Threats to press freedom

Warren Beeby used his report to the Australian section of the Commonwealth Press Union to highlight a growing number of threats to Australian press freedom.

In a nation where journalists don't get killed or summarily jailed for pursuing the truth, the Australian press is still managing to lose the battle to protect the cherished concepts of free speech and press freedom.

The main culprit is the government-sanctioned growth of official secrecy.

The concept of open courts is constantly abused by judges and magistrates obsessed with the catchcry of privacy of the individual. Public servants and politicians are making a sick joke of Freedom of Information legislation. The stealthy imposition of censorship by Government is stifling sensible debate on policy and on issues of public interest. Legislation designed to curb Press freedom emerges at a state and federal level with depressing regularity.

That's my report card on the state of Press Freedom in Australia in 2001.

On top of this, defamation law in Australia is a shambles, begging to be reformed and uniformed.

Professor Michael Chesterman, dean of law at the University of NSW and a Law Reform commissioner, made an unsupported claim in his recently-published book Free Speech in Australia: a delicate plant that the media may no longer claim the title of 'watchdogs' of public affairs.

On one hand he noted that a privileged class of politicians and judges had the right to prevent others criticising them, while they maintained "almost total freedom to criticise anyone they wish in the course of parliamentary or court proceedings". But on the other hand, Professor Chesterman blames the wrong issues, in my view, for the decline he perceives in the media's performance.

Professor Chesterman says the causes are concentration of media ownership, the decline of investigative journalism and the slide towards infotainment. He says these things are causing people to lose trust in the media.

I blame the burden of the issues I mentioned earlier: a conglomeration of official constraints, rules, ruses and an obsession with privacy that are weighing too heavily on Press freedom.

Further, the internet and the availability of dedicated radio and cable news channels, has caused an explosion of diversity of news sources and opinion that is limited only by Federal Government's cross-media ownership and foreign investment laws. If there is a decline in investigative journalism, it is because of the lopsided defamation laws and the cost of litigation and the governments' and the courts' obsession with secrecy.

I would like to back these assertions with a few examples:

• Judges and magistrates in South Australia's courts issued 328 suppression orders in 2000-2001. That was an 87 per cent increase on the 175 times they stopped publication of various matters in the State's 'open courts' in 1999-2000.
  
  The courts in other States do not appear to keep the same comprehensive statistics, but empirical evidence in NSW and Victoria, in particular, indicate an acceleration in the rate of suppression orders.
   
• This is an alarming trend which is being accompanied, particularly in Queensland and Victoria, by a tendency of magistrates in the lower courts to ban media access to hand-up briefs in committal hearings.
   
• Despite Professor Chesterman's assertions that concentrated ownership is knocking the inquisitiveness out of journalism, it is these media owners, and only these media owners, who with monotonous regularity put their money where their mouth is and contest unwarranted attempts by judges or magistrates to close courts or suppress proceedings.
   
• The concept of media paying the cost of aborted trials when judges decide their reports prejudiced a trial remains on the law reform agenda in NSW. If introduced, this would provide a disincentive for the media to risk reporting Court proceedings at all.
   
• Judges continue to abort trials because of an unfounded fear that media reports influence juries and prejudice a fair trial. Yet a recent study of 312 jurors in 48 criminal trials in New Zealand found that juries are unlikely to be swayed by media coverage. A study by a research group that included Professor Chesterman found similar empirical evidence among NSW jurors.
   
• A Victorian newspaper sought Freedom of Information details on the travel costs of federal MPs and was advised it would have to pay more than $1 million for the information. The Administrative Appeals Tribunal found on appeal that the newspaper was, of course, entitled to have access to government information. But it ruled the bureaucracy was entitled to charge fees, and the $1 million-plus charge remained.
   
• Queensland has legislation that exempts cabinet submissions from FoI scrutiny. Thus delicate matters deemed by ministers to require secrecy are rolled into the Cabinet room in order to gain status as "Cabinet papers" and avoid scrutiny.
   
• Another regular ploy used by government departments in all States to foil FoI applications is to wait until virtually the last day before asking for clarification so a further waiting period is invoked.
   
