Writing in Screen Hub in April, I ended a commentary on the troubles besieging the News of the World, the market-leading ‘Red Top’ tabloid of News Corporations stable of British newspapers as follows:
At the moment, the box into which James Murdoch was confident, last week, that the issue [of hacking] had been put, is lengthening into a coffin for News Corporation’s ambitions.
And so it would seem. A week ago, News’ European operations, headed by heir-apparent James Murdoch, judged the NotW masthead too toxic to continue to publish. But make no mistake. This audacious decision to dump the 168 year-old publication – something you might expect of a Murdoch – is driven by economics, not ethics, at least for management.
For the readership however, up to now avid consumers of salacious gossip, sexual intrigues and the sordid and the seamy, something had changed.
Somewhere between the paper’s illegal reading of the voicemail of minor celebrities, politicians and Royal subalterns and hacking the voicemail of children, later found murdered, and the families of British soldiers killed in Iraq or Afghanistan, a line had been crossed. Instead of trampling on the privacy of others, NotW had trampled on the privacy and feelings of people just like its 7.6 million readers.
Hundreds of thousands of Tweets and SMS messages, and who knows how many phone calls, convinced major UK domestic retailers to withdraw their advertising from the paper. As senior NotW executives had no confidence in recruiting new clients with splashy advertising to shape the news hole on the now empty pages, closure was inevitable.
It is one thing for Rupert Murdoch to publish the Australian, even at a loss, for the prestige and influence it wields with the A and B demographic in Australia; it is another to run the NotW at a huge loss to titillate the C and D demographic of the UK.
Apart from the police inquiries, the British parliament is investigating further regulation of the media and any new UK controls will have an impact here too.
Shield laws are quite fragmentary in Australia and any call for better protection of confidential sources is countered by demands to license journalists. The use of listening devices and hidden cameras is regulated by a mishmash of state laws and regulations. In all these issues, Australia has traditionally taken the lead from British common and statute laws, so journalists working in news and current affairs and, especially, in investigative journalism and tabloid television, should be very alert to any flow-on.
Indeed, given the number of reporters working for commercial TV current affairs programs that have fronted the courts charged with illegally using various electronic devices to record pictures and sound, it begs belief that more sophisticated techniques have not also been employed by the less scrupulous and more ambitious end of the journalism profession in Australia.
Now there have been mutterings about Rupert Murdoch and his lieutenants, male and female, not being ‘fit and proper’ people to run a media empire.
Australia became one of the few countries to test what ‘fit and proper’ might mean when it comes to being a media licensee when, back in 1989, the Australian Broadcasting Tribunal (ABT) took on Alan Bond, who had become the owner of the Nine Network several years earlier. Kerry Packer had sold Bond the jewel in the Packer family media interests at a very favourable price, remarking that ‘you only get one Alan Bond in your lifetime’.
The concept of the ‘fit and proper’ person turns up in much legislation that regulates the private use of a public resource or public good. The Mineral Resources Development Act 1990 of Victoria demands it as a quality of anyone seeking a miner’s license. In fact, auctioneers, builders, plumbers, gasfitters and drainers, tobacco wholesalers, estate agents, fishermen, food processors, surveyors, travel agents, motor car traders, second-hand dealers, pawnbrokers, teachers and solicitors, must all be ‘fit and proper’ persons to hold a licence or carry on a business under Victorian legislation. But, of course, Alan Bond was a citizen of the world and Western Australia.
Bond was hauled before the ABT on two quite serious allegations.
The first was that an out-of-court settlement, in 1985, of a defamation action by Queensland premier Joh Bjelke-Petersen against a Bond Media-owned television station was, in fact, a backhander for favours done by Sir Joh for other Bond interests. The deal had been negotiated privately by Bond and Sir Joh and was thought to be generous, given the nature of the complaint and its chances of success if the action went to court.
The second was that threats were made by Bond to a Leigh Hall, an executive of the AMP Society, that Bond would use his television staff to gather information unfavourable to the AMP, and expose the AMPs alleged wrongdoings by disclosing the material on television.
Among three lesser issues was the question of the authenticity of audio tapes that Bond Media radio stations had submitted to the hearing. Had they been faked to support Bond’s defence?
The Tribunal had found that Alan Bond was no longer a ‘fit and proper’ person for the purposes of the licensing provisions of the Broadcasting Act 1942. But things did not stop there. Bond appealed the finding to a Full Court of the Federal Court which partially overturned findings of the Australian Broadcasting Tribunal and then to a Full Court of the High Court of Australia.
At issue were two related matters: the personal qualities of Alan Bond as a ‘fit and proper’ person, and whether the lack of fitness as judged by the ABT also tainted Bond Media the group of company that actually held the licenses. This had been seen as the direct consequence of the findings.
The High Court found that the Federal Court was wrong in setting aside the ABT’s decision that the licensee companies were no longer ‘fit and proper’ persons, but wrong for the wrong reasons.
Mason CJ considered the association between a corporate licensee and an individual:
The degree of an individual’s capacity for control may not be so great as to warrant an inference that his character should be identified automatically with that of the licensee; in that event it would be necessary to look to the character and performance of the directors and management. In another case, where the capacity of the individual for control of the licensee is great, the inference may be justified without examining the character and performance of the directors and the management of the licensee. Especially is this so when it is established that the person having the capacity to control participates in the decision-making processes of a licensee and procures the making of reprehensible decisions which are designed to enhance and protect his own interests. (Australian Broadcasting Tribunal v Bond (1990) 64 ALJR 462 at 474.)
The High Court held that the finding that the companies were not ‘fit and proper persons’ was provided for by the Act, and hence a ‘decision’ under the Act, but that the principal ground for that decision, – the finding that Bond himself was not a ‘fit and proper person’ – was not required or authorised by the Broadcasting Act, and as such, was not a decision.
Thus Alan Bond was not a ‘fit and Proper’ person to hold a TV license but companies that he had a substantial interest in could continue to be ‘fit and proper’ corporate persons and hold TV licenses.
However Bond Media share prices had taken a battering, falling from $1.55 to just over 30 cents at the time of the first finding by the ABT, and the writing was on the stock market wall. Kerry Packer bought back the Nine Network for a third of what Bond had paid Packer a decade earlier.
These proceeding are doubtless being poured over by News Corporation lawyers in case the 80 year old Rupert Murdoch is asked to demonstrate his fitness and properness to have command of one of the world’s most diversified, powerful and influential media empires.
Dr Vincent O’Donnell writes the weekly column March of the Moguls that appears in Screen Hub and produces Arts Alive, the national arts and culture current affairs radio program. He is an honorary fellow of RMIT University School of Media & Communication, and the University of Melbourne’s School of Historical Studies.