News in brief - August 2008

News by email
Prize
Changes on the Council
Planning Day 2008
Freedom of Information
Access to court documents
AFL media bans
East Timor media laws conference
Indonesian amicus brief
An editors' forum
Internships
A complaints 'clearing house'
Whistleblowers submissions
Conciliated complaints.

News by email

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.

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APC Prize

There will be no Essay Prize in 2008-2009. As in previous years, 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 is endowing a prize worth $300 this year, either for outstanding achievement in a course directly related to the study of print journalism, particularly in the area of ethics, or for a particular piece of work in that area.

For more information on the APC Prize, its history and future
go to the APC Prize overview.

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On the Council

The Council has appointed a new Public Member from NSW. Professor Ron Grunstein is currently Head of the Sleep and Circadian Research Group at the Woolcock Institute of Medical Research, University of Sydney, and co-Chief Investigator, National Health and Medical Research Council of Australia (NHMRC) Centre for Respiratory and Sleep Medicine at Royal Prince Alfred Hospital, Sydney. He is also a Chief Investigator, NHMRC Australasian Sleep Trials Network and Clinical Professor of Medicine, University of Sydney. He heads a multi-disciplinary group of clinical researchers focused on various aspects of healthy sleep and sleep disorders. Ron has a particular interest in communicating research findings accurately to patients and health care providers. He is currently medical advisor to the patient advocacy group, Sleep Disorders Australia. Professor Grunstein has Bachelor of Medicine and Surgery degrees and a postgraduate Doctor of Medicine from the University of Sydney and a Ph. D. from the University of Gothenburg, Sweden. Ron is the current President of the World Federation of Sleep Research and Sleep Medicine Societies.

Two of the Council's alternate Industry Members have retied from their current employment and therefore left the Council: Rex Jory, from The Advertiser, Adelaide, who has been alternate to John Trevorrow, representing the Herald & Weekly Times; and Russell Skelton, who has been Roslyn Guy's alternate representative of The Age. Their replacements have not as yet been appointed.

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Planning Days 2008

The Council held its fourth triennial Planning Days, on 31 July and 1 August, with sessions looking at:

1. The Statement of principles and any notes on those principles;
    
2. The Council's role and organisation;
    
3. The handling of complaints and writing of adjudications; and
    
4. The publishers' Right to Know campaign and how best the Council could work towards the maintenance of press freedom.

A detailed report on the progress on these issues will be made to the Council's September meeting and revised principles and procedures will follow detailed debate within the Council and consultation with the publishers. A report on that progress will be published in the November News.

Reports on earlier Planning Days and a summary of the changes that have occurred in the Council's objects, role, principles and procedures as a result, can be found on the Council's website, http://www.presscouncil.org.au/pcsite/about/planning.html

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Freedom of Information

Following an earlier meeting with the federal Special Minister of State, John Faulkner, on the question of reform of Freedom of Information law and practice (FoI), the Council's Chairman and Executive Secretary met in July with Senator Faulkner's staff, and a representative of the Department of Prime Minister and Cabinet, in Sydney to discuss in detail proposed FoI changes. Those discussions were informed by the report to the Queensland government by David Solomon's Independent Review. The Chairman detailed actions the government could take administratively, similar to those taken by Attorney-General Janet Reno in the US in 1993, to change the culture of FoI within the public service, and outlined amendments to the legislation to achieve the Council's objective of making the law workable for journalists. Subsequent to the meeting Senator Faulkner announced that conclusive certificates were to be abolished and that he would consult on other proposed changes to FoI legislation with a view to introducing such changes in 2009.

The Council's submission to the David Solomon Review was noted in the May News. His detailed report to the Queensland government on FoI reform was published in late June. An article by FoI expert Moira Paterson on the Solomon report is published in this issue.

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Access to court documents

The Council has forwarded a letter to the Directors of Public Prosecutions in the various Australian jurisdictions, urging the adoption of a protocol based on the UK practice aiming to facilitate media access to material tendered in open court. The letter followed changes in the NSW court procedures on access to documents, which has freed up access somewhat in that state. The letter read:

Largely as a result of the efforts of the UK Crown Prosecution Service, a Protocol has been introduced into the courts of England and Wales that has greatly benefited the fair and accurate reporting of court proceeding and made courts more open to the public through media exposure.

The Crown Prosecution Service introduced the Protocol after consultation with the police and with a panel of media representatives.

