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Right to a Free Press in the Australian Constitution

In 1948, United Nations General Assembly adopted Universal Declaration of Human Rights (UDHP). Under Article 19, it confirmed the right to free speech and declared that: “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers”. (Klug, Starmer & Weir 1996:142).

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Later in 1998, Commonwealth Parliament too conformed to the principles of this Declaration. It was to mark the 50th anniversary of the UDHR whereby they all pledged to support completely to the principles enshrined in the Declaration. “The Article 19 of the 1966 United Nations International Covenant on Civil and Political Rights (ICCPR) states that: ‘everyone shall have the right to freedom of expression… And Australia too was signatory to this treaty.’” However Australian Constitution has not adopted in full letter and spirit all the conditions of this treaty. To fully incorporate this treaty and implement it in Australian law, government passed a specific Act of Parliament. Though there are some parts that have been converted into law like Human Rights Commission Act 1981, but there is no provision for free speech and therefore it is out of the provision of Australian laws to enforce it. Therefore Commonwealth Parliament can impose censorship and restrictions on any form of media or on any speech or expression of thoughts that comes within the jurisdiction of constitution. Constitution guarantees only two rights: one is the personal rights and secondly is the right to freedom of religion. In 1992, High court did imply certain rights like right to free speech and communication on matters related to politics and government for e.g. allowing advertisements to display during election campaigns. In other words it is “implied freedom of political communication” (Jordan, 2002: Online) and the issues, which arise from these decisions also define “when communication is political and when the freedom should prevail over competing public interests”.

In 1942, Constitutional Convention was held at Canberra which gave the recommendations that there should be amendments in the Constitution whereby they should incorporate a new section 116A to restrict the Commonwealth or a State in the passing those laws, which create hurdles in the freedom of speech or press but the government refused this proposal. (Jordan, 2002: Online).

Since 1973, several attempts have been made to include the legislation for the Bill of Rights, which could integrate provisions of the ICCPR including Article 19 into the Australian law. These attempts were in the form of legislation to introduce statutory bill of rights including right to freedom of speech. This option of passing the legislation is less complicated than the amendments in the Constitution. In 2002, The Australian Capital Territory government set up a non-parliamentary committee to make inquiry into the Bill of Rights. Professor George Williams identified arguments both for and against Bill of Rights. He suggested that Bill of Rights would give more powers to the Australians who are weaker; would take Australia at par with the rest of the world; would give more protection to the fundamental freedom that should be enjoyed by Australians; would give more rights to minorities and take the Australian democracy to the highest level. Besides, Bill of Rights would help in improving the policy decision making of the government at all levels and in imparting and increasing toleration level and understanding among all sections that make the citizens of Australia.

The negative connotations of the Bill of Rights are: The rights of Australians are already well protected; high courts are already protecting rights by interpreting the constitution and the common law. If the rights are mentioned in the Constitution or even if acts are passed, it would make no difference in the status of the rights practically. Bill of Rights would have instead negative impact on the otherwise rights being enjoyed by people. It would in-fact decrease the rights of the people, and moreover it would give more rights to unelected judges to exert their power and pass the judgment ignoring the judgment of the Parliament and it could involve more expenses. Besides, our traditional approach of Parliamentary sovereignty would get a set back. With Bill of Rights, judiciary would become more politically motive and not so very crucial, the concept is that the Bill of Rights would not create so much effect on the generation next. (Williams 2000: 35-36).

The role of the media in print in deciphering the information, providing analysis and reporting, has been longed by the people as the most crucial element of democracy. With the nation speckled with various cultures, religion, social and political ideologies, how much freedom the press requires is a debatable question involving several answers. Where on one hand government is engulfed by its duty to maintain a balance in their principles among these varied interests and on the other hand there is a human rights issue claiming their right to independence of speech. The regulations are imposed on the freedom of speech to maintain this contradictory balance in the every aspect of society. Moreover power by various commercial groups and political agents must be restricted to the extent that it increases the autonomous power to the print media. Splichal is quite right when he said that, “the empowerment of individuals with ‘communicative power’ would create the ways for smooth and most effective social communications and public use of reason.” (Splichal 2002: 7) In this sense, laws that reduce the powers of free press should be considered as justified to the extent that they avoid going beyond the concept of curbing the free speech which undermines truth, and rights that are part of the citizens.

