Freedom of the Press Report
1999-2000

The matters considered by the committee in the reporting year included the following.

Professional Privilege
Courts and contempt
Defamation
Media ownership
Privacy
Whistleblowers
Freedom of information and suppression
Juries
Government suppression

Press Gallery Accreditation Proposal
Photos in Gallery

Parliamentary and other inquiries

Information Technologies Committee
Self-Regulation

International

WAPC
Fiji and Samoa
New Councils

General

Editorial Discretion
Youth Suicide
ACCC and Advertorials
Collusion re circulation
Copycat Crimes
TGA Recall Ads

1. Professional Privilege

In November, the committee noted a decision from Northern Ireland, where the senior judge ruled that a journalist, Ed Moloney, would not have to hand his notes over to the police. The ruling overturned two lower court rulings that the reporter should surrender the notes of a 1991 interview with a Protestant extremist facing a murder charge.

see also
Index on protection of sources material

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2. Courts and Contempt

The committee noted that the NSW Law Reform Commission had appointed Professor Michael Chesterman to draft an issues paper on its contempt reference. (The LRC was asked by the Attorney-General to consider the matter after the Costs in Criminal Cases Amendment Bill had been withdrawn and the AG decided to look again at the whole issue.) In mid 1999 the commissioner advised the Council that he would draft the discussion paper and then seek submissions. In May 2000, the issues paper had still not been produced but was 'on its way'.

Brisbane-based Internet publisher Scott Balson was charged with "unlawful publication" under section 7 of the Criminal Law (Sexual Offences) Act 1978 following the publication on the 'Net of the name of an alleged sex offender. The first attempt to prosecute Mr Balson failed because it was lodged in the wrong court. When it finally got to court, the charge failed because, the magistrate said, the police had failed to prove that Mr Balson was the publisher of the information. The committee kept a watching brief on the case as it is the first prosecution for such an offence arising from publication on the Internet. In the event, it decided to take no action on the matter after Mr Balson had had his day in court.

see also
Index on courts and contempt material

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3. Defamation

In last year's report it was noted that the ACT Attorney-General Gary Humphries was drafting a Bill to reform his territory's defamation law. In late 1999 he tabled the Defamation Bill 1999 which proposed wide-ranging changes to the practice of defamation which, if passed, would have a significant effect on defamation actions in the ACT. It includes detailed proposals for the settlement of defamation actions through alternative resolution methods, including greater emphasis on corrections and apologies as a way of dealing with defamations; limits on damages; and the introduction of aspects of negligence law into defamation.

A free Public Forum to discuss the Bill, sponsored by the Australian Press Council in conjunction with the ACT AG, was held on 9 February 2000 in Canberra. The forum, which gave the law profession, the media and the public a chance to discuss the implications of the legislation, was opened by Mr Humphries. Other speakers included Ric Lucas of Colquhoun Murphy and Council member Chris McLeod of the Herald and Weekly Times. A report of the forum, including the two main speeches given, was published in the APC News, Vol 12, No 2, May 2000.

As a result of the forum, Mr Humphries decided to look again at aspects of the Bill. The redrafted Bill had not been tabled at the time of the writing of this report.

In October 1999, Justice Levine, the senior NSW defamation judge, made remarks critical of the working of the current NSW law. Only recently had cases tried under the effects of the last changes to the law, which allocated to the jury only the task of finding whether the imputations were defamatory and left to the judge all other aspects of the case, including defences and damages, come to court. Many practitioners have expressed unease with the effects of the changes.

In early 2000 the NSW Attorney-General, Jeff Shaw, looked again at defamation reform, particularly at the suggested fast-track mechanism, Declarations of Falsity, suggested by the Law Reform Commission when it last reported. He convened a seminar on 10 May 2000 to raise the question of defamation law reform. While Mr Shaw and the speakers formerly part of the Law Reform Commission panel, including the Governor, pressed the Declarations of Falsity as the necessary reform, members of the legal profession were more concerned with the failure of the judge/jury division to work adequately. On 17 May, Mr Shaw gave a further speech, to the NSW Law Society, again stressing that court-directed Declarations of Falsity would be the best solution to the defamation law problems.

The FoP Committee looked again at the proposal, of which it had earlier been sceptical, and thought that there might be some merit in the proposal. Before it could follow the idea through, the Attorney retired from politics and the views of his successor are as yet unknown. The committee asked the Chairman to follow-up these matters with the NSW government and see if any further progress on reform was possible.

Two other matters in the area of defamation took the committee's attention.

