News in brief - February 2006

News by email

Press Council publications are now 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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Australian Press Council Prize

There will be no Essay Prize in 2006. As in 2005, 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.

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

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Annual address

The Council's 2006 Annual Address is to be held in Sydney on 23 March 2006. Australian Federal Police Commissioner Mick Keelty is to deliver the address at a lunch at the Swissotel, Market Street, Sydney, from 12.30. Commissioner Keelty's speech, Between the lines: New powers and accountability for police and the media, will address some of the contemporary issues for the police and for the press arising from recent anti-terrorism laws and other other recent developments.

The lunch will cost $80/head, which includes a two-course luncheon and beer, wine or soft drinks, (or $600 for a table of 8). There will be time for questions and discussion. The public is welcome.

A full-page ad for the Address was published elsewhere of this issue.

For more information on the Annual Address, its history and earlier talks
go to the Annual Address overview.

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On the Council

In December, David Elias, who had represented The Age on the Council, agreed to accept a redundancy from the newspaper. As a result he retired from the Council. Mark Baker, the Opinion Editor of The Age, was appointed as his successor. Mark had previously represented The Age on the Council from March 2000 to February 2001. He left the Council to take up a position in an Asian bureau and has since returned to Melbourne to take up his current role. During a newspaper career spanning nearly three decades, Mark has spent more than 10 years as a foreign correspondent with postings in Papua New Guinea, China, Hong Kong and Thailand. During the early 1980s, he also served as Beijing correspondent for The Financial Times, London and later was Asia Correspondent for the News Limited group. His appointments at The Age have included a stint as Deputy Editor. Russell Skelton will continue to serve as his alternate.

In February, Community Newspapers of Australia appointed Bob Osburn, the editor in chief of Cumberland Newspapers, publishers of suburban newspapers in Sydney, as its representative for the next three years. Gene Swinstead, formerly manager of the Leader Newspapers in Melbourne, who had represented the association for the past three years, will act as Bob's alternate.

At the same meeting, the Council reappointed Gary Evans to a further term as an editor member and Wendy Mead, a public member from Brisbane, to a third term on the panel of public members. Earlier, the Council accepted the resignation of another public member, Leo White from Brisbane. The Council has not made an appointment to the panel of public members, which remains at nine for the time being. It also noted that long-time editor member John Morgan would retire in May 2006. Originally an industry representative from 1980 to 1988, John Morgan was appointed an editor member, on his retirement, in April 1988. An interview with John Morgan was published in the November 1998 APC News.

Also in February, arising out of a Planning Day decision, the Council determined to change the way in which independent journalist members were treated in the Constitution. Instead of having two members, with two alternates, the Council has decided to have a panel of up to four journalist members, two of whom will attend each meeting, in rotation. This means that the independent journalist members will be treated in the same way as editor members and public members. The Council also decided to appoint the current members and alternates, Bruce Baskett, Helen Elliott, Adrian McGregor and Sandy Symons, as the panel of journalist members.

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Principles and procedures

Also arising from a Planning Day discussion, the Council has amended its Principle 5. The principle previously read:

A publication is justified in strongly advocating its own views on controversial topics provided that it treats its readers fairly by

• making fact and opinion clearly distinguishable;
• not misrepresenting or suppressing relevant facts;
• not distorting the facts in text, headlines, pictures, billboards or posters;
• disclosing any commercial or other interest which might be construed influencing the publication's presentation of news or opinion.

The amended version, now adopted by the Council, which will be the principle to be applied in the future, reads:

Publications are free to advocate their own views and publish the views of others on controversial topics, as long as readers are readily able to recognise what is fact and what is opinion. Relevant facts should not be misrepresented or suppressed, headlines and captions should fairly reflect the tenor of an article and readers should be advised of any manipulation of images and potential conflicts of interest.

The complete Statement of Principles can be found elsewhere on the Council's website.

