News in brief - November 2008

News by email
Prize
Changes on the Council
A submission on privacy
Law changes to FoI
Access to court documents
International press freedom standards
Queensland CMC
A religious forum
The 2008 State of the News Print Media in Australia
Planning Day 2008
Public-interest whistleblowers
Case studies seminars
Open courts and suppression
Protection of confidential sources
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

As in previous years, 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 is endowing a prize worth $300 this year, either for outstanding achievement in a course directly related to the study of print journalism, particularly in the area of ethics, or for a particular piece of work in that area.

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 representative of Fairfax Media, Sam North, and his alternate, Gerard Noonan, have both recently retired from their employment, and consequently resigned from the Council. The Chairman has noted Mr. North's contribution as a member since December 2004. He particularly referred to Mr. North's inputs on Policy Development, which had been exceptionally helpful to the Council, his work as a liaison with Fairfax in securing access to its electronic database of articles, his work towards the initial State of the News Print Media in Australia report, and his fellowship at Council functions. On behalf of the Council he thanked Mr. North for his service. Gerard Noonan has been a member or alternate member of the Council since October 2000 and his contribution to the Council's work over that time has also been noted.

Peter Kerr, Commissioning Editor of The Sydney Morning Herald, is Fairfax's new representative. His job at the Herald is to manage the senior writers and develop major news stories, features and investigations. He was previously Foreign Editor, and has been a reporter and sub-editor for AAP in Sydney, Canberra and London. Peter Kerr has previously worked for a federal ALP Minister. He has an honours degree in English Literature and History, and has studied the Indonesian language and culture.

Adrian McGregor, an independent journalist member of the Council, has been asked to serve a second three-year term; and two public members of the Council, Helen Edwards and Katherine Sampson, have each been invited to serve a third three-year term. Public members and journalist members are limited to three three-year terms.

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Privacy submission

The Australian Press Council Submission has made a submission to the NSW Law Reform Commission on its review of NSW privacy legislation.

The Council noted, and agreed with, proposal 3 of the consultation paper states that "New South Wales legislation should only apply to the handling of personal information by public sector agencies", and that privacy in private sector organisations should be regulated by the Commonwealth Privacy Act. As a result, any reforms to the legislation will not adversely impact the media.

The commission's consultation paper also called for uniformity of legislation across Australian jurisdictions. The Council sought clarification as to whether this meant that the commission proposed to leave the private sector to the federal Act or to recommend mirror legislation. If the latter were the case, the legislation needs to include a media/journalism exemption, such as that in the federal Privacy Act.

The Council addressed the question of the specific inclusion of photographs and images into the definition of personal information and said that this is likely to have unanticipated consequences that may impact significantly on the ability of the media to publish photographs of people. Even if any legislation were limited to public agencies, the right to reproduce images for public consumption may be compromised in the case of images held in photo libraries, such as the State Library's.

While images of people may, in certain specific instances, constitute personal information that warrants protection, images of people in general should not be classed as personal. At present the legislation makes no mention of images, neither to exclude nor to specifically include them within the scope of personal information. The Council submitted that, if the legislation makes reference to images, any definitions be extremely narrow.

The full submission has been published on the Council's website: http://www.presscouncil.org.au/pcsite/fop/fop_subs/nswpriv.html

For more information on the Council's views on privacy
go to the index of privacy material.

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FoI changes applauded

In a press release on November 26, 2008, the Australian Press Council congratulated the Rudd government on the Bill for reform of Freedom of Information law introduced into the Senate that day. In particular, the Press Council is pleased to see that the Bill abolishes the power of Ministers to issue conclusive certificates that forestall the release of information without the need to explain why.

The Bill fulfils in part the government's undertakings to amend the laws and practices related to the availability of information. Journalists have become reluctant to use Freedom of Information requests on matters of public concern because of the costs involved, delays in provision, and the large number of exemptions that allow governments to minimise the release of material.

The Council noted Sen. John Faulkner's statement that further changes to the law will be introduced early next year and it looks forward to consulting with the Minister on those changes.

The Council added: "While today's legislative reform is a positive step towards open and accountable government, laws alone cannot make government information freely available to the public. In order to achieve openness it is necessary to address the culture that predominates in government departments and which acts to obstruct the release of information even where laws require that it be accessible. The challenge for the government will be to see that the policy of openness embodied in today's legislation is fully implemented and that the officers who have responsibility for overseeing FoI decisions are truly committed to the philosophy of open government."

For more information on the Council's position on FoI
go to the Council's policy positions overview.

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Access to courts

In The Australian's Media section of October 13 Sally Jackson reported that the Press Council has called on crown prosecutors to import a British protocol giving media access to court evidence on the same day it is tendered, saying it would lead to more open, fair and free reporting of court proceedings.