A UK decision in Reynolds v The Times appears to have made available to the media in the UK a common law defence of qualified privilege on matters published to the public in the public interest. The committee discussed the implications in Australia of this case, especially in the light of Lange. The committee also took note of a seminar organised by Phillips Fox to discuss the case.

In May, the committee discussed the use by Car Lovers Carwash Ltd of the NSW Fair Trading Act as a supplement to defamation proceedings. The Act was used, inter alia, to secure an injunction against the publication of material on the company put together by a freelance journalist who was the defendant in the action. The committee sought the views of the NSW Attorney-General and the Minister for Fair Trading on the use of the Act in this way. The Chairman's letter to the Minister for Fair Trading read:

The attention of the Press Council has been drawn to this case. The Council notes that a successful application has been made in a defamation action for interim injunctive relief for an alleged breach of s42 of the Fair Trading Act. It seems to the Council that this is a misuse of the legislation and attempts by the backdoor to avoid the Court's long-established reluctance to grant injunctions in defamation matters. It also contradicts the manifest intention of s60 of the Act to prevent actions being brought against news providers.

In the Council's view this would be an appropriate case in which the Crown should seek leave to intervene to prevent abuse of the court's process. Fair Trading legislation was not enacted to provide the sort of relief that the applicant is pursuing in this case and s60 was included to prevent this occurring. I have written to the Attorney-General bringing the matter to his attention. However, as the administration of the legislation falls within your portfolio responsibility you may feel that you should take up the matter with him also.

The Council also suggests that the possibility of this sort of action being brought in the future should be prevented by an amendment of the Fair Trading Act to strengthen the protection given news providers by s60.

At the time of writing this report, the committee is still awaiting a response from the Minister on what, if any, action he intends to take.

see also
Index on Defamation Law material

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4. Media ownership

In last year's report, the Council noted its submission to the Productivity Commission on its Broadcasting reference which included matters related to cross-media ownership rules.

In October 1999, the commission released a draft report which largely related to broadcasting matters and made recommendations towards the elimination of cross-media rules and further opening of the media to foreign ownership which were similar in intent to the submissions made by the Council. The committee determined to make no further submissions and noted the release of the final report in terms very similar to the draft report in April 2000.

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5. Privacy

In September the federal Attorney-General released an Information Paper on proposed legislation for the protection of privacy in the private sector proposals. This legislation would be complementary to the existing legislation governing the public sector. Carolyn Adams from the AG's Department attended the September Council meeting and discussed the Information Paper with the Council. The Council decided to make a submission to the federal Attorney on the proposals and on the short time-frame within which the legislation was being introduced.

On 13 October, the Council issued a submission, the Executive Summary of which read:

The Council questions the need for such an expedited introduction of the legislation and the apparent lack of public consultation. It recommends that the legislation not proceed until after a proper public debate of its need.

If the legislation is proceeded with at this time, the Council draws the Attorney's attention to:

• the concerns with the New Zealand legislation which his department has held up as a model, particularly the insufficiency of its public interest defence;
• the need for a better definition of proposed exemption of the press from the operation of the legislation; and
• the requirement that, in the absence of a constitutional or legislated Bill of Rights, the legislation should recognise the importance of the principle of freedom of communication and incorporate it in the legislation.

The submission was published as a supplement to the APC News, Vol 11, No 4, November 1999. General Press Release No 233 was issued the same day.

Federal Privacy Commissioner Malcolm Crompton attended the October FoP Committee to discuss with the Council the proposals and the proposed media exemption. Subsequently the department consulted the Council's Chairman on the definitions of 'news organisation' and 'journalism' to be included in the Bill.

In December 1999, the Attorney released 'key provisions' of the proposed Privacy Amendment (Private Sector) Bill and invited comment on them. Included in these were a draft media exemption and a definition of 'journalism'. It was proposed to table the Bill in February 2000. In early January, the Chairman responded to the Attorney:

The Press Council appreciates the opportunity provided to it to comment on the terms of this Bill insofar as it relates to the Press.

The Council reiterates its view that the adoption of this legislation has the potential to limit the freedom of the press in this country. It does not consider that the case for legislation has been established. However, if the government is determined to proceed with the Bill, the Council welcomes the inclusion of provisions to limit its impact on the media.

The definition of "journalism", the exemption of acts or practices done in the course of journalism and the protection for journalists from having to disclose their sources of information are all appropriate to limit the impact of the legislation on the media. The Council considers that the language in the Bill is satisfactory and should not be altered.