Among other decisions made by the Council on issues arising from Planning Day, it has agreed to alter the time limit on complaints to 60 days from first publication and to amend its complaints form. From its inception the Council has had a three-month limit (which it waives in exceptional cases) within which complaints need to be lodged with the Council. Given its greater emphasis on the settlement of complaints, and taking the view that the sooner matters are amicably mediated, the better it is for complainants, the Council is of the view that this limit can, in normal circumstances, be reduced to 60 days. It will also press publications for more timely responses to complaints, noting that its time limit on responses from either party is now two weeks, unless an extension is agreed to.

A couple of major changes have been made in the complaint form. First, the introductory paragraphs have been extended to clarify what complaints can be received and to note the existence of a guide to completing the form. This guide will answer many frequently asked questions about how to lodge a complaint and what material to enclose with it. Secondly, the form has been re-ordered to put emphasis on the fact that the Council wants the complainant to outline the main thrust of the complaint in 400 words or fewer. The form is a formality that enables the Council (and the publications cited) better to understand the complaint and what redress the complainant is seeking. The Council's objective is to get the complainant to more concisely summarise what it is that has led to the complaint.

With the changes made by Council to the Principles and procedures it will need to reprint its information booklet. The current edition (Booklet No. 8) will remain in use until that reprint, but the new Principles and procedures (including the new time limit on complaints) will be posted to the Council's website in early March and take effect from that time.

For more information on the Council's complaints facility,
go to the Complaints overview.

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Defamation

In 2001 the Australian Press Council initiated action to reform defamation law, particularly aimed at the development of a national uniform law. At the time that the Council took up the matter, the issue had been removed from the agenda of the Standing Committee of Attorneys-General. This initiative first led to the changes to NSW defamation law and, with the assistance of the then federal AG, Daryl Williams, the issue was put back on the SCAG agenda.

The NSW Attorney-General persuaded his fellow AGs to develop a draft uniform act. This was helped along by the actions of Daryl Williams' successor, Phillip Ruddock, who drafted a putative national law, which would replace the state laws if they could not reach agreement on uniformity. With input from interested parties, including the Press Council and representatives of the major publishers and broadcasters, both the state and federal proposals were developed further. There was general agreement that the SCAG draft was preferable, and the final draft was sent to the states and territories to be passed into legislation.

By December 2005 the task was virtually complete. All six states had reformed their laws on the basis of the model provisions and the two territories will complete passage of their bills shortly. The reformed laws may not yet be perfect, even though they have been considerably improved in a number of areas: an emphasis on speedy resolution through offers of amends; reliance on a single cause of action arising from the natural meaning of the material, rather than on a series of imputations read into them; limits on the ability of corporations to sue; a defence of truth alone; some clarification of the 'reasonableness' defence; and limits on damages.

The Council has prepared for editors an easy-to-read guide to the changes in the law to enable them to become familiar with the new legal environment. This guide was published on page one of this issue of the News.

The Council is very pleased to have been able to see its initiative through to such a successful conclusion.

For more information on material on the site dealing with defamation,
go to the Defamation index page.

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Defamation seminar

The Press Council is a sponsor for the forthcoming LexisNexis Defamation Conference. The conference will discuss changes to defamation law resulting from the commencement of the new uniform legislation. Other issues to be discussed at the conference include recent cases, the relationship between defamation and the Internet, and the developing tort of privacy. The conference will be held on 5 April (in Sydney) and on 11 April (in Melbourne). A flyer on the conference is available from the Council or from www.lexisnexis.com.au.

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Protection of sources

In the November 2005 issue, there was a report on the possibility that Melbourne journalists, Michael Harvey and Gerard McManus, were to be cited for contempt for their refusal to reveal the source/s for an article based on material leaked from the Department of Veterans Affairs for the unauthorised communication of a document. They had been called to testify at the preliminary stage of the trial of a public official. On 31 January the Victorian County Court convicted the public servant, Desmond Kelly. The allegation was that Kelly leaked to the media information, embarrassing to the then Veterans Affairs Minister, which detailed that a proposed benefit was less than had been promised, or had been recommended by a review. In spite of the fact that they were not ultimately called to give evidence at Kelly's trial, the two journalists are still subject to a contempt charge for refusing to disclose the identity of their source. The decision to charge McManus and Harvey is being appealed.

