News in brief - February 2008

News by email
Prize
On the Council
New Zealand meeting
Privacy Laws
Naming and shaming
Freedom of information
Crime and Corruption Commission
Commissioner Keelty speaks out
Expulsion of publisher condemned
Generic images
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 2007-2008. 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 is seeking nominations from the Sydney area fill a Public Member vacancy. See the ad elsewhere.

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New Zealand meeting

The Council is holding its March meetings in Wellington, New Zealand. This will enable it to have extensive meetings with the New Zealand Press Council, which has recently been the subject of an external Review. The recommendations from the review, if adopted, would see the NZ Council being more like the Australian Press Council, with a greater emphasis on mediation, the introduction of hearings for complaints and a more active role in the promotion of press freedom issues. (The Australian Press Council has looked closely at the report of the external reviewers, who consulted extensively with both it and with the UK Press Complaints Commission before arriving at their conclusions, and has agreed that items from the review should be listed for discussion at the 2008 Planning Day.)

In addition to the formal meetings with the NZ PC, the visit to Wellington will include a Public Meeting, "The Press and the Right to Know", with Professor John Burrows (NZ Law Reform Commission) as the keynote speaker and reports on the NZ and Australian situations from the Chairs of the respective Councils, Judge Barry Paterson and Professor Ken McKinnon.

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Privacy Laws

The Council has responded to the Australian Law Reform Commission's Discussion Paper 72, Review of Australian Privacy Law. The Executive Summary of the submission read:

The Australian Press Council urges the Australian Law Reform Commission to recommend the introduction of a statutory protection for freedom of speech in order to ensure that increases in privacy protection do not erode freedom of speech in Australia.

The Press Council regards a statutory cause of action for breach of privacy as unnecessary and, in the absence of a guarantee of free speech, a potential threat to the freedom of the press to report, and comment, on matters of public interest and concern. If, despite the undesirability of so doing, a recommendation for introducing a statutory cause of action is included in the final ALRC report the Press Council urges explicit recognition that the proposed scope of the cause of action be precise and limited, and that the proposed defences appropriately expanded. The discussion paper proposed undesirable scope for judicial activism and personal opinion.

The Press Council emphasises the importance of the media exemption in the Privacy Act in ensuring the freedom of the Australian media to perform their role of keeping the public informed on matters of public interest and concern. For this reason, there should be no narrowing of the exemption. Additionally, the Press Council argues that a definition of journalism in the Act is unnecessary and the definition proposed is so narrow as to exclude a good deal of modern journalistic activity.

A major section of the submission deals with the commission's attempts to define "journalism" within the Act. The commission notes in its paper that the Act should continue to exempt from its remit media organisations that publicly subscribe to a set of privacy standards when acting in the course of journalism. It then seeks severely to curtail that exemption by trying to define 'journalism' to fit its own preconceptions of what journalism is, or should be.

In its comments on the commission's Issue Paper 31, the Council expressed a concern with the commission's Advisory Committee on its Review of Privacy Law:

The Council notes that the committee includes people with a wide experience in matters related to privacy and the administration of public and private enterprises but notes that there is no-one on the committee whose current expertise is in the area of the media or in the administration of complaints about the behaviour of the press. ...

The absence of anyone with current expertise in the media is reflected in the rather convoluted way in which the commission has set about trying to exclude from the media exemption those aspects of journalism that it does not like. Journalism is not all serious and constructive. Journalism has always included aspects that are essentially entertainment, whether through editorial cartoons, feature articles, personality profiles or opinion columns. As just one example, the commission might like to acquaint itself with H L Mencken's reporting from Dayton, Tennessee, for the Baltimore Sun, of the Scopes' evolution trial. The reports are purely 'infotainment', and are ranked amongst the best journalism in the twentieth century. The commission's definition of journalism would probably exclude Mencken's series of articles from the category of journalism.

Entertainment has been an important element in journalism since the time that pamphleteers like Defoe helped develop the modern form of the profession. It is something more than just the straight reporting of, and commentary on, matters of economics, politics and social developments. Sports, travel, food and leisure, film, music and books, and popular culture are all as worthy of coverage, in the public interest. Article 19 of the ICCPR makes no distinction about the matters covered by the freedom of communication. Former Attorney-General Daryl Williams, in his second reading speech, said: "The media in Australia have a unique and important role in keeping the Australian public informed." He didn't attempt to limit the information that should be involved.

Australia has a very vibrant magazine culture (and that includes magazine-style broadcast programs like Getaway). The journalism employed in many magazines might not conform to the view of what journalism should be, as expounded by the commission, but to seek to exclude such material from the media exemption is to seek to impose a very limited view of the role of the media in Australia. That role is already circumscribed by the absence of a protection for freedom of communication, and by a myriad of state and federal laws in the area of privacy. The commission's definition of journalism would probably exclude elements of the magazine culture from the category of journalism.

