THE AUSTRALIAN, TUESDAY, AUGUST 7, 2012 F 12 COMMENTARY www.theaustralian.com.au

GOVERNMENT-FUNDED BODY POLICING THE PRESS A THREAT TO DEMOCRACY

Press Council. If it sustains the The US has flirted with this scepticism of the press’s ability to robust public discussion’’, but it is better? If the nation is set to un- ‘‘Democracy is the worst form Finkelstein’s council would have the power complaint, the Press Council can kind of censorship, often in war- police its obligations to the public. extraordinary that the council leash an official body to dictate of government,’’ Winston Church- call for a correction, retraction or time. But the American experi- It is the unquestioning faith in the even accepted the complaint to what the press may cover, is it ill said, ‘‘except for all those other to suppress criticism of those in authority similar correctiveaction. Indeed,it ence led to a deep distrust of the ability to dictate what statements consider in the first place. really better that it is also totally forms that have been tried from has upheld more than 41 per cent ability of government officials to are incorrect, what opinions are The report claims such heavy- unaccountable even to the elected time to time.’’ Similarly, a free LAURA R. HANDMAN of the nearly 9000 complaints re- act as what one court called ‘‘su- unfair, what coverage is invasive handed regulation is necessary be- government? press does not persist in democ- ceived since 1988. Its members are perior editors of the press’’. Our and what positions are politically cause the time-honoured idea of a The Finkelstein report laments racies because it is easy or always committed to supporting and Supreme Court concluded that intolerable.The reportwouldhave self-regulating ‘‘marketplace of the decline of the media’s watch- leads to the most satisfying result. EVEN in the US, Ray Finkelstein’s the Australian Press Council with strengthening the council. They ‘‘there is no such thing as a false this orthodoxy pronounced by the ideas’’ has become a ‘‘romantic fic- dog function in the face of increas- A free press persists because its report into the media and media particular reference to the hand- have agreed to increase its funding idea. However pernicious an opin- revamped Media Council, which tion’’ given the concentration of ing financial pressures. In the next failings pale in comparison to deregulation made waves. The re- ling of complaints’’. And investi- and limit their ability to withdraw ion may seem, we depend for its would be led by ‘‘a retired judge or newspaper ownership in Austra- breath, however, it would impose those seen in regimes where the port was right to critique the fail- gate he did. from its membership. correction not on the conscience other eminent lawyer’’. lia. Even if this were true a few dec- additional financial and legal bur- government has arrogated to it- ure of the press to effectively re- The Finkelstein report cata- But the Finkelstein report of judges and juries but on the What kind of issues would this ades ago, when newspapers were dens on the exercise of that func- self, or its independent and un- spond to complaints about logued the failures of the press in would transform these ethical competition of other ideas.’’ Even mandatory Media Council be the only game in town, it is self- tion. Press lawyers know all too elected representatives, the power inaccurate, biased or unduly in- Australia and abroad. It cited sur- guidelinesintolegalrequirements. genuinely harmful speech is pun- drawn into? One need look no fur- evidently false now. There are in- well that even the question of what to decide what is true and false, fair vasive coverage. But its nearly 500 veys that show the public would It envisions a world in which me- ished not by government censor- ther than the present voluntary numerable ways that alternative is true or false involves many and unfair, and which opinions pages neglected to answer the like the press to be more account- dia organisations would be re- ship or restraints on publication Press Council where many com- ideas can get out, as the report ac- shades of grey, and is fraught with will be permitted to be heard. most important question. Would able. In May, the Convergence Re- quired to join a new body, the but by private lawsuits for libel and plaints are not about inaccuracies knowledged. Even for those who the risk that disfavoured view- an unelected government bur- view final report was released, News Media Council, and submit invasion of privacy. This ‘‘breath- but about coverage thought to be confine themselves to traditional points will be censored. Laura R. Handman is a partner at eaucracy really be better at foster- ‘‘agreeing with much of the analy- to its jurisdiction. If a politician, ing space’’ for speech and opinion unfair or hurtful, insensitive or de- newspapers (an ever shrinking Beyond the broadly shared Davis Wright Tremaine, LLP, in ing an independent and res- sis and some of the findings’’ of the celebrity or other person decides is fundamental to our democracy. rogatory. number), stories bubble up from goals