The Council said it hoped commonwealth, state and territory directors of public prosecutions would consider the proposal when they met in Melbourne on October 27.

If that does not bring results, the Council will pursue it through the Standing Committee of Attorneys-General, which is due to convene in Brisbane on November 6.

"We are trying to achieve, bit by bit, open courts accurately and quickly reported by the press, which we think is for the public good," Council secretary Jack Herman said.

A protocol introduced in English and Welsh courts in 2005 meant most material tendered in court was made available to the media as quickly as possible, usually later the same day.

Material normally released included police videos of crime scenes and of seized property, transcripts of interviews read out in court, videos and photographs showing reconstructions of crimes and CCTV footage of defendants.

CCTV footage or photographs of the defendant and the victim, or of the victim alone, might also be released after consultation.

There was an appeal procedure to deal with contested material.

"The protocol has led to greater coverage of the courts and is seen to have made court reports more accurate and comprehensive," the council says in a letter to the DPPs.

"Greater accuracy is obtained in reporting, as journalists do not have to rely on muffled recordings that are played in court. They are given transcripts of what is said."

In contrast, very little evidence tendered in Australian courts was made available to the media, especially so quickly, Mr Herman said.

"The press has to make special applications through the judge or the court registry to get that material and often it isn't released," he said.

"Whereas in Britain, unless there's a good reason not to release it, it is released as a matter of course.

"Rather than relying on journalists interpreting it, viewers have a chance to see the exact footage."

As an example, Mr Herman said, CCTV footage shown at the trial of the men behind the attempted London bomb attacks of July 21, 2005, had been released to the media the same day.

This contradicted the widely reported speech made earlier this year by Australian Federal Police Commissioner Mick Keelty in which he called for a media blackout on terrorism cases and pointed to the British legal system as a model.

"Keelty was saying there should be less reporting of terror trials and he used Britain as an example, but in fact the exact opposite is happening there," Mr Herman said.

Independent journalist member of the Council, Prue Innes, attended the DPPs' meeting and spent about three-quarters of an hour with them discussing the proposal. She suggests there was a lot of caution. Some of the DPPs (probably the more senior and experienced of them) were far more positive. Ms Innes reported that the majority view appeared to be that they would not want to embark on it themselves, although if AGs or Chief Justices embraced the approach, they would of course embrace it. Some concerns about victims were raised as was the question of resources. Ms Innes, who served for many years as the public information officer for the Victorian courts, came out of the meeting less hopeful that the DPPs collectively were likely to embrace the idea in the near term.

If they do not, an approach through the AGs is likely to be the next step.

For more information on the Council's views on courts and contempt
go to the index of courts material.

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How free is our press?

Over the last few years there has been an apparent erosion of press freedom in Australia. This has been noted in annual reports and in the annual State of the News Print Media in Australia reports. Recent data suggest that the trend appears to have been halted - if not reversed - in the past year. According to Freedom House, in its 2008 report, Australia is now ranked 35th among the nations of the world in so far as press freedom is concerned (from 39 in 2007). Reporters sans Frontieres (in its 2008 list) ranks Australia in 28th place (up from 35, after a number of years in which its ranking has consistently fallen).

As the Audit Report of conditions impacting on the Australian media, initiated by the Right to Know campaign in 2007, noted there are about 500 pieces of legislation, at the territory, state or federal level, which restrict media access to information, and the growing trend towards suppression of information by the courts. In particular it found that Freedom of Information laws were ineffective, due to costs, time delays and the imposition of ministerial certificates.

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Crime and Misconduct Act

The Council expressed concern with the proposed amendments to the Act that would narrow the scope of the public interest immunity currently available to witnesses who appear before the Crime and Misconduct Commission. The public interest immunity provides the Commissioner with discretion to exempt witnesses from answering questions in certain circumstances. A letter was sent to the Queensland Premier requesting that the proposed amendment be reworded and that the legislation should include a right for journalists to refuse to disclose confidential sources.

The Press Council is aware that the Queensland government is proposing to amend s192 of the Crime and Misconduct Act in order to remove the right to refuse to answer questions on the ground of self-incrimination or the ground of confidentiality.

The Press Council is concerned that the proposed amendment, as currently worded, may have the unintended consequence of narrowing the scope of the public interest immunity which is currently available under s 192(2)(b)(ii).

The concept of "public interest immunity", although ultimately a matter of judicial discretion, includes within its scope certain obligations of confidence falling outside the definition of privilege. The inclusion of the phrase "on the ground of confidentiality" as a circumstance in which there is no entitlement to refuse to answer questions may be interpreted by a court as excluding such confidential obligations from the class of circumstances in which public interest immunity might claimed.