Now as the representative of the fourth estate, the Australian news media has begun to exert a role to what one corporate media lawyer called as “the maintenance of democratic society.”(Schultz 1998: 69). Even though this role is not defined in the Australian constitution and even the question whether the constitution has even granted the freedom to political expression was sorted out by High court in 1994 and this too is still under heavy debate. Nonetheless, James Maclachlan, general counsel of channel 9 exerted that the news media plays a central political role in representative democracy “acting as a watchdog and providing as a forum for accountability of the exercise of public and private power.” (Schultz 1998: 69) But when it comes to practical and real life experience, picture is clearly different as media has to work with the different rules and regulations defined by laws and Australia is a leading nation in prescribing to the several defamation laws according to the international survey of press freedom in 1994. (Schultz 1998: 72). The defamation laws in Australia are more than the laws prescribed by the Britain, USA and Canada. For e.g. in New South Wales, it is a duty of the defendant to establish the truth and any allegation should be of concern to the public whereas in Queensland, Tasmania and the Australian Capital territory, the defendant must have truth with sound evidence and it also should be of the public concern. (Schultz 1998: 75). In defamation case, a press which has been responsible for causing injury to the reputation of a person may be called in for a civil action and whole newspaper organization from publishers to writers, editors and the proprietors have to face the consequences. The law also states that the press should never publish any item that may reflect any prejudice or avoid any news to be published that causes interference in the administration of justice, or breaching the court orders or inappropriate behavior.

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Media has to expose itself to many contradictions emerging no doubt in many cases but most probably when it comes to scandal. In all the scandal cases, the role and importance of media is increased manifold, as on one hand they have to be responsible towards other people while on the other hand they cannot deny the facts and legal complications that may arise while exposing these scandals. On the one hand many people consider media as watch dogs at the same hand they are muzzled watchdogs as constraints are imposed on them on the content of the news. They are stuck by the restrictions of laws especially laws pertaining to defamation. Some even think that media acts like a lapdog, in other words easily getting manipulated by media in power. Politics manipulate media on its own terms. Ministers have adopted the political world where they exert an influence over the public opinion and news coverage to their own advantage. The fourth and more perverted view about media is the way it sets up the news priorities and negative thoughts. It also can be inaccurate, unfair and without basis, which can harm the reputation of a person. Many also label the media as scavengers arresting the central truth in its reports and are more skeptical about their position and power. (Tiffen 1999: 207) But all these labels have very partial validity.

Reporters in the media are the voice of the people, replicate the news and view as they see, analyze and as told by the people and therefore they have certain rights whereby they can give the news as they see it. The restrictions come in when news is concerned to the reputation of any person, or organization and here the debatable question arises whether media should be given autonomous powers to telecast and print any news or not? (Spence 2004: 84).

Tom Breslin gives preference to the idea of autonomy over truth and suggests, “The autonomy of journalists is reflective of the autonomy of the citizenry in any given state. Autonomy empowers journalists to practice their professionalism, which in turn offers the potential to empower the citizenry.” (Spence 2004: 84) Journalism plays the most important role in forming the opinion of the public as it is not formed by politics but on account of the news. News and related programs show how people slowly build their opinion on the basis of the news telecasted. Media poses the limitation on the freedom of the policy makers and allows the different opinions and ideas to float among the masses and frame adequate public policy. Journalism is a like an imaginative power that raises the consciousness among public and helps in framing their collective policies and decisions.

