News in brief - May 2004

APC Prize 2004
On the Council
The Chairman's activities
Uniform defamation
Meetings
Privacy and surveillance devices policies
FoI legislation
The Electoral Roll
Contempt by Publication
Classified Information
Elections
In the office
mediated complaints.

2004 APC Prize

The Australian Press Council has announced the terms of entry for its 2004 award. The Prize is awarded for the best essay submitted on a set topic.

In 2004 the topic is:

Responsible Reporting - balancing the Public Right to Know and the National Interest
The press in any modern democracy has broad freedoms to access and publish information as part of its duty to inform the public on matters of public interest. Is the people's right to know inalienable, or is it acceptable that a government restrict publication of information that might be deemed not to be in the national interest in an effort to combat terrorism, or for other reasons? Is an unrestricted press an asset in such times? Discuss with particular reference to the contemporary Australian situation.

Following the remarks made by the judges for the 1998-99 Prize and a decision taken by the Council, entries are invited from Tertiary students (as at 30 June 2004) only. This year, there will be no Prize offered in a secondary schools' section. The word limit for essays is 2,500 words.

Winners will be selected by a panel of three judges and prizes of up to $2,000 will be awarded.

The final date for receipt of submissions is 30 June 2004.

At the request of the previous judges, the Council specifies that it would prefer entries that demonstrate some effort to research the topic and argue it seriously. It also requests that entries be typescript and double-spaced. No formal entry form is required.

The Australian Press Council reserves the right not to award a prize/s.

INQUIRIES:
The Executive Secretary
The Australian Press Council
Suite 10.02, 117 York Street
SYDNEY NSW 2000

Tel: (02) 9261 1930 or (1800) 02 5712
Fax: (02) 9267 6826

email: info@presscouncil.org.au

For the guidance of entrants, the Council has posted on its website some comments from the judges of the 1994 Prize and of the 1998 Prize, which were of the same format but with a different essay topic. A different approach can be seen in the judges' comments on the 2000, 2001 2002 and 2003 Prizes also posted to the website.

see also
Prize overiew.

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On the Council

The Council has appointed John Fleetwood as new SA Public Member. John, 46, is Director of the Association of Professional Engineers, Scientists and Managers, Australia (South Australian branch). Previously he was an industrial team leader for the Australian Services Union. Married with two children, John Fleetwood is an avid reader and student of the press, saying that he is both an admirer and a critic of the print media. He was appointed to the panel of Public Members in April 2004, after a process that involved the public advertising in the South Australian press of the vacancy and a series of interviews with potential candidates. He replaces Lange Powell, the long-serving South Australian member who retired at the March meeting, as noted last issue.

After three terms as a Public Member from Tasmania, Caroline Gale retires from the Council at the end of the June meeting. After training as a nurse and midwife, Caroline subsequently took a Bachelor of Arts, with Honours in Philosophy, and a Diploma of Education. In a varied career, she lectured in bioethics and worked as a Project Research Officer for Tasmanian Rural Health Training Unit in Launceston.

The Council has placed ads in the Tasmanian daily newspapers seeking nominations for her replacement. The Council has extended the nomination period until Friday 4 June. Interviews will then be held in Hobart in late June and the new member will take up the position in July.

Lloyd Whish-Wilson, who has represented regional daily newspapers on the Council since November 1991, is retiring at the end of the June meeting. Currently, general manager of The Canberra Times, Lloyd worked as a journalist with ABC, The Australian, and in public affairs with Comalco Limited before joining The Examiner, Launceston, in 1968 as Chief-of-Staff. In 1981 he became Editorial Manager, and in 1985 was made General Operations Manager. He was named Chief Executive in 1990 and was subsequently Deputy General Manager of Rural Press, Regional Division.

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Chairman

The Council's Chairman, Professor Ken McKinnon has recently joined the judges of the Queensland Supreme Court at an informal lunch where they discussed matters of mutual interest to the judges and the Press Council. He referred to the Judges' high level of interest in and knowledge of the Press Council. Professor McKinnon also travelled to Fiji to launch the Fiji Media Council's Charter of Press Freedom on World Press Freedom Day in early May. A brief report on this visit is in this issue.