On behalf of the Australian Press Council, the self-regulatory body of the Australian print media, comprised of representatives of publishers, journalists and the public, I bring this Protocol to your attention. It is an essential aspect of the Council's remit to make representations that would ensure the traditional freedom of the press to report fairly and responsibly on matters of public interest and concern.

In the light of this, the Council is seeking the cooperation of federal, state and territory DPPs to have a similar Protocol introduced, on a uniform basis across all jurisdictions, into the Australian court processes.

The general underlining principle as outlined in the Protocol adopted in 2005 is that if material has been shown in court it should be available for broadcast and publication to the general public as quickly as practicable, usually the same day on which it is adduced in court.

There are two categories of material -

What normally will be disclosed:

• Police videos of the crime scene or property seized transcripts of interviews read out in court, videos or photographs showing reconstruction of the crime and CCTV footage of the defendant.

What may be disclosed:

• CCTV footage or photographs of the defendant and victim or the victim alone may be released after consultation with victims and witnesses. Crown prosecutors will consult witnesses and victims before disclosure of sensitive footage.

Under the operation of this Protocol, in most courts, material is now released on the day it is shown in court, if requested.

There are appeal procedures in place that involve a reference to the Crown Prosecutor's Head of Strategic Communications for determination on the release of contested material.

While the Protocol seems to advantage television news, many non-video exhibits are presented in court that would be of use to newspapers. Video would also be available to on-line sites of media organisations, whether they are primarily print of electronic media.

In the UK the Protocol has lead to greater coverage of the courts, and is seen to have made court reports more accurate and comprehensive. On television and on-line, news reports are visually led. The most welcome attribute has been that greater accuracy is obtained in reporting, as journalists do not have to rely on muffled recordings that are played in court. They are given transcripts of what is said.

The Council is aware of the attitude of openness to court reporting espoused by Prosecutors in Australian jurisdictions and would welcome the opportunity to discuss the introduction of a model similar to that operating in England and Wales here in Australia.

A complementary approach, raised at the Standing Committee of Attorneys-General in July, and reflected in the Report on Access to Court Information issued by the NSW Attorney-General's Department, is to create a public (and media) right of access to court documents in both civil and criminal proceedings. Briefly summarised, this would include transcript of evidence in open court proceedings, statements and affidavits admitted into evidence, and police fact sheets. There would also be a category of restricted access including matters that had been struck out, medical and psychiatric reports, and information the subject of a non-publication or suppression order. The Press Council also welcomes this proposal as creating clarity and consistency, and removing barriers that now exist as a result of the exercise of arbitrary discretion when the media must seek permission for access.

The Council would welcome the opportunity for preliminary discussions with you or your representative about how a system similar to that operating in Britain might be introduced across Australian jurisdictions. These discussions could initially be of a preliminary nature, bearing in mind the various attitudes that might pertain to individual administrations.

Perhaps you could suggest a suitable person to liaise with so that talks could commence to achieve our mutual goal of more open, fair and free reporting of court proceedings.

For more information on the Council's views on courts and contempt
go to the courts overview.

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AFL continues to ban AAP

The Council has been in correspondence with the Australian Football League (AFL) over its disaccreditation of photographers representing the Australian Associated Press (AAP). The Council's letter to the AFL was noted in the May News. In early June, Dr Colin McLeod, the General Manager, Marketing, Communications & Public Affairs of the AFL responded to the Council, arguing that "the AFL offered to accredit AAP photographers on identical terms to previous years, including the provision of photos to rural newspapers on a free of charge basis. However, AAP chose not to accept accreditation on this basis. The AFL would have preferred that AAP continue the existing arrangements and to thereby ensure continuity of the supply of images to rural newspapers. However, the decision ultimately rests with AAP."

The Council passed this letter along to AAP for its advice. AAP immediately approached the AFL to take up the implied offer of accreditation in the AFL's letter. When this proved fruitless, AAP editor in chief Tony Gillies wrote to the AFL, noting that its letter to the Council, "contains a number of incorrect and misleading assertions about AAP's treatment ..." He added:

Firstly, the Letter states that the AFL offered to accredit AAP photographers "on identical terms to previous years, including the provision of photos to rural newspapers on a free of charge basis". This statement is incorrect.

... AAP was advised that the only way it could supply its subscribers ... with photographs of AFL matches was to purchase images that had been captured by the AFL (through GSP) for a fee. In implementing these arrangements, the AFL denied AAP the ability to undertake impartial photographic news coverage of AFL matches. ...