of fairness and accuracy, it is the Washington, D.C. and New ponsible press? To ask that Finkelstein report. an article was unfair or insensitive ‘‘If there is any fixed star in our This year, for example, the social or alternative media into the hard to imagine a set of predict- York offices. She represents media question is to answer it, as Ameri- The problem with the report is — even if the article was entirely constitutional constellation,’’ our council agreed to consider the mainstream media. able, specific rules that could be clients, including News cans have learned the hard way. not the diagnosis, it is the prescrip- accurate — they could ask this Supreme Court ruled in 1943, ‘‘it is complaint from the husband of a The report also reassures the formulated and applied to the Corporation entities, and testified Last year, Communications tion. The Australian Press Council government Media Council to or- that no official, high or petty, can prominent politician upset that his reader that this new mandatory nearly infinite set of variables that in congress in support of the Minister Stephen Conroy asked was founded in 1976 as a voluntary der a media outlet to publish an prescribe what shall be orthodox wife had been compared with Kim Media Council would not consti- a reporter faces. This would leave SPEECH Act, which prohibits US former Federal Court judge Fin- organisation to promote good apology, correction, retraction or in politics, nationalism, religion, or Kardashian. The council ruled the tute government censorship be- the council with nearly unchecked courts from enforcing foreign libel kelstein to investigate ‘‘ways of standards of media practice. Any- reply. If the outlet did not obey, it other matters of opinion.’’ comment was ‘‘not so offensive as cause its members would be inde- discretion to suppress or punish judgments inconsistent with the substantiallystrengtheningthein- one with a complaint about a could be held in contempt of court, What is truly remarkable about to outweigh the great importance pendent of the government. Even unpopular views, including criti- first amendment of the US dependence and effectiveness of member may complain to the presumably backed up by fines. the Finkelstein report is not its in the public interest of allowing if this were true in practice, is that cism of those in power. constitution. NBN CO FAILS ON ABBOTT SHOULD DROP THE DOG WHISTLE TARGET ROLLOUT the qualifying phrase, ‘‘in the The Coalition’s absence of close examination’’. Investments by sovereign wealth The private sector is showing how it’s paper on foreign funds (SWFs) do not raise the investment is a same degree of concern as SOEs, done properly and is doing it a lot cheaper in part because SWFs mainly canine breakfast make portfolio investments and KEVIN MORGAN do not seek control of businesses. JUDITH SLOAN Moreover, SWFs tend not to have the same ‘‘institutional closeness’’ CONTRIBUTING ECONOMICS BROADBAND Minister Stephen industry veteran of 30 years, EDITOR to governments as do SOEs. Conroy’s reluctance to share the much spent at the highest levels, The bottom line is that Austra- National Broadband Network’s badly misjudged the time it would lia’s system for vetting and ap- new corporate plan is in sharp take to negotiate the Telstra deal. proving foreign investment pro- contrast to his usual enthusiasm It is also of some concern that he posals works well. There is a case for spruiking the NBN. After failed to understand that serving for making the higher dollar limit sitting on the plan for weeks, he’s up to 90,000 new homes a year that applies to US investments due to release it tomorrow. His with fibre was way beyond the apply to all countries. Having sep- reluctance is understandable competency of a start-up arate rules for SOEs is sensible given it can only highlight the company. risk management. massive failure to reach any of the NBN Co and the government While there are question initial plan’s goals. have thrown money at the new marks over some of the condi- The initial plan was released in developments problem to little ONE of the problems of being tions imposed more recently on December 2010 by Julia Gillard. effect. In May last year, NBN Co part of a coalition is that everyone some investment proposals, the That plan is now in tatters despite announced a $100m deal and a needs to be kept reasonably arrangements overall do not the fact before its release the month later Quigley told the happy. Compromise is often appear to stand in the way of in- Prime Minister’s Department estimates committee: ‘‘the required and the give-and-take vestment by foreigners to any paid corporate advisers Greenhill contractual arrangements with process can yield some strange great extent. They also reassure Caliburn $1.1 million for an initial our greenfields supplier Fujitsu is results, particularly when judged the public that foreign investment 11 days’ work to vet the plan. working well. For this fiscal year from the point of view of one of is subject to systematic scrutiny The subsequent report said: (2011-12) we expect to pass the parties in the coalition. by government. ‘‘Greenhill Caliburn believes that, approximately 65,000 lots and On the face of it, the recently By contrast, the proposals in taken as a whole, the corporate connect approximately 40,000 released discussion paper of the the Coalition’s discussion paper plan for the development of the premises.’’ As noted, about 1000 Liberal-National Party Coalition defy logic. What would the pro- NBN is reasonable.’’ were passed and 300 connected. on foreign investment in Austra- posed lower thresholds ($53m) for Why then, if costly advice said So for the first time in 25 years, lian agricultural land and agri- agricultural land and agribusi- the plan was reasonable and there are waiting lists for new business looks like the outcome of nesses achieve other than to over- implicitly realistic, has NBN Co telephone services. In many a significant internal tussle. It is whelm the FIRB? Is the intention missed the targets set by that plan estates, homeowners are being hard to disagree with Wayne to discourage foreign investment, for mid-2012 by a huge margin? provided with an interim mobile Swan’s description of the paper as as is likely to be a consequence? Could it be that NBN Co and its service by Telstra. Without a hint a dog’s breakfast. And what purpose would a na- head Mike Quigley simply aren’t of irony, Quigley told the May Foreign investment is a tricky tional register of agricultural land up to the job? estimates that NBN Co was subject. Absent careful expla- and agricultural businesses serve? Based on its original targets, ‘‘advising Telstra that they may nation, populism can quickly rear (Interestingly, the government NBN Co has achieved only 9 per receive requests for interim its ugly head. has already established a working cent of its rollout target for homes telephone services while the Even though the discussion party to assess the feasibility of passed by fibre and 3 per cent of (NBN) network is being paper starts with the homily that such a register.) the planned connections where completed’’. Many new ‘‘the Coalition unambiguously Iftheregistertellsusthat23per customers are hooked up to homeowners will have a long wait. welcomes and supports foreign cent of agricultural land is held by broadband. Based on its initial Similarly, homeowners in investment’’, the rest of the paper foreigners, so what? If this figure estimates, by June this year existing suburbs look set to be belies this declaration. If the were deemed to be too high, 317,000 households should have disappointed despite the fanfare Coalition is really unambiguous would all further proposals for been passed with fibre and 137,000 that accompanied the Prime in its support, why the need for foreign investment in agriculture homes actually connected to a Minister’s announcement in late highly restrictive new rules apply- be then rejected? broadband service. In reality, March of the three-year rollout ing to foreign investment in one And as for the issue of food se- fewer than 25,000 homes had plan that would see ‘‘work under particular sector? curity, this is a complete furphy. been passed and fewer than 4000 way or complete in areas Under the Foreign Acqui- our high ranking in the OECD’s should be noted that some pro- Zealand in the near future. When some countries, including the US, After all, we export nearly three- connected. containing over 3.5 million homes sitions and Takeovers Act, the assessment of countries’ restric- posals are withdrawn on advice it comes to state-owned enter- contain no special provisions for quarters of all the food produced Those figures are for existing and businesses’’. Treasurer already has the power tiveness in relation to foreign in- and are not counted as rejections.) prises, all investment proposals SOEs. What is generally over- in Australia and it is estimated suburbs and fibre to new estates. The reality is that little is to reject foreign investment pro- vestment; we are above the The largest source country was are vetted by the FIRB, irrespec- looked is the scope for the US that we could feed between 60 When the figures are broken happening. Contractors who posals that are deemed to be OECD average and just below the the US, followed by Britain, tive of their size. The government authorities, for example, to order and 80 million people, given the down, it is obvious this isn’t just a signed up for hundreds of millions against the national interest. In non-OECD (mainly developing China, Canada and India. The has issued a set of guiding prin- ex-post divestments. Such scope present output. debacle but an abject failure by of dollars’ worth of construction other words, it is a negative test countries) average. largest destination was, not sur- ciples that apply to SOEs. These may have a greater impact on Our interests arebest served by NBN Co, especially in new contracts 12 months ago have that presumes foreign investment But these rankings are conten- prisingly, the mineral exploration cover whether theinvestor’s oper- willingness to invest than ex-ante free and open trade and invest- (greenfield) housing estates. In been