In May, Professor McKinnon is convening a research round-table to bring together tertiary researchers into matters of relevance to the Council. The round-table will first look at what current research is occurring into matters related to the freedom and the responsibility of the press and will then discuss possible areas of research which are not as yet being covered. The Council hopes to bring existing research to the attention of publishers, the use the research in its own activities and to encourage research into more interesting and productive areas.

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Uniform defamation

The Chairman and the Executive Secretary, Jack Herman, met with federal Attorney-General Philip Ruddock in a discussion dealing mostly with defamation. Professor McKinnon and Mr Herman also attended a subsequent briefing in early March by Mr Ruddock on his defamation proposals. Additionally, the Executive Secretary and Council's Policy Officer, Inez Ryan, met with the officers' working party preparing the states and territories' plans for uniform legislation and Ms Ryan had a meeting with the federal Attorney-General's officer working on the defamation draft.

The Council has been developing detailed responses to a number of proposals emanating from both the state and federal level and is working with both parties on their respective drafts, forwarding general comments on the direction in which the Council hopes any legislation will go. A version of this response was the basis for an article by Professor McKinnon on the federal proposals published in the Media section of The Australian in late March. The federal Attorney has said that he will introduce over-riding federal legislation is the states and territories cannot meet his deadline on uniformity. The states' working party appears to be working on proposals based on the current ACT law and Ms Ryan continues to liaise with them in this work.

The Council has advised the federal Attorney that it will not make detailed submissions on his outline of reform but will await the exposure draft of any proposed federal defamation law before forwarding its detailed response.

see also
the index of material on defamation on this site.

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Meetings

In addition to meeting with the Federal Attorney-General and others with regard to defamation reform, members of the Council have met with an array of people over the last few months. The Chairman, Executive Secretary, and industry members Alan Deans and Warren Beeby met with Nicola Roxon, the Shadow Attorney-General, who spoke mainly about Freedom of Information and the ALP's plans to liberalise the law.

The Chairman and Mr Herman met Communications Minister Daryl Williams when the Council met in Canberra. Minister Williams spoke about matters related to his portfolio as they affect the Council, especially the re-introduction of the cross-media ownership bill into the current session of Parliament. The Chairman briefed the Minister on the Council's role, its media ownership policy and its belief that, with regard to the proposed cross-media legislation, the Australian Broadcasting Authority should be kept out of editorial decisions and that it might be better if the ACCC were to deal with cross-media questions as it does with other proposed mergers, as long as it regarded the news media as a single industry. The Chairman also met with Shadow Communications Minister Lindsay Tanner during the Council's visit to Canberra and kept him up-to-date with the Council's views on the proposed legislation.

The Chairman, the Executive Secretary and Ms Ryan met with the Chair and a member of the Australian Law Reform Commission to discuss a draft submission on the discussion paper on Protecting Classified and Security Sensitive Information. This meeting led to changes in the Council's submission which has subsequently been sent to the commission, and which is referred to below.

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New policies: Privacy and Surveillance Devices

The Council has adopted revised positions on two questions in the area of privacy. These position will form the basis of submissions it makes in the respective areas. They go together with the Council's other policy positions which can be found on its website.

The Council position on general issues of privacy is:

1. The universal declaration of Human Rights recognises that an individual has a right to privacy
    
2. This right to privacy is concerned with moral ethical, cultural and legal considerations and means many different things to many different people.
    
3. Like many other rights, the right to privacy is not absolute.
    
4. In a free and democratic society freedom of expression and the people's right to know if often in conflict with an individual's claim to a right of privacy.
    
5. Protection of a person's privacy must not permit those who engage in wrongful or unlawful activity to avoid scrutiny by the public at large nor prevent the publication of information which is otherwise in the public interest.
    
6. Publication alone is not conclusive proof of invasion of privacy.
    
7. A publication must justify intrusions into an individual's privacy where it occurs without that person's consent.
    
8. Justification for an invasion of privacy can include:
   1. Publication made in the public interest
       
   2. Innocent or incidental publication where there is no clear intent to identify a person or reveal private information.
       
   3. Publication where there is not evidence of harm.
   
    
9. Privacy should more properly be seen as a value that underlies the law rather than as a concept of law into itself. There is already in existence a vast array of laws in Australia that both protect and limit a person's right to privacy. There is no need for a tort of privacy.