One of the class of confidential relationships which would be affected by such a narrowing of the scope of the public interest immunity would be the right of journalists to protect the identities of those persons who provide them with information in confidence. The law as it presently stands, although it provides no protection for journalists, does provide the court with sufficient discretion to be able to excuse journalists where this is regarded as being appropriate and in the public interest. The amended legislation appears to remove that discretion. The consequence of such an amendment is the potential for journalists to be imprisoned under s 192.

The Press Council calls on the Queensland government, not only to redraft the amendment to ensure that the scope of the public interest immunity is not narrowed, but also to insert into the legislation a clause recognising the right of journalists to refuse to disclose the sources of confidential information without risking penalty.

In mid-November, the Council received a response from the Premier's parliamentary Secretary in which he noted:

The recent amendments to the Act are intended to ensure that the Crime and Misconduct Commission (CMC) is able to continue its valuable role in fighting crime and public sector misconduct.

The amendments to the Act clarify that a person is not entitled to remain silent or refuse to answer a question put to the witness at a misconduct investigation except on the grounds of legal professional privilege, public interest immunity, or parliamentary privilege.

The amendments to the Act were prompted by a recent decision in Witness "0" v Crime and Misconduct Commission [2008] QSC 155 where the court interpreted the Act, particularly the former section 192, as allowing a witness to refuse to answer a question in a misconduct investigation based on the privilege against self-incrimination.

As a result of the decision in the Witness "0" case, the CMC would not be able to direct witnesses in misconduct hearings to answer questions where the answers may incriminate the witness. This meant that evidence previously obtained by the CMC could potentially have been inadmissible and a number of current and past CMC misconduct investigations and hearings would be compromised.

Consequently, the Queensland Government acted to clarify the privileges that can be claimed under the Act and ensure that the CMC is able to continue its important work.

In response to concerns about the scope of the amendments to the Act expressed by the media profession, the Attorney-General has decided to refer the issue of what privileges or protections should be granted in legal proceedings to members of various professions, including journalists, in the exercise of their professional duties to the Queensland Law Reform Commission (QLRC). The Queensland Government will give serious consideration to any recommendations the QLRC may make. However, until the QLRC has reported, the Queensland Government does not intend to reconsider the recent amendments to the Act.

The Press Council will, of course, be making submissions to the QLRC on the general question of the protection of journalists' confidential sources.

For more information on the Council's views on protection of sources
go to the index of sources material.

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Forum

On August 25, the Council's Executive Secretary, Jack R Herman, addressed a Media Forum at NSW Parliament House, organised by the Australian Partnerships of Religious Organisations, on how to deal with an antithetical or inaccurate media. After a fifteen-minute speech, he was quizzed for about 30 minutes on the Council and other complaints tribunals and how to deal with concerns with the accuracy and fairness of reporting. A wide range of religious organisations was represented.

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The State of the News Print Media in Australia 2008

The report has been completed and is currently being coded for website publication. A pdf version is also under preparation and a small number of printed copies will be run off from this and be available from the Council office. Publication is expected in the second week in December 2008. An article in this issue of the News contains some of the conclusions drawn in the report.

See also
2006 The State of the News Print Media in Australia
2007 The State of the News Print Media in Australia
2008 The State of the News Print Media in Australia.

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Planning Day

The Council's triennial Planning Day was held in August. 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. As a first priority of matters arising from the discussions the Council is considering a revised Statement of Principles. The proposed Principles, and Notes to them, have been circulated as a discussion draft to the publishers for comment, and those comments will be tabled at the Council's December, which will further consider the draft.

Also at the December meeting the Council will be discussing other issues arising, including:

• Appeals, on what basis should they be considered and by whom;
   
• Decisions in Adjudications, can they be upheld in part, or should the Council enumerate each separate complaint;
   
• Drafting adjudications, how best to ensure that the Council's decision is properly presented.

Other items arising from the discussions, including the format of the Planning Day itself, will be discussed at subsequent Council meetings.

For more information on the Planning Day and its history
go to the Planning Day overview.

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Whistleblowers

In the August 2008 News, the Council reported on submissions made on the question of public-interest whistleblowing, including one to the House of Representatives Legal and Constitutional Affairs Committee. On October 27, in Sydney, the Chairman, Professor Ken McKinnon, and the Executive Secretary, Jack Herman, appeared before the committee to give oral evidence. The committee's report is due early next year.

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Case Studies

At its October meeting, the Council considered members' feedback on the conduct of the 2008 Case Studies. It was agreed that the series should continue in 2009. Generally members thought pictorially based cases were more successful and that matters related to privacy and to confronting images had been more popular. The Council is currently putting together the 2009 series and will be in touch with universities to confirm details.

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Courts need to lift their game

Australians are being denied their right to see how justice is done because courts are inconsistent or unhelpful about releasing information, a new report has found.

