Report on Free Speech Issues
2001-2002

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

Asylum seekers
Photographs in Public Gallery
Criminal Code (Espionage and Related Offences) Amendment Bill 2001
Restrictions on access to State Forests

Parliamentary and other inquiries

Senate Communications Committee
Public Administration Committee

International

Asia-Pacific Regional Press Freedom Seminar
Threats to press freedom
Trip to China

General

Youth Suicide
Ali Kazak and AFR
Review of guidelines
Copyright - moral rights
Financial Services Reform Bill
Charter of a free press

Change of name and role

Arising from discussions at Planning Day 2002, the Council, noting that erosion of freedom of speech in Australia is not merely a perception and that there is evidence of continuing threats to this freedom through the actions and information management practices of some governments, courts, corporations, and other social institutions, determined to play a stronger role in encouraging the industry to explain to the public that the concept of 'press freedom' is inherently about 'freedom of speech', and not about 'press license'.

The press is concerned about constraints being placed upon its access to information. Such threats need to become a particular focus for policy development and public statements by the Council. For that reason, the Council decided to retain the Complaints Committee as the avenue through which press responsibility issues would be dealt with by the Council but to subsume the Freedom of the Press Committee under a new Policy Development Committee.

The Council saw a need to enhance the Committee's ability to carry out its specialist work in a timely fashion. Since 1988, the Council has made 60 submissions to various forums on a range of topics relating to freedom of speech through the press, and the demand for this work is growing in both volume and complexity. The PD Committee will therefore be more broadly representative than the current FoP Committee, but will retain permanent representation of major Constituent Bodies whose senior legal and executive officers are regularly the source of essential specialist advice to the Council.

Additionally, the Council is to consult more with editors and press organisations, and pursue more actively avenues for improving journalistic and editorial standards. The primary avenue for this initiative is initially to be a series of meetings between the Council's Chairman and editors of metropolitan, regional and suburban newspapers to be held at various locations around Australia in the second half of 2002.

One area where the PD Committee has begun its work is the development of a Charter of a Free Press which the Council will use as the basis for its representations on free speech issues.

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The free speech matters considered by the committee included the following.

1. Professional Privilege

The committee noted a series of actions by the NSW National Roads and Motorists Association, a recently demutualised motorists' group, to discover the identity of some of its directors who may have been responsible for leaking Board deliberations to The Sydney Morning Herald and later to AAP. In September 2001, the NRMA attempted to issue injunctions against the newspaper and three directors to prevent publication of 'confidential' material and also sought to force disclosure of the journalists' sources. Those injunctions were soon quashed. In the New Year, the NRMA made further attempts through the Courts to get named Herald and AAP journalists to divulge their sources, so that any named directors could be sued. The Courts originally ruled that the journalists needed to name their sources but, before the appeal could be heard, or the Council needed to get involved, a change of NRMA Chair may lead to a settlement of the threat against the journalists.

see also
Index on protection of sources material

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2. Courts and Contempt

Contempt by publication

While the NSW Law Reform Commission is still reviewing its position on its Contempt by Publication reference (a matter referred to in previous reports) the Western Australian Law Reform Commission circulated a similar paper which, while making contempt convictions more difficult to achieve, also included a recommendation of legislation similar to the Costs in Criminal Cases proposal from NSW: a provision which would tax the media (and others) for the full costs of court cases aborted as a result of contemptuous publication. The West Australian made a detailed submission to the WA Commission, including material based on the Council's earlier submission to the NSW Commission.

Criticising the courts

One case that was of interest to the committee insofar as it dealt with issues of the ability of the media fairly to criticise the courts was a Melbourne defamation action by a magistrate against a Herald Sun columnist. While the jury found for the columnist, the trial judge overruled the jury and found for the magistrate, arguing in effect that the columnist was entitled to the Constitutional free speech defence only if his remarks suggested the magistrate should be sacked, thereby taking the matter into the realms of 'political discussion'. The committee had some difficulties with this interpretation of the 'free speech' defence, particularly as one of the early cases establishing its existence arose from a challenge to laws which limited the ability of commentators to criticise members of a curial tribunal. As the case has gone to appeal, the Council will await the outcome of the appeal before deciding on any action to take in the matter.

see also
Index on courts and contempt

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3. Defamation

NSW defamation law reform

The 2001 Annual Report noted that Professor Ken McKinnon had convened a working party of publishers and their legal counsels to assist the Council in developing a proposal for defamation law reform. This working party continued to meet and by October had developed a detailed submission on a number of issues related to libel law reform. On 10 October, this submission was sent to the NSW Attorney-General, the Hon. Bob Debus. Its Executive Summary read:

The Australian Press Council has for many years advocated uniform defamation laws in Australia. It urges the Government of New South Wales to initiate action to achieve that outcome by making both substantive and procedural reforms to defamation law as set out in this submission.

The objectives include speedy correction of factual error and compensation for maliciously inflicted financial damage while preserving freedom of speech and avoiding lengthy lottery-like trials. There are five main proposals.

The first is for an up-graded Offer-of-Amends process, post-writ and pre-trial. It is envisaged that there will be a requirement for the parties to attempt to settle grievances. The intent should be to achieve voluntary amends (published correction, apology or financial settlement) satisfactory to the plaintiff. If a settlement cannot be reached through the initial offer the parties should be required to employ a mutually acceptable mediator (not court ordered or supervised) in an attempt to reach a compromise.

