Report on Free Speech Issues 2002-2003

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

Anti-terrorism legislation
Media ombudsman
Threat to editorial independence

Parliamentary and other inquiries

House of Commons' Culture, Media and Sport Committee
Electoral Amendment (Political Honesty) Bill
Protection of Classified and Security Sensitive Information

International

General

Financial services reform
Authorisation of advertisements
Queensland Commission on Children and Young People
Ali Kazak and the Australian Financial Review
Race for Headlines
HREOC consultation

Policy Development matters

Charter of a free press in Australia

Chris McLeod and Sharon Hill, two Industry Members of the Council, drafted an outline of the Charter which was discussed by the Council over several months. The final version was agreed to by Council, in consultation with its Constituent Bodies. An explanation for the adoption of the Charter and a copy of the Charter and an explanation of its background is given in an article from the APC News.

Policy Officer

When developing its Budget for 2003-2004, the Council took the decision to hire a new, permanent part-time employee to take on the role of research into, and development of, policy matters. The Constituent Bodies at their annual meeting to set Budget priorities agreed with the proposal and, at the time of the writing of this report, the Council was seeking such an employee to commence in late 2003.

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Free Speech matters

1. Professional Privilege

Last year's report referred to actions taken against three journalists by the NRMA, seeking the disclosure of their confidential sources for stories on the NRMA Board. Changes on the Board led to the withdrawal of such attempts.

The committee looked at developments in the UK and France (where a new Bill regarding internal security appeared to threaten the confidentiality of journalists' sources) and at an action before a European court where a multinational was seeking disclosure of sources for articles on it but there were no new matters arising in Australia.

see also
Index on protection of sources material

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2. Courts and Contempt

The NSW Law Reform Commission report Contempt by Publication, arising out of an earlier issues paper from the commission and a series of consultations with interest groups, was tabled in parliament in September 2003 as this report was being prepared. It will be dealt with in detail in Annual Report 28. A similar issues paper on the same subject was produced by the WA Law Reform Commission and the Council agreed to assist The West Australian in responding to the report.

see also
Index on courts and contempt

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3. Defamation

NSW defamation law reform

In last year's report, it was noted that the NSW Attorney had formed a working group to make recommendations for law reform based on the Council's 2001 submissions. Not all of the Council's proposals were adopted, and some were modified. The group recommended the development of pre-litigation measures and a more useable qualified privilege defence. The Premier, the Hon. Bob Carr, outlined his law reform agenda in a speech in Sydney in July 2002. When the legislation was introduced some elements from the original recommendations had been omitted and others altered in the language. Particularly affected was the offer of amends provision which was worded so that there was no 'no prejudice' offer of amends available. Other changes included the deletion of the limit on damages proposed by the group. Some sections of the media were particularly concerned with the wording of the offer of amends provisions and, through the Council, sought revision of the wording before the Bill was passed. The letter's introduction read:

The Australian Press Council writes to you on its own behalf and on behalf of John Fairfax Holdings Limited, News Corporation Limited, Publishing and Broadcasting Ltd and the Federation of Australian Commercial Television Stations to clarify our key issues regarding the Bill and to propose some drafting changes. We remain concerned that the Bill, as presently drafted, will not fulfil the objects it sets out to achieve and will, in some cases, work in a way which is contrary to those objects.

It is important that we emphasise that we have no quarrel with the Bill's stated objects. ... Of central concern to us are the matters referred to below in relation to section 9D, relating as they do to the offer of amends procedure.

While we believe that all of the matters we have raised are important for the effective functioning of the legislation in accordance with its objects, we regard the sections addressed under recommendations 1 to 6 (inclusive) to be critical, and to represent in their operation as presently drafted such a significant departure from the framework which the Press Council believes was originally agreed in the working group with the department, that without attention to them the Bill will be fatally flawed, it will render ineffective the whole principle of offer of amends. In those circumstances, we believe the purpose of the Bill is largely negated.

From our perspective the issues we raise are not so much matters of policy, requiring the attention of Cabinet, but of drafting. Our suggested amendments are intended to bring the Bill into line with its stated objects. In writing this letter, we have adopted, wherever possible, the scheme of the Bill itself.

In particular the Council sought changes to encourage use of the offer of amends procedures to achieve settlements and not just to encourage mulcting of defendants. The central recommendation was to amend section 9D to make clear that offers of amends can be made without prejudice, and that except for the purposes of section 9G (dealing with the effect of failure to accept a reasonable offer of amends) an offer is not to be referred to in any pleading or affidavit, nor communicated to the Court at the trial for the purposes of section 48A or otherwise, until after all questions of liability and the relief to be granted have been determined.

The letter also dealt with changes to the qualified privilege defence and sought some minor drafting changes which would have improved the chances of the courts applying the defence more frequently than they had done under the extant provision.

The Attorney replied a few weeks later:

Clearly, I am concerned that any potential problems with the Bill are ironed out before it commences, and thank you for your contribution to this important area of law reform. I agree that some of the issues raised by you and your members need addressing and propose to do so by way of moving Government amendments when the Bill is next before the Legislative Council.

In regard to proposed section 9D(3) I am persuaded that it is important to provide publishers with greater flexibility than currently exists. Accordingly, the Government will move to amend subsections (c) and (d) to replace the words "(it any)" with "(if appropriate in the circumstances)."

It is my view that as drafted section 9D(3)(g) provides freedom to the publisher to set the parameters for expenses to be paid to an aggrieved person, including providing for an offer to be made that is limited to expenses incurred up to the date of the offer. Nevertheless, in the interests of clarification the Government will move that the section be amended to reflect that an offer must include an offer to pay the expenses reasonably incurred by the aggrieved before the offer was made, and those expenses incurred by the aggrieved person in considering the offer.

