Wednesday, May 16, 2012

Constitutional  limits on media censorship in Australia

Bloggers seem safe from regulation

Scouring the internet for opinions on the constitutional powers of the Commonwealth to regulate the media in the manner proposed in the Finkelstein report, I came across a submission to Finkelstein's own inquiry from the Gilbert + Tobin Centre of Public Law, part of the University of New South Wales

The submission is dated 14 November 2011, and does not appear in the official list of submissions (as far as I can see, let me know if it is there) and deals precisely with the issue in question: namely, to what extent the Commonwealth has the power to regulate traditional and new media.

One question that must be asked immediately is why the submission is omitted from the list on the Inquiry web site. It was sourced via the Gilbert + Tobin Centre's own index of submissions. There may be a reasonable explanation for this, but in the interests of transparency it should be stated.

UPDATE: The Inquiry responded to my email about this, stating:
"It is an oversight that the submission has not been published. The submission will be published shortly."

The submission now appears on the consultation page.  Here are a few relevant extracts:
The Australian Constitution does not confer upon the Commonwealth any general power to regulate the all types of news media. Instead, the degree to which the Commonwealth can regulate in this area varies across mediums....


The Commonwealth has no direct head of legislative power with respect to the print media. However, the Commonwealth may nonetheless regulate the print media by virtue of indirect heads of power such as those relating to trade and commerce, taxation, corporations, external affairs and the Territories. The most significant of these is the corporations power – its potential application to news media regulation is expanded on below. In addition, the Commonwealth may regulate print media where doing so is incidental to the exercise of a direct head of power – for example, it can limit ownership and control of print media as a condition of radio and television broadcasting licenses issued by virtue of section 51(v).


The extent of Commonwealth power over matters concerning the internet, including journalism that is published online, is yet to be considered by the High Court. However, it is likely that the internet falls within the scope of section 51(v) either as a ‘telephonic’ or ‘other like service’, and that federal regulation could validly extend to the means of online communication, such as infrastructure (eg, the installation of fibre optic cables) and the conduct of internet service providers (ISPs). Other heads of power, such as those mentioned above, may also support Commonwealth regulation of online content. The potential for this is explored further below.

So far, then, the Commonwealth has the power to regular print media indirectly, through the corporations power, or incidentally to the postal and telegraphic power. It also appears the Commonwealth may regulate internet and online media through the means of communication. However, the following paragraph reveals that Finkelstein's desire to regulate every blogger in Australia with more than 15,000 hits is beyond the powers of the Commonwealth:
To the extent that online journalism is carried out by constitutional corporations, it will be open to federal regulation via the corporations power in the same way the print journalism is. However, the extent of federal power is less certain where the online content is published by an entity that is not a constitutional corporation. A large number of individuals and bodies fall into this category, including any news outlets that operate as sole traders or partnerships, individual bloggers, and individuals posting on social media sites such as Facebook and Twitter.

So where an organisation is a corporation, it can be regulated under the corporations power, but apart from that, there is no power to regulate their activities.
The extent of Commonwealth power to regulate online journalism of this nature is unclear. As noted above, it seems likely that section 51(v) authorises regulation of ISPs as bodies responsible for the transmission of online content. However, on current authority, it is doubtful that it extends to the regulation of the creators of content such as individual bloggers. Where news or other content appears online through a service such as Facebook which is controlled by a foreign or for-profit corporation, this could be regulated under the corporations power.

"Doubtful that it extends to the regulation of the creators of content such as individual bloggers" - this means that if Finkelstein's regime were to be enacted, it would have to place the burden on ISPs to censor content from blogs which fell foul of the regulatory framework, since there would be no power to act against the blogs themselves (unless they were corporations, and let's face it, few are).

Furthermore, the submission concludes:
The Commonwealth has extensive, unrealised potential to further regulate the Australian media, including the print media. The corporations power in particular provides a basis upon which to establish new regulation in this field. However, such regulation is subject to the limits of existing powers. In particular, the corporations power only extends to entities that are incorporated and operate as a financial, trading or foreign corporation. In the circumstances, it must be recognised that, although it has extensive power, the Commonwealth does not possess the legislative power to comprehensively regulate the media in Australia. The only means of achieving this would be via cooperation with the States.

And with New South Wales, Victoria, Western Australia and Queensland controlled by conservative  state governments, they can kiss that idea goodbye.