A mutually acceptable compromise offer will include the terms on which the proceedings will be terminated. If there is no such compromise and the case proceeds to trial the plaintiff will be responsible for the subsequent costs of both parties if the trial judge considers the Offer-of-Compromise to have been reasonable.

Judges should be required to take a stronger view of the capacity of material to carry imputations, only referring to the jury claims that are more likely than not to have been conveyed in the article.

The trial process itself should be amended to bring the jury into both the imputations and the defences stages. At the start of the trial the jury should have the right to read the material complained of before being addressed by counsel for either side. The jury should hear the imputations representations of counsel then retire and decide whether any imputations need to be defended. When they return the trial will either terminate with a decision for the defendants or continue with the hearing of defences.

The law of qualified privilege should be extended to cover a greater range of circumstances, especially the fair reporting of public comment, including third party statements.

The judge alone should decide the damages payable to a successful plaintiff guided by clauses within the legislation comparable with amounts possible under other legislation/court guidelines.

To succeed in a defamation action people of public prominence should have to prove malice and actual harm to reputation.

Government departments and corporations should not be able to sue individuals for defamation.

The complete submission is published on the Council's website.

The Chairman met with the NSW Attorney to discuss the submission and, as a result, the Attorney formed a working group, convened by the Solicitor-General, to look at the submission and make recommendations. This group met over the next six months before reporting its findings to the Attorney. While not all of the Council's proposals were adopted, and some were modified, the group generally supported the idea of libel law reform, particularly in the development of pre-litigation measures and a more useable qualified privilege defence. The major aspects of the recommendations include:

Pre-trial resolution

There should be a new part of the Act headed Resolution of Disputes without Litigation. This should provide for a detailed process for corrections and apologies and, where appropriate, monetary compensation, to be used before proceedings are issued.

Where proceedings have been issued, mediation should be encouraged wherever possible as an aid to resolution of disputes.

Costs penalties (more onerous than simply costs following the event) should attach to unreasonable failure to resolve the matter.

It should be a defence (where an action proceeds to that stage) that an offer was made as soon as practicable, the defendant remained ready and willing to perform the terms of the offer, and the offer was reasonable in the circumstances.

Case Management

The plaintiff should be required to take the necessary steps to bring a matter on for trial. In order to ensure that cases do not linger and add to backlog, there should be a default process where if no action is taken after 12 months the matter lapses and the action is struck out automatically.

Where an action lapses for want of prosecution, there should be no order for costs.

Limitation periods

There should be a one year limitation period for actions in defamation, with a discretion to extend the period where appropriate.

Corporations and government bodies

Corporations and statutory bodies should be precluded from bringing actions.

Public figure defence

There should not be a public figure defence introduced, but instead, the revised statutory qualified privilege should emphasise that the fact that a person is performing public functions is a factor to consider in whether the occasion is one of qualified privilege.

Qualified privilege defence

Section 22 should be amended to include a set of factors for courts to consider when assessing reasonableness. The following matters are relevant:

The extent to which the subject matter is a matter of public interest;

The extent to which the matter complained of concerns the performance of the public functions and activities of the plaintiff;

The nature of the information;

The seriousness of the imputations;

The extent to which the matter distinguishes between proven facts, suspicions and third party allegations;

The urgency of the publication of the matter;

The sources of the information and the integrity of those sources;

Whether the matter complained of contained the gist of the plaintiff's side of the story and, if not, whether a reasonable attempt was made by the journalist to obtain and publish a response from the plaintiff; and

Any other steps taken to verify the information in the matter complained of.

(Note: several alternatives were given to this proposal as a way of dealing with qualified privilege, public figures and/or matters concerning government and political matters.)

Third party statements

There should be a specific statutorily conferred form of protection for publication of certain third party statements.

Damages

Section 46A should be amended to provide specifically that the maximum amount that can be awarded for non economic losses in defamation cases should not exceed the maximum awards, both at common law and under statute, for non-economic losses in personal injury cases.

Uniform national legislation

The taskforce believes that its proposals could form the basis for discussion with the States and Territories, with a view to a further attempt to bring about national reform. As the only State to have a rule that makes the imputation the cause of action, it is also proposed that NSW rethink that singular position, and move toward a situation that is common in the other States and Territories. In order to achieve that outcome, it may be appropriate for NSW to act so as to amend s 9 by removing the focus on the imputation as the cause of action.

The taskforce proposals should form the basis of discussions with the States and Territories aimed at achieving national reform.

These matters were then developed by the Attorney and referred to the Premier, the Hon. Bob Carr, who took defamation reform up as a part of his more general agenda for law reform. He outlined this agenda in a speech to the Sydney Institute on 9 July 2002, in which he noted that the reforms to be introduced in the Spring Parliamentary session would include limitation on damages, greater provision for the resolution of disputes without litigation, more speedy striking out of cases and limits on the ability of corporations and statutory bodies to bring defamation actions. The Council awaits the draft legislation.

National uniform legislation

The Attorney took defamation law reform to the July 2002 meeting of the Standing Committee of Attorneys General, which agreed to set up an officers' working party to report before the end of the year on the possibility and desirability of a move towards uniform national libel legislation.

