Former Australian High Court judge Ian Callinan has produced a damning legal opinion that says aspects of the media regulation plan drawn up by former communications minister Stephen Conroy “are very arguably unlikely to be valid under the Constitution”.
The opinion, written jointly with Sydney barrister Caspar Conde, says the broad powers proposed for a statutory regulator of all news media would be likely to have generated a successful constitutional challenge.
The proposed regulator, known as the public interest media advocate, would have been a part-time statutory officer, informed and advised by government officials, and armed with wide discretion to replace the Australian Press Council and other “self-regulatory” bodies if they failed to control the press in a way that satisfied the PIMA.
Mr Callinan and Mr Conde said the PIMA’s powers would have been subjective and imprecise.
“The legislation would allow, indeed require, PIMA through its control and review of news media self-regulation bodies to impose requirements which affect, and we would suggest may burden, freedom of communication by news media organisations that are members of that body.”
The bills to establish the scheme could be compared with “blanket bans” on political communication that had been held by the High Court to be unconstitutional in earlier cases, the opinion says.
“It would be unfortunate if the bills in their current imprecise and potentially far-reaching present form were to be enacted.”
Their opinion says the government may well have underestimated dramatically the costs associated with the scheme as the PIMA would have required substantial funds to discharge its responsibilities.
Mr Callinan and Mr Conde were commissioned to prepare the opinion by the Institute of Public Affairs, which called yesterday for the federal government to provide a clear guarantee that it would not seek to reintroduce an amended version of the Conroy plan if it won the federal election.
“The government remains committed to these proposals; this scheme was only shelved because it did not have enough support to guarantee passage of the legislation through the parliament,” said Simon Breheny, director of the IPA’s legal rights project.
He said the advice from Mr Callinan and Mr Conde indicated that well-drafted provisions were likely to be upheld by the High Court.
“Australians should be aware that we do not have robust constitutional protections for free speech. The Australian Constitution and the High Court cannot be relied on to protect us from restrictions on freedom of speech,” Mr Breheny said.
While the government has not explicitly ruled out a revised version of the Conroy plan, Kevin Rudd this week appeared to rule out changes to media laws affecting the circulation of newspapers.
Mr Rudd said Labor had “no such plans” to change media laws despite saying News Corp Australia — publisher of The Australian — owned about 70 per cent of metropolitan print circulation.
Before Senator Conroy‘s plan was withdrawn by the government, the media and communications committee of the Law Council had complained about the vague criteria governing the exercise of the PIMA’s proposed discretion.
Similar concerns were expressed by Liberty Victoria, the Queensland Council for Civil Liberties and the NSW Council for Civil Liberties.
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Craig Hill Media and Consulting 
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