which is expressed in the ranking of privileged categories of identities leads to irreconcilable conflict between those “identities” which are innate and those which are a matter of choice from one day to the next. This has been glaringly evident

5 Catch the Fire Ministries Inc v Islamic Council of Victoria Inc (2006) 15 VR 207 para [33]. 3 in the recent differential treatment of public reactions to expression of religious attitudes to homosexuality.6

That ideology stereotypes members of the protected minorities as “oppressed” and “vulnerable”, it excludes groups (such as the unemployed) who are, in fact, vulnerable, and its propensity to collapse into grotesque illogicality and absurdity is most evident when ideas about race (which has come to be at an apex of identities) are in contention.7

The role of Government should be kept to a minimum: The preamble and paras (a)-(e), (i) Save, for example, where the communications medium inherently involves a limited spectrum (as in broadcasting), or some similar consideration of necessity, there should be no “licensing” of media proprietors.8 The long-ago history newspapers licensing provides a clear reminder that such controls are inimical to individual freedom of expression.

There appears to be wide community acceptance that there are entirely new problems in this fast-evolving age of social media. It seems to me likely that many of these problems result from the exploitation of human inclination to immaturity, impulsive behaviour, narcissism, and a failure to learn the utility of old virtues like patience, self-control, and fortitude. One aspect of a partial response to the specific problems resulting from the extraordinary range and rapidity of advances in communications technology is to be found in the amending legislation currently being considered in the State and Territory legislatures following the recent periodic review of the operations of the Uniform Defamation Acts.

It seems to me that the crux of the anti-social consequences of social media is a problem of concentration of substantial economic and political power. The logical starting point for dealing with that structural problem

6 Contrast the responses to remarks attributed to Mr Israel Folau and the Statement issued on 10 March 2018 by the Australian National Imams Council http://www.anic.org.au/wp- content/uploads/2018/03/Islams-Clear-Position-on-Homosexuality.pdf. 7 A prominent example is to be found in Robin DiAngelo, White Fragility: Why It's So Hard for White People to Talk About Racism (2018). Ironically, the “thinking” exposed in this book illustrates why “hate speech” censorship is inimical to the free and open expression of ideas. The best response to the expression of such obviously bad ideas is the expression of good ideas which will, necessarily, reflect a range of opinions. 8 A contrary view was expressed in the Report of the Independent Inquiry into the Media and Media Regulation (2012) (Conducted by the Hon R A Finkelstein QC, a former Judge of the Federal Court of Australia) 4 is to break up the monopolies. However, there seems to be little appetite for this remedy in contemporary Australia.

Defining Media diversity – Private and public: Preamble and paras (a)- (i) In my opinion, the Committee should approach the reference on the basis that a consideration of media diversity in Australia necessarily involves examining the central role of publicly owned or financed media, most notably the contribution made by the Australian Broadcasting Corporation (ABC) and the Special Broadcasting Service (SBS) so as to ensure, in particular, that any such public instrumentality maintains strict impartiality in its news gathering and dissemination. Part II of the Australian Broadcasting Corporation Act 1983 (the ABC Act) and Part 2 of the Special Broadcasting Service Act 1991 are clear enough. For present purposes, I confine my submission to the ABC.

The ABC now makes no pretence that it fully abides by the letter and spirit of ss 6 and 8 of the ABC Act. In particular, its “independence and integrity” have been severely impaired over the past two decades or thereabouts by its failure to ensure that its gathering and presentation of news and information is accurate and impartial according to the recognized standards of objective journalism.

Australia’s national broadcaster now skites that it tells viewers, listeners and readers “what the news means to them”.9 This is not its function. It is for commentators speaking for themselves – and then on all sides of any given topic – to offer such assessments.

In the past decade, the disregard for what the nation has by law entrusted to the ABC – backed by the privilege of not being called to account for disobeying the law – has turned the ABC and many of its employees into partisan participants in a wide range of social, political, religious, economic and other public controversies.10 The national broadcaster has no business taking and disseminating its own partisan positions and it should cease doing so. This would go a long way to restoring the ABC to the unique role which it was created to perform.