However, there are two matters that the Council wishes to bring to your attention. First, it considers that the Bill is incorrectly named. It is not concerned with privacy but with data protection and should be described accordingly.

More important is the scope of the proposed amendment to s66 of the Privacy Act. It is proposed that it will be a reasonable excuse not to disclose information that would reveal the identity of a person who gave information to a journalist in confidence. However, the same protection is not to be afforded to the person who provided the journalist with information. Such a person will be guilty of an offence if he or she refuses to answer a question about the giving of information to a journalist. It seems to the Council that it would be appropriate for the source of a journalist's information to also have a reasonable excuse for refusal to comply with s66.

The Council urges the inclusion of such a provision in the Bill.

On 12 April, the Attorney tabled the redrafted Bill in Parliament. The Bill was referred to the House of Representatives Standing Committee on Legal and Constitutional Affairs for report. In June, the Council's Chairman, accompanied by Warren Beeby, an industry member of the Council, appeared before the Standing Committee. They addressed the committee on the definitions in the Bill and on the New Zealand experience with similar privacy legislation. Following that discussion, the Chairman sent the following letter to the Standing Committee's Secretary:

The Chair of your Committee asked me to furnish more information relating to the operation of the NZ Privacy legislation following claims by the Privacy Commissioner that the media exemption in the Privacy Amendment (Private Sector) Bill should follow the provisions of the NZ Privacy Act. The Commissioner apparently told the Committee that the NZ Press was happy with the NZ legislation. He had clearly never spoken to the NZ Press.

I enclose some comments on the NZ legislation from representatives of the NZ Press. Most of these are directed to the undesirability of the legislation in its totality. I appreciate that it is probably too late in the day to advance this cause in Australia but it nevertheless shows that the Privacy Commissioner's assertion to the Committee that the Press in NZ is happy with the legislation is wrong

As to the form of the NZ exemption for "news activity", the Press Council looked closely at the words used in the NZ Act when making its submission to the Attorney-General in relation to the proposed Privacy Bill. A copy of that submission is enclosed. You will see our analysis of the NZ exemption at para 6. We would like to think that this weighed heavily in persuading the Attorney that his initial proposal that the NZ model should be followed was inappropriate. The Privacy Commissioner's suggestion to the Committee that the legislation should revert to the NZ model demonstrates both a failure to appreciate the concerns of the NZ Press and a desire to limit the Press exemption to a range of activities that would heavily curtail the freedom of the press in this country.

I appreciate the suggestion that the exemption proposed in the Australian Bill is very broad and may possibly embrace bodies that designate themselves as engaging in journalism. However, in balancing freedom of the press against the right of privacy, I reiterate what I said to the Committee: today's small publisher of a community newsletter or Internet website may be tomorrow's global media network. It has always been a proud principle in Australia that anyone can become a publisher in the print media. There have been no licensing or other controls imposed over print, in contrast with the electronic media where scarce resources dictate a different approach. For this reason it is necessary to define media organisation broadly in the Privacy legislation. The Press Council therefore supports the inclusion of the present definitions in the Bill. However, if it is thought that the definitions are too wide to be tolerated (a view which the Council does not hold), perhaps it would be possible to insert the word "principal" before "activities" in the definition of media organisation. This might limit the range of bodies that can rely upon the exemption.

It was not possible in the time available to us yesterday to bring to the attention of the Committee a concern that the Council has about the Bill in its present form The amendment made to s66 of the Privacy Act by Clause 106 of the Bill provides an important protection for journalists who obtain information the release of which would otherwise be in breach of the Act. The Council supports the inclusion of this provision in the Bill. However, it thinks that the provision should go further and provide similar protection for the person from whom the journalist obtained the information. Without such protection the flow of information to a journalist is likely to be affected in the manner described by the NZ Press commentators. The Council urges the Committee to recommend the inclusion of appropriate protection for a journalist's source of information in the Bill.

I should be pleased to discuss any of the matters referred to above with you or a member of the Committee.

Following a meeting of the FoP Committee, the Chairman sent a further letter to the Standing Committee's Secretary:

The Press Council at its meeting on 21 June gave further consideration to the definitions of "journalist" and "media organisation" as used in the Privacy Amendment (Private Sector) Bill 2000.

While the Council is not troubled by the content of the definitions, it can see that they could be read as covering a wider range of activities and bodies than may be thought necessary to ensure that the Press is not unreasonably hampered in its activities.

