Finkelstein media report’s four fatal flaws

“Make the media more accountable for their sins, and worry less about new technologies and freedom of speech”.

That’s a one-line summary of Ray Finkelstein’s Independent Media Inquiry.  It argues for a new system of media regulation to apply to journalists, commentators and most of the Australians who contribute to online news and opinion. It wants a government-created News Media Council to set standards for all media – broadcast, print, online. When necessary, that Council should “require a news media outlet to publish an apology, correction or retraction, or afford a person a right to reply”. And when the media outlet won’t comply? Normal contempt of court rules would apply. So eventually, an editor would spend some time in a jail cell.

The report is already copping it from the management of Australia’s major print media groups, who see themselves as its targets. I’m writing more out of interest. I’m involved in the media, as chief operating officer of the online publishing firm WorkDay Media. But WorkDay Media has always been happy to make corrections and grant prominent rights of reply; it has even tried to join the Australian Press Council. As a business manager, there’s nothing in the report that worries me.

There’s a lot to admire, too. I have done enough report-authoring to be impressed by the speed with which Finkelstein and his team (mostly lawyers) marshalled their arguments into something at once informed and understandable. It’s a good introduction to Australian media regulation issues, it appropriately handballs the issue of print media industry assistance to a Productivity Commission inquiry, and it seeks to align the jarringly different treatments of broadcast, print and online media.

But for all that, the Finkelstein report remains a flawed 468-page attempt to justify new government regulation of media. Four flaws, in particular, make it unconvincing.

1. Deploying the accountability dodge

The first question about this inquiry has always been: why now? Why should Australia introduce new media accountability regulations just when the Internet has delivered a huge new source of media competition?

Of course, one answer might be “because Bob Brown wants to restrict News Limited and the federal government at least wants to frighten it”. But you can’t make that the philosophical basis for a government inquiry. And besides, the fact that an inquiry has a political motive does not prevent it coming up with useful conclusions; all inquiries are founded with politics in mind.

So: why now? Finkelstein’s answer is first that there is an “increasing and legitimate demand for press accountability”, and second that the federal government must accommodate that demand. He has plenty of evidence for the first point, much of it drawn from public opinion research.  Trust in the media is relatively low and may be declining, many voters think the media use their power irresponsibly, most people think various media outlets report inaccurately, journalists often recycle press releases, and sometimes media seem to be pursuing the agendas of vested interests (ranging from poker machines owners to the Victoria Police) or overstating things such as the likely effect of the carbon price on household budgets. The call for accountability is the report’s keystone, the piece of rock which keeps everything else from falling down.

But calling for accountability only suggests we need some rules. It does not tell you what those rules should be.

Setting down those rules is hard. Nevertheless, if you’re serious about accountability, that’s what you have to do.

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Collaborative reform Liberal style

Not so long ago ALP politicians controlled the governments of every state. I think they still did at the end of 07, though I may be wrong. In any event, it was an obvious opportunity an amazingly rare opportunity. For that reason I spent a bit of time on this blog and on the phone trying to see what kind of political project one might erect from it. Because political aspirations are not terribly bold today, and because of the structure of things, it might have been necessary to be fairly modest.  But this post contains a record of 12 ideas which resulted from some blog based brainstorming.

What became of it? Nothing much in a policy sense. But the states did band together in a political exercise to resist John Howard’s soft climate change denialism and it was politically successful, and was a good stroke of policy because it meant that, coming into national government they were about six months ahead of the pace with the Garnaut process.

Otherwise, I don’t think anything much happened, though I’d be happy to be corrected below.

Meanwhile the newly Liberal Governments of NSW and Victoria have announced a reform partnership.  The public material is full of fine sounding intentions, though I expect it’s too early to see what comes out of it. But the fact that they occupy 57 percent of the Australia economy is significant.  Whatever they can agree to harmonise between themselves, and this seems a major focus of the activity, would create quite a strong ‘attractor’ for others to copy. And it does seem that they got the idea of doing something together a little quicker than their ALP counterparts.

Disclaimers

The disclaimer below the fold is used by Virgin in their lounges when you log onto their wi-fi. Yet, like so many disclaimers, although it takes a good while to read, it contains terms almost all of which would be implied in the absence of such a disclaimer. Indeed, if there are any that are not implied, they should be implied. Sad then, that we are presented with the disclaimer – and extremely inefficient for all concerned, though this is not necessarily a criticism of Virgin or even their lawyers. They’re covering themselves. Continue reading

Legislating mandatory corporate death

I didn’t really expect that my recent posts about the somewhat indeterminate aims of the “Occupy …” protest movement would result in a lively discussion thread about what I imagined was the entirely uncontroversial proposition that the limited liability corporation is by and large not only a positive thing but a key element of the modern capitalist economy.  For Socialist Alliance types and at least one ultra-libertarian, it isn’t uncontroversial at all (though for almost diametrically opposing reasons).

