The police and the media

AFP Commissioner Mick Keelty gave the 2006 Annual Address in March. Executive Secretary JACK R HERMAN reports on the speech and Chairman KEN McKINNON responds to it.

In a wide-ranging address to the Australian Press Council, Police Commissioner Mick Keelty expressed the hope that the headlines arising from the speech would not suggest an attack on the media. Instead, he hoped, that the remarks would be seen as a genuine attempt to try and build a better understanding of the current environment between the media and the Australian Federal Police (AFP).

Commissioner Keelty was delivering the Council's 2006 Annual Address at a lunch in Sydney on 23 March. His topic was "Between the lines: New powers and accountability for police and the media", and he started by acknowledging the significance of the occasion: he had just commenced his second five-year term as AFP Commissioner.

In reflecting on what he had achieved, learnt and observed, the commissioner said that the previous five years had brought into sharp focus his views on the relationship between the police and the media and our respective roles in society.

Noting that the address was part of the Council's activities promoting discussion of the freedom and the responsibility of the Australian press, he noted that "the Council's Statement of Principles includes providing 'first and dominant consideration to what it perceives as being in the public interest'. I suspect my perception and yours of what constitutes the 'public interest' will be poles apart."

He denied that the police and the media are warring parties, but thought that certain elements of the respective roles meant that tensions can emerge when their paths overlap, a situation exacerbated by the competitive market in which the media operate. In fact, said Commissioner Keelty, his 'strong views' on the role and accountability of the media had formed as a result of his experiences during his first term.

He saw the relationship between the AFP and the media as very positive despite his belief that, until recently, the AFP wasn't on the media's radar and he found himself "having to explain who we were and what we did, especially when compared to our state counterparts".

With the media's interest today in the work of federal law enforcement, Mr Keelty asserted that the AFP is working hard to produce a strong and productive relationship. Further he saw similarities between the police and the media:

We are both in the business of seeking out information, following up leads and serving the public interest. And these are objectives that often have to be achieved in difficult and time critical circumstances ... [and applied] without fear or favour. ...Importantly, we share a responsibility to ascertain the truth.

Commissioner Keelty said that the AFP recognised and valued the media's role in keeping society informed, accountable and honest but wondered whether they shared the same standards of accountability. "This surely is where the Press Council has a role to play", he argued.

He discussed changes he had observed in recent times in the way journalists report police matters. He saw a shift in journalism where "police roundsmen and women who were familiar with the criminal law and familiar with the court systems have been over-run by a new cadre of journalists who have been directed by their news editors to go out and report on the security environment. Some of these journalists have little or no understanding of our criminal justice system. There are inherent difficulties in sending people who are unfamiliar with law enforcement, unfamiliar with the court system; and unfamiliar with the genesis of legislation and policy to cover stories in the new environment".

Commissioner Keelty argued that the media's reaction to recent anti-terrorism laws had been characterised by a fear that offences such as sedition will affect the ability of journalists to express their views; and he asserted that reporting on these laws was not always balanced or based on an understanding of the laws. Additionally, national security matters had led to "insatiable" demands for information about AFP operations. This was unprecedented, he said, especially when contrasting the opposing needs to provide information to the media and protect operational integrity. Again he argued that some journalists did not understand the impact of reporting on "operational integrity" and the impact this reporting might have on potential terrorists.

The police and the media share a responsibility to be aware of the potential negative impact of events such as search warrants that can escalate tension in the community. Too often what the media describes as "raids" are sensationalised. These images impact upon community attitudes and the marginalisation of groups. It is critical for the media and the police to work together to mitigate against the escalation of tensions.

He saw media treatment ("both the perception and the reality") of these issues as affecting the likelihood of reform of alleged terrorists and potential recidivism, noting how quickly many sections of the Muslim world were 'mobilised' in their response to the Danish Mohammed cartoons.

Accountability

On the question of accountability, Commissioner Keelty recognised the need for the AFP to be open and transparent and expressed an appreciation of the media's role as the community's watchdog. He noted approvingly the media's examination in detail of the level of accountability in other industries in society, citing HIH as an example of concerns when "inappropriate accountability mechanisms" are used. However, he was concerned with the incidence of opinion pieces, particularly concerning the terrorism laws.

They are one person's opinion and rarely do you get a full insight into the background of the person providing the opinion." Yet, he suggested, journalists writing articles will search for information and occasionally use opinion pieces as if they were infallible, whereas "they often contain information that has either not been well researched, cannot be substantiated or is incorrect.