With this in mind, the Council suggests that the definition of journalism could be limited by inserting after the word "public", the words "through a media organisation". The definition of media organisation could be amended as suggested in my letter to you of 9 June by the insertion of the word "principal" before "activities".

The Council considers that these changes would have the effect of excluding from the range of exempted bodies those organisations that merely collect and distribute information and also those bodies for whom media activity is only an incident of their business.

The Standing Committee made three recommendations regarding the media exemption section of the Bill.

Recommendation 8
The Committee recommends that the operation of this exemption be monitored and specifically reassessed in the next review of this legislation.

Recommendation 9
The Committee therefore recommends that, in order for a journalist or media organisation to obtain the benefit of the media exemption under this legislation, he, she or it must subscribe to a code developed by a media organisation or representative body or, in the absence of such a code, a model code prepared by the Privacy Commissioner.

Recommendation 10
The Committee further recommends that the Privacy Commissioner conduct an education campaign to inform the public about the special provisions applying to the media.

The FoP Committee considered these recommendations and a further letter from the Attorney-General's Department seeking its advice on them. The Attorney has suggested that the definition of "journalism" is circular and may be deleted. The committee had no concerns with that, provided the definition of "media organisation" remained. It decided also to develop a model code for the print media, based on current press practice and established industry codes, in line with recommendation 9. At the time of the writing of this report, the final shape of the Bill had not been determined.

In May, the Council received an invitation from the NSW Privacy Commissioner to comment on a proposed privacy code of practice on the use of NSW public sector agency records for research purposes. After reviewing the draft code, the Council sent the following letter to the commissioner:

The Council's Freedom of the Press Committee has discussed your 25 May letter regarding privacy codes for research into public sector agency records.

The committee agreed that, as long as the guidelines proposed dealt with 'research' and not 'investigation', the press would not be affected by the proposed guidelines and any submission would be unnecessary.

The committee asked me to seek from you confirmation that its interpretation of the proposals is correct.

see also
Index on privacy material

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6. Whistleblowers

In late February, the Victorian Attorney-General released Whistleblower Protection proposals for discussion. Like similar proposals in other states, the proposed legislation would only protect public interest disclosures about public officers or public bodies to a government body, the ombudsman or to Parliament. Disclosures to the media would receive no protection. Thus the proposals afford no protection to the media and could in fact prejudice the media as a result of provisions which penalises a person who obtains or disclosures information received or disclosed under the provisions of the proposal. The Council decided not to make a submission at this stage and asked its Melbourne members to keep an eye on developments. If the proposals become legislation, the Council may seek to widen the provisions of the proposal to protect public interest disclosures to the media.

The NSW Professional Standards Council issued a discussion paper on 'Whistleblowing in the Professions'. After looking at the proposals and their likely impact, the Council decided not to make a submission.

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7. Freedom of Information and Suppression

In August, the committee noted a ruling by Justice Barry Beach in the Victorian Supreme Court. Ruling on an appeal by the Herald and Weekly Times, Justice Beach quashed a suppression order issued in the Geelong Magistrates Court. He said that people should not have their names suppressed because they might be embarrassed and added that publication of names of those involved in court cases was an important element of the justice system.

In last year's report, the Council noted the start of a review of the Queensland Freedom of Information Act by a Parliamentary Review Committee. In February 2000 the Review Committee issued a discussion paper. After checking with the major publishers of metropolitan, provincial and suburban newspapers in Queensland, the Council learned that the major concerns the press had with the administration of FoI in the State - including the blanket labelling of documents as 'Cabinet papers' - were not addressed by the review. The committee decided to make no submission to the review.

The committee followed the appeal by the Herald and Weekly Times to the Administrative Appeals Tribunal over the excessive cost assessment on an FoI request it had made for details on federal MPs' travel expenses. The tribunal ruled that the bureaucrats should have made the information more easily available but were entitled to charge for the time involved. As a result the judgment did not make less likely the use of large costs as a way of discouraging FoI requests. The newspaper group is pursuing its request for information but seeking to have the fees reduced or waived.

Following the tabling of an article on FoI by the WA Information Commissioner, the Council sought the co-operation of the commissioner in advancing ideas similar to those she had put forward in other States where FoI is not mediated by a commissioner. While thanking it for its interest, the commissioner was not receptive to a closer relationship with the Council on these matters.

Towards the end of the reporting year, the Council took interest in the administration of s10F of the Queensland Corrective Services Act. This section criminalises interviews with prisoners undertaken without the approval of the CEO of the Corrective Services Commission. Two journalists, one print, one electronic, are currently before the courts on charges arising from this provision. The Queensland government has indicated a desire to strengthen, rather than repeal, the section. As the report was being written, the Council Chairman was writing to the Queensland Premier in an attempt to make submissions on the law.