AAP photographers have been accredited with the AFL for news and photographic coverage since 2003 ... However this arrangement changed with the most recent terms and conditions of accreditation which did not include rights for AAP to capture images of AFL matches. In light of this, it is implausible to assert that the "AFL would have preferred that AAP continue the existing arrangements and to thereby ensure continuity of the supply of images to rural newspapers ". ... it is unfortunately entirely true to say that the AFL has "decided not to accredit AAP photographers" and that the AFL have "disaccredited AAP".

Even recently, AAP again approached the AFL on the basis of the representations contained in the Letter [to the Press Council] and requested that it be accredited on the basis of the conditions that have applied in previous years ... This request was again denied.

As the national news wire agency, AAP has a fundamental mandate to preserve and protect its editorial integrity. ... AAP was not granted the photographic accreditation that it sought and it was not able to accept the AFL's proposed "alternative" (namely that AAP use AFL images sourced from GSP) as that alternative runs entirely against the principle of freedom of the press.

The Council also wrote again to the AFL:

... The agency again sought to have its photographers accredited based on the offer implied in your 6 June letter. The AFL has again refused the agency accreditation.

The Council can draw no conclusion other than that the AFL is seeking to limit access of outside photographers to events that are clearly news events. It is seeking bit-by-bit to limit news coverage to those images available through its own affiliated photography outlet.

When the Council queried the disaccreditation of overseas news agency in 2007, it was assured that AAP would continue to be accredited, enabling the smaller and independent regional press to continue to have access to an independent source of news photographs. In 2008, the AFL apparently changes its mind about access of independent photographers. It seeks to limit those outlets to those images released by its own people, leading to a suspicion that it may censor news images in the interest of its own image or the interests of its sponsors. ...

The AFL leaves the Council no choice but to take up this issue as a serious threat to press freedom - the freedom of the press to inform the public on matters of interest and to report properly on news events without the intermediation of those seeking to 'manage' the news.

With the finals approaching, AAP still has no accreditation for its photographers.

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Timor Leste

Gary Evans, an editor member of the Council, represented it, with AusAid assistance, at a Media Law workshop in Dili, Timor Leste. The workshop was aimed at informing the process of developing Timor's media law and practice. Legislators there are considering proceeding with criminal defamation law and the licensing of journalists, advised by Portuguese representatives who were making such proposals. Gary Evans and the Press Council were suggesting a self-regulatory model might be more practical. Mr Evans' report noted, in part:

As a representative of the Press Council, I outlined the history of the organisation's foundation in 1976 and explained its operation in detail. Emphasis was put on the Council's role as an alternative dispute resolution body to the civil law action of defamation.

The process of handling complaints was explained and details of the operation of the Council as a "watchdog" on freedom of the press issues was outlined.

Despite opposition from journalists and media management present it was obvious that a recommendation that defamation be included in the penal code will be submitted to the government for consideration.

A representative of the United Nations, Dr Isabel Duarte, a lawyer from Portugal, was commissioned to attend the district workshops and to suggest general principles for media laws for presentation to the government. These suggestions have been prepared and included defamation in the penal code.

They also call for the licensing of journalists by a body administered by Parliament but not established as a statutory authority controlled by government. It would be composed of journalists and media representatives outside government but reporting to the Timor Leste Parliament. This body would include a disciplinary "watchdog" ...

At the conclusion of the workshop Kolkos president Ottelio Ote said is was an historic meeting attended by 70 journalists and media representative and the first such meeting in Timor Leste. Kolkos would now further consult following the general principles as outlined by Dr Duarte. Kolkos would talk more about licensing and defamation and would formalise a clear position on issues it wanted in the law. Concerning defamation within the penal code if the government did not wish to support Kolkos's position it may be that the organisation would consider other ways for journalists to be free to do their job the Kolkos president said.

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Indonesian amicus brief

The Press Council is a signatory to an amicus curiae petition submitted to the Supreme Court of Indonesia, seeking review of its decision in the case of H M Suharto v Time Inc Asia, et al. The case involves a defamation action brought against Time magazine by former President Suharto, which saw the court ordering Time to pay $US106m in damages. The ruling is seen as inimical to the push for press freedom in Indonesia. The Council agreed to become involved following discussions with the Indonesia Press Council representatives who visited Australia in May. In addition to the two Press Councils, other signatories to the petition include the Alliance of Independent Journalists, Article 19, Associated Press, CNN, the Campaign for Press and Broadcasting Freedom, the Committee to Protect Journalists , Dow Jones & Company, The Economist, The Financial Times, Human Rights Watch, Index on Censorship, International Bar Association Human Rights Institute, the International Federation of Journalists, the International Media Lawyers Association, The Jakarta Post, MediaWise Trust, National Union of Journalists, Newsweek, The New York Times, the Southeast Asian Press Alliance, SBS, Tempo Magazine, The Times and The Washington Post.

