News in brief - November 2005

News by email
Prize
On the Council
Summary adjudication
McManus and Harvey - threat of contempt charges
Research
Privacy Policy
Unauthorised photographs on the Internet
Freedom of Information
Anti-terrorism legislation
Planning Day 2005
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 2006. Instead 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 will endow prizes for such courses, particularly in the study of ethics.

This year, prizes to the value of $350 have been offered to, or awarded at:

The University of Queensland, Sunshine Coast University, University of Southern Queensland, The J-School, Bond University, the Queensland University of Technology, University of Sydney, University of Western Sydney, University of Technology, Sydney, Charles Sturt University, Newcastle University, Edith Cowan University, Curtin University and the University of Canberra

For more information on the APC Prize, its history and future
go to the APC Prize overview.

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On the Council

After one three-year term as a Journalist member, Helen Elliott has decided to step down from her position. The Council has appointed Adrian McGregor, an Alternate Member since January 2004, as the new member. Adrian is an award-winning writer with long experience on Australian newspapers. He is currently a freelance writer and a regular commentator on news and politics with ABC radio in Brisbane. He is also the author of best-selling sports biographies including those of Wally Lewis, Greg Chappell, and Cathy Freeman. Helen Elliott will remain affiliated with the Council as the new Journalist Alternate.

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Summary adjudication

In Adjudication No. 1300, the Council took the unusual step of attaching its own summary adjudication for newspapers' use. The adjudication arose from a complaint by the Attorney-General of NSW, on behalf of its Supreme Court, about the reporting of the courts in The Australian. It cited eight particular articles as well as making more general complaints about the reporting. Because the resulting adjudication was very lengthy, the Council took the view that, rather than seek the publication of the complete finding or rely on each publication's summary of the finding, it would write its own precis, which it despatched with the original adjudication. The Australian in fact published the summary finding only but directed their readers to the Council's website, where the complete finding is published.

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Journalistic jeopardy unwarranted

In late October, the Chairman of the Australian Press Council, Professor Ken McKinnon, said that the decision to proceed with charging two journalists, Michael Harvey and Gerard McManus, with contempt was very regrettable. Even though, technically, a Victorian judge has laid the charges, they are a direct result of the Commonwealth government's pursuit of the journalists.

"The federal Attorney-General appears now to have backed away from the government's pursuit of the journalists over their sources for a published story that severely embarrassed his government, but the court tactics of his legal representatives left the judge with no alternative, when the journalists refused to reveal the sources after being directed by him to do so.

"It is the protection of the identity of confidential sources that leads journalists to risk jail rather than betray their trust," said Professor McKinnon. "If unable to guarantee confidentiality, journalists are less likely to access the information that enables them to expose corruption, or even ineptness, in government. The ability of journalists to protect the confidentiality of their sources should be recognised in law."

The Attorney-General's action was no doubt designed to allow him to appear sympathetic to the journalists, but left the judge in an untenable position. It is the federal Attorney-General who ought to act now to clear up the situation.

The charging of these journalists is just another example of steps being taken by governments to restrict the ability of the press to report on matters of public interest and concern. The Commonwealth government, by targeting the journalists who wrote the story, is making them the meat in the sandwich of attempts to intimidate public officials.

The importance of information from confidential sources was demonstrated in Queensland in the late 1980s when officials cooperated with Four Corners and The Courier Mail in exposing corruption in that state. "Journalists should not be exposed to jail when performing their key role of finding and reporting the full story of issues that will enable citizens to assess the performance of elected representatives," said Professor McKinnon.

"Government spin is pervasive. Governments exploit a variety of mechanisms to shape public opinion, not all of them reasonable. Pernicious, unattributable background briefings and selective information 'management' are the tools of trade. But governments do not want journalists to go beyond the partial, official story. They often prevent media access to information that ought rightfully to be in the public domain, as was the situation with the story that put these journalists in jeopardy," he added.

"Freedom of Information laws, supposedly designed to enable access to material of public concern, rarely help. Their intention is being frustrated by deliberate time delays, increased costs and the use of conclusive certificates to bar access to material. Even anti-terrorism laws are being utilised these days as a means of censoring political commentary."

Professor McKinnon concluded, "The Harvey and McManus case doesn't relate to a serious crime or a threat to national security. Their only real 'crime' is holding the government accountable to those who elected it, and pay for it."

