News in brief - November 2004

Prize
On the Council
Uniform defamation law
National Security
Senate Committees
Editors' forums
Workplace surveillance
Mediations

APC Prize

The Australian Press Council Essay Prize for 2004 has now closed. There were about 20 entries.

The Prize winners are announced elsewhere on the site, together with some biographical information.

There will be no Essay Prize in 2005. Instead the Council will be making a series of awards for outstanding scholarship through the various journalism departments and faculties at Australian tertiary institutions. Details of the 2005 Prize arrangements will be made in a subsequent issue of the News.

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 third three-year term of Kevin McCreanor, the Public Member from north Queensland, ends in February 2005. A barrister with a varied background in the law, Kevin joined the Council as an alternate member in 1989 before becoming a full member in 1996. A profile of Kevin appears elsewhere and an advertisement to be placed in various north Queensland newspapers, seeking nominations for his replacement. Contact the Council for details.

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SCAG agrees on uniform defamation law

The Standing Committee of Attorneys General (SCAG) at its November 2004 meeting in New Zealand agreed to proceed with uniform defamation legislation. The agreement represents a unique opportunity to reform defamation law in Australia and to eliminate the variations across jurisdictions which have given rise to extensive forum shopping.

The Press Council had initiated the push for uniformity in 2001 when the matter was off the SCAG agenda and its activities have led first to reform of the NSW law and now to the devlopment of a law which would harmonise defamation among the states and territories.

On 5 November SCAG released a draft of the proposed law. The draft includes a number of provisions which have been sought by the Council, including a defence of truth alone, caps on damages for non-economic loss, the abolition of exemplary and punitive damages, and a shortened limitation period. The legislation would remove the right of corporations to bring actions in defamation and would preclude defamation actions on behalf of the dead.

The proposed legislation emphasises the resolution of disputes at an early stage, without resort to litigation. Under the proposed law a publisher who, as soon as practicable, makes a reasonable offer of amends to a plaintiff will have a valid defence to an action in litigation.

Commonwealth Attorney-General Philip Ruddock, who has been instrumental in advancing the move towards national uniformity, has previously stated that he would pursue Commonwealth legislation if the states failed to achieve a uniform law. Now, in spite of SCAG's historic agreement, it seems possible that the Commonwealth will carry on with the development of its own defamation law. Mr Ruddock responded to SCAG's agreement with a list of differences between his own vision for a uniform law and the states' proposal. It would be ironic if, after pushing so hard for uniformity, Mr Ruddock were to have the federal Parliament legislate an Act which would provide the only alternative to an otherwise harmonised national defamation scene.

A copy of SCAG's model provisions is available in pdf format from the NSW Attorney-General's website: http://www.lawlink.nsw.gov.au/lap.nsf/pages/lp_incorpbill

For more information on defamation, and the Council's views on proposals for change
go to the information on defamation on this site.

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National Security Information (Criminal Proceedings) Bill 2004

The Australian Press Council has written to the federal Attorney-General expressing its continuing concerns regarding the National Security Information (Criminal Proceedings) Bill 2004 and its associated legislation. The Bills, which were introduced in the previous session of Parliament, are likely to be re-introduced in the new Parliament. While the Press Council recognizes the necessity of legislation to address the issues which arose in the Lappas case and acknowledges that the bill seeks to balance the need to protect security sensitive information with fair dispensation of justice which requires the courts to retain a significant level of discretion, it has concerns over certain aspects of the proposed legislation, in particular the broad scope of the definition of "national security", and the potential for the bill to restrict the public's right to be informed about matters of legitimate public concern.

These concerns were outlined in detail in the August 2004 Press Council News.

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Senate Committees

The Australian Press Council has written to the Chair of the Senate Legal and Constitutional Legislation Committee outlining its concerns with aspects of its submissions to Senate committees, arising out of its recent submissions on the National Security Information (Criminal Proceedings) Bill 2004 and associated legislation.