For more information on material on the website relating to protection of sources, go to the Sources index page.

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Suppression

As noted in the August 2005 News, the Press Council is pressing the federal, state and territory courts to develop a uniform system for recording active suppression orders and for making them available to the media. The current ad hoc system, which differs from jurisdiction to jurisdiction, means that the press occasionally, usually inadvertently, breaches such an order because of ignorance of its existence. This problem is exacerbated by the fact that most publications and broadcasters cross state boundaries in their publication, and are unaware that an order has been issued in another state. The Council notes that some good systems exist, particularly in Victoria, where advice on extant suppression orders are sent regularly to subscribing media. In the interests of reducing the risk of interference in the administration of justice, it has proposed a model based in part on the Victorian system, but with greater use of secure sections of courts' websites. This has merit, particularly if it offers out-of-hours access for any media person wanting to check a database of orders.

The Press Council's recommendations for all courts in all jurisdictions include:

• establishing 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.
   
• establishing a uniform method of reporting court orders.
   
• establishing uniform methods of reporting court judgments.

In response to the Council's proposals, Justice Murray Gleeson has indicated that the Council's proposal on a uniform reporting system will be discussed at the next meeting of federal, state and territory Chief Justices.

The Council has also discussed the proposal with representatives of the print and electronic media and they have indicated that they are prepared to discuss with the courts ways of defraying any costs through the sharing of expenses in the establishment of a uniform and comprehensive reporting system. For example, in Victoria, the media funded the provision of a fax machine for the Courts Media Liaison Officer's use in notifying them of suppression orders. It is likely that the media would be willing to contribute to facilities that help reduce the risk of infringing upon court orders.

For more information on material on the website on the courts,
go to the Courts index page.

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Freedom of Information

In earlier issues of the News, there have been reports on the attempts by The Australian's FoI editor Michael McKinnon to obtain under Freedom of Information laws (FoI) Treasury documents related to the impact of bracket creep on income tax and on possible rorting of the first home-owners scheme. After Treasurer Costello issued conclusive certificates barring access for McKinnon, he appealed to the AAT and thence to the Federal Court, which found, by majority, for the Treasurer. In February, News Limited won leave to appeal the Federal Court's decision in the High Court. The matter is likely to be heard in August and the Press Council has decided to seek leave to lodge an amicus curiae brief in support of McKinnon. The Council has only once previously lodged such a brief, in the Levy and Lange cases in 1995, but regards the McKinnon case as so important to the viability of FoI in Australia that it will seek to intervene. The Council's Vice Chairman, Professor HP Lee, will convene a committee of experts in FoI and constitutional law to develop the brief.

See also:
2004 speech on the need to change FoI law and practice.

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Uniform Evidence Acts

In the August 2005 News, there was a report on a submission made to the Australian Law Reform Commission (ALRC) on proposals for national uniform Evidence Acts. The Council's submission concentrated on the question of professional privilege for journalists, arguing for a default situation that recognised a presumption in favour of granting a privilege to protect confidential sources. It cited a clause in a proposed New Zealand Evidence Bill as a model for Australian legislation. The ALRC has now released its report, and recommendations, for uniform Acts. On the question of professional privilege, it has recommended the adoption of the NSW model for assessing whether journalists' sources should be protected. This section offers more protection for journalists than its Victorian equivalent (under which journalists McManus and Harvey may be liable to prosecution if their appeal fails, see Protection of Sources above) but not as much as the New Zealand model would offer. The Victorian Attorney-General has undertaken to enact the commission's recommendations in this area. The Council's view remains that the more robust New Zealand proposals would be preferable. It has decided to develop further submissions on the need for legislation that had a more definitive privilege as its default position and send them to the state Attorneys-General.

For more information on material on the website relating to protection of sources, go to the Sources index page.