Libel on the Web

The question of defamation (and other legal matters) arising from publication on the World Wide Web was noted by the committee in two cases. In an Australian case, businessman Joe Gutnick sought to sue Dow Jones over material produced in New York on a newspaper website. Instead of suing in the US, where a 'public figure' defence exists, Gutnick brought action in Victoria. While a lower court upheld his right to sue in Victoria, the matter was being reviewed by the High Court. The Council was awaiting that Court's decision before taking any action. In a different case, the UK courts, dealing with suppression orders in the 'Bolger' case, noted that UK publishers were liable for material published in any of their overseas newspapers which breached the orders and which might be available to the British public via the Web.

see also
Index on defamation material

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4. Parliamentary Privilege

The use of Parliamentary Privilege by Senator Bill Heffernan to launch an attack on High Court Justice Michael Kirby was discussed by the committee which sought the advice of the Clerk of the Senate on the position of journalists and publications which reported the attack, which was soon shown to be completely unfounded. He responded:

In relation to Senator Heffernan's remarks, the Deputy President of the Senate ruled that his remarks were contrary to this standing order. The Deputy President indicated that senators have always been advised that it is not open to a senator to make allegations of illegality or misconduct against a judicial officer unless the senator is initiating action by the Senate leading to an investigation by the Senate of whether a federal judicial officer should be removed under section 72(ii) of the Constitution.

Senator Heffernan was subsequently censured by the Senate for a reckless breach of the standing order.

You ask about any recourse available to persons adversely named in the Senate. The Senate has a procedure whereby such a person may have a response published by the Senate. This procedure is contained in resolution 5 of the Senate's Privilege Resolutions, a copy of which is attached. Since this resolution was passed in 1988, a total of 38 responses have been published by the Senate.

You ask about the position of members of the press who report parliamentary proceedings which are outside the rules of the House concerned. Section 10 of the Parliamentary Privileges Act provides protection for all fair and accurate reports of parliamentary proceedings:

It is a defence to an action for defamation that the defamatory matter was published by the defendant without any adoption by the defendant of the substance of the matter, and the defamatory matter was contained in a fair and accurate report of proceedings at a meeting of a House or a committee.

You will no doubt be aware of the law about whether a report is fair and accurate. This protection is available regardless of whether the parliamentary proceedings were in accordance with the rules of the House concerned.

You ask about the status of material presented in the Senate. Every document which is tabled in the Senate is ordered by the Senate to be published, and its publication in full is thereafter protected by parliamentary privilege.

Any partial publication of it in a fair and accurate report is also protected as has been indicated.

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5. Media Ownership

Last year's report indicated that the Council was reconsidering its position on media ownership. That revised policy reads:

Access by all Australians to full, truthful, unbiased information about world and domestic events and to a pluralist range of opinions and commentary about those matters from an Australian perspective is the key issue to be considered in determining government policy on media ownership.

Different media feed off each other in the race to present the news first and best. The print media in particular presents the depth and diversity of analysis and commentary on news and events that enhance the democratic qualities of our society.

Accordingly the Press Council has adopted the following policies.

1. Freedom of the press, and of the media, should be guaranteed by inclusion in the Constitution or, at least, by statute.
2. Plurality of media outlets, diversity of views, and the regard for Australian content in the print media are issues of key importance.
3. Media ownership should be governed by competition law. Regulation should be achieved primarily by the Australian Competition and Consumer Commission (ACCC) under the competition policy aspects of the Trade Practices Act.
4. Judgments on substantial lessening of competition should be made on the basis of impact, circulation and penetration, considering the media as a single market.
5. Foreign takeovers of major capital city newspapers and free-to-air TV channels should continue to be subject to the Foreign Acquisitions and Takeovers Act.

Subsequent to the re-election of the federal government in late 2001, questions related to the government's cross-media policy were again raised. The Council's Chairman wrote to the Minister for Communications (with a separate letter in similar terms to the Communications Shadow Minister and the Leaders of the Democrats and Greens):

Now that the election is over I am writing to convey to you the position of the Australian Press Council on media ownership. A copy of the Council's policy is attached. The revised policy was determined a few months ago but not widely communicated because of the desire of the Council to stay out of the political debate attendant on the elections.

The Council believes maintenance of competition in print media is best regulated as simply another aspect of competition policy administered through the ACCC. It does not see the need for cross-media restrictions.

It does, however, see that there should still be control on levels of foreign ownership in the interests of maintenance of local input.

I will be happy to discuss any aspect of this policy with you on behalf of the Press Council (and any other Press Council matters that may be of interest) in Canberra or Sydney, at your convenience.

In January 2002, in the light of 'leaks' from the government on the form any proposed changes to the cross-media regime might take, the Council resolved to oppose any system which would attempt to free up the restrictions on cross-media ownership by the imposition of some form of editorial independence for different organs within a media group, especially if it were to be administered by a government-appointed or statutory body. When in February, the proposed legislation was outlined, the Chairman again wrote to the Minister (with copies to the Communications Shadow Minister and the Leaders of the Democrats and Greens):

The Press Council has read, with some unease, of your government's proposals to tie any reform of cross-media ownership rules and restrictions on foreign investment in the media to some form of statutory 'charters of editorial independence' to be administered by a statutory government-appointed authority.

The Council has taken the stance that the general principles of media ownership concentration and competition are not really different from those of other industries. It sees no reason why they should not become the province of the Australian Competition and Consumers Commission, to be administered under the competition policy aspects of the Trade Practices Act. In this context, judgments on substantial lessening of competition should be made on the basis of impact, circulation and penetration, considering the media as a single market.

