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August 2005 - Volume 17, No.3
News in brief - August 2005 News by email From the August 2005 edition of the News, Press Council publications will sent by email to those who ask for delivery in that form. If you want the News sent direct to you (in pdf format) please send an email to info@presscouncil.org.au with subject line 'News by email' and you will be placed on the direct email list. [ return to top ] Return to APC News 2005 Index Australian Press Council Prize There will be no Essay Prize in 2005. Instead the Council will be making a series of awards for outstanding scholarship through the various journalism departments and faculties at Australian tertiary institutions. The Council will endow prizes for such courses, particularly in the study of ethics. More details are available on this website's Prize page. [ return to top ] Return to APC News 2005 Index On the Council Professor HP Lee has accepted the Council's offer of a further three-year term as a Public Member. The Sir John Latham Professor of Law at Monash University, Professor Lee was appointed an alternate member in 1987 and became a full member in 1991. He was elected Deputy Chairman of the Council in 2004 and, for that reason, was asked to serve a further three-year term. The Media Entertainment and Arts Alliance re-affiliated with the Council on 1 July 2005. It has nominated Alan Kennedy, Federal President of its journalists' branch, as its representative on the Council. Mr Kennedy is a senior journalist at The Sydney Morning Herald. News Limited has nominated Warren Beeby, the Group Editorial Manager of News Group, to a further term as its Council representative, with Sharon Hill as his alternate. Mr Beeby has been a member of the Council since 1988. [ return to top ] Return to APC News 2005 Index Advertorials The Australian Press Council has updated its guideline on "advertorials", replacing General Press Release 67 (March 1985). The Council issues guidelines from time to time. These are, in essence, amplifications on particular issues arising from the Council's Statement of Principles. The guidelines apply the Principles to the practice of reporting and are intended to guide the press on how it should report certain matters. These guidelines are not intended to be prescriptive instructions to the press but act as a series of advisories on the application of the Principles that the Council seeks the co-operation of editors in maintaining. A list of the extant guidelines (and links to them) can be found on the Council's website at http://www.presscouncil.org.au/pcsite/activities/gprguide.html. In its revised guideline, the Council says that 'advertorial' is the term for newspaper and magazine content that looks like editorial content but is published under a commercial arrangement between an advertiser, promoter or sponsor of goods and/or services and the publisher. Such commercial arrangements may include payment for articles to be published and undertakings that editorial content will be published in exchange for, or as part of, an agreement to place an advertisement or provide a sponsorship. The Council's position is that 'advertorials' should be identified by such terms as "advertisement", "advertising feature", "special feature", "sponsored feature" and the like so that readers are not led to believe that their content is based on editorial news values free of commercial influences. The Council will regard 'advertorials' as advertisements and they should be covered by regulations and guidelines that apply to advertisements. Complaints to the Press Council about 'advertorials' usually will be redirected to a relevant advertising or trade practices authority. However, where publication of material is not part of a commercial arrangement or not deemed to be 'advertorial', or is said to mislead readers as to its provenance, and is the subject of a complaint lodged with the Council, it will be dealt with by the Council in the usual way, under the Council's Statement of Principles and complaints procedures. [ return to top ] Return to APC News 2005 Index Court transcripts The Press Council has issued a public statement expressing its deep concern at a decision of the Acting Principal Registrar of the Western Australia Supreme Court to refuse access to the transcripts of a trial sought by The Australian newspaper. It said, "Courts are accountable and transparent through the conduct of proceedings in public. It is inconsistent with these principles for the transcripts to be withheld. The trial's proceedings in this case were not conducted in camera and it is hard to understand the justification for claiming confidentiality regarding the transcripts. "A recent complaint to the Press Council from an officer of the WA Supreme Court has demonstrated how the courts expect newspapers to report court proceedings accurately and fairly. It is imperative that the courts play their part and assist by providing newspapers with access to transcripts of open proceedings." [ return to top ] Return to APC News 2005 Index Freedom of Information In a ruling that has negative implications for the future utility of Freedom of Information laws for the Australian press, the Full Bench of the Federal Court has, by a two-one majority, upheld the existing precedent that allows federal Ministers to slap conclusive certificates on applications for the release of information. The Australian's FoI editor, Michael McKinnon, has been seeking documents relating to two matters from the federal Treasury: the effect of 'bracket creep' on income tax cuts and the possible misuse of the first home owners scheme by the wealthy. Treasurer Costello had ruled that the release of the information was against the public interest and issued