The position adopted by the Council in respect of putative surveillance devices legislation:

The Council notes with concern the developing law of privacy protection. In addition to monitoring the currently embryonic common law tort of breach of privacy, which has been given limited recognition by some courts (see Grosse v Purvis [2003] QDC 151 and Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63), the Council anticipates that legislation to regulate the use of 'surveillance devices', including mobile phone cameras, will be introduced and may derogate from the media's ability to collect information on matters of public interest and concern.

The Council has recognised in adjudications and in its Privacy Standards that even public figures may have a right to privacy in their private lives (see Adjudication No. 916). For that reason it recognises that surveillance devices legislation which is strictly confined to surveillance of private matters would be acceptable, provided that there were sufficient public interest defences available for cases where the surveillance of private conversations or events was necessary to uncover matters of public interest and concern.

It would seek to have the following principles incorporated into any such legislation:

• Any legislation introduced to regulate the use of surveillance devices should recognise and protect the media's right to report on public behaviour, particularly that of public figures.
   
• Any legislation should ensure the availability of public interest defences where the right to a private life is breached in order to inform the public on a matter of public interest. (Such defences would make it possible to expose illegal or unethical conduct by those in public life, who might use a wide-ranging surveillance devices regime as yet another weapon in their attempts to limit proper scrutiny of their actions.)
   
• Any legislation should include a media exemption based on s7B(4) of the Commonwealth Privacy Act.

The Council opposes any legislation which has the effect of restricting the right of the media to report, or comment on matters, of public interest and concern.

Any proposed surveillance devices legislation should be formulated with reference to the Council's Charter for a Free Press in Australia, particularly principle number 6:

Laws, regulations and practices which in any way restrict or inhibit the right of the press freely to gather and distribute news, views and information are unacceptable unless it can be shown that the public interest is better served by such laws, regulations or practices than the public interest in the people's right to know.

see also
the index of material on privacy matters on this site.

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NSW Freedom of Information

As noted in last issue, the Australian Press Council expressed its strong objections to the Freedom of Information Amendment (Terrorist and Criminal Intelligence) Bill 2004. It subsequently received a letter from premier Bob Carr about aspects of the proposed legislation. The Council noted proposed development of the legislation and thanked the Premier for his advice on the Bill and especially for those aspects of it that will ensure its better workability.

The Council, in its role as a defender of the traditional freedoms of the Australian press, will, of course, keep an eye on the matter to ensure that the proposals do not result in the undue restriction on publication in the press of matters of public interest and concern.

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Electoral Roll

Arising out of a report of the Joint Standing Committee on Electoral Matters, the federal government is taking forward a proposal to limit the availabaility of printed copies of the electoral roll. The Council wrote late last year to Special Minister of State Eric Abetz on the proposals which would potentially limit the use of the roll by the press as a fact-checking mechanism, especially with respect to the bona fides of writers of letters to the editor and other legitimate fact-checking purposes. The Council was concerned that this resource long used by journalists and publications to ensure the accuracy of their work was to be discontinued in hard copy in most circumstances and only available in electronic form is a way not particularly useful to the print media.

Following the Minister's response on the questions raised by the Council, it has written back expressing its disappointment that the government was planning to restrict such non-commercial uses of the electoral roll. It was concerned that neither the Minister's department nor the Joint Standing Committee had given adequate consideration to the use of the roll for legitimate fact-checking purposes within newspapers. The Council sought from the Minister consideration of the legitimate use of the roll by citizens and organizations other than Members of Parliament and political parties, particularly the long-standing use of it to ensure that letter-writers are genuine and for other fact-checking purposes within newsrooms, when he framed legislation.

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Contempt by Publication

The Council has written to the NSW Attorney-General with its comments on the recommendations of the NSW Law Reform Commission on possible changes to the contempt regime in that state. The Executive Summary of the Council's submission reads:

The Australian Press Council accepts that the law of sub judice contempt is a necessary part of our system of justice. However, the Council also believes that there is a need to balance the right to a fair trial against the right of the public to be kept informed of court proceedings. Although the report of the NSW Law Reform Commission, Contempt by Publication, includes several positive proposals, the report makes a number of recommendations which have the potential to restrict the reporting of court proceedings by the media and which may threaten free speech.