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8. Juries

A New Zealand study of 312 jurors in 48 trials has found that juries in criminal trials are unlikely to be swayed by media coverage. Conducted by Professor Warren Young of Wellington University, the study is the most detailed such research done in any Commonwealth country. The committee is seeking a copy of the detailed findings for use in its submission to various bodies in Australia.

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9. Government suppression

Press Gallery Accreditation Proposal

In July there was an apprehension in the media that clauses in the new license documents for space in the federal Parliamentary Press Gallery gave the Presiding Officers a power of veto over journalists in the Gallery. The day after the story broke, the Presiding Officers denied it, saying that the provisions which had alarmed the media had been inadvertently transcribed into a pro forma of the documents from a licence agreement with other parliamentary occupants. The Speaker's office replied in similar terms to a letter sent to the Speaker by the Council's Chairman, who responded:

The Press Council asked that I convey to you its pleasure at your decision to intervene to prevent the government from being able to determine that certain persons would not be permitted to enjoy the privileges of the Parliamentary Press Gallery. Any attempt by a government to determine who might be able to report parliamentary proceedings would constitute a constraint on press freedom that would be intolerable in our society. The Council was gratified that you recognised the seriousness of the issue and took such prompt steps to remedy the situation.

Photographs in the Gallery

In April, some press photographers were banned for a short period, following the publication of pictures of a protest in the Public Gallery. These images were not in accordance with the strict limits placed on Press Gallery photographers. Expressing concerns with the possibility of more such bans, the committee asked the Chairman to write to the Presiding Officers about the matter. The Speaker responded:

Thank you for your letter of 18 May 2000 concerning guidelines for photographers in the galleries of the House of Representatives. ...

I am currently conducting a review of arrangements for photography within the House of Representatives Chamber, and the President of the Senate and I are jointly reviewing the guidelines for filming elsewhere in Parliament House.

I have already held discussions with, and invited input from, the President of the Press Gallery Committee, whose members were involved in formulating the original guidelines for Chamber photography in 1989. I have also met with the editor-in-chief and senior staff of The Australian newspaper. In both instances, I have outlined my view that the proceedings of the House take place on the floor of the Chamber, where Australians elected by their fellow citizens participate in the legislative and other parliamentary processes. The proceedings of the House do not extend to the galleries. In common with all my predecessors and the provisions in all comparable parliaments, I will not permit the galleries to be used for political purposes by non-elected citizens. Nor will I permit photography of such behaviour. To do so would only encourage further activities which would interfere with the functions of elected legislators and infringe the right of other citizens to witness those legislative functions in silence and without interruption.

I will not, therefore, be relaxing the total prohibition on photography of the galleries. With respect to wider issues relating to photography of the Chamber and elsewhere in Parliament House, however, I would welcome any views your Council may have. To assist you, I am enclosing existing separate guidelines which cover:

• still photography in the Chamber;
• filming elsewhere in Parliament House; and
• CCTV camera operators

As this report was being written, the Council's Chairman had made an appointment to discuss these matters with the Speaker.

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10. Parliamentary and other inquiries

Senate Select Committee on Information Technologies

As noted in last year's report, in late June 1999, the Senate Committee advised the Council that it had taken up the previously unpublished report of its 1998 inquiry into the Communications industries and was seeking updated submissions from those who had earlier made submissions. On 14 July the Council's Chairman and Vice Chairman met with the Committee's Chair, Sen. Jeannie Ferris to discuss the inquiry. On 21 July the Council made a second supplementary submission to the inquiry, the Introduction of which read:

This is a Second Supplementary Submission from the Australian Press Council to the Senate Select Committee on Information Technologies, following its 28 June 1999 request for additional material on developments since the Council presented material to the committee in 1998.

This additional submission is concerned with a limited number of matters:

• the proposition that powers additional to those presently available to the Press Council should be given to the Council or to another body established to deal with complaints against the print media;
• the Council's commitment to reviewing the appropriateness and effectiveness of its procedures;
• the establishment and the functioning of the Press Complaints Commission (UK).

Comments additional to those in the Council's original submission were provided to the committee on 9 April 1998. The Council invites the committee to look again at that supplementary submission as it contains material that rebuts a number of errors and clarifies several issues relating to the work of the Council that emerged during the committee's hearings.