I appreciate the Press Council's concerns regarding notice to a publisher of a purportedly defamatory publication and the time limit for making an offer. My goal for the reforms is no doubt the same as that of the Press Council's: parties should be encouraged to settle defamation disputes where this is appropriate. I have considered the Press Council's views and agree that it would be beneficial to include in the Bill a requirement that an aggrieved person must inform the publisher in writing that the matter in question is or may be defamatory. I am also persuaded that settlement may be encouraged if the 14 day limit for the making of an offer is extended. Accordingly, the Government will also move to extend the period for a publisher to make an offer of amends from 14 days to 28 days.

In respect of section 9D of the Bill, it has always been intended that this provision allow parties to make offer on a "without prejudice" basis, Nevertheless, for abundant clarity the Government will move that a subsection be added to section 9D that makes this explicit.

Once again, I thank you for your contributions to the reform of defamation law in New South Wales.

The proposed changes were made but legislation was further amended in the Parliament. The proposal to give privilege to fair reports of press conferences and other public statements was deleted and the limits on corporations suing altered. A number of important changes were made to the conduct of NSW defamation law by the Bill, particularly in the clarification of the qualified privilege defence and in the introduction of a form of pre-trial settlement procedure (even if that remained somewhat flawed in the wording). The Bill was proclaimed in January 2003, but without the offer of amends procedures, which were finally proclaimed in June 2003.

National uniform legislation

The Council remains committed to uniformity of defamation legislation across Australia as its ultimate goal (instead of the eight extant, and sometimes contradictory, jurisdictions). It was assisted in the push for this when the NSW Attorney had uniformity again placed on the agenda 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. At the end of the reporting year, the officers' report was still awaited.

WA reform

The WA Attorney General meanwhile established a taskforce to look at reform of that state's defamation law. He consulted with Professor McKinnon during the latter's visit to Perth in late 2002. The taskforce was expected to report in late 2003.

see also
Index on defamation material

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4. Parliamentary Privilege

Re: McKinnon and Ray

On 17 June 2002, The Age reported the findings of a Senate Committee on cross-media ownership legislation a day before the Committee reported. This matter was referred to the Senate Privileges Committee which delivered a report on the matter in February 2003. The report found "reluctantly" that there was no contempt because the breach of privilege did not substantially obstruct the committee's work. But when the report was tabled, the Privileges Committee Chairman, Senator Robert Ray, was reported as firing a shot across the media's bows, suggesting that the rules might be changed so that the act of prematurely publishing a report would be a contempt in itself. The Council wrote to the Committee Chairman with its concerns at his remarks and the implications for the full and free reporting of Parliament.

The Council is alarmed at the proposals made in the report from the Senate Privileges Committee on the Age's early publication of material from a Senate Committee report.

In particular, the Council is alarmed by the proposal that early publication of reports be, ipso facto, a contempt of the Parliament. You are quoted as saying that this is to stop newspapers claiming that a premature publication did not materially affect the committee.

As you are well aware, many leaks in cases of premature release of committee material are from politicians. Yet the proposal wound punish as a matter of course the journalist (and possibly the editor and publisher). The proposal is basically hypocritical in seeking to punish the messenger and not the perpetrator of the 'leak'. Imagine what would happen to government in Australia if you extended your proposal approach to reporting the news to the whole of the workings of parliament!

In the Council's view, your proposal is an unacceptable and completely unnecessary restriction on press freedom. There is a public interest in the full disclosure of information on matters affecting the political process, and the High Court has unanimously recognised an implied freedom of communications on political matters in the Constitution. Your proposal would have a chilling effect on such discussions, particularly in cases where a government may be deliberately 'sitting on' a committee report.

The proposal is unjust as it removes any burden of proof on the Senate and exposes journalist, editors and proprietors to punishment in cases where the offence is inadvertent or where there may be a strong public interest justification for the release of the material. That justification may include exposure of corruption or illegality which the Parliamentary committee may be reluctant to see in print.

The Press Council calls upon your committee not to proceed with this further erosion of the limited freedom of speech and of the press available within the confines of Parliamentary reporting.

Senator Ray responded, denying that 'the committee has reached any conclusion on the matter'. He took issue with some of the Council's interpretations of the committee's reports and argued that there was no intention to restrict the media's ability to report. The flavour his response can be gleaned from these extracts:

Having examined the content of your letter, the committee finds it difficult to believe that the council has actually read the 112th report, much less other reports quoted at paragraphs 1.27 and 1.28 of the report. Perhaps the council has relied on recent inaccurate and self-serving reports and comments of the media which the council purports to monitor. ...

In the light of the serious defects of understanding indicated by your letter, the committee thought it might be useful to make available to the Council the source material on which media reports, comments and editorials were based. It therefore enclosed the 112th report and the other reports referred to above, together with its most recent general report which explains its operations.

The committee welcomes and encourages discussion on issues raised in its reports. It expects however, that participants should be well informed before entering into debate. The committee trusts that the enclosed reports will assist you to provide a more detailed and thoughtful contribution to its deliberations on this important matter.

The Press Council determined to respond equally strongly:

Thank you for the Committee of Privileges Reports ... enclosed with your dismissive response to the Council's letter of 14 March 2003 concerning the 112th report. While the Council's response will not be as rude as yours it does have to be direct.

The Committee is very willing to be judgemental about the press while being unwilling to analyse its own failings or to take a modern view of privilege. ...

For instance, it is clear from Report 107 that the Committee of Privileges has built up its work-load assiduously, moving from 17 cases in the sixty five years 1901 to 1965 to 96 cases between 1981 and August 2002 (p 27). Is it that people have become more disrespectful of the pomp and circumstance of the Senate? Or is it that Senators and Senate Committees are simply using the Act and the Committee in the same way as they use the media, as a political tool? Although the Resolutions of the Senate (3(a), p89) bid the Committee not consider trivial matters, it is obvious that when a Senator's pride is at stake hardly any matters are trivial. In an age of greater information flows might more robustness be considered? It would not go amiss for the Committee to review more critically its own processes.