Don't write off cheques, experts warn

Cheques are an intrinsically hard-to-erase record of payments,  unlike shaky electronic records

The Australian Payments Clearing Association (APCA) says there is no need to phase out cheques despite their usage dropping by more than 60 per cent in the past decade.

The group, which has conducted a study into the future of cheques in the digital economy, will establish a plan to manage the decline of cheques and inform the small number of people still using them of cheaper and more efficient alternatives.

But it says the payments industry is best able to meet the future needs of those who still use cheques and the system does not need to be overhauled.

Five per cent of Australians still rely on cheques, particularly older Australians and those living in rural areas, as well as non-profit organisations including clubs, schools and charities, according to research commissioned by APCA.

Chief executive Chris Hamilton says more must be done to teach those users about electronic, online and telephone payment methods.

APCA has made several recommendations, including that banks and other financial institutions improve access to electronic payment methods for small businesses and non-profit organisations.

And it wants banks to provide online payment facilities in their branches for customers.

"Lots of different organisations need to participate - obviously the payments industry, principally the financial institutions can enhance existing electronic payments to make it easier to switch from cheques," Mr Hamilton said.

"We can actually make cheques operate more cheaply and effectively even as they're in decline. It's as much as anything about awareness, making sure that people know there's an easier electronic alternative."


Protest held against anti-association laws

About 70 people gathered at the steps of Parliament House in Perth to protest against the State Government's proposed anti-association laws.  The Government wants to make it illegal for people in known criminal organisations, including outlaw bikie gangs, to associate with each other.

Anthony Shepherd, from the United Motorcycle Council of WA, says if passed, the laws will affect the entire community.  "It's very important that everyone realise that this law is coming for them, not just the bikies," he said.

At a previous meeting, the Socialist Alliance's Alex Bainbridge said the bill challenged basic human rights.  "If someone's committed a crime, fair enough, they should be punished for that," he said.  "What this bill is going to punish people who are friends or associates, who come into contact with, people who have committed no crime themselves so that's a real fundamental injustice.

"And, it wouldn't matter if it was just bikies who are going to be affected by that.  "An injustice against anyone is something everyone should stand up against."

At the same meeting, the Civil Liberties Council's David Pugh said the legislation was outdated and unjust.


Criticism of homosexual marriage renders you judicially incompetent?

Diversity of views not allowed, apparently. The "personal reasons" mentioned below would be to reduce the flak he was getting

A member of Victoria's Equal Opportunity and Human Rights Commission board has resigned after stirring controversy by signing a petition opposing gay marriage.

Professor Kuruvilla George is also the state's deputy chief psychiatrist and one of a group of 150 doctors who wrote to a Senate inquiry on marriage equality.  The doctors' submission argued children with a mother and father were healthier than children with same-sex parents.

The petition has drawn criticism from other doctors and families of same-sex couples and yesterday prompted Victoria's chief psychiatrist to issue a statement defending Professor George.

Dr Ruth Vine said Professor George signed the petition "in his capacity as a private citizen", therefore he had not breached the code of conduct for public sector employees.

The Victorian Government also stepped into the debate, with Deputy Premier Peter Ryan saying the professor was not at fault.  "He's made his statements on a private basis, he's made them in that capacity," Mr Ryan said.  "He was not speaking on behalf of the Commission. "It's a point of view that he has expressed privately."

Equal Opportunity Commission (EOC) chairman John Seale says Professor George made the decision to resign from the EOC board because of time constraints and for personal reasons.  He thanked Professor George for his service.

The petition to the Senate inquiry, submitted by the group Doctors For The Family, says children raised in heterosexual relationships "do better in all parameters".

Its convener Lachlan Dunjey, a right-to-life campaigner who has run as a Senate candidate for the Christian Democratic Party, told ABC News Radio the group was concerned about the health consequences for children of gay marriages.

"It's well proven that children who grow up with a mother and a father in a biological mother-and-father family do better than children who don't have the opportunity to grow up in that kind of family," he said.

AMA president Steve Hambleton has rejected the claims, saying there is no evidence that children with same-sex parents are any different to those with heterosexual parents.


Note:  I have another blog covering Australian  news. It is   more specialized so is not updated daily.  See Australian police news for news on police misbehaviour.  Quite a few posts recently

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