The letter noted that the Council works hard to contribute thoughtful and practical ideas to policy debates that have implications for the freedom and the responsibility of the press. It noted two particular concerns.

The first was the extremely short notice that is increasingly being given for the preparation of submissions or the attendance at hearings. The Press Council is perhaps more fortunate than many groups because we do have some personnel and financial resources that we can apply to such tasks - albeit at the expense of other work. But it is frustrating for the Council secretariat to have to drop everything at short notice to respond to your committees' requests, and to proceed often without the formal endorsement of the Council and almost always without the Council itself having had the opportunity to examine the legislation in question. The result is that the public is offered the illusion of detailed scrutiny by the relevant interest groups when, in fact, it has been a far more cursory review of the many implications in such important legislation.

Again, on reading the Committee's most recent report on the above-mentioned Bills, the Council was struck by an apparent disjuncture between the body of the report - and its seeming acceptance and, indeed, endorsement of some suggestions or criticisms from witnesses like the Council - and the actual recommendations that emerge from the Committee. This conveyed a sense of tokenism, whereby the Committee seems compelled to report favourably on a Bill notwithstanding those shortcomings that the Committee appears, in the body of the report, to acknowledge. A Bill therefore returns to the Senate chamber in a state unaffected by the supposed scrutiny of it by the Committee and by its exposure to the critique of informed and representative interest groups.

The Council expressed its strong support for the role of the Senate as a House of Review but, given an inordinate number of Bills referred to committees over the past few years, it questioned whether all this legislation received the level and quality of scrutiny that is required, especially given the short time frames for submissions in many cases. This is not in the interests of good legislation, and certainly does nothing to reduce public cynicism about the effectiveness of Parliament.

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Editors' forums

The Council's Chairman, Professor Ken McKinnon, and its Executive Secretary, Jack Herman, met with editors in a number of centres in the last few months. They travelled to Perth in late August; to Townsville on 13 September; Melbourne on 13 October; and Adelaide on 14 October. A Sydney forum is being held on Tuesday 16 November. In Perth, the Council also conducted case studies seminars with students at Edith Cowan University and, separately, with journalists at West Australian Newspapers. While in Townsville, there was a case studies seminar with James Cook University and a public meeting organised by the university. In Adelaide there were case studies with Advertiser journalists and a session with postgraduates at the University of South Australia. Issues raised at the editors' forums are reported to Council and are the basis of discussion of the Council's principles and practices.

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Workplace surveillance

The Press Council expressed its concern with aspects of the NSW Workplace Surveillance Bill 2004, particularly clauses 15 and 28 which could have unintended consequences for the media.

Clause 15 specifies that an application for a covert surveillance authority must be dealt with in the absence of the public. The Press Council believes applications should be heard in open court unless extraordinary circumstances warrant otherwise.

Clause 28 prohibits the use or disclosure of information obtained by covert surveillance of an employee at work. The Council suggested that an exemption should be included in the clause to permit the disclosure of information obtained by covert surveillance to the media, and the publication of that material, if it would be in the public interest to do so.

Apart from those concerns, the Council congratulated the Attorney-General on his endeavours to protect workplace privacy and supported the Bill.

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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 suburban newspaper published an article about a shopping village. The article quoted an unnamed developer stating that the shopping village would become another Westfield. The complainant, the manager of the shopping village, submitted a letter to the newspaper refuting the developer's statement. After the Council's intervention, the letter was published, in full, in the next available edition.
   
• A metropolitan newspaper falsely reported that the complainant had links to terrorism. In response to the Council's call for redress, the paper conceded its error, and published an apology and correction.
   
• A metropolitan newspaper published an article about an incident that occurred at a church. Accompanying the article was a photograph of the reverend. The Diocese of the church complained that the manner in which the photograph was used, in conjunction with a derogatory headline, compromised the minister. The paper speedily contacted the complainant, sent a letter of apology to the reverend, and published a clarification. The complainant was most grateful for the actions taken by the paper.

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