Turning to the 112th report on media ownership, it is reported that members of the relevant Committee swore that none of them leaked information and that none of the staff could have. But leak it did, so one or more Senators is a liar. Your report recognises this, bit again, as in the past, cannot find the culprit. In lieu the Committee takes the easy course of shooting the messenger, the press, rather than finding ways of disciplining Senators or finding ways of discovering and closing the source of the leaks. As The Australian said:

In relation to leaks that do occur, the media and the public will know that the Parliament is committee to the integrity of its processes when it begins regulatory to deploy the sophisticated documentation examination techniques now available for determining whether a copy has been made of an original to identify and deal with members who act in disregard of the terms of confidentiality of documents supplied to them as committee members.

Has the Committee considered adopting powers to check the hard drives and telephone records (including mobiles) of Committee members and staff when there has been a leak? Has it considered the same kind of courses for Senators that it urges on Heads of Commonwealth departments and authorities and on editors and journalists? Perhaps courses in moral rectitude could be considered?

All parliamentarians, without exception use the press to their own ends. Skill in the exploration or even manipulation of the media is a fundamental tool of the modern parliamentarian. Can any member of the Senate, particularly anyone who is or has been a Minister, put hand on heart and truthfully declare that s/he has never inappropriately leaked information?

For instance, you can hardly say that the Committee has achieved a stated primary purpose, that is, to protect in camera evidence. It leaks profusely and the press most often does little more than report what has been common knowledge for some time around Parliament House.

Does anybody still believe that the government of the day does not selectively leak ahead of official announcements at press conferences, nor put 'spin' on the news, nor tell part truths? Does that constant flow of unauthorised information interfere with the integrity of Parliament? On the contrary it might well be argued that in the modern world it is the press that gives Parliament and its committees (of both Houses) their standing.

Could a modern Government govern successfully if unable to condition the public through selective leaks? Leaking is endemic and it is the members of Parliament that do it. Given modern devices it is something that the Committee of Privileges will never be able to control. It might be more productive to work more openly.

The press in pursuit of its role to inform cannot ignore information. Newspapers have a duty to the public to publish information that becomes available to it. As The Australian is reported as saying:

A free press in a democracy cannot resolve such conflicts simply by closing its eyes to material which is available to it on topics which are of clear public importance and active public debate.

Members of the Committee surely do not envisage a world in which it is the duty of press organizations to ignore received information until they are scooped or until there has been an official release. That happens only in countries where there is authoritarian control of the press and other aspects of life. ...

The statement you are quoted as making in delivering the 112th report, to the effect that from now on early publication will be treated as a priori contempt of parliament, together with the intention (p 14) to send a copy of the report to editors and publishers of major media organizations and every Press Gallery journalist, properly raises Press Council concerns. While the Council agrees that the Committee of Privilege has been sparing in it reprimands, these are obviously intended as 'warning off the course' statements. For the Committee to assuage its frustration by making a scapegoat of the press is to focus on the hole not the donut.

It would be hypocrisy if not humbug for the Committee to carry out its stated intent of a priori holding the press in contempt when there has been a leak. The considerable powers of the Committee conferred by the Act cannot reasonably be invoked on the premises that 'you were warned'.

We agree, however, that editors should be sufficiently aware of the absurdities of the way the privileges game may be played that we should send copies of this correspondence for their edification.

A free press, while arguably not quite as important as Parliament, is as fundamental to the well-being of Australian democracy.

As foreshadowed in the Chairman's letter, the Council sent copies of the correspondence to editors of major metropolitan and regional newspapers.

In late June 2003, the Privileges Committee tabled a further report, its 113th report, Australian Press Council and Committee of Privileges: Exchange of Correspondence. The report reproduces a record of the correspondence to enable readers to judge the issues.

Budget leaks

In May 2003, the Privileges Sub-Committee of the Victorian Parliamentary Public Accounts and Estimates Committee sent 'please explain' letters to some Victorian newspapers which had published a 'premature disclosure' of a letter from the Auditor General related to proposed Budget savings. The sub-committee was seeking statutory declarations from all members of the Committee who received copies of the letter, all staff who could have had access to the letter, and the journalists who wrote the article. At the time of the writing of this report, the Council was awaiting any report from the sub-committee.

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5. Media Ownership

Following tabling of the report of the Senate Environment, Communications, Information Technology and the Arts Legislation Committee on the government's Broadcasting Services Amendment (Media Ownership) Bill, which was discussed in last year's report, the Bill was introduced into Parliament. Throughout the reporting year, there was speculation as to the fate of the Bill, which was opposed by the ALP, the Democrats and the Greens. That meant that it required the support of all three Senate independents and the One Nation senator for passage. Discussions between the Minister and those senators continued into 2003 but agreement was not reached on a compromise. At the time of the writing of this report, the government was considering the re-introduction of the Bill. A second rejection by the Senate would make the Bill a 'trigger' for a double dissolution election and the subject of a putative Joint Sitting after any such election.

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6. Privacy

Privacy standards

The Council noted the increased number of newspapers subscribing to the Council's Privacy Standards for the Print Media after a large number of members of Country Press Australia and some smaller magazine publishers publicly subscribed to the Standards. The full list of subscribers can be found on the Council's website at http://www.presscouncil.org.au/pcsite/priv_org.html. During the reporting year, there were just over 20 complaints which cited the Privacy Standards. Two were the subject of adjudication; in four cases the complainant preferred to take legal action; and the vast majority were settled by mediation or otherwise settled to the complainant's satisfaction.