As against the laws in United States, the powers controlling news media in Australia depended more on the customs and practice and the laws common for others, and the subject of the authority and legitimacy over the control of media depended on the negotiations. (Schultz 1998: 70) But on owing to the hostility between the judiciary and media, renegotiations took shape in the 1980s. However, several factors were responsible for realignment of power between media, judiciary, Parliament and executive. This was the beginning of the change in the media policies whereby leading media companies were given some authority to make their own choices. In the words of the then Treasurer Paul Keating “being queens of the screen or princes of the print.” (Schultz 1998: 70) By pursuing the policy of the cross media ownership limits, government prevented the common ownership of newspapers, television or radio broadcasting and thus prevented the oligopolistic ownership media. The result was for every body to see, as there was complete change in the ownership of media rights. (Schultz 1998: 70) Though this debate in the reforms in the ownership rights continued unabatedly since the last decade, yet on owing to the latest and updated media technologies, the issues on the regulatory changes and the individualistic interest only led to more problems. (Gardiner-Garden & Chowns 2006: Online).

In 2006, Australian government decided to give some relaxation to the laws pertaining to the foreign ownership making the way for extensive mergers yet these mergers would take place with certain restrictions. Foreign companies are entitled to own not more 15 per cent of the share in the TV station or 25 percent in any leading newspaper. Another major change was that it limited the right for the media groups to have a control over any one form of media and that too in any one of the metropolitan region or center. For the government these laws are very flexible and meet the changing demands of the people in this changing technological world and media companies have also agreed to these new plans, which would not only increase competition but also bring suppleness and variety in an arena of the world media. (Xinhua 2006: Online).

Media and its role in the society are continuously taking new shape within the parameters of new developments and changes in the political structure of the state. The character and the nature of the media is also changed, perceived and modified according to its relation with its readers and in its most important role, which it performs in relation to the social and political circle. (Hallin & Mancini 2004: 22) Constitution should provide laws to maintain freedom and speech but with certain restrictions to check the media for any defamation issues or spread of unsolicited materials.

References

Gardiner-Garden, J. & Chowns, J. 2006. Media ownership regulation in Australia. 2008. Web.

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Hallin, D.C. & Mancini, P. 2004. Comparing media systems: three models of media and politics. Cambridge: Cambridge University Press.

Jordan, R. 2002. Free speech and the constitution. Web.

Jupp, J., Nieuwenhuysen, J. & Dawson, E. 2007. Social cohesion in Australia. Cambridge: Cambridge University Press.

Klug, F., Starmer, K. & Weir, S. 1996. The three pillars of liberty: political rights and freedoms in the United Kingdom. London & New York: Routledge.

Schultz, J. 1998. Reviving the fourth estate: democracy, accountability, and the media.

Cambridge, UK: Cambridge University Press, 1998.

Spence E. 2004. Foreward. Journal of Mass Media Ethics, 19(2): 81-85.

Splichal, S. 2002. The principle of publicity, public use of reason and social control. Media, Culture & Society, 24: 5-26.

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Tiffen, R. 1999. Scandals: media, politics & corruption in contemporary Australia. Sydney: UNSW Press.

Vromen, A. & Gelber, K. 2004. Powerscape: contemporary Australian political practice. NSW: Allen & Unwin.

Williams, G. 2000. A bill of rights for Australia. Sydney: University of NSW Press.

Xinhua. 2006. Australia to relax foreign media ownership rules. 2008. Web.

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StudyCorgi. (2021, October 16). Right to a Free Press in the Australian Constitution. Retrieved from https://studycorgi.com/right-to-a-free-press-in-the-australian-constitution/

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StudyCorgi. "Right to a Free Press in the Australian Constitution." October 16, 2021. https://studycorgi.com/right-to-a-free-press-in-the-australian-constitution/.

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StudyCorgi. 2021. "Right to a Free Press in the Australian Constitution." October 16, 2021. https://studycorgi.com/right-to-a-free-press-in-the-australian-constitution/.

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StudyCorgi. (2021) 'Right to a Free Press in the Australian Constitution'. 16 October.

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