He cited John Doyle's Andrew Olle Lecture, which he paraphrased, "Newspapers are full of it. Any half-baked idiot who can string a few sentences together is given a go. Particularly if the opinion is inflammatory or somehow ratchets up the climate of fear or loathing. Simply and obviously because it sells more newspapers".

Commissioner Keelty was concerned that every time he spoke on an issue, new counter terrorism laws, or "reprogramming" terrorists, comments were sought from people who hold opposing views, "people like civil liberty councils, comments from defence counsel, unsworn statements made by accused persons". He understood and accepted the need to seek a balance but argued that such balancing opinion needed to be presented in context.

"Civil libertarians for example represent a small minority," he said. "And yet I would argue they get exposure in the media which is disproportionate to both their influence and their constituency." Unlike such bodies, the police are accountable to the Courts and to the Parliament.

This leads the commissioner to the question of Press Council itself. "Is the Press Council proactive or simply reactive?" he asked. He did not believe the Council's process to be either inviting or satisfactory to the complainant. The process is very much in-house. The process " certainly in my experience, delivers equivocal rather than emphatic outcomes."

He also cited a front-page article written about General Peter Cosgrove's family he questioned the 'public interest' in a story about someone's family when the person no longer holds a public position (General Cosgrove had retired six months before as the Chief of the Defence Force). He outlined his understanding of the matter: General Cosgrove complained to the Press Council; another journalist working for the same newspaper decided independently to "right the wrong"; and the Council asked the general whether the issue had been resolved by the subsequent article. "But we all know that the subsequent article could not erase the damage caused by the first." [Editor's note: The complaint by General Cosgrove is listed for adjudication at the Council's June meeting. The second story in the newspaper actually arose from the Council's approach to the newspaper seeking a possible mediated settlement. The follow-up article did not satisfy all General Cosgrove's concerns.]

Commissioner Keelty referred to "a not dissimilar attack" over the Bali 9 case, referring to his wife and family. He did not regard a subsequent editorial praising him as sufficient to "right the wrong". "But, having been through the Press Council experience once in my life, there is little or no motivation to try it again."

New powers

The commissioner then turned to the introduction of new powers for the AFP to use control orders and preventative detention. In welcoming debate on these powers, he acknowledged that these are far reaching powers, bringing with them greater obligations. He saw the AFP's main task, however, as protecting the public from acts of terrorism, and the new powers provide the AFP with additional useful tools. He discussed some of these powers in detail.

Control orders, for example, he saw a preventative measure when an individual poses a terrorist threat and are used in cases where they cannot be prosecuted because there is no offence with which they can be charged or available evidence is inadmissible and cannot be used without compromising sensitive operations. The intention here, he argued, is to protect the public from a potential terrorist act. Certainly they go beyond traditional law enforcement measures of arrest and charge, but they are not to be used as a substitute for arresting or charging a person. In any case, the AFP must first satisfy the Attorney General and then a Court that the Order is reasonable and it is necessary.

On the use of lethal force, he argued, "Some description of the new laws has been sensationalised. For example, reports on what the media labelled 'shoot to kill' provisions were highly inflammatory. 'Shoot to kill' is a very emotive term but for years now ... the emphasis of police training has not been on shooting. The emphasis has been on de-escalation and providing police with the skills to ensure that the discharge of the firearm is the absolute last option.

The bottom line is that the inclusion of the lethal force provisions in the new legislation merely repeats the power that already exists in every police organisation in this country.

He was also concerned with the sensational reporting surrounding the recall of the Senate to consider the new laws. Without going into detail of the advice provided to the Government or about matters that are currently before the Courts, he noted the difficulty, if not impossibility of recalling the Senate without some public scrutiny. "The suggestion that the recall of the Senate was in any way related to diverting the attention of the media from other policy matters before Parliament, was ludicrous and in itself completely unfounded."

Commissioner Keelty labelled the coverage of the new laws as "public interest hypocrisy". He contrasted the Prime Minister's determination not to go into any operational detail with some journalists, "needless to say the same ones who denounce police corruption", acquiring operational details through leaks. He asked why a claim that there was a public interest in publishing such detail was justified. In his view "the public interest" in a terrorism investigation is to prevent the act from occurring and provide the best evidence to the court to convict any alleged participants. "The loss of evidence, the fear induced in the minds of the public and the unfair treatment of the accused can never be 'in the public interest'."