For more information on protection of sources, and the Council's views
go to the information on protection of sources on this site

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Research

The Council met with a number of university researchers on 22 August, following a very successful meeting the previous year. The main outcome of the meeting this year had been agreement in principle for a State of the Print Media project similar to a research project undertaken by the Columbia School of Journalism in the US. A supervising committee comprising the Chairman, 4 industry members of the Council and 5 academics met in early November to get the project underway.

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Privacy Policy

Following a series of papers and a formal debate at a Council meeting, the Council has adopted a new position on privacy:

The Australian Press Council advocates self-regulation by the press as a vital facet of the freedom of communication that's enjoyed in Australia.

It calls on all legislators and the judiciary to recognise the importance of the freedom of communication, including press freedom and the right of the public to be informed, as a basic human right on the same footing, no lesser, than other basic human rights such as privacy, freedom of association, reputation etc.

In determining the balance between privacy and the right of the public to be informed, the press - and the Press Council - will take account of the following:

1. Consent and harm
   
   
   • Whether there is consent, implied or direct, on the part of individual/s concerned.
      
   • Whether the parties directly involved have complained.
      
   • Whether harm has been done.
   
    
2. Public interest. Whether there is a level of public interest sufficient to justify invasion of privacy.
    
3. The extent to which the individual is a public figure and to what level of privacy the individual is entitled as such.
    
4. Whether the individual is a child and thereby warrants a greater level of privacy protection than any of the rankings offer.
    
5. Whether the personal information being disclosed concerns sensitive matters as defined in the Privacy Act, such as health information, and whether disclosure can be justified.

Definitions

1. Limited purpose public figures: A person who becomes a public figure for a limited range of issues surrounding a particular public controversy. This would include people who are drawn into legal conflicts as witnesses or who enter public debate temporarily on a specific issue. Such people would be entitled to the highest level of privacy protection (not absolute) to the extent that publication of personal information about them should be relevant only to establishing their qualification to be identified publicly or to make public statements.
    
2. Occasional public figures. A person who conveys willingly and reasonably regularly to the public a certain impression or image of themselves either directly or through intermediaries, or those who make comments on matters of general interest to the public. This would include such people as performers, sportspeople, commentators, broadcasters, celebrities, journalists etc. Such people would be entitled to privacy protection for personal information not relevant to any public perception of the person or the person's stated position on an issue.
    
3. General public figures: A person who seeks to hold or does hold either by election or by appointment a public office. This would include members of parliament and public servants. Such a person should be entitled to privacy protection for personal information that is not relevant to the performance of their duties or office.

People who cannot be ranked as above generally would expect - and be entitled to - complete privacy protection unless or until their circumstances changed.

Privacy of sensitive information and matters affecting children are protected by a range of laws separately, but warrant consideration by the Press Council along these lines:

(i) Children: Young people under the age of 18 years are entitled to the highest level of privacy. Their personal details should only be published where there is overwhelming public interest to do so. Identification of children should be treated with great care and with regard to the circumstances.

(ii) Sensitive information is:

1. information or an opinion about an individual's:
   
   
   1. racial or ethnic origin; or
       
   2. political opinions; or
       
   3. membership of a political association; or
       
   4. religious beliefs or affiliations; or
       
   5. philosophical beliefs; or
       
   6. membership of a professional or trade association; or
       
   7. membership of a trade union; or
       
   8. sexual preferences or practices; or
       
   9. criminal record;
   
   
   that is also personal information; or
    
2. health information about an individual.

Sensitive information about an individual must be kept private unless:

1. There is consent from the person directly concerned to make it public; and/or
    
2. Public interest is established in having the information made public.

The Australian Press Council in its privacy statement defines public interest as "involving a matter capable of affecting the people at large so they might be legitimately interested in, or concerned about, what is going on, or what may happen to them or to others."

For more information on privacy, and the Council's views
go to the information on privacy on this site

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Unauthorised photographs on the Internet

The Council has made a detailed submission to the Standing Committee of Attorneys-General (SCAG) which is looking at the question of whether legislation is required to govern the taking of photographs in public places, particularly those of children. SCAG has issued a discussion paper to which the Council responded in October. The Executive Summary of the submission read:

The Australian Press Council has been invited to make a submission in response to the Standing Committee of Attorneys-General's discussion paper on issues related to the unauthorised publication of photographs of people taken in public places.

It is the Council's submission that no additional restrictions on the taking of photographs in public places should be enacted.

If, however, the Attorneys conclude that additional restrictions are required, the Council argues that any additional legislation should be minimal and address the specific concerns with the publication of inappropriate images on the Internet. This may be best achieved by specific amendments to existing pornography, sexual assault ands stalking legislation.