The report, commissioned by Australia's Right to Know, the free speech advocacy group formed by the publishers and broadcasters, arose from a five-month research project. It calls for a raft of changes to ensure the public can be quickly and fully informed about court cases.

The director of the research was Prue Innes, an independent journalist member of the Council. With a background both as a court reporter and as a public information officer for the Victorian courts, Prue Innes was ideally suited to lead the research.

The report suggests that the use of suppression orders, which gag the media from reporting particular details of trials, is inconsistent and some courts have "no idea how many orders they make, and no systems to inform the media of them".

"For too long the media has had unnecessary barriers placed in their way in obtaining information that the general public is entitled to know," Prue Innes said.

The research aimed to establish how well the principle of open justice is working in practice in Australia. Not surprisingly, with nine separate jurisdictions, there was some inconsistency around the country.

Prue Innes said that the public interest is not served if journalists cannot access material put before the courts on which judicial decisions are based.

The report called for all courts to examine their processes to ensure that transcripts, documents and exhibits were readily and quickly available to the media except where publication might interfere with a fair trial.

Noting that laws already prohibit the publication of many details from court cases, such as the identity of sexual assault victims, children and details about an defendant's past record, the report also found that courts impose a large number of discretionary suppression orders. It said that courts could be too quick to issue sweeping, open-ended and badly worded suppression orders that were often unnecessary.

Prue Innes concluded that the laws limiting publication of details are effective and the media abide by them, "but when suppression orders are placed on top, they are almost always unnecessary."

The key recommendations of the report are:

• Court files and transcripts should be readily available to the media
   
• Judges should provide copies of their sentencing remarks to the media as an aid to accuracy in reporting them
   
• Sentences and decisions should be posted on court websites quickly
   
• Suppression Orders should be made only when they are essential to prevent a threat to justice
   
• Orders should be clear, specific and worded so that they suppress only the information that was intended
   
• Orders should state their reasons and have sunset clauses so they expire when no longer needed
   
• The media should be properly informed of Orders
   
• Reporters' recording devices should be allowed in courts where possible, to aid accuracy of reporting.

For more information on the Council's views on courts and contempt
go to the index of courts material.

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Protection of sources

The decision in a Western Australian court to order a newspaper to hand over recordings that would reveal the identity of a confidential source exposes the continued failure of governments to enact proper protections for journalists and their sources.

Subsequently the Supreme Court has stayed the execution of the order until an appeal can be heard.

In civil matters, the Australian Press Council believes that questions about the accuracy and reliability of sources are matters that should be tested when, and if, defendants rely on a defence of truth, or a defence of qualified privilege, where they have to show that they took all reasonable steps to check the accuracy of the material they published.

To have courts ordering defendants early in proceedings to surrender documents that would reveal the identity of their sources does nothing more than expose those sources, where known to the plaintiff, to some form of retribution. This was the view taken by The Sydney Morning Herald in the Cojuangco case, where it gave up its qualified privilege defence rather than reveal to an associate of Ferdinand Marcos the identity of their informants.

The best reason for the application of the "newspaper rule" to defamation proceedings so that publisher defendants will not be compelled during preliminary proceedings to disclose the sources on which an article depends was best summarised by Dixon J in McGuiness's case:

the special position of those publishing and conducting newspapers, who accept responsibility for and are liable in respect of the matter contained in their journals, and the desirability of protecting those who contribute to their columns from the consequence of unnecessary disclosure of their identity. (at page 104)

While the sources in the WA case might not be subject to violence, they may be subject to other punitive measures should their identity become known. And the likelihood that others will blow the whistle on similar matters will be diminished.

That's why the "newspaper rule" must be applied in the civil courts and why workable shield laws are needed in the criminal courts.

The Standing Committee of Attorney-General agreed some time ago to introduce such protections to ensure that journalists and editors were not penalised for abiding by their ethical obligation to protect the identity of their sources. A working group is due to report to SCAG at the end of this year.

Late last year, the federal law was amended to reflect the NSW law, which pays lip-service to such protection, but leaves the discretion solely with the judge.

The Press Council believes that such legislation should place the onus on those seeking to obtain the identity of the source in criminal matters and that it should only used in the case of serious crimes or matters involving health and safety.

The federal Attorney-General has now foreshadowed further amendments, which would bring the law closer to the New Zealand model, which mandates that the default position is the right to protect confidential sources unless exceptional circumstances apply. The Council has not as yet seen how the federal proposals would be phrased in legislation but sees the move as a forward step. As noted above on page 6, the Queensland government has referred the question to its Law Reform Commission, and the new Western Australian AG has said that legislation will be introduced in his state in the new year.

For more information on the Council's views on protection of sources
go to the index of sources material.

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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.

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