sitting on their hands. As the proposals will generally be in the tious, placing significant weight and development sector. ations are independent of the rel- vetting. ment channels. Should there be a late May, Quigley told Senate joint parliamentary committee’s national interest. simply on whether a country has a For business investment pro- evant foreign government; Having said that, the recent situation in the future where we estimates: ‘‘As of the last week or recent report noted: ‘‘Importantly, The Treasurer also has the screening process. Moreover, the posals, there is a threshold of whether the proposal meets nor- statement by Tony Abbott, made can produce only enough food to so a bit over 300 services have the NBN Co is incurring scope to impose conditions on figures for Australia show sub- 15 per cent or more of an entity mal commercial and governance to a Chinese audience, that ‘‘it feed us — andheaven forbid if this been turned on — activated — in contractors’ late fees as a result of investment proposals to address stantial foreign investment and valued at more than $244 million tests; whether the investor entity would rarely be in Australia’s were to arise, because it would greenfield areas . . . and there are delays.’’ national interest concerns. The low rates of rejection of proposals. abovewhichtheproposalisvetted will pay normal rates of tax; nationalinteresttoallowaforeign suggest a dramatic slump in pro- probably three or four times that In effect, contractors are being act does not specify what is meant Take 2010-11: there were by the Foreign Investment Re- whether any national security is- government or its agencies to ductivity and divestment in agri- quantity of lots that have been paid to do little and even nothing by the national interest but, in 10,300 proposals, mostly in real view Board. A much higher figure suesarise;andwhethertheinvest- control an Australian business’’ culture — then direct measures passed.’’ because NBN Co cannot schedule practice, this vagueness is a estate. Only 43 were rejected and applies to investments sourced ment affects Australian busi- sits very uneasily with the Co- could be considered. So less than 20 months after the promised work. strength not a weakness. only one was outside real estate from the US ($1.062 billion), al- nesses and the economy, more alition’s supposed unambiguous My advice to the Coalition is to predicting that 172,000 greenfield But if NBN Co is failing Commentators who think we (the Singapore Stock Exchange’s though this higher figure does not generally. support for foreign investment. put away the dog whistle and stick premises would be passed and dismally on delivering the fibre should completely free up foreign proposed takeover of the Austra- apply to some sensitive sectors. The point is often made that At the very least, the Oppo- to a truly welcoming regime for 132,000 connected, 0.6 per cent of promised to 93 per cent of homes, investment into Australia point to lian Securities Exchange). (It The higher limit will apply to New the foreign investment rules of sition Leader should have added foreign investment. the coverage target and less than it is at least making progress on its 0.2 per cent of the active service wireless and satellite services for target have been met. the other 7 per cent. Quigley has ready excuses. He That’s because NBN Co has has suggested the greenfields’ little active involvement in ARTS FUNDING A SOLID INVESTMENT, NOT EXTRAVAGANCE failure was due in part to changes building either. These have been in the policy in late 2010. What he fully contracted out, albeit at hasn’t acknowledged is that NBN considerable cost. The average Board in 1912, which laid the foun- creativity by our artists across too privileged because ‘‘arts funding fuzzy or too personal. Such lan- Co signed off on the original capital cost of the wireless and We need a new dialogue that recognises dations for present arrangements. many disciplines to list have tendstohavepowerfulandarticu- guage causes discomfort and re- policy, which subsequently satellite services will be about The nation’s cultural infra- mostly leveraged off this infra- late backers’’, while flattering, is quires urgent reinvention so that proved unworkable, despite $14,000. the value of our cultural infrastructure structure has been a function of structure and, in turn, have con- misleading. It implies that the the arguments can be put more advice in the $25m McKinsey Given each service will yield continuous investment from pub- tributed back to it. backers of sport, health, edu- convincingly. NBN implementation study, less than $300 a year in revenues, RUPERT MYER lic and private sources for more To be asserting that it really cation and defence lack the ca- By no means is this a com- which cautioned strongly against these rural services will require than 200 years. started with government in the pacity to be so persuasive. This is plaint. These circumstances arise making NBN Co responsible for ongoing annual subsidies of at The National Gallery of Victo- 1960s is to contribute to an unfor- patently not