Another vibrant sector in contemporary journalism is the on-line sector. Most traditional publishers and broadcasters have supplemented their mastheads and programs with material posted to their websites. Much of this information is in the form of news and commentary on it, but there are also new forms of journalism emerging. The rise of the web log (blog), initially a personal diary of events, on which readers could comment, is one such development. Blogs are now much more than that, becoming a mixture of news and commentary on the world from a personal perspective. Many established publications now include extensive blog sections within their masthead's news websites. The development of blogs is one of the most exciting in journalism. The definition for journalism proposed by the commission risks excluding blogs

The Council's Privacy Standards for the Print Media have covered the websites of its publisher members since their introduction. In September 2007, the first purely on-line publisher, 9MSN, publicly subscribed to the Council's Privacy Standards for the Print Media. The Council sees this as a recognition that, although it is a new area of journalism, the same standards for media responsibility exist on the Internet as exists in the print editions.

There is no evidence in the Issues Paper that the Act suffers from a lack of specific definition of 'journalism', given that the term 'media organisation' is defined and there is a requirement for public commitment to a set of standards. The effect of the absence of a definition has not been tested in a court, and the commission cannot judge how a court would interpret the meaning of "in the course of journalism" should it have to do so.

In the Council's view, there are good reasons why, as the commission notes, "'journalism' is not defined in other federal, state or territory legislation, privacy legislation in comparable jurisdictions or Australian case law". The nature of 'journalism' is constantly changing as it adapts to technical innovations and the omission of a specific definition of the term removes the need for a constant revision of the definition. The Council draws the commission's attention to its publication, The State of the News Print Media in Australia 2006, and to its 2007 Supplement, both of which discuss in detail many of the on-going changes in journalism of which the commission may not be aware.

The definition proposed by the commission for 'journalism' uses largely the same terms as the Act uses to describe the nature of a 'media organisation' and is thus circular with that definition. As such it tends not to clarify in any way the main concerns that the commission might have about how the development of the new media, particularly through the Internet, might impact on the privacy of individuals. While the change would not seem to affect adversely the news media that are affiliated with the Press Council, namely publicly available, commercial periodicals, its danger is that it unnecessarily limits the media exemption.

For more information on privacy on this website: Privacy index page.

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Naming and shaming

In December 2007, the Council has made a submission to the NSW Legislative Council Standing Committee Law and Justice Inquiry into the prohibition on the publication of names of children involved in criminal proceedings. The Executive Summary of the submission read:

The Australian Press Council is of the view that legislation that prohibits the publication of the names of minors involved in criminal proceedings should be revised. The revised legislation should distinguish between children, being minors under the age of sixteen, and young adults, being aged between sixteen and eighteen years of age. Where the relevant individual is sixteen or over, there should be a presumption in favour of publication. In such instances the party seeking orders prohibiting publication would bear the onus of persuading the court that suppression would be in the public interest. Where the relevant individual is fifteen or under, there should be a presumption in favour of confidentiality, whereby the party seeking publication or disclosure should bear the onus of establishing the public interest in doing so. The Press Council's submission is that there should be a presumption in favour of naming people over the age of 16 who have been convicted of offences, and that restrictions on naming children as witnesses can be removed in some circumstances.

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

The Council's Executive Secretary, Jack Herman, appeared before the committee at a public hearing in late February to discuss the Council's submission.

For more information on courts and contempt on this website: Courts index page.

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Freedom of information

In January 2008, the Council sent a submission to the Northern Territory Department of Justice, on its five-year review of the Information Act 2002. In the submission the Council noted that the media's attitude towards the Act after its first five years of operation is mixed: while the introduction of the legislation is seen as having been a positive step, there is a strong view that the access to government information is not as open as it should be and that reform is necessary if the Act is to fulfil its aim of making information available to the public and thereby promoting efficient and accountable government.

The primary concern expressed by news editors in relation to the operation of the Information Act is the process by which access to information is administered. Editors have emphasised that the period between the time when an application is lodged and when information is received is far too long. A further criticism which is often made by editors is that the fees charged for access to information are frequently prohibitive. When taken together, these two problems are usually sufficient to dissuade many media organisations from submitting FoI applications.

While the appointment of an Information Commissioner was applauded, the Council noted that the commissioner's published statistics do not distinguish between applications of a personal nature and those concerned with government accountability. In order to assess the degree to which FoI is effective in facilitating public scrutiny of government, it is important that statistics on applications be broken down according to the nature of the information sought and the category of the applicant. Such numbers would help ascertain the effectiveness of the Act.

In addition to the problems with the procedure for applying for access to information, the Council expressed a number of concerns with the Information Act itself. In particular, the Council is of the view that the exemptions are too broad and need to be narrowed. This includes the section that gives the government the ability to refuse access to documents which have been considered by an executive body or which have been created for that purpose or the purpose of briefing Ministers in relation to matters to be considered by an executive body. When contemplating why this material should be kept secret, it is difficult to avoid the conclusion that it is primarily to avoid embarrassment to Ministers or officials. Such embarrassment is not a persuasive reason, of itself, to justify secrecy.