NSW Surveillance Devices legislation

The Council was involved in further consultations with the NSW Law Reform Commission on its report on surveillance devices in mid-2002, after making an initial submission referred to in last year's report. The commission invited the Council to make further submissions on any reasons why the media should be given special status in the consideration of any new surveillance legislation and the effect, if any, of a similarly-phrased law in Western Australia has had on the activities of the media. In June 2003, the Council made a supplementary submission to the Commission. The Council again submitted:

... on the basis of the commission's report, and on the basis of the continued successful operation of extant surveillance devices legislation in NSW, there is no need for new surveillance legislation in NSW. However, the Council would add that, if the commission were to recommend such legislation, the proposal should contain a clear and unequivocal "media exemption" along the lines of that introduced into the Commonwealth Privacy Act by the Privacy (Private Sector) Amendment Bill 2000.

The Council also looked at the remit and operation of the Western Australian surveillance law, noting that the offences created relate to installing, using or maintaining listening devices to record, monitor or listen to a private conversation, or optical surveillance devices visually to record or observe private activity or to attach, install, use or maintain a tracking device to determine the geographic location of a person or object. "Private activity" does not include an activity the parties ought reasonably expect may be observed; "private conversation" is defined similarly. It noted the differences between the WA law, which deals with 'private' matters, and the commission's proposals which deal with surveillance, either overt or covert, either in public or private.

The Council also noted two other developments since its initial submission:

• the High Court decision in the Lenah Game Meats case, where the Court held that the ABC was able to broadcast material gained through covert surveillance; and
   
• the Council's adoption of a Charter for a Free Press, arguing that the commission has not established in its report that the public interest would be better served by the restrictions on a free press proposed than it would be by a continuation of the current regime.

WA Surveillance Devices legislation

At the time of the writing of this report, the Council was liaising with WA Newspapers over the possibility that the WA legislation would be made tougher. This arose out of the dismissal of an attempt to prosecute under the law a person who had allegedly been surveilling police on behalf of a bikie gang.

Surveillance devices in mobile phones

Late in the reporting year, two incidents related to new technology which incorporates cameras in mobile phones made surveillance devices legislation of interest in a number of jurisdictions. One incident saw a prominent weekend detainee photographed on his first visit to jail and a second resulted from the use of such cameras to take pictures of young people within change-rooms. The Victorian and Tasmanian governments foreshadowed inquiries on such matters, the former referring the matter to its Law Reform Commission, which was already working on a reference on privacy legislation. The Council has contacted both governments, seeking involvement in any discussions.

Health records

The Council looked further at the NSW Health Records and Information Privacy Act. It noted that the Act was similar to its Victorian equivalent and that there appeared to be adequate exemptions in this legislation to enable the media properly to report matters of public interest or matters on the public record.

Federal Privacy Commissioner

In its role as administrator of the print media Privacy Standards, the Council was in contact with the federal Privacy Commissioner's office on two matters.

The Commissioner has sought a report from the Council on matters is has dealt with under the Privacy Standards and the Council was preparing such a report at the time of writing this report.

The commissioner's office also corresponded with the Council on possible interpretations of 'journalism' in the Privacy Act. The recent amendments, which exempted media organizations engaged in 'journalism', defined 'media organizations but not 'journalism'. A complaint received by the commissioner, arising from material in a published letter to the editor, caused the commissioner's office to raise the question of whether the material fell under the 'journalism' exemption. Coincidentally, the same complainants had already raised the issue with the Press Council under the Privacy Standards and the Council was able to mediate a satisfactory settlement of their concerns. In response to the commissioner's preliminary approach the Council responded:

The Press Council urged the government to include a definition of 'journalism' in the Privacy (Private Sector) Amendment Bill and there was a definition in the early drafts of the Bill. The definition was removed at the behest of the Attorney General's department.

The Council is happy to assist you with the provision of a definition but wants to discuss the matter at its next meeting before providing you with a definitive response.

In the meantime, the Council would suggest that you take as wide a possible definition of 'journalism' as possible and that such a definition would include the publication of letters to the editor columns, at the very least. ...

I can tell you than the Council is currently dealing with [the] complaint under its Privacy Standards and we are attempting to arrange a face-to-face mediation to settle the differences between the parties. The involvement of the commission in this matter may hamper these attempts at mediation.

After discussing the matter, the Council responded:

The Council's Policy Development Committee considered your request for a definition of 'journalism' applicable to the federal Privacy Act and its media exemption.

The committee formed the same view that the federal Attorney-General's department formed, i.e. that any definition it might provide would be circular within the exemption which already refers to activities of media organizations.

The committee took the view that all activities of news gathering, including news reporting and commentary on news reports, should be considered 'journalism' within the definition and that its Privacy Standards for the Print Media and its Statement of Principles detailed all those areas wherein the Council's remit operates: all areas of editorial discretion, excluding largely advertising and the commercial operations of the news organizations.

The committee has asked me to extend its regrets that it can be no more exact than that.

see also
Index on privacy material

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7. Whistleblowers

No new matters this year.

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8. Freedom of Information and Suppression

Freedom of Information

Last year's report noted the research done for the Council by Bryony Evans, an honours student in journalism and law at the University of Technology, Sydney. The Council decided to use Ms Evans' report as the basis for a submission to the federal, state and territory Attorneys General, editors of major newspapers, and other interested parties, on possible reforms in the operations of Freedom of Information laws. The submissions were complemented by General Press Release 253 which said:

Australian governments must reinforce their commitment to openness by improving the effectiveness of Freedom of Information (FoI) laws, according to the Australian Press Council.

Releasing details of a study into the operation of Australian FoI laws to federal, state and territory Attorneys-General and other interested parties, the Press Council called for a clearer commitment on the part of all governments to making more accessible to the public information they hold. This includes putting more resources into dealing with FoI requests.