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Editors' forum

In late July, the Council's Chairman and Executive Secretary met editors in Melbourne to discuss current trends and emerging threats in Victoria. This was a part of the Council's regular consultation process with editors around Australia. At the meeting were the editors or editors in chief of the Herald Sun, the Sunday Herald Sun, MX, The Age, Leader newspapers, Fairfax Community newspapers and the Geelong Advertiser, or their representative. The consultation looked at the emerging tort of privacy in Australia, especially in the light of the UK Mosley decision (reported on separately in this issue of the News), the prevalence of suppression orders and the difficulties of papers being aware of interstate orders, the emergence of on-line editions and the changing nature of newsrooms, the alleged reliance on press releases and on "spin", and the alternatives to adversarial handling of complaints. The outcomes of the consultation fed into the Council's Planning Day process.

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Internships

One of the issues discussed at the Melbourne editors forum was the training of journalists, including the use of internships to introduce potential journalists to the rigours of the job. Nick Richardson of Leader Community Newspapers in Victoria is participating in a media internship program being run by the Victorian Department of Premier and Cabinet and working with the Islamic community. Professor Ken McKinnon asked him to write a couple of paragraphs about it, with a view to encouraging other newspapers/governments to explore the scheme. Nick Richardson writes:

In response to contemporary social issues, Muslim communities in Victoria have come under particular pressure. There is a case for initiatives to promote a broader understanding of Muslim culture and lifestyles amongst the wider Victorian community. The Victorian Department of Premier and Cabinet developed a Media Internship program to provide young and upcoming journalists from a Muslim background with an opportunity to work in the mainstream media. The objectives of the program include providing the interns with a better understanding of media perceptions of Muslim communities, and providing them with an opportunity to influence their mainstream media colleagues and build cross-cultural bridges.

Four media organisations are hosting interns as part of the project, namely The Age, Leader Community Newspapers, Network Ten and Prime Television (Albury studios). Six internships were offered in 2008-09, ranging from two to eight weeks' duration. A key selection requirement for the interns was that they are passionate about a career in the media, and it is hoped that the internship will be an important step for the interns towards a future role in the industry.

The host media organisations benefit from working with talented individuals who are committed to a career in the media, and who could make future employees. The program also provides opportunities to learn more about Muslim culture and establish new linkages into Muslim communities.

For further information about the program, please contact Jenny Cleeve, Principal Policy Adviser - Community Engagement, Department of Premier and Cabinet on (03) 9651 1009 or jenny.cleeve@dpc.vic.gov.au.

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A complaints clearing house

In its June report on Sexualisation of Children, a Senate committee recommended, amongst other things, the development of a complaints clearing house to facilitate the lodging of complaints to the appropriate regulatory or self-regulatory body. The Press Council took up this issue with the Advertising Standards Board (ASB) and Free TV, copying in the Australian Communications and Media Authority, the MEAA and Commercial Radio Australia, amongst other bodies. The Council wrote:

In its report of 26 June, Sexualisation of children in the contemporary media, the Senate Environment, Communications and the Arts Committee recommended:

... that the Advertising Standards Board and Free TV Australia consider establishing a media and advertising complaint clearing house whose functions would be restricted to:

• receiving complaints and forwarding them to the appropriate body for consideration;
   
• advising complainants that their complaint has been forwarded to a particular organisation; and
   
• giving complainants direct contact details and an outline of the processes of the organisation the complaint had been forwarded to.

In its report on broadcasting regulation, the committee made a number of recommendations and suggestions with regard to improving the operation of complaints systems, particularly:

• that all broadcasters and ACMA should ensure that the homepage of the websites have a clearly marked 'complaints' icon;
   
• that the complaints page be accessed only by one key-stoke or mouse click; and
   
• that complaints should be received electronically and by email in addition to written or faxed complaints.

I write to you on behalf of the Australian Press Council, which considered this recommendation at its July meeting.

Have either of your bodies determined to initiate action along the lines recommended by the committee?

It seemed to the Council that such a 'clearing house', if limited solely to the ASB and Free TV Australia, would not serve a useful purpose, as it would leave out a number of organisations that deal with complaints about ethical matters in the Australian press. While the ASB has carriage of complaints about advertising, news material in the various media are handled variously by the Press Council, ACMA and the MEAA. If such a clearing house were to be established, it would need to include those organisations, as well as representatives of the commercial television and radio broadcasters and the national broadcasters, who each have their own complaints process.

