The Chairman's Column

The Council's Chairman, Professor David Flint, discusses several issues of relevance.

Instant Justice

I am often asked my view on something the press has just done. On the last two occasions such questions have arisen from photographs apparently intruding into people's privacy. Usually such pictures can only be justified on the grounds of some public interest in the newspaper's actions.

The Press Council can render "instant justice", but only when both parties are willing. In fact it does so regularly. Fewer then 25% of complaints come to the Council for adjudication. The rest are handled by the office. Nearly 40% of complaints are settled amicably via mediation or other means which satisfies the complainant. But the office cannot so deal with matters when there is likely to be a hearing. By its very nature this is an adversarial process. The Council has to hear both sides and then decide.

I cannot therefore give an opinion on whether or not the newspaper has been irresponsible. I haven't heard both sides, and it's the Council, acting as if it were a jury, not the Chairman alone, which decides. So while I'm willing to explain the process, and the principles, I cannot prejudge a complaint. As we don't restrict complaints about invasions of privacy to the apparent victim, as courts would, we are more likely to receive a complaint on a controversial issue. I leave it to the letter writers and the media commentators. To do otherwise would compromise the process, and be unfair to the parties.

The Courier-Mail and Manning Clark

The Press Council's adjudication on the complaint against The Courier-Mail is published in this issue, as well as our decision on the appeal by the newspaper. The Courier-Mail indicated it was continuing its investigations. On 8 February the newspaper announced the results of further research conducted on its behalf in Moscow. The Courier-Mail reported that Manning Clark was awarded the Lenin Jubilee Medal in June 1970 for "his active work in the Australian-USSR Friendship Society". The paper expanded:

Archive material reveals that, on June 22, 1970, the historian was awarded the medal by the Supreme Soviet Presidium under then chairman Nikolai Podgorny.

The Presidium's decision was made while Clark was in Moscow attending celebrations to mark the centenary of Lenin's birth.

The citation to the medal says it was awarded to Clark, who died in 1991, as 'an active worker' in the Australian-USSR Friendship Society.

Among his fellow recipients on the same day were senior Communist Party officials from Eastern Block countries and senior officials from North Vietnam.

Indian Press Council

Justice P W Sawant asked me to attend the 30th anniversary seminar of the Press Council of India last November. Justice Sawant is a greater supporter of the World Association of Press Councils. He was a superb judge when he was on the Supreme Court defending press liberty whenever he could. Under his chairmanship, the IPC is doing many interesting things. I decided to attend.

The Indian Press Council reviews about 800 complaints, one third from the press itself (mainly about governments or government bodies). It has a staff of 79, many of whom are involved in collecting levies. Three complaints officers manage most of the preliminary work on complaints. The Complaints Committee hearings are in public. I'm told they have no difficulties with this. The press attend, especially meetings outside of Delhi. The Council meets only four times a year.

The President of India, Dr Shanken Dayal Sharma, opened the seminar. He had been an editor in the colonial era, and saw the importance of a free press. He was opposed to suggestions to give the Press Council more teeth. He said: "Personally, I feel that freedom of the press is too cherished a principle to be tampered with in any way. I should like to recall Pandit Nehru's words in this connection 'I would rather have a complete free press with all the dangers involved in this wrong use of that freedom than a suppressed press or regulated press.' "

The conference sessions were lively, with good participation. One of the speakers told a story about the Press Council during the emergency. B G Vergheze, an editor, had complained to the Council about interference by the Chairman of the newspaper's board, K K Birla. The Press Council got hold of correspondence between Mrs Gandhi and Mr Birla about the editor. This was in the early days of the emergency. The Prime Minister then abolished the Press Council and seized the Council's records, including her letters to Mr Birla. All this gave the Council a tremendous boost and favourable publicity. Its restoration in 1978 was warmly welcomed by the Indian press.

The Delhi Press Club also invited me to speak and answer questions. By coincidence I had recently done some work on the way the Indians guarantee press freedom and freedom of speech for an ANU project on comparisons between Asian and Australian legal systems. (A book is to be published in 1997.) One of the questions was about giving the Press Council punitive powers. I suggested this could well be unconstitutional. The Indian courts fortunately have been great champions of free speech and a free press. This, I think, is important. As the Indian economy is liberalised, she could then be an alternative model for other Asian countries, and be proof that economic growth and democracy can co-exist.