• Yet another recent FoI debacle involves a request for information about the approval of drugs and medical treatments. The department quoted $3,855 for the information, including 141 hours of "decision-making" at $20 an hour.
   
• National newspapers like The Australian and The Australian Financial Review that published in all States face eight sets of different defamation laws.
   
• The unique NSW defamation rules have seen juries on numerous occasions find that defamatory imputations existed where they simply did not exist on any fair and reasonable reading. This leaves newspapers with the impossible task of having to defend statements they did not make.
   
• Other NSW jury verdicts have been perverse and contradictory that the juries clearly were confused by the process.
   
• Every media outlet has suffered the costly fate of getting a story overwhelmingly right, but losing the defamation case because it got a minor aspect wrong.
   
• Federal Parliament has just ruled that newspaper editors will be charged with contempt if they publish any photos of MPs taken in the parliamentary chambers other than when they stand at the dispatch box. This was inspired by a published photo of an MP studying for external exams during a parliamentary debate, and by other occasional images of MPs behaving badly.
   
• A Townsville journalist faces prison for the crime of reporting on allegedly appalling conditions in a remand jail after accepting a phone call from a prisoner and conducting an interview with her. Contact with a prisoner without the permission of the Corrective Services Commission is a criminal offence in Quieensland. A magistrate originally dismissed the prosecution, but the Commission is appealing.
   
• The Human Rights and Equal Opportunity Commission has just put forward a sweeping media code it says would prevent racial prejudice. Rather, it would stifle debate on a range of local and foreign policy issues.
   
• Indeed, a columnist on The Australian is presently under investigation for alleged racial vilification because he robustly argued that US foreign policy over the centuries left much to be desired, and that Australia would serve the US best by urging it to reign in its desire for revenge. A US citizen took offence. It was part of a coverage balanced by strong pro-US sentiments, and part of an important foreign policy debate. Yet the Human Rights and Equal Opportunity Commission took the complaint seriously.
   
• The Federal Government continues to obstruct media access to interview boat people seeking asylum. Former Chief of the Navy, Sir Richard Peek, described government censorship over recent issues such as the Tampa crisis as "Goebbels- like" in a reference to Adolf Hitler's propaganda chief.
   
• The military and State police have refined to control of information to an art form, with their trained 'spin doctors' keeping the media away from the people who have the answers. Only the official line gets out. The US happily confirmed basic details of our Diggers' arrival in Afghanistan, while our military were still denying it.
   
• The South Australian government has on the table a bill that seeks to criminalise media people accepting 'payola' to influence their comment - a lofty aim which media outlets almost unanimously support. The proposed bill, however, makes absurd assumptions about what is payola and what is not, and has serious implications for travel writers and book, restaurant and wine reviewers.
   
• The Federal Government only a matter of months ago sough to licence financial journalists in a move which would have been the forerunner, had the move succeeded, to control of the media by the granting or revoking of licences to write. Thankfully, the Government backed down after representations from all section of the media.
   

I could go on and on.

I can see only a continuing erosion of free speech in Australia unless politicians, judges and public servants take stock of our slide into secrecy and information protectionism. They acknowledge the media's role to communicate to and inform the public on matters of public interest only when it suits them.

There is a crying need for a legislative package that addresses these issues of excessive secrecy, often in the name of privacy; of judges closing courts and suppressing details of proceedings; and of debilitating defamation laws.

Governments must come up with legislation that really has the public (rather than their) interest at heart.

I would now like to turn to the activities of the Commonwealth Press Union.

During the year the CPU has supported submissions on some of the matters raised above and gladly acknowledges the backing and support of The Australian Press Council in championing a range of press freedom issues.

There are plenty of voices ranged against free speech and the role of the media, and not enough attempting to protect our most basic rights.

Warren Beeby

(Warren Beeby is Group Editorial Manager for News Limited, Sydney, and represents News Limited on the Australian Press Council. He is Chair of the Australian section of the Commonwealth Press Union.)

See also
2001 annual report Freedom of the Press section

Return to APC News 2002 Index

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