The Council would appreciate your advice if you determine to take any action as it would like to be involved in such discussions. I am copying in the other relevant bodies, as well as the Minister and Chair of the committee so that they are aware of the action being taken.

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Whistleblowers

There were separate inquiries in the Australian and NSW parliaments on changes to whistleblower legislation. The Council agreed that it should make submissions seeking protection for whistleblowers to make disclosures to the media. Policy Officer Inez Ryan was commissioned by the Gazette of Law and Journalism to write an article on the inquiries and the options for change. That article was subsequently posted to the Gazette's website.

On 12 August 2008, the Australian Press Council made a submission to the Australian House of Representatives Standing Committee on Legal and Constitutional Affairs Inquiry into Whistleblower Protection within the Public Sector, the Executive Summary of which read:

The Australian Press Council calls upon the Commonwealth government to introduce legislation to provide protection for individuals who make public interest disclosures. In order to ensure this legislation is effective, it should include the following:

• It should be an offence to penalise, discriminate against, harass, victimise or retaliate against an individual who makes a public interest disclosure.
   
• The legislation should establish an immunity from internal disciplinary action for making a public interest disclosure, including disclosures made to the public via the media.
   
• The legislation should establish an immunity from criminal prosecution for breaching any secrecy or confidentiality requirements in the course of making a public interest disclosure, including disclosures made to the public via the media.
   
• The legislation should establish an immunity from civil action for making a public interest disclosure, including disclosures made to the public via the media.
   
• The legislation should establish a right to claim compensation for loss or injury suffered as a result of making a public interest disclosure, including disclosures made to the public via the media.
   
• Government employees who do not fall under the Public Service Act should be included in the scope of any legislation dealing with public interest disclosures.
   
• Provision should be made for public interest disclosures by contractors who provide services to government and their employees.
   
• The legislation should make provision for disclosures to be made to the media in certain specified circumstances.
   
• Where a public interest disclosure has been made to a designated government agency or officer, that agency or officer should be required to investigate promptly and to publish the results of that investigation, together with any recommendations for rectifying action, when it is complete.

The full submission has been posted to the Council's website - http://www.presscouncil.org.au/pcsite/fop/fop_subs/whistle.html

On 26 August 2008, Australian Press Council Submission to the NSW Parliamentary Committee on the Independent Commission Against Corruption: The Protection of Public Sector Whistleblowers in largely similar terms. Its Executive Summary read:

The Australian Press Council calls on the government of New South Wales to reform the Protected Disclosures Act 1994 in order to strengthen the protection of public employees who make public interest disclosures in the following terms:

1. Section 19 of the Act should be amended in order to provide for public interest disclosures to the media or a parliamentarian to be protected in the following circumstances:
   
   
   • Where the officer making the disclosure honestly believes, on reasonable grounds, that to make the disclosure along internal channels would be futile or could result in victimisation, OR
      
   • Where the officer making the disclosure honestly believes, on reasonable grounds, that the disclosure is of such a serious nature that it should be brought to the immediate attention of the public, OR
      
   • Where the officer making the disclosure honestly believes, on reasonable grounds, that there is a risk to health or safety, OR
      
   • Where internal disclosure has failed to result in prompt investigation and corrective action.
      
2. Section 19(3) of the Act should be amended so as to remove or significantly shorten the period of time which a public official is required to wait after making an internal disclosure before approaching the media.
    
3. The scope of the protection provided by the Act should be extended to encompass employees of private organisations who are contracted to provide services to or on behalf of the NSW government.
    
4. The Act should be amended by the insertion of a section that provides a right to claim compensation for loss or injury suffered as a result of making a public interest disclosure, including disclosures made to the public via the media.
    
5. The Act should be amended by the insertion of section which obligates a public agency to promptly investigate any matter which comes to its notice by way of a public interest disclosure, and to publish the results of that investigation, together with any recommendations for rectifying action, when the investigation is complete.

The full submission has been posted to the Council's website - http://www.presscouncil.org.au/pcsite/fop/fop_subs/whistle_nsw.html

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Conciliated complaints

The Council office tries to solve matters by direct contact with the publication concerned. This often leads to a settlement of the matter satisfactory to both parties. On rare occasions, a Public Member of the Council will convene a face-to-face conciliation, by agreement with the parties. Below are some examples of the matters recently settled in these ways.

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