conclusive certificates, effectively blocking access to the documents. The Australian lodged an appeal to the Federal Court following an unsuccessful appeal to the Administrative Appeals Tribunal against the Government's decision to block two FOI requests. The judgment re-asserted the arguments made in a 1985 case when the then Opposition backbencher, John Howard, sought to obtain information from Treasurer Keating under the FoI Act. At that time, Mr Howard argued that the mere assertion of a reason for non-release was not sufficient. Judges Brian Tamberlin and Peter Jacobson found that all the Government needed to block access, once a certificate was issued, was for a senior public servant to give evidence that there was a good reason why the documents should not be released. They also found that, when a senior public servant gave evidence that there was one public interest ground not to release the documents, it would not matter what other strong grounds existed in support of releasing documents. But dissenting judge Richard Conti found The Australian "tendered an impressive array of testimony" including expert evidence in its AAT appeal. He said the evidence was "largely and essentially" inconsistent with one of Treasury's main witnesses. The FOI Act "requires inherently for the tribunal to take a balancing exercise in relation to and as part of its determination of the competing [public interest] claims". Justice Conti also agreed with the submissions of The Australian that the AAT misdirected itself in assessing the public interest by not balancing the evidence of the newspaper's witnesses against that of a key Treasury witness. There still remains the possibility of an appeal to the High Court, based in part on the arguments made by Judge Conti. News Corporation, the publisher of The Australian, has not indicated yet as to whether they might lodge such an appeal. [ return to top ] Return to APC News 2005 Index Privacy reviews There have been two recent reviews of the federal Privacy Act, particularly the private sector provisions in the Act. The first by the Office of the Privacy Commissioner, which recommended that, among other things, the media exemption in the Act be reviewed, and the second by a Senate Committee that was dissatisfied by some aspects of the Act but not the media exemption. In response to the commissioner's review, the Council has written to the federal Attorney-General, Philip Ruddock, expressing its concerns with aspects of the review, especially those it saw as not justified by the material before the commissioner and which it argued will make it more difficult for the media to report on matters of public interest and concern. The Council refers to the review's reliance for its criticism of the exemption on the submissions of the Australian Privacy Foundation (APF) and two medical bodies, the Australian Medical Association (AMA) and the Mental Health Privacy Coalition (MHPC). The Council argued that the AFP's material offered no proof for its assertion that media codes pay 'lip service' to privacy and that privacy protections are 'widely regarded as ineffectual'. But the review did not refer to the Council's submission that detailed its handling of privacy complaints over the past three years, since the private sector amendments to the Act became effective, through its mediation and adjudication processes. The MHPC and the AMA referred to the same alleged media intrusion into privacy. The Council said to the Attorney, "It is not clear, from the general nature of the concern expressed where and when the alleged intrusion occurred, but the Council finds it hard to justify the MHPC's claim that the case means that the privacy regime should be changed as a result and the media should have to seek the commissioner's imprimatur before reporting on such matters." Leaving aside the named submissions, the Council noted, the majority of submissions that mention it support the current media exemption. The overwhelming number of submissions makes no comment on the exemption. The Council noted that it would be happy to help clarify the Act by defining 'journalism' in it, but would be concerned were any inserted definition unfairly to narrow the exemption. In dealing with the reasons for the exemption and the application of it in the Act, the Council recalled the words of the then Attorney-General in introducing the exemption in the private sector provisions:
This is why the Council said in its submission to the commissioner: "The Council submits that the exemption is working well, that the Council's experience indicates that an appropriate balance between the flow of information of public interest and concern and individuals' rights to privacy in their private affairs has been struck and that, within the print media, the appropriate organisations and activities are covered by the exemption". The Council also referred to the report of the Senate Legal and Constitutional References Committee, The real Big Brother, which made a number of recommendations for the review of the Act, but makes no recommendation for any review of the media exemption. The Council said that the Senate committee has got it right in its implicit endorsement of the current exemption. It also noted that the report went further, however, in one area of concern: it addressed the question of the use of the provisions of the Privacy Act for improper purposes. The failure to release information of public interest and concern by improper application of the rationale, 'because of the Privacy Act', is an issue that should concern all citizens. The Council sought from the Attorney-General that, in any comments on the reviews, he address this issue. In conclusion, the Council noted that it had provided the commissioner with adequate