The right to seek information is an express right of the public under international civil and political rights covenants to which Australia is a signatory. But, the Council said, journalists were finding that their attempts to seek information were being thwarted in many ways.

The Press Council has called on the Standing Committee of Attorneys-General to take a uniform approach on improving public access to government information.

A primary concern with the administration of FoI laws is that there is a significant under-resourcing of FoI administrators. The Council calls on governments to ensure that those charged with meeting requests for the release of information be adequately resourced to meet all reasonable requests.

To counter the obstructionism encountered by many journalists in the FoI process, the Council urges two significant changes to FoI procedures:

• the introduction of penalties for department and FoI officers who fail to comply with the time-frame provisions of FoI legislation; and
   
• giving FoI applicants the ability to claim their costs if they are successful in the administrative appeals process.

These changes would help address the main concerns about FoI identified in a study commissioned by the Press Council.

The study found:

• many FoI requests were obstructed on the grounds that meeting them would "substantially or unreasonably" divert resources;
   
• time delays discouraged FoI requests;
   
• 'user-pays' principles often made the cost of seeking information prohibitive;
   
• the operation of exemption provisions greatly reduced information made available; and
   
• arbitrary decisions on classification of documents by FoI officers often stopped requests in their tracks.

While acknowledging that FoI laws were not intended for use solely by journalists, the Press Council expressed concern that journalists who are the link between the public and the public's right to know were often frustrated in attempts to get information that properly should be made public.The principles of FoI should be honoured more enthusiastically by government, the Council said.

Its survey of editors and journalists concluded that processes should be developed within government to assist the media identify documents held and that there should be a higher level of routine disclosure of government information. In that way FoI would become more beneficial for journalists and the public they serve.

At the same time as it is making this call on government, the Council is recommending to the print media actions they might take to clean up their own house in relation to FoI. Such actions should include reduction in the number of 'ambit' FoI requests and a better fine-tuning of requests. There should also be more training for journalists in the 'proper' use of FoI requests. The Council itself is developing some best practice FoI standards for distribution to the print media to assist it in this area.

The Press Council survey was prompted by examples of FoI requests that ran off the rails, including:

1. A newspaper was told it would cost more than $1million to process a request for information about overseas travel by Commonwealth MPs not long after the Government had called in auditors to examine such expenditure. In an AAT hearing the government said MPs travel information was regularly tabled in parliament but the newspaper immediately produced the name of one MP whose name did not appear on the tabled list. The government also claimed that people whose names appeared on expenses claims and receipts would have to be consulted because of privacy concerns. The AAT found that the information should be provided but that the government was entitled to seek payment for the costs of doing so.
    
2. Queensland has legislation that exempts cabinet submissions from FoI scrutiny. Thus delicate matters deemed by ministers or officers to require secrecy are rolled into the Cabinet room in order to gain status as "Cabinet papers" and avoid scrutiny.
    
3. Yet another recent FoI debacle involves a request for information about the approval of drugs and medical treatments. The department quoted $3,855 for the information, including 141 hours of "decision-making" at $20 an hour.
    
4. Several weeks after making an FoI request, a journalist was told there would be an unavoidable delay past the statutory period for replies because of backlogs, short-staffing etc ... When the reply arrived, the journalist was told by the FoI officer that only six documents were considered to fit within the "terms of your request''. Of these, "access is granted in full to three documents'' and "access is denied in full to three documents''. The three documents the journalist was allowed to see were all correspondence to ... him, relating to his FoI request.

The Council received a number of responses from various Attorneys General, as well as from the WA Information Commissioner, state and federal Ombudsman, and the Chair of a Legislative Committee of the Queensland parliament. In June 2003, it received a detailed response from the then federal Attorney-General, Daryl Williams QC MP, with a 'review' of the operations of the federal FoI regime. A copy of the Attorney's response, together with comments on it from a journalist expert in FoI activities and a release from the federal Opposition which seems to confirm the study's finding on the negative impact of prohibitive costs, were to be posted on the Council's website at the time of the writing of this report.

The Council also noted that the Northern Territory government had reviewed its FoI regime, introducing new legislation and moving towards the appointment of an Information Commissioner to oversee its operations.

As a result of discussions with editors about the findings of the study and FoI matters generally, the Council determined to develop a 'best practice' document, useable in newsrooms, to assist journalists be better educated in the best use of FoI. In mid-2003, it commissioned a former FoI administrator to develop the 'best practice' document and 'test' it with some working FoI administrators. At the time of the writing of this report, the 'best practice' document was still being written.

Toben case

In September 2002, the Federal Court ordered offensive (Holocaust denial) material be taken down from a website. This followed an earlier Human Rights and Equal Opportunity Commission finding that the material breached the Racial Hatred Act. The Council looked at the case to see if there were implications for the print media in the commission's and the Court's findings. The recommendation from Professor HP Lee was that, while the Council might be justified in expressing concerns with the legislation, there was no matter which the Council could raise with respect to the Court's findings (and those in a separate HREOC case involving the activities of an anti-Jewish activist in Tasmania). He noted that the Federal Court judge had recognised the futility of her own orders and the ease with which the material could be replicated on other sites.

Access to information regarding criminal matters

Proposals before a committee of the South Australian parliament would have the effect of amending that state's Evidence Act to suppress as a matter of course the names of accused until all appeals have been exhausted. The Council concurred with the The Advertiser's submission challenging the proposals, and decided not to make any submission in its own name.