On 23 July the Council's Chairman wrote to clarify one further point arising from his discussions with Sen. Ferris:

I apologise for the number of missives to you from me in relation to your inquiry - you will by now have received the second supplementary submission from the Council. However, the John Laws affair has raised the issue of the content of codes of conduct for media personnel. I thought it would be of interest to your Committee that the Press Council, in its 1996 revision of its Statement of Principles against which it determines complaints relating to the print media, dealt expressly with the issue with which the Laws case is concerned.

Principle 5 provides: "A publication is justified in strongly advocating its own views on controversial topics provided that it treats its readers fairly by disclosing any commercial or other interest which might be construed as influencing the publication's presentation of news or opinion."

This seems to describe the objections to Mr Laws's actions precisely.

In May the Senate Committee released its report, In the Public Interest. The Council responded by way of General Press Release No. 238 and a submission to the responsible minister, Sen. Richard Alston, which is to be published in the APC News, Vol 12, No 3, August 2000.

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Self-Regulation

The Minister for Financial Services announced the formation of a Treasury Taskforce to look at and report on industry self-regulation. In October the taskforce published an Issues Paper and invited several organisations, including the Press Council, to participate in its inquiry. On 1 December the Council's Chairman and Executive Secretary met with the taskforce Chair, Professor Berna Collier, and other members of the taskforce to discuss the issues raised. The taskforce had a copy of the Council Chairman's paper on self-regulation, delivered to a conference, "Self-regulation of the media", organised by the Melbourne University Faculty of Law in November 1999. The taskforce discussed this paper and other issues arising from its terms of reference.

Rather than make a formal submission, the Council's Chairman sent the following letter to supplement his seminar paper.

This is a follow on from the meeting on 1 December 1999 between members of the Taskforce and Jack Herman and myself from the Press Council.

I do not think that it is necessary to provide you with a formal submission as that would largely repeat much of the information that is contained in the paper that I prepared for the Melbourne Law School seminar on self-regulation in the media. You have a copy of that paper. In addition, our discussion on 1 December was wide ranging and interesting and covered most of the matters that we should like to have raised. Accordingly I will deal with only two issues here.

First, the Council notes that para 2(b) of your terms of reference refers to gaps and overlaps in industry self-regulation. As we discussed there is a significant gap in the present ability of members of the public to complain about the content of news published on-line. The Press Council has now determined that it will deal with complaints against all publications of its constituent members no matter what form the publication takes. This has gone some distance to covering the existing gap. However, the many news sites on the Internet that are not associated with the newspaper and magazine industry will remain without any form of oversight. As I mentioned to you at our meeting, I am seeing the Minister for Communications about a possible role for the Council in relation to this issue later this week. I will advise you if anything of relevance to your inquiry emerges at that meeting.

The second issue was one that we also discussed at the meeting with the Taskforce. Some members of the Taskforce seemed to be concerned that there was no formal oversight of the Council's activities. As we observed at that time, the Council would be concerned if there were some form of government overseeing body as this would cut markedly across the broad concept of freedom of the press that has long been accepted in Australia in relation to the print media.

We wonder why some further form of oversight is required. There is a danger of accumulating custodians of the custodians. At some point it becomes necessary to trust the self-regulatory body lest it cease to be self-regulation.

The Council is a very transparent body, much more so than any government body of which we are aware. Its membership includes representatives of the public appointed after public advertisement. It publishes an annual report which is widely available in both print and electronic form. It also publishes a quarterly news journal describing its activities. It maintains a web-site. Its adjudications on complaints are published in the press, the Council web-site, the quarterly news journal and the annual report. The Council engages in self-examination through surveys of complainants. Its procedures have been amended recently following an extensive re-examination of all aspects of the Council's activities. The Council would be concerned if these aspects of its work were not given due credence in assessing its accountability.

The Council is critical of overseas models of press control that are not free from government intervention. It would be very troubled if recommendations were made that tried to impose some oversight of the Council by a body established by the government. Even if such a body was not comprised of members of the government, it would have to have on it persons who owed their appointment to government preferment.

As we said at our meeting with the Taskforce, it is our view that the press should be a self- regulated body and it is only by leaving it to control the form of that regulation itself that freedom of the press can be ensured.

The taskforce released a draft report in June 2000 and sought further comments on it. The report does not go into details on any particular self-regulatory system and the Council did not think it necessary to make further submissions.

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11. International

The Council has a constitutional responsibility to "make representations concerning the freedom of the Press on appropriate occasions to governments, public inquiries, and other organisations in Australia and abroad". Its major interest "abroad" is in Australia's region, particularly south-east Asia and the south Pacific. It also joined, at its formation, the World Association of Press Councils.