A further section of the Act provides broad scope to withhold material from public scrutiny on the grounds that such material was brought into existence for the purpose of "deliberative processes". In the view of the Press Council, if a government is provided with advice or recommendations and chooses not to follow that advice, it is a legitimate expectation on the part of the public that it is entitled to see that advice and ask why the government chose to disregard it. In most instances a refusal to recognise the legitimacy of that entitlement amounts to a rejection of the principle of accountability in government. In particular, the subsections that refer to "mischievous interpretation of information", and "confusion and unnecessary debate" refect an attitude that is contemptuous of the public and of democracy.

The Council argued that, by default, all information should be available under FoI. Where officials seek to withhold information on the premise that it is part of a deliberative process, the onus should be on the officials to demonstrate why the information should not be released. The legislation should list narrowly and specifically the instances when the default rule should not apply. Such instances might include:

• that the information or advice was superseded by later, more accurate or detailed information or advice;
   
• that the advice was generated at a very early stage in the process, prior to the formulation of recommendations for Cabinet consideration;
   
• that the advice has been found to be unreliable or inaccurate;
   
• that the advice, if released, would present a risk to public safety or security.

To ensure that such discretionary decisions are made in the spirit of accountable government, the Council proposed that a clause be inserted into the legislation that makes it an offence to withhold a document in order to conceal incompetence, corruption, an untruth or a conflict of interest.

The Council also objected, in principle, to the use of conclusive certificates as a mechanism to by-pass processes for the review of decisions to refuse access to government information. It expressed the view that the availability of mechanism of conclusive certificates is antithetical to the principle of accountability in government and recommended that the relevant sections of the Act be repealed.

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

see also
Council's position on FoI generally; and
High Court amicus brief on FoI

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Crime and Corruption Commission

The Council has discussed the activities the WA Crime and Corruption Commission, which has been conducting secret hearings in which journalists are being interrogated with the aim of identifying the sources of leaks. It was noted that journalists subject to these hearings are threatened with prosecution and hefty fines if they disclose to anybody (including their employer) the fact of their interrogation. As a result of these discussions it was agreed that an opinion piece should be submitted over the name of the Chairman for publication in The West Australian. That article was published on 15 December 2007, under the headline, CCC must end Star Chamber tactics.

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Commissioner Keelty speaks out

A speech given by Federal Police Commissioner, Mick Keelty, to the Sydney Institute argued there should be a blackout on reporting of trials involving terrorism suspects "until the full gamut of judicial processes has been exhausted". In part, his argument was based on a misinterpretation of the current state of the law on reporting trials in the UK, as he argued that there was a ban on such reporting. The Council again asked its Chairman to write an op/ed piece commenting on Commissioner Keelty's views with respect to the role of the media in reporting courts in terrorism matters. This article was published in the Weekend Australian of 2-3 February under the headline, No Need to Muzzle Media.

Professor McKinnon said in part:

Our freedoms must not be destroyed in the name of defending freedom. We have open courts so that citizens may be assured by attendance or media reports that their freedoms are being preserved. Only in the most extreme circumstances should courts be closed. The public interest is the standard by which matters investigated and reported by the media should be judged. Delaying the reporting of terrorism trials as a matter of course would be entirely against the public interest.

The ... Commissioner's assertion that in the UK a media blackout on the reporting of such proceedings from the time a person is charged with the crime until "after the case is disposed of, abandoned, discontinued or withdrawn" would surprise the judicial officers, lawyers, defendants and press who were present at the trial of those accused of the bombings in London on 21 July 2005.

The trial was widely covered in the media and the daily reporting of the trial from a summary of week one posted on Friday 19 January 2007 through the verdict on 9 July 2007 can still be accessed on the BBC website.

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Expulsion of publisher condemned

On 29 February 2008 the Council issued a press release urging the interim government of Fiji to refrain from further damaging press freedom in Fiji. The Council condemned the expulsion of newspaper publisher Russell Hunter by the interim government and called on the government to reverse this decision. In doing so, it joined the Fiji Media Council, Reporters without Borders, Pacific Islands News Association, International Press Institute, PNG Media Council and many others in denouncing the government's actions.

In the Council's view, the deportation of Mr Hunter and his family from Fiji amounted to a disgraceful attempt to intimidate the media and bully anyone who criticises the government, or holds it accountable for its conduct.

Apart from being an appalling attack on freedom of speech, the deportation of Mr Hunter will achieve no political advantage for the Fijian government, as Mr Hunter has stated his intention to continue writing and publishing for The Fiji Sun from Australia.

This is not the first time that the interim government has penalised the media for its critical stance. If it is to develop a stable democracy in Fiji, with a press free to report on matters of public interest and concern, the government must permit Mr Hunter and his family to return immediately.

For more information on courts and contempt on this website: Courts and contempt index page.

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Generic images

When generic or library photos of groups of children are used to illustrate news stories, do they carry with them implications that the children in the image have been subject to the events in the story they illustrate? In the November 2007 issue of the News, it was noted that the Council had asked the secretariat to draw up an issues paper on questions related to images of children in newspapers. The paper discussed whether the Press Council needed to issue a separate guideline on the use of generic images of children. At its December meeting, the Council agreed that no new guideline was necessary and that instead the Council needed only to remind publishers of their responsibilities under existing guidelines.

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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, an independent 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.

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