An alternative approach, such as the enactment of specific legislation to address the concerns in the discussion paper, would be, in the Council's view, an overly restrictive method of addressing a specific problem. Were the Attorneys to determine that, nonetheless, such an approach was required, the Council would argue that a media exemption, such as the one contained in the federal Privacy Act, should be included in any such legislation.

If such legislation were enacted, whether such an exemption was included or not, the Council argues that specific defences, wider than just 'the public interest', should be included in the legislation to enable the recording of important and historical events and people.

The full submission, illustrated by some photographs that may now not be able to be taken or published, has been posted to the Council's website.

For more information on privacy, and the Council's views
go to the information on privacy on this site

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Freedom of Information

The Council has been following the efforts of Michael McKinnon, the FoI Editor at The Australian, to overcome 'conclusive certificates' placed on his efforts to secure under Freedom of Information laws material related to the effect on income of taxation bracket creep and the possible misuse of the First Home Owners' scheme. After losing an appeal to the full bench of the Federal Court, McKinnon, and his publishers, have sought leave to appeal the decision to the High Court. The Press Council has taken the decision that, should leave be granted, it will prepare an amicus brief on the matter. Its Vice Chairman, Professor HP Lee, has convened an expert panel to develop ideas for such a brief. The previous amicus brief lodged by the Council was in the Levy and Lange cases in 1995, which led to the unanimous determination by the High Court that there was an implied freedom of communication in the Australian constitution and that it applied in defamation cases.

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Anti-terrorism legislation

The Press Council was invited by a Senate Committee to make a submission on the Anti-Terrorism Bill (No 2) 2005 which detailed new provisions for dealing with threats of terrorism within Australia, including increased powers for the police to detain and interrogate suspects and a 'modernised' set of sedition laws. The Council supported a detailed submission made by the newspaper publishers and supplemented that with its own submission that dealt largely with the threats to free speech occasioned by the sedition section and by the restrictions on any disclosure of detentions made under the Bill's proposals. The Executive Summary of the submission read:

The Australian Press Council, which has as one of Objects "keeping under review, and where appropriate, challenging political, legislative, commercial or other developments which may adversely affect the dissemination of information of public interest, and may consequently threaten the public's right to know", argues that any Bill that grants new powers to authorities that may impinge on the traditional freedoms of Australians must be drafted to ensure that the granted powers are sufficient to meet the envisaged threat, without going too far in inhibiting rights. The Council's primary concern with the Anti-Terrorism Bill (No. 2) is that the proposed sedition laws appear go further than is required and should be reconsidered. It also raises other concerns with the impact that the Bill might have on the ability of the press to report on matters of public concern, and calls on the Parliament to ensure that the newly granted powers are reviewed more frequently than the Bill proposes.

The full submission has been posted to the Council's website.

The Council's Chairman, Professor Ken McKinnon, accompanied by its Executive Secretary, Jack Herman, made further oral representations to the Senate Committee at hearings on 17 November.

The Council also issued a press release on the Bill:

The Chairman of the Australian Press Council, Professor Ken McKinnon, today called on the Attorney-General to remove the sedition clauses from the revised Anti-Terrorism Bill currently before Parliament.

"Philip Ruddock has already agreed that the sedition section needs review. It is in fact completely anachronistic. If legislation is required to punish incitement to terrorism, they must be in a restricted form that does not adversely affect other areas of freedom of speech or revive eighteenth century authoritarianism, as the current proposal does."

Professor McKinnon said, "Mr Ruddock has said that he will introduce revisions next February. If he is going to change the sedition section then, why introduce such sweeping new offences now?"

He acknowledged the positive changes the government had made to the original draft Bill saying that the revised Anti-Terrorism Bill had been substantially improved, but said, "There are still clauses that constitute a serious threat to free speech".

Professor McKinnon said that, in addition to the thoroughly objectionable sedition clauses, there were other provisions in the Bill that would limit the ability of the press to report matters of public interest and concern. "Independent reporting is prevented by provisions that make it a crime with a penalty of five years jail to report that a person has been detained or, indeed, any information about the event.

"The powers proposed to be conferred will allow the detention of persons, including journalists, to 'preserve' (read 'prevent public knowledge of') evidence relating to a terrorist act. There will be no right for journalists to protect confidential sources.

"Another section, apparently unrelated to terrorism, allows the Federal Police to obtain any documents that they believe relate to the investigation of a 'serious offence'.