Changes in NSW in the Criminal Proceedings Amendment (Justices and Local Courts) Act appear to limit access to court documents for the media. Although these changes were passed through Parliament in December 2002, they were not assented to until midway through 2003, and their introduction was not the subject of any prior public discussion. While the Attorney General claims that the changes enhance media access, they have in practice, by the requirement for the media to make application for access to tendered documents, and then only after the proceedings have been completed, had the effect of denying access to material on the public record. The existence, and impact, of these changes was brought to the Council's attention at the end of the reporting year and the Council (and publishers) will be taking up these matters with the NSW Attorney General.

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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

Anti-terrorism legislation

In November 2002, the Press Council expressed its concern with proposals contained in the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002 and issued General Press Release 255.

The Australian Press Council is concerned that proposals contained in the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002 will have an adverse effect on media reporting and on the public's right to information on matters of public importance and concern in Australia. The Council is also concerned about the wider ramifications of this legislation on freedom of speech in Australia.

The Bill seeks to obtain information about putative terrorist acts in Australia by empowering ASIO to seek warrants which allow the detention and questioning of persons who may have information that may assist in preventing terrorist attacks or in prosecuting those who have committed a terrorism offence. The Council recognises that the Bill contains a number of safeguards by providing for a very circumscribed set of procedures for the issuing of such warrants but remains concerned that the breadth of this power to detain and interrogate could affect journalists in their role as gatherers, holders and providers of information.

The Council notes that it is Government's intention that the powers to detain and question be used only as a last resort, and in extreme circumstances. Nevertheless, it is a matter of concern that the proposed legislation enables journalists to be detained on the mere suspicion that they hold information that may relate to terrorist activity and that they may be held incommunicado and questioned, without legal representation, for 48 hours.

The Council has further concerns with aspects of the Bill:

• it provides for a strict liability offence (with a possible five-year jail term) if a person does not appear for questioning when required to by a warrant;
   
• there is a possible jail term of five years for a person who declines to give information or produce a requested record; and
   
• the evidentiary burden of proving that the person does not have the requested record lies on the person - a reversal of the normal burden of proof.

While journalists' communications with sources are not currently protected by a legal privilege, journalists are bound by their code of ethics not to reveal confidential sources of information. It is a matter of concern that the Bill might place journalists in a position of conflict with this professional obligation. While the main code of ethics provides that "substantial advancement of the public interest or risk of substantial harm to people allows any standard to be over-ridden", the Bill provides no scope for journalists to maintain undertakings of confidentiality without being exposed to a lengthy jail term.

The Council's concern about the impact of the Bill on journalists and their ability to report is matched by its concern that a broader public interest is at stake: the free flow of information essential to a functioning democracy.

Freedom of speech is widely recognised as fundamental to democracy. In Australia in particular, this has been recognised in relation to matters of government and politics, with the High Court of Australia acknowledging an implied right to freedom of speech in relation to those matters. It has also been recognised as a relevant factor by courts in considering whether to order journalists to disclose confidential sources.

The Council understands the fundamental importance of the protection of national security. However, the Council calls on the Parliament in its consideration of the Bill to ensure that, in its desire to enact laws to protect Australians from the threat of terrorism, it does not create a threat to the freedom of speech, and of the press, through laws which provide the security forces with powers which may threaten the establish freedoms which are a cornerstone of a liberal democracy.

The House and Senate could not agree on amendments proposed in the Upper House and the Parliament adjourned for Christmas 2002 without the disagreements being settled. The Bill was debated again in May 2003. The Council joined with a number of media organisations, including News Corp and Fairfax Publications, and representatives of the commercial and national electronic media, to express concerns. When the Bill was previously before the Parliament, the same group had expressed reservations. In May 2003, it noted a number of changes made to the legislation which has substantially improved it. A letter sent to the federal Attorney-General expressed continued concern with possible five-year jail sentences for not appearing for questioning and for declining to produce a requested record. But the two core issues of utmost concern remained:

• the burden of proof is reversed and imposed on suspected information holders; and
   
• the conditions under which individuals are held.

These raised the possibility of a severe infringement on civil liberties generally and could directly and adversely affect the ability of media organisations accurately to report the news. The reversal of the burden of proof and the ability to detain people without access to legal advice on a suspicion that they may be able to provide information in connection with an investigation were seen as significant infringements on human rights and potential restrictions on the ability of a free press to gather and disseminate information. The media organisations did not oppose the legislation per se but sought appropriate changes to the Bill.

The Bill was passed in an amended form in late June 2003, with a three-year sunset clause written in. The reversal of the burden of proof remained and was the Council's principal concern with the Act as passed. Additionally, it was worried by provisions in the Act which would allow the detention and interrogation of a journalist who had at best second-hand information on a possible terrorist act.

A media ombudsman

In March 2003, the Queensland Premier floated the idea of a media ombudsman and said the media should have their internal workings exposed under FoI laws. He was at the time in dispute with the state's daily newspaper over its failure, in his view, adequately to correct what he saw as inaccurate reporting. The Council's Chairman pointed out, when Premier Beattie made his statement, asserting that some form of government regulation of the press might be required, that the Premier had not taken the option, as the NSW Treasurer had done, to take his concerns to the Press Council. Treasurer Egan had seen his complaint upheld and The Sydney Morning Herald had printed the Council's adjudication, saying it got a report wrong.

Subsequently the Premier wrote to the Council, inviting it to participate in a debate on the issues arising from his proposals, an invitation the Council declined. The Council said that it believed that the press, by and large, achieved a fair balance in its reporting of political matters and that there were already adequate mechanisms for redressing grievances, without the necessity of government regulation which would inhibit the public's right to information on matters of public interest and concern.

Threat to editorial independence

The Council expressed its concern at moves by the then federal Minister for Communications, Richard Alston, in mid-2003, to establish a new government-appointed body to deal with complaints about the Australian Broadcasting Corporation (ABC).

