News in brief - November 1994

1994 APC Prize
The 1993 Prize winner
The Toowoomba public meeting
Annual Report No 18
The reporting of suicide
Senate Shield Laws report
Theophanous and Stephens cases

1994 APC Prize

The Council has announced the terms of entry for its 1994 award. In its first four years the Prize has generally been awarded for the best thesis by a tertiary student on a subject related to the objects of the Press Council.

In 1994, however, the Prize will be awarded for the best essay submitted on a set topic and secondary students will be eligible to enter.

The topic is: The freedom of the press and its responsibility.

Entries are invited in two categories:

(1) Tertiary students, who will have a 2,500 word limit; and

(2) Secondary students, with a 1,500 word limit.

Winners in each category will be selected by a panel of judges and the prizes of up to $1,000 will be awarded in each category.

The final date for receipt of submissions is 1 March 1995.

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

INQUIRIES: The Executive Secretary
The Australian Press Council
303/149 Castlereagh Street
SYDNEY NSW 2000

Tel: (02) 261 1930
(008) 02 5712
Fax: (02) 267 6826

For more on the Prize,
see the Prize index page.

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1993 Australian Press Council Prize - the winner

Freya Carkeek, who won the Prize for her 15,000 word thesis on racial vilification legislation, a shorter version of which is printed in this issue, was educated at Huntingtower School in Mount Waverley, Victoria, before studying for Honours Bachelor degrees in Arts (majoring in Politics) and Law at Monash University between 1988 and 1993. She is currently doing her Articles of Clerkship at the Melbourne law firm, Ebsworth and Ebsworth. Freya hopes to develop her interest in the role law plays in moulding and responding to contentious social issues. She enjoys live theatre, playing the 'cello and being outdoors.

The Council will be awarding her Prize to Freya at a Public Meeting to be held in Mount Gambier in late November.

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Public Figures and the Press

The latest in the series of monographs presenting a transcription of the Press Council's Public Meetings is now available. The meeting, held at the University of Southern Queensland, Toowoomba, featured five main speakers, academic Prof Clem Lloyd, civil libertarian solicitor Terry O'Gorman, television news producer Leisa Schultz, senior political reporter Peter Cole-Adams and the Council's Chairman, Prof David Flint, discussing the issues arising from the effect of press reporting on public figures. Their talks were followed by a lively question and discussion time. The monograph also includes the text of Prof Flint's after-dinner speech, "Australia into Asia", and the results of a questionnaire completed by attendees.

Like all its monographs, "Public Figures and the Press" is available for sale from the Council. It will cost $6 (including postage). A list of its publications is also available.

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Annual Report 18

Annual Report 18 has been released by the Council. It contains reports on the Council's activities in the year 1993-4, as well as verbatim reprints of all press releases and adjudications issued in the year under review. Additionally, there are a number of statistical tables and graphs and reports from the major publishers of their publications.

The report is available on request from the Council.

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Reporting of Suicide

In a general press release issued on 2 November, the Press Council has made the following statement:

"Suicides are rarely reported in newspapers. There have been, and will continue to be, exceptions. Mass suicides, suicides by public figures, bizarre cases, statistical run-downs on type, places, age groups and other aspects are all legitimate matters of public interest and concern.

"Newspapers in Australia answer that interest and concern, the Press Council believes, with a marked degree of responsibility and care. In individual cases names are usually withheld from publication. But even here there are exceptions; sometimes the name is essential to the report, as in the case of a public figure, and sometimes a name is needed to prevent confusion and unnecessary worry.

"Judging by its own observations and the relatively few complaints is has received, the Press Council believes that almost all papers have treated suicides with restraint and responsibility. The Council has also had responses from most of the major papers which indicate that they are all aware of the desirability of avoiding

• extra pain for relatives and friends;
   
• any encouragement of copy-cat suicides; and
   
• unnecessary details of method, or place.

"However, there are always exceptions where these desirable aims give way to the pressure of news and public interest. It is not possible to draw up sufficiently precise guidelines on the reporting of suicides so as to allow for the inevitable exceptions that crop up. 'Motherhood' guidelines are of little, if any, value, and firm guidelines are impossible because of the wide variety of circumstances and the validity of the case for many exceptions.

"Indeed some authorities suggest that increased reporting of suicides can act as a deterrent to others and, perhaps, draw attention to the social problems that lead to the contemplation of suicide.

"The incidence of suicide among young people is, it is reported, extremely high in Australia, and thus the press treatment of such cases must reflect a high degree of concern and responsibility. With that in mind the Victorian branch of the Royal Australian and New Zealand College of Psychiatrists has asked the Press Council to draw up guidelines on suicide reporting, particularly the reporting of suicide by young people.

"The Press Council can see no useful purpose in drawing up 'rules' that would amount only to good intentions; 'rules' that would be of necessity full of holes. The Council prefers to rely on the continuing responsible attitude of the press to the problem.

"However, the Council strongly commends to editors the College's suggestion that articles dealing with suicide, when they are deemed necessary, should include reference to the counselling services that are available for young people in emotional distress, with contact addresses and phone numbers."

For the Council's latest position on suicide,
see GPR 246.