He compared the police obligations in terrorism matters to those in blackmail or extortion offences. "Declaring a particular brand, a particular mode of transport, or a particular building as a terrorist target can have enormous impact on share prices, consumer confidence and on consumer use. Some of the new laws bring with them unprecedented responsibilities to not only get it right but to decide what is in 'the public interest'."

Bali 9

Turning to the Bali 9 drug case, Commissioner Keelty said that some media repeatedly reported that Scott Rush's father had tipped off the AFP and that the AFP had promised to prevent Scott from leaving the country. "This was simply not the case. The AFP was never directly contacted by the Rush family. The AFP made no promises to the Rush family and the AFP investigation into the alleged drug importation was not sparked by a 'tip-off' from the Rush family." He suggested that, in part, this misunderstanding might have arisen from one journalist misreading court documents that referred to a Queensland police officer, an error that was discovered "too late".

He looked at other examples of misreporting in the case alleging that some journalists had said that errors had resulted from rewriting by an editor or subeditor. He thought that such 'isolated examples' were occurring with concerning frequency. "The lack of accountability or acceptance of responsibility is a real problem that does not augur well for the new powers aimed at preventing terrorism".

The commissioner was also concerned with what he saw as a recent trend for defence counsel to run their defence in the media because they offer a convenient stage to enlist public support. These comments, he said, should be seen merely as an attempt to garner public support.

And he asked, where are the editors checking the record? He accepted that journalists, like police, can become very passionate, in some cases so passionate that they lose objectivity. He asserted that police managers and Courts usually reign in such enthusiasm and that editors need to do the same.

He also thought that editors bore a responsibility to ensure that criminals could not use the media as a way of getting detailed information on "the methodologies employed by police to track terrorists ... As a society, I think we have to ask ourselves, is it responsible journalism to reveal confidential practices being used to track terrorists?" He thought the only result of such revelations was that criminals, particularly terrorists, would change their own methods so they can evade detection and capture.

Because such articles can set the police back in their quest to protect the public from a terrorist attack, the media need to weigh up the potential consequences of publishing material that could be detrimental to investigations and ultimately to public safety. "Terrorism is a high stakes, high risk, environment. It is not just up to the police to keep our community secure, we all have a role to play."

Sedition

According to Commissioner Keelty, the AFP has become aware of the problems created where people urge others, particularly the very impressionable, to undertake terrorist activity. The Internet, because of its reach and the ease in posting material, has multiplied this concern. The AFP raised these concerns with the Attorney General who agreed that the way to deal with the problem was to modernise sedition offences. The recently introduced sedition offences were aimed at the urging the use of force or violence where the use of force or violence will threaten the peace or the good government of Australia.

He drew an analogy with the "consorting" laws, noting that "consorting" can now take place over the Internet, with comparative anonymity. When such "consorting" could lead to planning of, and recruitment for, terrorist attacks, the AFP felt it necessary to have an offence that could be used for prosecution. The laws, he argued, were not directed at the suppression of the media or other forms of free speech.

Conclusion

Commissioner Keelty stressed that the relationship between police and the media is not all negative. He noted cases where media cooperation had assisted the police in safeguarding the community, focussing national attention on important issues. He cited the issue of sexual servitude as an example, praising the sustained campaign by The Australian to raise awareness of the issue, prompting a government response.

Another example was the cooperation between police and the media during the Bali bombing investigations. "Not only did the media assist with maintaining the flow of information to families and friends of the victims but responsible coverage of the joint investigations ... helped improve understanding about Australia's close relationship with Indonesia."

Additionally, the media's coverage of the mission to the Solomon Islands had helped educate the community about the vulnerabilities surrounding weak states and the spread of transnational crime.

In concluding, the commissioner drew attention to a section of the print media that he saw as having more potential to influence people's attitudes than the written word: the cartoon, arguing that there had to be some ethical boundaries observed. He was mainly concerned with a lack of understanding shown by some cartoonists of the role of the AFP when they portrayed us as executioners in the Bali 9 case. He saw the decision on punishment as one for the courts and that such misrepresentations undermine the integrity of police in their role as protectors of the community. "Again, I believe this comes back to editors understanding and taking the responsibility for things that are published."