evidence of that it is dealing with complaints about press invasion of privacy addressed the concerns expressed by complainants, and that the exemption in the Act was working adequately. It is therefore concerned that the commissioner appears to have failed to take this material into account in arriving at her conclusions. The Council agreed with the Senate committee that there was no need at this time to review the wording or operation of the media exemption to the Act. [ return to top ] Return to APC News 2005 Index Planning Days The Council third triennial Planning Days 2005 are to be held in Sydney on 8-9 September 2005. In 1999, and again in 2002, the Council held a planning meeting of all members and alternates, over a day-and-a-half following a regular business meeting. Each of the previous planning days generated over 40 proposals for innovation or change in the Council's directions, work methods and procedures, which were followed up over the following 12-18 months. The Planning Days enable the Council to engage in longer term planning and a strategy for addressing its objects in both the complaints and press freedom areas. The Council will have a couple of guest speakers, including Peter Blunden, editor of the Herald Sun, who will address the issue "What is a modern tabloid newspaper supposed to be trying to do and how should Press Council actions relate to this vision". Sessions at the workshop will address
Issues raised at the Planning Days will feed into the Council debates at subsequent meetings. [ return to top ] Return to APC News 2005 Index Suppression Orders The Australian Press Council is developing a proposal for submission to the federal, state and territory supreme courts seeking to establish a uniform method of advising the media on the existence of suppression orders issued in their courts and of the amendment or cessation of such orders. While the Council is concerned at the increased number of such orders and would argue that, in most cases, they are an impediment to the reporting of matters of public interest and concern, derogating from the effectiveness of the system of open justice, its major objective in this instance is to ensure that the inadvertent publication of suppressed material is avoided as far as possible. While some jurisdictions have taken positive steps, in co-operation with the media, to make the existence of such orders known, the systems vary to an alarming extent and the ad hoc nature of the process is a major concern. This has been exacerbated by the fact that media outside the court's jurisdiction may be reporting on the matter and those reports may be read or seen within the court's jurisdiction. The Council is currently discussing its proposals with bodies representing the broadcast media and hopes to make a submission to the various Chief Justices in the near future. The Council is considering recommending that, where appropriate, courts establish a Courts-Media liaison committee that can discuss issues arising for the media and the judiciary in relation to media coverage; appoint a courts-media liaison officer; establish a uniform method of reporting court orders; and establish uniform methods of reporting court judgments. It recognises that what is proposed places financial burden on the courts but argues that the minimisation of aborted trials, contempt actions and the like that would result would justify the expense and possibly even save money in the longer term. In addition it is likely that the media would be willing to contribute to facilities that help reduce the risk of infringing upon court orders. This may include the development of secure on-line databases that the media could consult to determine if a suppression order exists. Any of these services can only be effective of course if they cover all courts and have the support of all members of the judiciary. For that reason the Council will be seeking the co-operation of the various supreme courts to ensure that any system developed covers all the courts in their jurisdiction. [ return to top ] Return to APC News 2005 Index National Security Last issue there was a report on the April 2005 submission made by the Council to a Senate Committee reviewing the National Security Information Legislation Amendment Bill. In 2004 the Council made a submission to the Senate Legal and Constitutional Legislation Committee expressing its concerns with regard to legislation which regulates the use of security sensitive information in criminal proceedings. The legislation has the potential to cause unfairness to defendants in proceedings where security sensitive information forms part of the evidence or argument, by restricting access to evidence or preventing defendants or their counsel from being in attendance during proceedings. For the media, the significance of the legislation is that it facilitates the hearing of proceedings in camera where security sensitive information is involved or where the government issues a certificate to state that such information is involved. In spite of the objections of various interested bodies, including the Law Council and organisations interested in civil liberties, the Parliament ultimately passed the National Security Information (Criminal Proceedings) Bill 2004. In March 2005 it was proposed that the scope of the National Security Information (Criminal Proceedings) Act be extended to include civil proceedings, and the Senate Legal and Constitutional Legislation Committee sought further submissions in relation to this proposal. In April 2005 the Press Council made a submission to the committee wherein we restated the concerns we expressed in relation to the original legislation. In May 2005 the committee published its report in relation to the National Security Information