I was discussing this with my CDU Law School colleague Geoff James over lunch a couple of days ago when he mentioned a corporate regulatory policy idea that I hadn’t heard before.  Given that the corporation is a “fictitious legal person”, Geoff said, why not take the analogy to its logical conclusion and legislate a mandatory corporate lifespan?  After (say) three score years and ten all corporations would be compulsorily liquidated and their assets and business undertaking sold.

Apparently this was a policy of the old Australia Party founded in the 1970s by eccentric transport tycoon Gordon Barton.  Be that as it may, it’s an interesting if fairly radical idea.  I’d be interested in the reactions of the diverse Troppo readership, especially the economists among us.

In a sense, it would bring the corporate structure more in line with that of trusts, which once had a maximum life span (perpetuity period aka rule against remoteness of vesting) delightfully defined as a “life in being and twenty one years”.  That equitable description gave rise to the equally quaint drafting convention of maximising the duration of any trust instrument by providing for vesting on the death of the “last currently living heir of Her Majesty Queen Elizabeth II”.  Sadly, most states and territories have now legislated for a more prosaic perpetuity period of 80 years or thereabouts.

Legislating for a maximum corporate life span might also be argued to enhance the prospects for business growth and productivity through harnessing Schumpeter’s notion of “creative destruction” as the principal engine of capitalist growth and renewal.  However it may be a bit more complex than that, as Arthur Diamond discusses (extract over the fold).

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Hooray for the bullshit-callers

ASIC, one of our main financial markets regulators, has today declared that short-selling is a “legitimate business in the market”. Good on them. Markets need short-sellers, far more than most people realise.

The reason is that financial markets are markets in ideas – ideas about what will be valued in the future. And so they need people who are able, every so often, to loudly yell “Bullshit!”

It was short-seller James Chanos who called “bullshit” on Enron in 2001. And it was short-sellers who identified the problems with the US mortgage market a few years later, a story well told in Michael Lewis’s book “The Big Short”. In both cases, the short-sellers explained why the rest of the market was wrongly over-valuing those investments.

If only there were more such people, Enron and the US mortgage market might both have failed earlier and done far less damage.

In fact, if financial markets are to operate calmly rather than in the boom-and-bust mode that does so much damage, short-sellers should be encouraged. In the absence of short-sellers, markets will be full of people with an incentive to overstate the merits of particular investments.

Calls to limit short-selling featured prominently in the 2008 crisis, but they go back to at least the 1600s. People making money out of selling over-valued investments don’t like seeing their tall stories exposed. Their objections tend to be effective, because not enough people value the role the short-sellers play.

Bullshit in financial markets is too dangerous to be left alone. People need to call it early and often. We need more short-selling, not less.

Footnote: The only reason I’ve posted this is that it seems to be an extreme minority opinion. Almost everyone I talk to sees short-selling as sinister. Does anyone know why?

Regulation: mortgage brokers on the up and up

You’ll be pleased to hear that the Mortgage Industry Association of Australia is on a campaign to ramp up the qualifications of mortgage brokers.  Just because all they do is sell loans and fill out forms – and otherwise manage the process by which you apply for a loan – is no reason we shouldn’t want them to have higher and higher levels of qualification. There’s already a process of professional development, according to which mortgage brokers must get something like 14 professional development points per year.  Peach’s brokers can get 8 points for learning how to write commercial loans, and since we don’t do commercial loans, it will be totally useless.  But at least it will be a quick way of getting within striking distance of the yearly requirement. A couple more days of workshops where you are told of some lenders’ products (it’s much better to get it live from an instructor, even if you can read) with a nice afternoon’s golf and Bob’s your uncle. Next stop university degrees for all mortgage brokers. And why not?

Regulatory costs and benefits

There’s something of interest in this piece by Cass Sunstein, Obama’s chief of regulation (It has become common to call him ‘Regulatory Czar’ for some reason – not ‘Regulatory Strongman’ or ‘Regulatory Hulk Hogan’, but ‘Regulatory Czar’).  It speaks not just of the costs of regulation but also of benefits. As part of summarising what’s good about the regulatory policy that he is ‘Czar’ of he quotes not only the extent to which they’ve been able to cut the cost of regulation (if you pay close attention to the numbers quoted they’re pitifully small by the way), but also the benefits of regulation.

This insistence on pragmatic, evidence-based, cost-effective rules is what has informed our regulatory approach over the past two and a half years. We have helped to bring highway deaths down to their lowest level in 60 years; promoted airline safety while protecting passengers from tarmac delays, overbooking and hidden charges; sharply reduced the risk of salmonella from eggs; dramatically increased the fuel economy of cars and trucks, promoting energy independence while saving consumers money; and curbed air pollution that kills thousands of people each year. At the same time, we are eliminating unnecessary regulatory burdens and tens of millions of hours in annual red tape.

So there you have it: a social democratic approach to talking about regulation.  The other thing is that Sunstein talks about lowering the costs of overregulation and bad regulation not just for businesses and organisations generally (which is where we focus our energies on regulation review), but also on individuals.

We are taking immediate steps to save individuals, businesses, and state and local governments hundreds of millions of dollars every year in regulatory burdens.

Very sensible too.  It’s hard to see the downside.