so. There don’t seem quite fairly as a consequence of fibre to new homes. least $3000 a year per service. IN Britain, next Sunday is a bad arts funding and that it is ‘‘not sub- ria and the Art Gallery of NSW tunate view that cultural funding to be many slouches in industry the competitive environment for And although the delays that In contrast, Optus and Telstra day to be a grouse. What some ject to the same rigorous scrutiny date from 1861 and 1874 respect- is new and therefore should be the lobbying either. access to public funds. Indeed, it have emerged in the rollout to are building far faster new- refer to as the Glorious Twelfth, as automobile funding’’ are as in- ively, and the Tasmanian, South first to go, especially when times Ironically, in its represen- should always be so and the arts existing suburbs are nowhere near generation mobile networks at a will mark the start of the annual accurate as they are galling. The Australian and Queensland gal- are tough. tations to policymakers, the arts are acutely aware of the need to as severe, 20 per cent of this year’s cost in the hundreds of dollars, not grouse hunt. grants given to arts organisations leries predate Federation. The as- The lessons of the past should sector has become more adept at achieve multiple benefits for each target has been realised. Again, thousands, for each customer. With seemingly ever greater andindividualartists,andthepro- sociation of philanthropy with give confidence to policymakers measuring and articulating the investment made. according to Quigley, it is not The initial corporate plan was regularity, the ‘‘justify public jects and programs of the Austra- these and other cultural insti- and the nation that the invest- economic impact of its contri- However, it should mean that a NBN Co’s fault. NBN Co’s prospectus. Officers of a funding for the arts’’ season lia Council, are subject to the most tutions from the 19th century, for ment in the arts is wise, self- bution as well as, among much different type of conversation can Quigley largely blames the listed company that failed in appears to have resumed in detailed scrutiny while their an- example the Felton Bequest, is sustaining and a significant other measurable data, the edu- now take place between econom- protracted negotiations with similar fashion would be subject to Australia. nual reports, acquittals and evalu- significant and well documented. adornment to the nation’s bal- cational, environmental, physical ists, policymakers and the arts Telstra over the $11 billion deal, severe sanctions but such is the This time around, it has been ations are all in the public domain Our national cultural memory ance sheet. If anyone is left in and mental health outcomes that sector. which delayed access to the importance of the NBN to the led by contrasting the value of the and subject to oversight by the has been formed by the appear- doubt, the contribution of the arts the arts produce. That conversation should ac- Telstra ducts. Gillard government that NBN Co commonwealth government’s in- Arts Minister, his department and ance across the nation of art gal- and culture to the nation’s GDP of It is often less obvious how the knowledge the value of our cul- That explanation is a furphy. is not accountable and can just vestment in the arts with industry the process of Senate estimates. leries and museums, public lib- 3.6 per cent compares favourably sector should go about asserting tural infrastructure and the im- As Telstra recently told the joint rewrite history with a new subsidies, notably to the automo- The assertion that the arts in raries, public halls and theatres, with agriculture’s 3.9 per cent. the cultural outcomes that, in portance of maintaining it in good parliamentary committee prospectus. tive sector. (‘‘What price is too Australia received very little from andofthe performancesthathave Total spending on the arts times past, were sufficient justifi- order. And it should elevate the overseeing the NBN, it had an We await it with interest. much for a cultured society?’’, government until the late 1960s occurred in them or artworks and when stripped away of the ABC cation for substantial levels of debate and rid it of unhelpful interim agreement to give NBN Adam Creighton, The Weekend reflects a romanticised view of the cultural objects that have been andSBS makesuplessthan 0.1per public funding. mythology and misconceptions. Co access. Kevin Morgan was the ACTU Australian, August 4-5) past. The commonwealth estab- collected by them. They represent cent of GDP. This is a pretty good In today’s polity, the language But perhaps what is of real member of Kim Beazley’s advisory The assertions that there is a lished a literary fund in 1908 and a massive investment of cultural return on investment. Finally, the of cultural outcomes sounds per- Rupert Myer is chairman of the concern is the fact Quigley, an committee on telecommunications. ‘‘paucity of information’’ about the Commonwealth Art Advisory capital. The concurrent acts of claim that the arts have been haps too lofty, too long-term, too Australia Council.