"Even without the threat of such a power Australian editors have already experienced heavy-handed police intrusion into newsrooms seeking non-publication, and the surrender, of documents, unrelated to terrorism, that they think might be embarrassing if published. Open-ended legal authority of that kind is wholly undesirable," he said.

"Indeed all of what is supposed to be an emergency Act should be subject a quite short sunset clause so that its continuing necessity can be assessed".

The Press Council says that the three most essential changes now needed in the Bill are:

1. The sedition offences should be removed from the Bill and brought back separately if, after a review, they are thought necessary.
    
2. There should be media-specific exemptions clauses protecting journalists and publishers from arbitrary detention as they go about their essential task of telling us all what is going on (precedents exist for such clauses in the Privacy Act and in corporations law).
    
3. The final Act should have a three-year sunset clause, renewable if and only if exceptional circumstances can be established.

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Planning Day 2005

The Council held its triennial Planning Day in September 2005. The Planning Day is a chance for the full Council to review its procedures and principles and to consider longer-term strategies for its complaints review and free speech activities. As was the case in previous Planning Days, the sessions resulted in a large number of suggestions that are now being dealt with by the Council. There will be a detailed report on the outcomes of Planning Day in the February 2006 APC News.

The most immediate change resulting from the Planning Day discussions has been an agreement by members to place an even greater emphasis on conciliation as a way of settling complaints brought to the Council. The secretariat was asked to stress the settlement of complaints and to convene more face-to-face conciliations early in the process. Members who conduct conciliation meetings between complainants and publications would be instructed to seek solutions to complaints that satisfied both parties. There was a recognition that this would require further training of Public Members and the training in conciliation techniques of independent Journalist Members , who would only be involved in cooperation with a Public Member.

The Council has also agreed to revise the Complaint Form to ensure that the complainant stresses the core complaint, which would have to be summarised succinctly and to implement a greater use of email in the process to speed up the dealing with complaints.

With regard to free speech issues, the Council endorsed the Policy Development Committee having executive authority when speed was required in getting the Council's views out on controversial issues and asked the Chairman to use the members-only website to facilitate discussion of issues. The Council agreed that the promotion of press freedom as a public freedom should coincide with the release of the semi-annual State of Freedom of the Press statements and with other submissions and press releases.

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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 rare occasions, a Public Member of the Council will convene a face-to-face conciliation, by agreement with the parties. Below are some examples of the matters recently settled in these ways.

• A metropolitan newspaper published a series of articles, an editorial and a letter to the editor about compensation payments to victims of crimes. The complainant, the state's Attorney-General, was concerned with inaccuracies in the coverage. When the newspaper's initial response was sent to the complainant, he requested a conciliation conference. At the session, overseen by a Public Member of the Council, it was agreed that more direct communication between the parties might avoid the occurrence of a similar situation. The paper also offered the Attorney a 400-word article on victims of crime compensation. The Attorney accepted the offer.
   
• A regional daily published a court report, sourced from the AAP. The paper had altered the copy, thereby making the report inaccurate. The paper responded to the complainant in writing. At the Council's urging, the editor met the complainant in person. At that meeting, the paper agreed to publish a correction when it published a report on the next occasion the matter was before the court. The complainant commented that his meeting with the paper's editor had been most productive.
   
• Another regional daily published two cartoons that made a mockery of judicial officers. A Magistrate, offended by the cartoons, complained to the Council. Subsequent to receipt of the complaint, the editor left the paper (the two events were not connected). A new editor was then hired. The office strongly suggested that the best approach to the complaint would be for the parties to have a face-to-face meeting. The complainant, new editor and regional manager of the paper met to discuss the complaint. As a result of the meeting, the Magistrate was satisfied that the editor accepted his concerns and had taken steps to resolve the matter. He withdrew his complaint.
   
• The same regional paper had published a letter in its letters page, to which was appended an editor's note. The complainant objected that the note misrepresented the facts. There was an exchange of correspondence between the parties before the editor left the paper. The new editor and the complainant met with a view to settling the matter. That meeting didn't resolve the matter. The secretariat suggested another try at mediation. The complainant and the editor finally agreed on a form of words apologising for the misrepresentation contained in the editor's note. The apology was published in the next available edition of the paper.
   
• A metropolitan newspaper published an article that stated a certain school was the only one in Australia to help students get a pilot's license by the time they graduate. Another school complained that it, and others, offered the same opportunity to its students. The paper checked with its journalist who confirmed that an error had been made. The paper immediately published a correction.

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