9 See “Not the 7 O’clock News – Brought to You by ‘Their’ ABC, The Spectator Australia, 27 July 2019. 10 The ABC’s own social media treatment of news and “multicultural” matters is drenched in opinion. 5 The gravity of this breach of public trust has become even more blatant since the election of the 45th President of the United States of America. In its treatment of politics and current affairs in the US, the ABC displays an institutionalised loathing of President Trump. One prominent example of this is to be found in the three-part Four Corners programme Trump/Russia - Follow the Money; Secrets, Spies and Useful Idiots; and Moscow Rules (2018). The second part was a baseless attack on the character and reputation an American citizen, Carter W Page.11 Another is its superficial and very misleading coverage of the terrible breakdown in law and order in Charlottesville, Virginia on 12 August 2017 and related events preceding and following it.12

 Contemporary journalism as reflected in defamation litigation: paras (a) and (i). To the extent that a convincing case can be made that the role of public interest journalism in Australia has been adversely affected by external factors such as concentrated media ownership or improper government interference, it needs to be weighed in the balance with a decline in the standards of Australian journalism which is reflected in the steady record of successful defamation claims.13

The major media organizations and their allies harp on the mantra- like claim that Australia has the worst defamation laws on the planet.14 My anecdotal experience over a half-century informed by a variety of experiences, including close contact with the then press gallery when working in the Old Parliament House in 1972/1973, is that there is a great institutional reluctance of the media to admit error. I have been involved in defamation cases where, instinctively, my sense was that only proprietorial

11 See “‘Their’ ABC’s Trump Mania and the Hatchet Job on Carter W Page”, OnLine Opinion, 1 June 2020; Book Review, The Spectator Australia, 5 December 2020. 12 See “Charlottesville, Guns, Trump-Phobia and ‘Their’ ABC’s Groupthink”, OnLine Opinion, 6 March 2020. 13 For a sampling of cases, see Australian Broadcasting Corporation v Chau Chak Wing [2019] FCAFC 125; SLR [2019] HCATrans 245; Chau v Fairfax Media Publications Pty Ltd [2019] FCA 185; Fairfax Media Publications Pty Ltd v Gayle [2019] NSWCA 172; Hayson v The Age Co Pty Ltd [2019] FCA 1538; O’Neill v Fairfax Media Publications Pty Ltd [No 2] [2019] NSWSC 655; Roberts-Smith v Fairfax Media Publications Pty Ltd [2019] FCA 36; TCN Channel Nine Pty Ltd v Pahuja [2019] NSWCA 166; Nationwide News Pty Ltd v Rush [2020] FCAFC 496; Hayson v The Age Co Pty Ltd (No 2) [2020] FCA 361; Fairfax Media Publications Pty Ltd v Chau [2020] FCAFC 48. 14 Editorial, “Defamation is a tax on free speech”, The Australian Financial Review, 15 April 2019.

6 pride stood in the way of an early resolution of an obviously strong case against a media defendant.

In recent years, I have gained the impression that whatever can be said for the transformation of journalism from a calling which was the equivalent of the former on-the-job articled clerks’ training for would-be lawyers into a tertiary-credentialled career, the average level of competence of the newly-hatched journalist has declined. At an atomistic level, daily experience suggests that many young journalists do not understand the “transformative” qualities of adjectives (like the aforesaid “transformative”) and adverbs.

Why, for example, do so many items commencing “In an explosive development yesterday . . .” appear in the news columns when they should be in the “Comment”, “Analysis”, or “Background” columns (assuming they are not dealing with conflagration in an armaments factory)? It seems to me that some young journalists nowadays struggle to understand the foregoing fundamental (my judgment) difference, partly because a belief in the truth seems to make the mere expression of the belief defensible as a fact. Beyond that, there is an increasing Puritanical inability to accept that opinions can and will differ on every topic under the Sun. The result is that the noble cause of dissemination of factual material, informed commentary and, above all, strident dissenting voices is almost entirely forgotten.

Nowadays, it seems increasingly that Australians don’t disagree about or debate anything. They engage in “conversations”, “narratives”, “discourses”, they “unpack” issues, and deal with controversial ideas described in other ways involving similar euphemisms.15 In his 1946 essay “Politics and the English Language”, the English journalist/author George Orwell set out clearly and concisely common-sense rules for writers. One was that the concrete language was always to be preferred to the curse of the abstraction. If the essay is not on contemporary journalism course reading lists, it should be.

15 One very prominent online site, The Conversation, (“Academic rigour, journalistic flair”) a co-operative effort of Australian universities and other entities, stipulates that “For example: in an article about the policy response to climate change, comments about the science of climate change will be considered off topic.” This suggests, for example, that any attempt to publish the content of peer-reviewed scientific research findings concerning climate will be subject to an editorial screening test as to the content of such findings. 7 12 I respectfully suggest that in its Report the Committee emphasise that protecting the individual’s right to dissent is fundamental to ensuring the maintenance of media diversity in Australia in all its elements.

Laurence W Maher 11 December 2020

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