High Court

The Press Council has sought leave to file an amicus curiae brief in the High Court in its consideration of the Levy and Lange cases. In both cases submissions will be filed seeking a review of Theophanous and Stephens. In those cases the court had allowed a new constitutional defence which flowed from the implied freedom of political communication. The Theophanous defence requires the defendant establish:

• it was unaware of the falsity of the material published;
• it did not publish recklessly, that is, not caring whether the material was true or false; and
• the publication was reasonable in the circumstances.

The draft submission was prepared in consultation with Professor H P Lee and discussed with two leading academic constitutional lawyers. It is reprinted as a supplement to this issue of the News.

As far as we can establish, the High Court has not previously accepted an amicus brief - a procedure that has credence in both Europe and the US. The Council is seeking to create a precent in this matter.

Newspapers

Ben Hills (in "The Golden Age - The Decline of Newspapers", Quadrant, January-February 1997) says that only 1 in 4 buy a daily newspaper in Sydney, and increasingly the readers are older people. A whole generation of youngsters exist out there who would not care or even notice if every newspaper in the country closed down tomorrow. The irony is that quality newspapers are better written, more varied, more comprehensive and much, much fairer than ever before. The "golden age" incidentally was when Think Big won the Melbourne Cup, and Sunday Mail deliveries ceased.

The Freedom Forum

Starting in the USA in 1935 as a newspaper foundation, the present day Freedom Forum is an non partisan, international foundation dedicated to a "free press, free speech and free spirit for all people". It has recently opened a "Newseum" in Washington DC where, among other things, it honours journalists killed in the line of duty. The Forum conducts international programs on media and freedom issues, as well as supporting journalism education and professional development. Its Pacific area activities are run from an office in Hong Kong, under its energetic director, John Schidlovsky. In mid-January I was a participant in the Freedom Forum seminar on the topic "News: Traditions and Transitions". There were two sessions, one in Sydney and another in Melbourne, with largely similar subjects and different speakers. The highlights were interviews with Brian Johns, Richard Walsh and PP McGuinness by CNN journalist Bernard Kalb. There were lively discussions, and in the case of PP McGuinness, delightfully provocative.

A good newspaper

A US survey published in the Journalism and Mass Communication Quarterly (Vol 73 No 2 Summer 1996) concludes readers and editors are in broad agreement about what makes up a good newspaper. They agree on the importance of many traditional standards - integrity, impartiality, editorial independence, strong local news coverage, accuracy and good writing. While editors rank visual appeal as essential (44.7%), only 18.8% of readers agree. Editors rank the importance of staff enterprise much higher and decency much lower. On the other hand, lack of sensationalism was ranked higher among readers than among editors.

NSW Defamation Bill 1996

The Bill gives full effect to the NSW Law Reform Commission 1996 report. The Commission took the US proposal for a voluntary declaratory remedy chosen by agreement between the parties and decided to impose it on all publishers. (The voluntary declaratory remedy was developed by Professor John Soloski, our first APC Fellow.)

But the Commission, I think, misunderstood Prof Soloski's proposal. And they have given an incentive to plaintiffs to seek declaratory relief. This is through the provision for indemnity costs, and the lack of a requirement that the plaintiff first try to amicably to settle with the newspaper. The "ambulance chasing" lawyer will have a field day! (This, I think, demonstrates the importance of Commission having some members with practical experience, and not all lawyers. Policy should not be left to the lawyers.)

The incentive for publishers was supposed to be that the plaintiff who gets a declaration can only sue subsequently for what can be demonstrated to be real economic loss. On this the Bill is flawed. There is nothing to stop a plaintiff gaining a declaration in NSW and then suing a publication in another jurisdiction in which it sells, not matter how few copies that may involve.

In the Council's submission, a new suggestion is that the Theophanous defence be included in the Bill. The NSW Attorney General Jeff Shaw, to his credit, is intervening in the Levy and Lange cases and arguing for the retention of the Theophanous defence.

Professor David Flint

see also
Index of David Flint's articles

Return to APC News 1997 Index

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