In particular the Press Council

• supports the proposal that "substantial risk" of prejudice to proceedings be adopted as the appropriate test for sub judice contempt;
   
• expresses concern about the proposed extension of the scope of sub judice contempt law to "prospective" parties, a proposal which is impractical and unnecessary, due to the difficulty of identifying such prospective parties;
   
• believes that mere publication of contemptuous material is not sufficient of itself to warrant conviction for sub judice contempt, even where such publication causes prejudice to the fairness of court proceedings, arguing that, in addition to publication, there should be a requirement that the publication was made either with an awareness that the publication may cause prejudice to court proceedings or recklessly or, at the least, negligently;
   
• notes its concern that the proposed reforms do not grant the media sufficiently easy access to court documents which are necessary in order adequately to understand and accurately to report court proceedings and decisions; and
   
• argues that the proposed reforms give the courts the ability to make extensive use of suppression orders to prevent the media from reporting on court proceedings.

The full text of the submission is available on the Council's website.

see also
the index of material on courts and contempt on this site.

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Classified and Security Sensitive Information

The Australian Press Council has made a detailed submission to the Australian Law Reform Commission on its Discussion Paper 67, Protecting Classified and Security Sensitive Information. The Executive Summary of the submission reads:

The Australian Press Council, while appreciating the Discussion Paper's expansion of the issues considered in Background Paper No. 8, presses the following proposals:

• Any legislation which establishes a criminal offence should place the onus of proof on the prosecution.
   
• Any proposed legislation, or regulations arising from it, should contain narrowed and objective criteria for the classification of material.
   
• Any proposed legislation should contain provisions which impose penalties for classifying information for an improper purpose.
   
• Legal proceedings should be held in public unless there are exceptional circumstances.
   
• The media should have standing to address courts as to whether or not proceedings should be closed to the public.
   
• The government should introduce more complete and comprehensive legislation to protect whistleblowers.

The full text of the submission is available on the Council's website.

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Elections

The question of election reporting and whether guidelines were needed has been discussed by the Council. This had arisen from matters raised at the editors' forums last year. The Council decided, on the basis of the responses, that no action on the development of guidelines needs to be taken.

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In the office

The Australian Press Council farewells its office all-rounder, Stephanie Dick, at the end of May. After four years in the office as receptionist, typist and general hand, Stephanie has decided to pursue her career elsewhere. We wish her luck and thank her for her contribution to the Council, and to the secretariat, since May 2000.

The new office all-rounder is Helen Tyreman who started work in the last week of May 2004.

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Mediated 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 mediation, by agreement with the parties. Below are some examples of the matters recently settled in these ways.

• A regional daily newspaper published a complainant's letter in an edited form. The complainant believed the editing changed the meaning of his letter. At the Council's suggestion, the complainant and the editor met. The paper explained that the edited part of the letter had posed legal complications. The paper promised to contact the complainant if it needed to edit any of his future letters. The complainant was very happy with the outcome of his complaint.
   
• A Sunday metropolitan newspaper published a snippet in a gossip column about a complainant and his wife. The complainant, a local government councillor, believed that the item implied that he has a "second wife". The secretariat contacted the newspaper and suggested a correction be printed before the ensuing council elections. The correction was published in the next edition. The complainant was "fully satisfied that this resolves the matter".
   
• In an obituary, a metropolitan newspaper reported that the family of a prominent Palestinian had "fled the new-born State of Israel". The complainant argued that the family has, by and large, left the region in the 1930s. After an exchange of correspondence, the complainant requested a mediation. The parties met and, with the assistance of the Executive Secretary, they came to an agreement on a suitable clarification to be published.
   
• Another metropolitan published an article about a school, and its principal. The principal believed that she had been inaccurately portrayed. After receiving the complaint, the journalist involved contacted the principal. They reached an understanding on who will be available to go on the record in the future. This satisfied the principal's main concern.
   
• A national newspaper published a long article that made passing references to the complainant's career in local government. The complainant requested an apology, and correction, for inaccurate statements that he believed badly reflected on his professionalism. The paper had concerns with a threat of litigation, and requested the complainant sign a legal waiver. Once this was provided to the Council, it arranged for negotiations between the parties. An acceptable clarification was subsequently published with appropriate prominence.

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