Legislation Amendment Bill 2005. The committee has given careful consideration to submissions made by several legal, civil liberties and humanitarian organisations and has made several recommendations for the modification of the Bill. In broad terms, the committee's recommendations seek to protect a court's discretion with regard to the holding of closed hearings and the treatment of evidence taken in camera. Whereas the government's proposed provisions tend to give the court little option but to hold proceedings in camera, the Senate committee's recommendations seek to give a court the ability to decide for itself, in each instance, whether closure is appropriate, given the competing interests of national security and procedural fairness. The proposed modifications would give a court greater flexibility in deciding whether or not to make transcripts of evidence available to the parties or to the public. The recommendations also seek to make the court and the Attorney-General accountable for any decision to hold proceedings in camera, by requiring the publication of reasons. In addition, the committee is concerned to mitigate the tendency of the legislation to cause unfairness to parties. The committee has recommended that the passage of the Bill be subject to these recommendations. [ return to top ] Return to APC News 2005 Index Parliamentary Privilege Last issue there was a report on the submission made by the Council to the Senate Privileges Committee on its review of unauthorised disclosures from parliamentary committees. The Privileges Committee's report recommends changes to the way it would deal with the publication of leaked material from Senate committees. Only publication of in camera hearings and submissions would be automatically referred to the Privileges Committee and these would be regarded, prima facie, as contempt of Parliament. Other leaks, such as the early release of a committee's findings, would not be so regarded and would be dealt with, in the first instance by the committee concerned. Adoption of the committee's recommendations would lessen restrictions on press reporting of Parliament. [ return to top ] Return to APC News 2005 Index Research The Council has convened a second meeting with university researchers in areas of interest to the Council, including questions of journalism, ethics and the legal issues that may restrict the ability of the press fairly to report matters of public interest. The first meeting, in May 2004, resulted in the Council deciding to make a $5000 grant towards the development of research projects of interest to the industry. The 2005 meeting will discuss how the Council might better assist researchers and which questions that research might address to assist the Council and the industry. It will also look at how the Council can assist researchers in better liaison with the industry to assist their activities. [ return to top ] Return to APC News 2005 Index Uniform evidence legislation The Australian Law Reform Commission, in co-operation with its NSW and Victorian analogues, has published a discussion paper on the development of proposed uniform evidence legislation. Of most interest to the Council in the paper was the question of whether there should be a privilege to protect journalists' confidential sources. There was some concern among Council members with the model being proposed, and a feeling that there should be presumption in favour of granting a privilege to protect confidential sources. For that reason, the Council decided to endorse the model from the New Zealand evidence legislation. (Clause 64 of the New Zealand Evidence Bill protects the identity of the sources of journalists in cases where journalists promise not to disclose their identity. The starting point is that the journalist cannot be compelled to reveal the identity of the source. However, a Judge of the High Court may order that the identity be revealed if satisfied that the public interest in doing this outweighs any likely adverse effect on the source or others as well as the public interest in the ability of the news media to communicate facts and opinions to the public.) The Council was also concerned with the question of media access but none of the discussion paper's recommendations appear to impinge on the media's access to courts or to evidence. The Council made a submission in mid-August, in which it noted that one of its primary concerns is the protection and promotion of freedom of speech and of the press. It said that significant concomitant of such freedom is access to information: without information, freedom of the press has little meaning. This fact is of particular consequence in relation to the reporting of government activity. The media have a crucial role in facilitating the accountability of government to the electorate. It is the role of the press to ensure that citizens are made aware of facts and issues that enable them to assess the performance of elected representatives. The Council argued, "Governments are not always cooperative in providing the press with information that gives an objective and complete picture of government activity, free from distortion. There are instances when such a complete picture can only be ascertained by relying on confidential sources. Such sources are often "whistleblowers" who have unique knowledge of the internal workings of organisations, knowledge that is invaluable to journalists seeking to keep these organisations accountable. In revealing this knowledge to a journalist, whistleblowers often place their own position, or even safety, in jeopardy. In most cases whistleblowers approach journalists only after they have exhausted all official channels available to them. Their revelations usually expose corrupt, illegal or