JACK R HERMAN

The Chairman's comments on the 2006 Annual Address

Commissioner Mick Keelty's Annual Address reported above certainly did not disappoint. His suspicion that he and the media might be poles apart on what ought to be reported in the public interest in a time of unprecedented terrorism was amply borne out. He believes the press unreasonably sensationalises AFP action by calling them 'raids' (and seeking to report on-the-spot), that they should not inquire into and report AFP methodologies, comment negatively on the new powers of control and preventative detention, nor question the basis for a recall of the Senate. In short, newspapers should be more responsible.

He went on to say that the views aired in newspapers are often sloppy, ill-informed and unrepresentative (eg, minority civil libertarians). The implication is that editors ought to be more responsible about whose opinions they let loose on their pages. He did not believe many of them should be given space.

To say that newspapers would not agree would be an understatement. They would vehemently disagree.

What are their respective accountabilities?

Characteristically Ministers and Commissioners control sensitive information. They release what they think the public ought to be told, usually partial, from a particular point of view and drip fed at that. Or information is leaked to selected sympathetic journalists. The best newspapers do not accept this as enough. Editors and journalists believe it is their duty to discover the whole truth and report that to the public. They explore all sources of information, official and unofficial.

There is no doubt that the job of the Commissioner is onerous. Terrorism situations will be tense and possibly dangerous. While newspapers may not want to add to his problems they don't want to be gullible either. Some laws curtailing freedoms in the name of terrorism and security are so capable of being used in a totalitarian way that close scrutiny is essential. Laws that allow individuals to be incarcerated without anyone being allowed to know and secret trial provisions are very threatening. Newspapers no doubt feel that ultimately their accountability is to the public believing they will find in them accurate and full information.

Why don't journalists meekly accept constraints authority seeks? Constraints that may, as the Commissioner asserts, have better public outcomes. Why do journalists doubt briefings and official press releases? The answer is that they have learned distrust the hard way. Too often they uncover information that should have been reported at the time that had been hidden by officials. The consequence is a perennial contest for information. Most often what is reported is undeniably in the public interest.

These accountabilities are unlikely to change, nor should they. The Commissioner has to be on the safe side of risk and security. Newspapers have to be on the side of the public, providing them with enough to be able to make their own judgments separate from spin and propaganda. That is the nature of a vigorous democracy.

Nevertheless regulatory principles do govern newspaper behaviour. All major newspapers in Australia subscribe to the principles that the Press Council uses.

It is interesting that Commissioner Keelty was not happy with his one complaint to the Council in 2002. The complaint was about a Melbourne Herald Sun page one headlined Terror Alert, a report that an AFP police pistol, security pass and radio had vanished at Melbourne airport as world leaders were gathering for a CHOGM Commonwealth leaders meeting due to open that day in Queensland. The AFP's case was tha
e Federal agent had been travelling from Cairns to Perth, that neither he nor the contents of his briefcase were involved in CHOGM matters, and that the reporter had been told that prior to publication. The basis of the reporter's assertions about a security scare was a Victorian police document alerting officers to the theft.

The complaint was upheld. Like some other complainants he wanted more. He felt that the Council should not have handled the complaint 'in-house' and criticised the adjudication for not projecting sufficiently emphatic outcomes.

A further instance he raised concerned a complaint lodged on Christmas Eve 2005 by General Cosgrove over a page one story about the army experience of his sons. It cannot be discussed in detail because it has not been completed, in part due to delays occasioned by General Cosgrove's involvement in the Cyclone Larry clean-up. What is important is that, although the complaint was received after office hours, the Executive Secretary was in touch with the editor immediately; a second story (which has not resolved the issue) was published by the paper as a result.

From the point of view of the Press Council this year's Annual Address initiated an excellent debate. It is very helpful to have self-regulatory processes questioned by a commentator of Commissioner Keelty's standing. Leaving aside the strength of his comments, which are views unlikely to make newspapers any less bold in reporting what they see as the news, he raised interesting points about print media regulation. These are issues that the Council is discussing internally, with the industry and with the public.

As host for the Address I jokingly advised Commissioner Keelty at the outset that I had the privilege of the last word. On reflection this will not be anywhere near the last word. So far the many suggestions for tightening the regulatory regime are matched by as many assertions that newspapers cannot properly inform the public if subjected to more restrictions. That does not mean future debate will cease. Adjudications disappoint those whose cases they do not uphold. Complainants get upset; editors get furious. One inevitable consequence is advocacy of reform of principles or processes. The Press Council is always open to such suggestions, the more so when a successful complainant sees shortcomings.

KEN McKINNON

[Commissioner Keelty's complete speech is available on the Press Council's website.]

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