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Senate Report

The report, "Off the Record: Shield Laws for Journalists' Confidential Sources", the first report of the Senate Standing Committee on Legal and Constitutional Affairs into the Rights and Obligations of the Media, has been released.

In welcoming the report, the Press Council noted that its central recommendation - the enactment of a judicial discretion to excuse a journalist from answering questions about the identity of a confidential source - may not be sufficient in two areas where there are a growing number of conflicts of conscience for ethical journalists:

• government inquiries and statutory investigativebodies, especially those which can virtually draft their own terms of reference; and
   
• the use of pre-trial discovery, where a plaintiff has not yet sued for defamation or injurious falsehood, to reveal a source.

"The Press Council believes that journalists should only be compelled to reveal their sources at a trial in an open court. The Council argues further that such cases be restricted to serious criminal cases where, for example, the information is vital to establish guilt or innocence. It would have been preferable for the Committee to have followed the West European and North American trend which is to be more protective of confidential sources," the Council's Chairman, Prof David Flint remarked.

The Council applauded the Committee for its recommendation to change punishment for contempt in those cases where a journalist determines, for reasons of commitment to a code of ethics, not to reveal a source. Its argument against open-ended terms of imprisonment demonstrated a civilised approach to the question.

The report also questioned the efficiency of the system of press accountability. The Press Council suggested that self-regulation of the print media was working extremely well.

"In 1993-4, over 36% of complaints were settled to the satisfaction of complainants - by mediation or after the receipt of the response from the publication - without recourse to an adjudication," Prof Flint noted. "The Council's complaints process has been improved by recent changes aimed at making it more expeditious and is being evaluated by a series of public and professional surveys and meetings. We are in the process of surveying past complainants to find out how they assess the complaints procedure."

The Council will discuss the implications of the report at its November meeting. Prof Flint, however, has expressed some caution about the recommended increase in the Council's powers. The committee suggested that the Council be given power to impose and enforce sanctions on the media. "This involves basic issues about freedom established a long time ago," said Prof Flint. "A power to impose meaningful sanctions, such as fines, could backfire: the Council would become a de facto court. This would have a significant impact on the Council which is currently a free and efficient way of dealing with complaints. With sanctions available, the Council would probably have to allow legal representation. And its decisions would be subject to appeal.

"Nevertheless, the Council welcomes this report as a carefully considered document."

For more on Shield Laws,
see the Protection of Sources index page.

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Defamation: The High Court and After

The Australian Press Council has welcomed the decisions of the High Court in the Stephens and ors v. The West Australian and Theophanous v. The Herald and Weekly Times Limited and anor cases. The decisions dealt with the question of the extent to which a defence could be mounted in defamation on matters related to comments or reports on political activities.

The Council's Chairman, Professor David Flint, commented: "The reform of our defamation law has been on the national agenda for two decades. There is a growing recognition that it does not serve our needs: that the balance is against the early disclosure of matters of public concern.

"The High Court has taken the most significant step in recent years towards correcting this imbalance. As result, the 'chill' which defamation law has exercised on the free flow of information should begin to thaw. As a further consequence, more should be done in the legislative reform of libel law.

"The High Court has once again demonstrated its leadership in providing direction in fundamental areas of human rights. That the newspapers concerned were willing to test the application of the implied freedom of political communication in areas of public concern when defamation claims are instituted is testimony to their dedication to free speech and the right of the public to information. It is worth recalling that this path was pioneered by the persistence of other media companies in the Political Advertising and Industrial Relations cases in which the court established the constitutional principle of freedom of political communication."

A few days later the Australian Attorney-General, the Hon. Michael Lavarch, gave impetus to the reform of Australian defamation law. Prof Flint supported the move:

"The High Court has indicated once again an area where reform is appropriate and necessary. Over recent times, the balance between the protection of private reputation and the public interest has been too strongly weighted by the courts against the public's right to be informed. The High Court has done what it can in the area of political communication. The imbalance in other areas of matters of legitimate public concern is now a matter for the legislatures."

Professor Flint identified four areas which defamation law reformers need to investigate and, where appropriate, amend the law.

• The lack of any need in defamation actions for plaintiffs to demonstrate fault on the part of the media.
   
• The notion of presumed damages in defamation. This makes it different from other legal actions in tort. For example, if a factory worker or motorist is severely injured their damages have to be proved. Why should not the defamation plaintiff have a similar burden of proof?
   
• In defamation actions, unlike others, the onus of proof is, in effect, on the defendant, who has to show that the material which is the subject of a defamation action is true. Why should not the plaintiff, who, in most cases, would be in possession of all the facts, have the onus to prove that the alleged defamation is false?
   
• The use of convoluted imputations drawn from the reporting of matters of legitimate public interest in an attempt to demonstrate harm to the plaintiff in the reports. (The analogy of this process would be that, for example, just because there was published report of a plane crash, there was the imputation that the designer and/or pilot was, therefore, negligent.)

"Let us hope that the barriers on the right of the people to know what is happening in all areas of public concern are speedily removed," Professor Flint concluded.

For more on libel laws,
see the Defamation index page.

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