questionable behaviour. The recent history of journalism is replete with examples where whistleblowers have risked their own interests in order to ensure that the public interest was served by exposing an organization to public scrutiny. Just two examples of this are police officers who cooperated with the ABC's Four Corners and The Courier Mail in exposing corruption in Queensland (which ultimately resulted in the Fitzgerald Inquiry) and nurses who have come forward in both New South Wales and Queensland to discuss high death rates in public hospitals. "Due to the risks being undertaken by whistleblowers, information is often made available to journalists only on condition that the identity of the source is kept confidential. The commitment to maintaining confidentiality in such circumstances is a longstanding tenet of journalistic ethics. This commitment recognizes the fact that whistleblowers are often reluctant to divulge information if disclosure is likely to result in damage to their career or safety. Failure by journalists to protect confidential sources would damage the professional relationship of trust between them and would discourage whistleblowers from coming forward to raise issues of public concern. The ability of journalists to protect the confidentiality of their sources is thus a crucial element in the process of democratic accountability and should be recognized by the law. "Where the law does not recognise the importance of confidentiality between journalists and their sources, situations may arise where journalists are confronted with a dilemma whether to divulge their source and thereby betray their ethical commitment, or to protect their source and in so doing break the law and risk a penalty. This dilemma has been clearly illustrated in the United States by the recent imprisonment of The New York Times journalist, Judith Miller, for refusing to disclose the identity of her informer, in relation to a putative story that would have addressed the question of a possible breach of the law by officials in the US administration. Two Australian journalists are facing a similar dilemma in a case currently before the Victorian County Court. In this case the issue was one of embarrassment to a Minister of the Crown, not the divulging of matters that could be regarded as secret or confidential in nature. "The Australian Press Council recognises that there may be certain instances when it is in the public interest that confidential information be disclosed to a court or inquiry. However, the Press Council is of the view that it is important that formal recognition be given to the public interest in the protection of confidential relationships between journalists and their sources. One way of doing this is to ensure that journalists cannot be compelled to disclose confidential information in court. "In order to protect the relationship of confidentiality between journalists and their sources, the Australian Press Council endorses the proposal that the Uniform Evidence Acts should include a privilege for the protection of confidential information in relation to professional relationships. The Press Council proposes that a clause that is based on that set down in the New Zealand Evidence Bill be adopted for this purpose. However, if such a clause is regarded as inappropriate, the Press Council supports the proposal put forward in the discussion paper, that the Commonwealth Evidence Act should adopt a provision which is the equivalent of Division 1A of the NSW Evidence Act 1995." [ return to top ] Return to APC News 2005 Index Confidential sources The Council has discussed the dilemma facing two Herald Sun journalists, who are being asked to disclose sources in relation to a leaked story embarrassing to the then Veteran Affairs Minister, that had led to the prosecution of a Commonwealth Public Service employee, and possible prosecution of the journalists. When first before the court the journalists refused to answer questions on sources on the grounds of the possibility of self-incrimination. However, the DPP was likely to grant immunity from prosecution to the journalists. This meant that, when they next appear in court, the journalists would be asked to divulge the identity of their source/s. The public servant's trial had been adjourned until January 2006. The Council is monitoring developments. [ return to top ] Return to APC News 2005 Index Submitting material for publication The Press Council office was recently asked for a brief article on how readers might best make unsolicited contributions to newspapers and magazines, whether in the form of letters, articles or commentaries. The following is the advice given. Of all the media, newspapers offer the greatest unfettered access to the public. Most newspapers will consider unsolicited material submitted to it in the form of articles, commentaries and letters. The Australian Press Council believes that all print media should reflect a diverse range of views and, through it scomplaints mechanism is well aware why some material is not published and how best to get your submission published. So, first the negatives. The Council frequently sees material written by complainants that is certain not to be published. Such contributions can be far too long, contain extraneous or irrelevant matters, be defamatory or downright abusive. If you want to express an opinion, write in the form of a commentary, not a news report. News reports that appear primarily to be promotions of a product or service are also less likely to be published. Avoiding those pitfalls is a good start to winning the editor over. On the other hand there are positive steps you can take to assist your chances of being published. These include:
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