On the other hand, the Council sees foreign ownership is a problem of cultural identity as well as an economic question. Plurality of media outlets, diversity of views, and the regard for Australian content in the print media are issues of key importance. In that view, exemption from foreign ownership rules should remain the province of the rules governing foreign takeovers, under the Foreign Acquisitions and Takeovers Act.

The cross-media ownership reform proposals, attributed to your government, envisage both abolition of existing cross-media rules and some form of supervision of editorial independence supervised through the statutory Australian Broadcasting Authority. While applauding your desire to free up rules so that the media is treated as any other industry, the Council sees the imposition of statutory supervision as the thin end of a wedge.

The Australian press is one that is, by tradition, free. Australia does not have the advantage of a constitutional guarantee of free speech or of a free press, nor is any such provision enshrined in over-riding legislation. This means that free speech in Australia is particularly susceptible to erosion. To this point, there has been no licensing of the Australian print media, nor any statutory supervision.

Your colleague, the Attorney-General, exempted the press from the supervision of the Privacy Commissioner under the Privacy (Private Sector) Amendment Act, relying on industry codes, through the self-regulatory Press Council, to ensure the responsibility of the press. Your colleague, the Minister for Financial Services, introduced amendments to the Financial Services Reform Bill to exempt the press in its normal journalistic role from the statutory purview of the reforms. Treasury is currently negotiating with the press to ensure a self-regulation system, through industry codes, is in effect in the area of financial journalism.

In the light of these actions by your colleagues in recent times, the suggestion that the ABA be given some statutory oversight of the print media is a direct threat to the freedom of the press. There should not even be the hint of an attempt by government to try and control the print media through a government-appointed and funded statutory body. Even seemingly innocuous powers given to government bodies like the ABA can be elaborated over time to the detriment of independence of the press.

The Press Council is opposed to any statutory supervision of editors, for any purpose, in any guise. While the prospect of independence from their owners might be attractive at first sight, the prospect of having to justify themselves to a statutory authority will give even the most independent of editors a moment's pause. Not to mention the unreality of editors ignoring owners, who will retain, even with supervision of editorial independence, the ultimate sanction: the power to hire and fire the editor.

Parts of this letter were leaked to members of the Canberra Press Gallery later in the month and reports (some erroneous) of the Council's position, in favour of a relaxation of the cross-media rules but opposed to the method by which the government sought that relaxation, were published.

On 16 April 2002, the Council made a detailed submission to the Senate Environment, Communications, Information Technology and the Arts Legislation Committee on the government's Broadcasting Services Amendment (Media Ownership) Bill. The Executive Summary read:

The Australian Press Council does not object in principle to changes in cross-media ownership legislation but it foresees considerable and continuing problems if the proposed Broadcasting Services Amendment (Media Ownership) Bill becomes law.

It submits that the proper ownership regulator should be the Australian Competition and Consumer Commission (ACCC) using existing legislation supplemented by a media-specific public interest test, developed in consultation with relevant stakeholders, and by changes that ensure the media is regarded as a single market for the purposes of mergers and acquisitions.

Thus, it is the Council's view that judgments on substantial lessening of competition should be made on the basis of impact, circulation and penetration, considering the media as a single market. If the ACCC is not required to do this, the application of its competition test will not restrict cross media acquisitions.

Foreign takeovers and acquisitions in the media should be subject to the Foreign Acquisitions and Takeovers Act as all other such acquisitions are, with the proviso that those administering the Act have regard for Australian content in the media as an issue of key importance in any such takeover or acquisition.

A report on this submission was published in the APC News, Vol 14, No 2, May 2002 and the complete submission is published on the Council's website.

In May, the Council's Chairman and Executive Secretary gave oral evidence before the Senate Committee on the Bill. In the same month, Senator Richard Alston, the Minister for Communications, Information Technology and the Arts, took up the Council's invitation and attended the meeting of the Freedom of the Press Committee during the Council's visit to Queensland. The Minister and members of the Council had a long discussion about the issues arising from the government's current proposals for changes to the media ownership regime and possible alternative strategies for achieving the same results.

In June, the Senate Committee's report was tabled. While the majority (government) members recommended passage of the Bill with some minor amendments, including recognition of the Council's concern that the provisions of the Bill guaranteed local news services in the electronic, but not the print, media, other members of the Committee opposed the proposals. This would indicate that the government will not get sufficient numbers to carry the Bill through the Senate, although recent troubles within the Democrats caucus indicate that there may be more votes potentially available to the government than first thought. The Press Council keeps a watching brief on developments.

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6. Privacy

Privacy standards for the print media

With the passage of the Privacy (Private Sector) Amendment Act, which exempted media organisations, in their journalistic role, from the purview of the Act, provided that they publicly subscribed to a set of privacy standards, the Council, in consultation with its Constituent Bodies, drafted such a code for the print media. The Privacy Standards are published elsewhere. This was sent to media organisations generally.

All of the Council Constituent Bodies subscribed to the standards except for Australian Consolidated Press and Australian Provincial Newspapers and Media. These organisations, administering electronic, as well as print, media needed to develop their own standards in order to seek exemption. In addition to the Constituent Bodies, a large number of country newspapers, affiliated only indirectly through Country Press Australia, all major suburban newspapers and a number of magazine publishers also signed to the Standards. The complete list of subscribing organisations, and the titles represented, is published on the Council's website.