The Council noted a principle from its Charter for a Free Press in Australia:

Laws, regulations and practices which in any way restrict or inhibit the right of the press freely to gather and distribute news, views and information are unacceptable unless it can be shown that the public interest is better served by such laws, regulations or practices than the public interest in the people's right to know.

It said that the Minister's action raises the possibility of further government restrictions on the ability of the media freely to report matters of public interest and concern. There are already regulatory and self-regulatory ways of redressing concerns with the content of ABC programs giving the Minister two options if he is dissatisfied with the report of the internal review of his complaints. He can take the matter to the ABC's Independent Complaints Review Panel or to the Australian Broadcasting Authority.

The Council's view was that the establishment of an ad hoc tribunal supervening the established complaints systems was both unnecessary and may cause the public to believe that the government wants to interfere in the editorial processes of media organisations and, thus, limit the public's right to receive information of interest and concern to it.

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11. Parliamentary and other Inquiries

House of Commons' Culture, Media and Sport Committee

In January 2003, at the suggestion of the UK Press Complaints Commission (PCC), the Council made a submission to the Commons' Committee, on its reference on "Privacy and Media Intrusion". The committee was looking, in part, at the role of the PCC as a self-regulatory body of the print media. The submission argued for the benefits of press self-regulation through press councils independent of government and against any attempts to impose statutory controls on the press through privacy legislation, particularly in countries which have no express constitutional guarantee of freedom of speech. It noted the position of the PCC as an independent press self-regulatory system which helps encourage the development of a free and a responsible press, not only in the UK but internationally.

The committee reported in June, recommending the introduction of a privacy law and a package of reforms for the PCC in its Code, its procedures and its appointments. The Australian Press Council has agreed to look at these proposed reforms to see if any might have applicability to its principles and operations.

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Electoral Amendment (Political Honesty) Bill

The Council's submission of March 2001 on the Electoral Amendment (Political Honesty) Bill 2000 was noted in the 2000-2001 report. When the Bill was tabled and had its second reading early in 2003, the Council noted that its sole concern, as to whose responsibility the correction of allegedly false advertisements is, had been addressed and the Bill amended to ensure that the advertiser, not the publisher, was responsible for such corrections.

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Protection of Classified and Security Sensitive Information

The Australian Law Reform Commission published an Issues Paper on its reference on classified and security sensitive material and invited the Council to consult with it on the reference. At the time of the writing of the report, the Council was developing its position and would then engage with the commission on the matter.

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12. International

There were a number of threats to the independence (and the safety) of the press in the Pacific during the reporting year - and some hopeful developments.

Amongst others, the governments of the Cook Island, Fiji, Kiribati and Papua New Guinea either foreshadowed the introduction of inimical media laws or tabled such Bills.

In the case of Fiji, the existing Fiji Media Council, a self-regulatory and independent council which administers a complaints mechanism, was under threat from proposals to establish a regulatory system but appears to have successfully lobbied against any such change.

Similarly the PNG Media Council, which had been more of an industry lobby group than a self-regulatory mechanism, responded to proposals for media regulation by the introduction of a self-regulatory ombudsman scheme. Professor Ken McKinnon, the Chairman of the Australian Press Council, visited PNG and helped launch the scheme to oversight a media code of ethics. The board for the scheme consists of five prominent members of civil society with the Media Council providing secretarial support. The Chairman offered APC assistance to the Media Council. During his visit, Professor McKinnon discussed with the local media organisations threats from the PNG Parliamentary Privileges Committee to call before it anyone uttering 'anti-PNG statements', including members of the media. The Media Council has sought assurances from the government on its support for continued freedom of the press in PNG and has been assured that there is no likelihood of such a scheme being formalised.

The Australian Press Council took no direct action on the developments in Kiribati and the Cook Islands but continued to liaise with the New Zealand Press Council and the Fiji Media Council on issues affecting the Pacific. This led to a joint press release, on 29 April 2003, from the three councils on the situation in Tonga

The Chairs of the Press Councils of NZ and Australia and the Fiji Media Council agreed to issue a joint statement on the situation in Tonga where the Executive (the Privy Council) had over-ruled the Supreme Court and re-imposed bans on a local newspaper, which has been forced to print in New Zealand. The Commonwealth Press Union (CPU) Chairs in Australia and NZ agreed to support the statement and it had been widely circulated. The Council had also passed it along to the CPU for further international action.

In the statement, the Councils and the CPU noted their growing apprehension at the reaction of the Government of the Kingdom of Tonga to the issues of free speech and the rights of a free press. They said:

For some time now Kalafi Moala and his biweekly newspaper, Taimi 'o Tonga (Times of Tonga) have published detailed commentary on aspects of life in Tonga. Kalafi Moala has faced constant legal threats, and harassment, and even undergone a short jail term for his views and publications. Particular exception has been taken to issues of Taimi 'o Tonga that have included comments on the actions of members of the royal family - a constitutional monarchy in that country.

The most recent confrontation arises as a consequence of the action of the Tongan Privy Council (a ten person Cabinet appointed by the King to advise him) in banning Taimi 'o Tonga as a prohibited document. A subsequent Supreme Court decision over-ruled the ban. Then the Privy Council took unprecedented further action to over-rule even the Supreme Court, with the effect of re-imposing the ban. Kalafi Moala announced recently a further legal challenge to overturn the latest ban.

The actions of the Tongan Privy Council have been so inimical to the accepted standards governing the free speech, and the press, in the Pacific that the Councils and the CPU have for the first time united in a single voice to condemn these actions. In doing so, they endorse earlier critical comments from the Pacific Islands News Association.

To place a ban on the presence of a newspaper such as Taimi 'o Tonga within the borders of the kingdom and providing a penalty for its breach, solely on political grounds, is a severe incursion into free speech and the rights of a free press that are at the heart of a democratically governed country.