WAPC

The Association had, by July 1999, twenty members. However the Council became concerned with the direction the Association was taking and with the composition of its membership. More of the Association's members were either government-appointed or government-influenced, rather than independent, press councils. And, instead of using its resources to encourage the formation on independent press councils, the Association was aiming to introduce a transnational complaints mechanism (TCM) and an international code of ethics. The Australian Press Council expressed its concern at these developments and opposed the TCM. There were also some reservations about attending the WAPC's 2000 conference in Cairo, because of the nature of the Egyptian Supreme Council of the Press and the lack of press freedom in Egypt. In the end the Council decided to attend the conference to lobby against the TCM. Before the conference, however, the UK Press Complaints Commission resigned from the WAPC.

The Cairo conference decided not to proceed with the TCM and to devote more energy to the establishment of press councils in developing countries. Nonetheless, the Australian Press Council remained unhappy with the world body and determined in May 2000 to resign. It issued General Press Release No. 240 to explain why.

The Council also decided that its international efforts would remain concentrated in the Asia-Pacific region.

Fiji and Samoa

Two Pacific island nations where press freedom was under continuing threat in the reporting year were Fiji and Samoa. Fiji has an independent media council but successive regimes have not been happy to leave matters there and have threatened from time to time to impose a government-issued media code and/or impose a statutory media council. The FoP Committee kept a watching brief over these developments, and was kept informed by the Chair and the Secretary of the Fiji Media Council. During the year, the Fiji body did not seek the involvement of the Australian Press Council. At the end of the reporting year, with the elected government deposed and an interim regime imposed on the country, there are again threats of government-imposed codes and councils. The Council will rely on the advice of the Fiji Media Council.

In Samoa, Savea Sano Malifa, editor and publisher of the Samoan Observer, was being prosecuted for criminal libel. The FoP sought the intervention of some Australian bodies, including the Communications Law Centre, in his defence. Fortunately, in August, the prosecution was withdrawn. The committee noted that, in April 2000, Malifa had been named one of the fifty World Press Freedom Heroes by the International Press Institute.

New Councils

Elsewhere there were moves towards the establishment of new press councils. In Indonesia, the new regime encouraged the formation of an independent press council to which Atmakusumah Astraatmadja, director of the Dr Soetomo Press Institute, was appointed Chair. The Council has invited Astraatmadja to Australia to meet with the Council and observe its proceedings, an invitation which the new Indonesian Chair had not taken up at the end of the reporting period.

In Papua New Guinea there were moves, encouraged by the Australian Press Council, to change the PNG News Council from an industry body into an independent press council with self-regulatory powers. Like Fiji, PNG faces continuing government threats of an imposed statutory council.

The committee also discussed the situation in Hong Kong where the authorities are looking at the establishment of a press council. There were concerns from the local journalists that such a council would be neither independent nor self-regulatory. The Council assisted the Journalists Association with its submission on the matter.

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12. General

Editorial Discretion

In late 1999, Queensland Newspapers sought from the Council some more definitive statement on the ability of an editor to determine what was news for his/her newspaper and what emphasis was required. The Council invited the newspaper group to discuss the matter with the FoP Committee. Editorial manager Greg Chamberlin attended the January committee meeting and, after a discussion, undertook to draft a proposal for a change to the principles. The newspaper group submitted instead a proposed addition to the Complaints Procedure: "[The Council] recognises that an inherent element of freedom of the press, however, is an editor's discretion in news judgment, particularly in terms of placement of news reports and in deciding the news 'angle' best suited to his/her readership". After a discussion the committee recommended against the inclusion of this sentence and the Council agreed. The Chairman then wrote to Queensland Newspapers in these terms:

The Committee considered your proposal for an amendment to the Council's complaints procedure at its meeting last week. It decided not to recommend to the Council that the amendment that you suggested be adopted. The Committee thought that giving this level of credence to editorial discretion would have the effect of overriding the Council's Principles for the adjudication of complaints. It considered that editorial discretion has to be questioned against those Principles and cannot provide a complete answer to a complaint.

The Committee did, however, think that your proposed statement should be brought to the attention of new members so that they might be made aware of the importance of editorial discretion. This will be of particular significance for public members who are attempting to mediate an agreed outcome to a complaint.

Thank you very much for raising this issue for the consideration of the Council and for the thoughtful way in which you did it. The Council greatly appreciates interest in its activities by newspapers and is always willing to receive suggestions for changes in its approaches to issues.