The Council subsequently considered the position of schools, churches, hospitals and other organisation which engaged in 'journalism'. It determined that the Privacy Standards for the print media can only be subscribed to by 'media organisations' as the Act allows exemption only for such organisations, and not others who might, incidentally, publish periodicals.

Health Records legislation

Last year's report referred to the Victorian Health Records Bill, which appeared to provide adequate exemptions for the media to its provisions. Once enacted, an anomaly in the way it dealt with people from interstate was discovered by the Herald and Weekly Times which sought the Health Minister's co-operation in fixing the anomaly. This was amended in the first half of 2002. In June 2002, the Council became aware of a similar act in NSW, the Health Records and Information Privacy Bill. At the time of the writing of this report, the Council was still considering whether there were adequate exemptions in this legislation to enable the media properly to report matters of public interest or matters on the public record.

Surveillance

In late 2001, the NSW Law Reform Commission issued its Report No 98, Surveillance: An Interim Report. In May 2002, it contacted media organisations seeking consultations on the report in order that the commission might make final recommendations to the government on legislation to take the place of the extant listening devices laws. The Council made an interim submission on some general issues arising from the discussion paper, the Executive Summary of which read:

The Australian Press Council is opposed to the introduction of any legislative regime for surveillance regulation along the lines suggested by the Law Reform Commission in the recommendations in Report 98. The commission has failed to establish a need for such wide-ranging and draconian legislation. These proposals would adversely affect the ability of the media to report and comment on matters of public interest and public concern.

The Council, which oversights the ethical standards within the print media, also administers the Print Media Privacy Standards under the Privacy Act (Cth). That Act exempts from its purview the journalism activities of media organisations which publicly subscribe to a privacy code. The Print Media Code, as well as the Council's Statement of Principles, regards as unethical the gathering of news by unfair or dishonest means or by the invasion of individual's privacy. By and large, the print media respect such provisions, as demonstrated by the low number of complaints received each year by the Council on such matters, fewer than 5% of complaints to it are about invasion of privacy and a very small proportion of these are about invasions by means of surveillance devices. Similarly, the most recently available statistics from the NSW Privacy Commissioner indicate that only 1.6% of complaints received by his office arise from intrusions by the media.

Polls and complaints overwhelmingly indicate that the public main concern with respect to privacy invasions is through the proliferation and cross-matching of databases. Yet the commission's recommendations specifically exclude such overt collection and matching of information on databases from the proposed purview of the surveillance legislation.

In the absence of a demonstrable need to reign in some perceived concerns with the operations of current legislation restricting the use of surveillance devices and the recently amended Commonwealth Privacy Act, which deals with many of the issues on the use, retention and dissemination of information obtained by means of privacy invasions, the Council does not understand the need for such wide-ranging and potentially dangerous provisions as proposed by the commission.

The Council took part in discussions with the commission and expressed particular concern at the proposed definitions of 'surveillance' and 'surveillance devices' in the report, which appeared to be far too wide and to take into those categories many unintended devices, including binoculars, Cochlear implants and contact lenses. The Council was also concerned with the need for the media to seek 'public interest warrants' for surveillance and with provisions that appeared to call for the destruction of media archives within too short a space of time. At the time of the writing of this report, the Council was still considering the form of its submission to the commission and this will be published on the Council's website at the appropriate time.

see also
Index on privacy material

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7. Whistleblowers

The committee noted the introduction in Western Australia of whistleblowers' protection legislation, similar to such laws existing in the eastern states. It protects those who blow the whistle through official channels but not those who do so to the media.

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8. Freedom of Information and Suppression

Access to prisoners

The 2001 Annual Report referred to legislated restrictions on access to prisoners in Queensland and to attempts in Victoria to introduce similar restrictions administratively. In Queensland the Crown appeal against the acquittal of Townsville Bulletin journalist, John Anderson, was dismissed. In Victoria, a change of Corrective Services Commissioner led to the draft policy not being implemented.

Suppression orders

In South Australia, a state where suppression orders are far more frequent than in any other jurisdiction, there have been a large number of separate orders issued in respect of the reporting of the trials (and, in some cases, the conviction and sentencing) of those charged with the 'Snowtown murders'. Some of the more draconian of these suppressions have been overturned on appeal but a large number remain in place. Two Melbourne-based newspapers and a national daily have been charged with contempt over the use of material that had been the subject of a suppression order. The Council is continuing to gather data from publications on the how widespread the practice of suppression orders are and will be making some statements on the issue in the coming year.

Payola

In October the Council became aware of an aspect of the of South Australian Criminal Law Consolidation (Offences of Dishonesty) Amendment Bill 2001. This Bill made a number of changes to the criminal law, one of which attempted to deal with matters arising from the commercial radio cash-for-comment inquiries. These 'payola' provisions were seen by the Council as dangerously nebulous. It made a submission to the Attorney-General of South Australia which argued:

The Australian Press Council submits that the 'payola' provisions of the Criminal Law Consolidation (Offences of Dishonesty) Amendment Bill 2001 which attempt to deal with matters arising from the commercial radio cash-for-comment inquiries are so broad and sweeping in their wording and ambit that they pose a threat to the traditional freedoms of the press in Australia.

The provisions are intended as legislation that will deal with a particular and publicly discussed issue, the prevalence of cash-for-comment in commercial radio. However, the legislation drafted is ambiguous and has the potential to catch a wide range of common situations, well beyond that required by any matters arising from concerns with 'payola'. The Council is concerned that the legislation will have the unintended effect of limiting the free flow of information to the public.