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Anti-terrorism legislation

In November the News reported on the Council's submission to the Senate Committee looking at the Anti-Terrorism Bill (No. 2) 2005. The Council has noted the changes made to the legislation following the Senate Committee's report. In particular it noted that the impact on the press would be lessened by the necessity to demonstrate that force or violence was an element in any 'unlawful association for seditious intention' and by the introduction of a public interest element in the defence on sedition. However, it was also noted that the provisions restricting publication of material related to detentions remained.

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ASIO Act

The Council, in 2005, made a submission to the Joint Committee reviewing the Australian Security and Intelligence Organisation Act. The Act had been legislated with a three-year sunset clause due to expire in 2006. The Council noted in February 2006 that, as a result of the Joint Committee's report, the relevant section of the Act was to be extended for a further five years and only minimal changes had been made to the provisions covering the reporting of matters.

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Port Arthur anniversary

The Council is sponsoring some of the activities organised by the DART Centre for Journalism and Trauma this year in anticipation of the tenth anniversary of the Port Arthur massacre. The Council sponsorship will enable the visit to Australia of the managing editor of The Oklahoman, Joe Hight, who was closely involved in the initial award-winning coverage of the Oklahoma bombing as well as its recent tenth anniversary. He is president of the US chapter of DART. The activities will include a public forum in Hobart on 17 March, as well as meetings with Joe Hight at various newspaper offices and with the Press Council. There will also be public meetings in Sydney and Brisbane organised by local university journalism departments. More details on the visit and on DART's objectives can be found in an article elsewhere in this issue.

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Council consultations

The Journalism Education Association invited the Council's Executive Secretary to participate in two 'industry forums' on the last day of its 2005 conference on the Gold Coast. The forums dealt with, respectively, reporting difficult issues and industry futures. On the former Jack Herman referred to the Council's concerns with both freedom and responsibility and to the guideline statements; in the case of the latter, he spoke about how journalism would need to remain an ethics-based profession, and against any kind of licensing or accreditation scheme.

In other recent activities, Mr Herman also

• participated in a public meeting on the anti-terrorism legislation organised by the NSW Writers' Centre, as well as conducting interviews with the Glebe and Inner Western Weekly and 2SER on the issues arising from the meeting;
   
• spoke at a forum between medicos and the press on reporting of medical breakthroughs at Newcastle Uni on 28 October, organised largely by staff at the website, mediadoctor.org.au, where discussion centred on the issuing of prescriptive guidelines on reporting such matters, and a decision was made that such guidelines were not required at this time;
   
• attended the launch of the NSW Law Journal forum edition on freedom of speech, in which he has written an article on the main impediments to freedom of the press in Australia;
   
• met with eighteen students from Pacific Lutheran University of Tacoma, Washington, who visited the Council on 19 January. The students were in Australia as a part of the international component of their tertiary journalism studies.

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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 occasion, a Public Member of the Council (or a member of the secretariat) will convene a face-to-face conciliation, by agreement with the parties. Below are some examples of the matters recently settled in these ways.

• A metropolitan newspaper failed to verify an entry in a complainant's name that had been placed on its online forum. The publisher removed the relevant material from the site immediately upon receipt of the complaint.
   
• An article about the complainant's search for her lost dog was published by a women's magazine. The article was inaccurate in part. The parties negotiated a letter to the editor, which was duly published. The complainant accepted this as a resolution of her complaint.
   
• An metropolitan newspaper characterised the stance of an MP on the release of life-sentence prisoners in a way that the MP thought misrepresented him. The Council's office was able to organise a face-to-face conciliation between the MP and the newspaper, the result of which was a further article, some months later, in which the MP was able to clarify his stance. The complainant regarded this as an excellent settlement of his concerns.
   
• A candidate for local government complained that a regional daily newspaper had misrepresented him in the lead-up to an election. In a face-to-face conciliation, overseen by a Public Member of the Council, the newspaper offered to interview the complainant for a prfile to be published in the paper. This offier appears to have satisfied the complainant.

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