Youth suicide

The federal Department of Health and Aged Care established a Media Reference Group for the Life Promoting Media Strategy to oversight its activities on the reporting of suicide and mental health. The Council was invited to nominate a person to represent the print media on the group and nominated a News Limited Canberra-based executive, Warwick Costin. Mr Costin reported to the committee on the first meeting of the reference group. It agreed that Mr Costin should continue on the group for the time being and responded to the group's call for a submission on material for a putative second edition of the suicide reporting resource kit by reworking its earlier submission in the light of recent developments. The submission will be published in the APC News, Vol 12 No 3, August 2000.

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ACCC and Advertorials

In August the Australian Competition and Consumers Commission issued a press release arising from the Australian Broadcasting Authority decision to hold inquiries into the commercial "cash-for-comment" scandal. It announced a decision not to hold a separate inquiry and added:

The ACCC is considering the possibility of developing guidelines about the relevance of the Trade Practices Act 1974 for business and the electronic and print media about editorial content in programs/articles which are linked to paid advertising, commonly called 'advertorials'. It will take into account the Authority's findings, as well as Section 65A that provides certain defences in relation to material other than advertising material, transmitted via the media.

The ACCC will assist the Authority in any way. The ACCC is concerned about the expansion of 'advertorials' and expects the Authority inquiry to assist in the clarification of what is currently a 'grey area' in the media.

The committee discussed the matter and, as a result, the Council sent the following letter to the ACCC:

The Council's Freedom of the Press Committee looked at your 24 August press release (MR 156/99) at its August meeting.

It asked me to write to you to make you aware of the Council's rulings on the question of 'advertorials'. In the days of the old Advertising Standards Board, 'advertorials' were the one aspect of newspaper ethics which overlapped the ASC and the Press Council, with each body making rulings on those aspects of the practice relevant to their own areas of jurisdiction.

For your information, I enclose a copy of the Council's [information] booklet ...

I also enclose the adjudications and General Press Release made by the Council in response to complaints about various aspects of the practice of 'advertorials' and of the publication of special supplements and advertising features.

The committee thought that this material might be of use to you in your investigation of the Trade Practices Act to print media activities. It is also to let you know that the Council has been looking at, and making rulings on the principles involved in, this aspect of press ethics for some time.

At the time of writing this report, the ACCC has issued no guidelines on the matter.

Collusion re circulation

In August a complainant noted an ACCC determination occasioned by an apparent agreement between two newspaper companies not to compete with each other in a country area. He raised concerns of a similar nature arguing that local businesspeople had used the threat of inviting a rival newspaper company to compete in their area as a way of forcing the dismissal of a local editor. The ACCC said that the action did not constitute a breach of the laws it administered. The FoP Committee sought the views of the newspaper companies cited and, after seeing their responses, decided that the situation was not exactly as the complainant suggested and that there had been no breach to Council principles nor any threat to the traditional freedoms of the press. It took no further action.

Copycat Crimes

In January, the Council received a letter from the Scarborough Progress Association in Perth, arguing that the media's reporting of crime led to copy-cat crimes. It sought from the Council a statement drawing the media's attention to the impact of its reporting and seeking more responsible reporting of crime. The committee discussed the letter and recommended that the association's letter be published in the APC News, together with a commentary from a senior journalist. The Council sought the assistance of The West Australian, which provided the Council with a commentary. The newspaper was impressed by the correspondence and, with the agreement of the Council and the association, published the letter and commentary itself. Both pieces were then published in the APC News, Vol 12, No 2, May 2000.

TGA Recall Ads

In May, the Council received correspondence from the Therapeutic Goods Administration in the Department of Health and Aged Care raising the question of the placement of recall ads for Therapeutic Goods. Such ads are supposed to be placed in the first five pages of newspapers. The committee looked at the matter and the Council then responded to the TGA as follows:

... the Council's Freedom of the Press Committee has discussed your 17 May letter regarding the placement in newspaper of recalls ads.

The committee agreed that the request for action from it lay outside the Council's remit, which does not include advertising. Nonetheless, the committee has asked me to send along to you its views that the best action the TGA could take in this matter is to liaise with the print media on the development of an agreed set of guidelines for product recall ads. It appears that, at this time, the requirement for such ads to appear early in the book is a unilateral determination of the TGA on which the press was not consulted.

The members of the press represented on the Council's Committee thought it likely that the press would be responsive to an approach from the TGA to discuss these matters.

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