The Council calls on the Attorney to withdraw the 'payola' provisions of the Bill and redraft those sections of it before any re-introduction.

The complete submission is published on the Council's website.

When the Bill had its Second Reading, the 'payola' provisions had been withdrawn by the government, and they were to be reconsidered. However, before the Attorney could act further on the matter or further consult with the media, the SA Parliament was prorogued for a general election, which the then government lost. The incoming government does not appear to have taken up the 'payola' issue.

Freedom of Information

Over the year, the committee discussed issues related to administration of Freedom of Information (FoI) laws nationally and in the States. It noted a Queensland Parliamentary Committee report very critical of that State's FoI administration, particularly the over-reliance on the declaration of material as being 'Cabinet papers'. There were also critical reports from the Ombudsman in NSW and in Victoria and from Western Australia's Information Commissioner. Among the criticisms noted were the time delays, the costs and the inadequacy of the material finally provided. There was too great an incidence of papers being called 'commercial in confidence' or Cabinet papers as a way of keeping them from being released under FoI. In respect of the costs, some applicants were charged for 'thinking time': presumably the time it took an administrator to consider what documents to discover. The Council decided that it needed some more detailed research in this area and sought a tertiary researcher. Bryony Evans, an honours student in journalism and law at the University of Technology, Sydney, undertook the matter as part of her course and subsequently provided a detailed report to the Council on the extent to which journalists found the system useful. An officer within the federal Department of Prime Minister and Cabinet also co-operated with the project, providing some perspective from the point-of-view of those administering the legislation. At the time of the writing of this report, the Council was still considering the report and the form its actions on FoI will take. In the meantime, it continues to gather information from publications on their experiences with FoI requests.

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9. Juries

No new matters this year.

see also
material on juries in the index on courts and contempt

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10. Government Suppression

Asylum seekers

In November 2001, following receipt of a letter of concern, the committee considered the actions taken by the federal government in generally denying media access to asylum seekers arriving in Australia, whether in territorial islands or waters or in detention centres. The Council agreed to make a statement on the issue and sought the advice of a number of newspaper editors on the difficulties they had faced in the light of the government's policy. Responses from some of these editors, and from some of the front-line journalists were included in a press release made by the Council on 30 November, GPR 249. On the same day, Professor Ken McKinnon and Michael Stutchbury, editor of The Australian, held a media conference at the Council offices to speak to the press release.

Photographs in Public Gallery

In earlier annual reports, the Council noted restrictions placed on photographers taking images of those in the Public Gallery, and also noted the Speaker's assurance that further restrictions were not envisaged. But in late 2001, under new rules approved by the Speaker of the House of Representatives, strict restrictions on press photography within the House were to have been imposed. Photographers were no longer allowed to picture anyone in the House, only the MP with the call. This followed the publication in The Sydney Morning Herald of a picture of Foreign Minister Downer allegedly imitating the Speaker. In tightening the rules, the Speaker enjoined photographers not to use their work for 'satire or ridicule'. However, in February 2002, just as the House was about to resume after the Christmas break, the Speaker revoked these new rules. It should be noted that, under the old rules, which remain in force:

• it is forbidden to use photographs taken in the House for images of satire or ridicule;
• images are restricted to 'head and shoulders distance'; and
• photographing members' papers in close-up is banned.

Criminal Code (Espionage and Related Offences) Amendment Bill 2001

In February, the Council became aware of provisions in the Criminal Code (Espionage and Related Offences) Amendment Bill 2001 which purported to amend the Crimes Act on matters dealing with national security and defence but which included an 'official secrets' section which appeared to widen the ambit of official secrets legislation without necessarily tying it to national security and defence. Following representations from John Fairfax Publishing and from News Limited, the federal Attorney-General convened a meeting between officials from his department and representatives of the print and electronic media. The Council's Executive Secretary, Jack R Herman, attended the meeting. On reviewing the results of the meeting, during which the officials insisted that most of the media's concerns were matters of 'policy', the Council wrote to the Attorney:

The Press Council recognises that the expressed purpose of the Bill is to address the disclosure of information that might have implications for national security and defence. It understands that it is largely a redrafting of sections in the current Crimes Act which will now be placed in the Criminal Code Act.

The proposed Section 82.2 which deals with actions taken with the intention of prejudicing security or defence clearly ties the information involved to those criteria. However, in Section 82.3, intended, we are told, to deal with disclosure of information which might have implications for security and defence where there is no intention to prejudice national security or defence, the language is not precise enough to restrict the remit of the legislation solely to such matters. This Section creates an offence criminalising any disclosures of any government information deemed to be an official record of information or official information that a Commonwealth public official has entrusted to the person to keep secret, whether those disclosures relate to security or defence matters or not. There are no apparent means of limiting the scope of this clause. It could, for instance, relate to a matter a Minister or staffer is trying to cover up.

The Council believes the legislation can be redrafted to take care of its concerns. The Commonwealth has a responsibility to ensure that its legislation dealing with espionage and similar matters does, in fact, deal solely with matters related to national security and defence and is not able to be used in a much wider context.

In particular, the Council seeks to have the offence of "communicating or retaining certain information" (Section 82.3) restricted solely to cases where the information relates to matters of national security and defence. The other clause of concern, Section 82.4, which criminalises the receipt of "certain information", should only relate to information which could prejudice national security or defence.