The concern of the Councils and the CPU is solely that of freedom of expression and a free press, in so far as those principles can be separated from the present actions of the Tongan Government. To ban the presence of the newspaper within its boundaries is to exercise a severe censorship of a free press and the Councils and the CPU express their deep concern at these actions. To attempt to deal with opposition views by way of censorship and legal prohibitions is wrong in principle. Opposition has a right to exist, and be heard, in a democracy.

At the time of the writing of this report, the Tongan Privy Council was seeking to amend the country's Constitution to overcome to continued rulings by the courts on the illegality of its actions in banning Taimi 'o Tonga. The newspaper remains banned in Tonga.

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13. General

Financial services reform

As a part of its reform of Corporations Law the government had introduced the Financial Services Reform Bill 2001. The Bill, as passed, included a general media exemption from the licensing provisions under the Act. Last year's report noted that Treasury had agreed to a light touch self-regulatory regime to govern the matter and that media organisations which subscribed to adequate Press Council principles or a deliberately drafted code of practice for reporting financial matters could claim the media exemption. After consultation with its Constituent Bodies, the Council noted:

Recent changes in the Corporations Act have widened the definition of 'financial services' covered by the legislation and mean that, where personal financial product advice is given by a journalist or by a publication, a licence may be required. Where the information given is a report, commentary or general financial product advice, there is a general media exemption from the need for licensing, provided the media organization or individual is subject to a code of practice or to the Council's Statement of Principles. The Council, having considered possible draft codes of practice and a recommendation from legal counsel, has decided that the best approach to the recent changes is to rely, in cases of reporting, commentary or general financial product advice, on the current Statement of Principles, particularly Principle 5 which mandates that commercial or other conflicts affecting a report need to be clearly disclosed. The Council also recommends that media organisations maintain a register of financial interests of journalists. Additionally, those publications and individuals that give personal financial product advice need to take their own counsel on the need for a licence under the legislation.

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Authorisation of advertisements

A proposal from departmental officers to enforce regulations on the publication of advertisers' full names and addresses caused concern in Victoria in late 2002, in the run up to a state election. This was a particular threat of loss of advertising revenue in smaller community newspapers. The regulations arose from legislation passed by an earlier government when undertakings were given that they would not be interpreted literally. The Council waited until after the election and then approached the government seeking for it to intervene, assisting an ad hoc group of Victorian publishers which was also making submissions on the matter. As a result of the twin approaches the new Minister decided that the proposal would not proceed.

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Queensland Commission on Children and Young People

The commission is developing draft guidelines for reporting children's issues and sought the Council's response to its draft. The Council responded by drawing the commission's attention to its view that detailed and restrictive guidelines do not necessarily assist in the proper reporting of matters of public interest; that the Council itself had developed principles governing the ethical reporting of matters of public interest, including the reporting of issues affecting children and young people, and had issued adjudications which expanded on those principles; and the impracticality of the draft proposals and the unlikelihood that they would be used in practice in most newsrooms. The Council also said to the commission that it would be happy to organize a visit by the commission to newsrooms to see how they operated, so it would have a better idea of the impact of any draft guidelines.

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Ali Kazak and the Australian Financial Review

In previous reports, the finding, and an appeal against that finding, of the Equal Opportunities Division of the Administrative Appeals Tribunal that the AFR had breached the NSW Anti-Discrimination Act, had been mentioned. During the year under report, the Council noted that the Appeal Panel ruled in favour of the newspaper's right to publish material critical of groups where there was no intention to forment violence or hatred against a particular group.

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Race for Headlines

In March the NSW Anti-Discrimination Board issued a report, Race for Headlines, which offered comments on what it saw as unfair media reporting of certain ethnic and racial minority groups. This report arose particularly from reports on a number of recent stories, especially the arrival in 2001 of asylum seekers and the trials of suspects in a number of gang rapes in western Sydney. The ADB's recommendations included:

That the Australian Press Council and the Australian Broadcasting Authority develop a mechanism to enable minority racial and ethnic communities who have been subjected to sustained negative reporting to make a complaint which is adjudicated by the Council/Authority. If the Council/Authority finds in favor of the complainant, they (sic) would encourage/require that adequate space in the relevant newspaper or on the relevant broadcaster be given for a 'right of reply'.

The Council, which had not been consulted by the ADB prior to the issuing of the report, did not believe that the report made a case for a wholesale review of its handling of such matters. It has responded to the Board, noting that

• the Council already had adequate principles and procedures to deal with concerns with 'attacks ' on ethnic communities; and
   
• the Council was constantly reassessing its principles and procedures in the light of developments and individual cases.

Subsequently, the Council's Executive Secretary met with an Assistant Director-General of the NSW Attorney-General's department to discuss the report and future relations between the ADB and the Council. The discussions related more to the way in which the ADB would conduct future investigations, particularly that it would consult with bodies like the Council before making recommendations about their activities. The Council noted the HREOC consultation and suggested that the recommendation in the report on community capacity building for the Muslim community is one that the department might follow-up.

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HREOC consultation

The Human Rights and Equal Opportunity Commission has co-ordinated a reference group on 'eliminating prejudice against Arab and Muslim Australians'. In the reporting year, the group turned its attention to the media, inviting the Council and the ABA to discuss matters with it. The ABA sent a written report. The Executive Secretary spoke briefly about the Council's role in dealing with complaints and then took part in a two-hour discussion with the group. There was some dissatisfaction with the general job being done by the media particularly the electronic media but also by some sections of the print media. The group had two major suggestions to put before the Council:

• the Council consider the appointment of a Muslim when next appointing public members to enable that community a more direct input into the Council; and/or
   
• in addition to the meetings with the industry the Council consider regular meetings with specific community groups to discuss issues of mutual concern.

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