However, Section 82.4 raises further concerns. The section appears to place on the defendant, not the Crown, the onus of proof that the communication of the information was contrary to the recipient's desires. The section makes no allowance for any public interest defence in a case where the greater good may be served by the release of information on, say, malfeasance, illegality or impropriety. That, together with provisions to more easily close a court and therefore to suppress from publication matters arising from such charges, makes the proposed section draconian in an unacceptable way.

Your officials have asserted that it is not the Government's intention to legislate so as to criminalise generally both whistleblowers and those who receive information from whistleblowers, and that the aim of the legislation is related solely to concerns with the disclosure of information related to national security and defence. If that is the case, the legislation should be redrafted. It should ensure that the intention is reflected in the legislation and that, in matters related to political concerns, where the High Court has said that there is an implication of freedom of communication in the Constitution, recipients of information have adequate defences available to them in an open court.

In March, the Executive Secretary appeared on a SkyTV discussion of the Bill and its implications. When the legislation was re-introduced into the House of Representatives, the 'official secrets' provisions had been removed. The Attorney undertook to consult the media before reintroducing those sections. The Council still awaits his call.

Restrictions on access to State Forests

In January, the committee considered a letter from Kerry Tucker (a Greens member of the ACT Legislative Assembly) who alleged that there were restrictions on entry to NSW State Forests to the extent that the media could not accurately report on what was occurring therein. The Council sought the advice of a number of metropolitan and regional editors in NSW and the ACT and, in the absence of any advice from them that there was a concern for the print media, decided to take no action on the matter.

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11. Parliamentary and other Inquiries

Senate Environment, Communications, Information Technology and the Arts Legislation Committee

The Council appeared before this committee in its reference on cross-media ownership rules, as noted above under section 5 of this report.

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Finance and Public Administration Legislation Committee

The Council's submisison of March 2001 to this committee on the Electoral Amendment (Political Honesty) Bill 2000 was noted in last year's report. The Senate Committee's report of August 2002, at page 96, notes the sole concern expressed by the Council - as to whose responsibility the correction of allegedly false ads is - and recommends amendment of the Bill to clarify this point along the lines suggested by the Council.

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12. International

Asia-Pacific Regional Press Freedom Seminar

On 1 and 2 October, the Press Council hosted a seminar on Press Freedom and Responsibility in the Asia-Pacific Region with the assistance of the Australian Agency for International Development (AusAid). Details of the seminar are in GPR 247 and in reports published in the APC News, Vol. 13, No. 4, November 2001 and on the website. Those reports note the difficulties caused by the collapse of Ansett and the last minute postponement of CHOGM. The Chairs of the Australian, New Zealand, Fiji and Indonesia Press Councils met during the seminar and were able to plan how best to co-ordinate their activities and to arrange for further discussions among the Chairs on future arrangements.

The delegates at the seminar decided to make no immediate move to form another regional association but agreed to maintain liaison, and to assist each other in matters of common interest.

Threats to press freedom

Subsequent to the seminar, the committee noted proposals for restrictive new media laws in the Cook Islands and in Kiribati but decided that the Council should take no action on its own at this stage. It sought the advice of other press councils in the region, New Zealand and Fiji, before taking any action.

Trip to China

The Council was offered a place in a media delegation being sent by the Asian Media Council of Australia to visit with media in China and Hong Kong and inspect progress on the Beijing Olympics. The Council sent John Morgan, who has had wide experience with the Chinese media, including several stints at Xinhua, teaching young journalists. He reported on matters to the council, particularly the concern of the Hong Kong Journalists' Association that a government-appointed 'press council' might be imposed on them. The Council agreed to liaise with the association to assist it as best it could.

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13. General

Youth Suicide

The Council retained its membership of the Federal Government's Media Responsibility Group on the reporting of youth suicide and mental illness, now renamed the National Media and Health Group. Warwick Costin and Rex Jory continue to be the Council's appointees, representing the print media. The NMHG produced a new set of guidelines, to be launched in mid-August 2002. These guidelines include a series of contact names and numbers for journalists pursuing a story on suicide or mental illness.

In July 2002, the Council issued a revised and updated guideline on reporting of suicide, to replace GPR 189. This was the first section of GPR 246.

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Ali Kazak and The Australian Financial Review

Fifteen months after an appeal against the finding (reported last year) of the Equal Opportunities Division of the Administrative Appeals Tribunal that the AFR had breached the NSW Anti-Discrimination Act had been heard, no finding has as yet been delivered.

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Review of Guidelines

In July, the Council issued GPR 246 with revised guidelines on reporting of suicide, drugs, opinion polls and product recalls.

In September, a guideline on the reporting of matters related to 'race', nationality and ethnicity was released by the Council. See GPR 248.

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Copyright - moral rights

The committee considered several matters arising from recent amendments to the Copyright Act which give certain moral rights to copyright holders of artistic material. One of these is the right to attribution and another is the right to the integrity of the work.

A body representing architects took up the moral right to attribution with the Council, seeking the issuing of a guideline mandating that where sites are referred to or pictured, their architects be attributed. In July 2001, the Council responded:

... In [the Council's] view, your proposals are misconceived.

Section 194(2) of the Copyright Act refers to an attributable act in relation to artistic works. These include the right to produce work in material form and to publish the work. While we agree that a building is an artistic work within the meaning of the [Act], a photograph of that building (or an article generally about it) is unlikely to constitute a reproduction of the building or a publication of that building. In order to constitute a reproduction, it would be necessary for the reproduction to be 'substantial'. This is unlikely to occur.

Even if this were the case, section 195 AR of the Act provides that it is not an infringement of an author's moral rights if it can be established that a failure to attribute was 'reasonable in the circumstances'. In the great majority of cases this exception will apply having regard to the nature of the work, the manner in which it is used, the context in which it is used and the practices of the newspaper and magazine publishing industry.

For this reason, the Council does not consider any benefit to be gained from entering into some arrangement which generally required, or directed, newspapers and magazines to attribute authorship to architects of buildings.

After a further letter from the architects, the Council responded further:

We have sought legal advice in relation to the comments you make about the correct interpretation of the Copyright Act, and particularly the provisions relating to moral rights. That advice differs substantially from the propositions that you put forward. It also draws attention to the fact that you have misquoted some provisions of the Act (for example, the definition of 'material form'), failed to have regard to definitions (such as 'communicate') and applied meanings to words which are contrary to accepted meanings in the context of copyright (such as 'publish').

I really do not think there is much to be gained by debating your interpretation at length, and it is sufficient to say that we disagree with it.

Neither do we accept your comments about reasonableness. It is common ground that when it is reasonable not to provide attribution will depend upon the circumstances of each case. There will be very many cases where it will be reasonable not to provide attribution and I really do not see that guidelines will assist to identify with any certainty when attribution must be given.

I should also draw your attention to the fact that discovering the identity of the relevant architect would not be as easy as you suggest. While public records may contain the name of the firm of architects which was responsible for designing a building (and even finding these would be unduly burdensome) they will rarely identify the particular architect or architect within that firm who owns the moral rights. Indeed there may even be a dispute within a firm as to who was the 'author' or who were the 'authors'. As you would be aware, moral rights only accrue to individual authors and not to their employers.

I really think it is time to put this correspondence to rest. If you have particular cases in mind where a person's moral rights may have been infringed you may wish to take it up with the relevant publisher who can consider it in the appropriate context.

The committee also considered a number of inquiries about, and attempts to use, the moral right to the integrity of a work to deal with the question of the editing of letters to the editor. In response to one such request for information the Council wrote:

... there is some debate on the extent to which [moral rights] can apply to newspaper contributors. First, the Act refers only to 'artistic works' in dealing with those works given the moral right to the integrity of the work. Secondly, the Act has two important caveats: there is a reasonableness defence - a newspaper could argue that the changes were reasonable in the circumstances - which would come back to a test very similar to the one applied by the Council [ie the changes, made for grammar or space reasons, to not alter the meaning or tenor of the letter]. Thirdly, the Act allows for the continuance of industry practices that pre-existed. It is an established practice in the print media that letter writers submit letters knowing they are subject to the discretion of the editor, both as to publication and as to editing. Again, it comes back to the same test as the Council's: was the editing fair?

In response to an attempt to use the legislation against a small community-based newsletter, the Council sought the advice of one of its Contributing Bodies which noted:

... the newspaper will have to rely on the 'reasonableness' test to justify sub-editing the letter. As long as the sub-editing did not alter the thrust or meaning of the letter, then it was reasonable for the editor to alter it for publication.

We ... take the view that the 'reasonableness' test does not give our newspapers the certainty they need to cut letters to size, improve grammar, etc. To counter this, most of our publications carry a copyright assignment notice which, in effect, transfers ownership of the letter to the newspaper.

For example, one newspaper today on page 12 carries a grey-tone box in the bottom right-hand corner. Among other information, it states: "Letters to the editor ... are submitted on the condition that [the company] as publisher of [the newspaper] may edit and has the right to, and license third parties to, reproduce in electronic form and communicate these letters." This disclaimer allows reasonable editing and bestows on [the company] the right to store the letters electronically and disseminate them to others by electronic means as well as in newsprint. Hence letters may be published on Websites, etc.

The Press Council endorsed the approach taken by this company and recommends that all publishers of print media take similar steps to ensure that they don't rely solely on a court agreeing that their actions were 'reasonable'.

for more on moral rights, see
APC News article on the legislation

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Financial Services Reform Bill

In last year's report, the Council noted that, as a part of its reform of the Corporations Law the government had introduced the Financial Services Reform Bill 2001. After representations from the media, including the Council, the Finance Minister had agreed to amend the Bill to include a general media exemption from the licensing provisions and the media organisations worked on appropriate wording for the exemption, which was included in the redrafted Bill. Under the Act, as passed, there was a need for regulations to govern the administration of the licensing provisions for financial product advice and the media organisations met with representatives of Treasury to ensure that the regulations would conform with the general tenor of the agreement reached with the Minister.

In February, the committee noted that Treasury had agreed to a light touch self-regulatory regime to govern the matter and that media organisations which subscribed to Press Council principles or a specifically drafted code of practice for reporting financial matters could claim the media exemption. At the time of the writing of this report, the Council is discussing with its Contributing Bodies whether the current principles, which govern the necessity for the revelation of conflicts of interest, are sufficient or whether a specific code of practice for financial journalism needs to be drawn up. Any such code needs to be in effect by March 2003.

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Charter of a free press

Chris McLeod, assisted by Sharon Hill (both Industry Members of the Council), have drawn up a draft Charter of a free press which has been tabled at the PD Committee. At the time of the writing of this report, the draft has been made available to all members of the Council for comment.

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Freedom of the Press overview

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