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Report on Free Speech Issues 2003-2004
Policy Development matters Policy Officer As noted in the 2002-2003 report, the Council decided to increase its research capability in the area of policy development by hiring a permanent part-time Policy Officer. As noted in the Administrative section of this year's report, Inez Ryan was hired on a three-day-a-week basis in October 2003. In June 2004, her working week was increased to fours days a week. The Policy Officer has been instrumental in feeding detailed material to the committee to enable it to respond more quickly and more fully to requests for submissions. Her research and advice is reflected in many of the areas referred to below. Research In October 2003, Dr Andrew Kenyon from the University of Melbourne spoke to the committee about the Council better aligning itself with researchers in universities who were investigating, and writing on, matters relevant to the Council, and to the print media. He also noted requirements for the applications for grants from the Australian Research Council, which meant that academics needed to find industry partners to improve their chances of receiving support. He urged the Council to look at ways in which media organizations might be of more assistance to researchers. As aresult, the Council met with number of researchers in early 2004. This is dealt with in more details in the Administration and Activities section of this report, as are the Council's consultations with editors and its annual address. Free Speech matters 1. Professional Privilege The Council's Policy Development Committee has been looking at one particular development which may challenge the ability of journalists to protect the confidentiality of sources. The Victorian Local Government Act appears to give powers to inspectors looking into matters arising from complaints about local councils wide powers to seek information, including from journalists who have written stories on the matter. One case, involving a local council on the Victorian surf coast, led to the questioning of a journalist and editor by departmental investigators. The investigations did not lead to any adverse action against either. see also 2. Courts and Contempt In last year's report it was noted that the NSW Law Reform Commission had tabled Report 100 Contempt by Publication in October 2003. The Council discussed the proposals and considered its response to them. The report's recommendations were raised in discussions between the Council's Chairman and the Director-General of the NSW Attorney-General's department. The Director-General indicated that the Minister was considering what, if any, legislation should arise from the report and would welcome the Council's further submission. On 7 May 2004, the Council sent such a submission to the NSW Attorney-General. Its Executive Summary read: The Australian Press Council accepts that the law of sub judice contempt is a necessary part of our system of justice. However, the Council also believes that there is a need to balance the right to a fair trial against the right of the public to be kept informed of court proceedings. Although the report of the NSW Law Reform Commission, Contempt by Publication, includes several positive proposals, the report makes a number of recommendations which have the potential to restrict the reporting of court proceedings by the media and which may threaten free speech. In particular the Press Council
The full submission has been posted on the Council's website. see also 3. Defamation Capping damages In July, the Press Council offered its in principle support to independent NSW MP David Barr's Defamation Amendment (Costs) Bill 2003 which sought to cap damages available in defamation actions. Subsequent to the second reading speech of his Bill, the Council sent Mr Barr further correspondence expressing its concern with some matters he raised: The Council does not resile from its support for the general thrust of your reform, which it sees as an advance and also asked me to notes its support for some of the issues you have raised as matters for wider reform, particularly addressing the assumption that the matter is defamatory unless proved otherwise, and in addressing the problems with Section 7A trials. However, the Council is concerned with your proposal which foreshadows wider media regulation. The Council's concerns are two-fold. First you conflate all media into one proposal. There are clear distinctions between the electronic media, which are licensed by the state and already subject to statutory regulation through the Broadcasting Authority, and the print media, which are unlicensed and, at this time, not subject to any statutory scheme. In a country with no express guarantee of freedom of speech, or of the press, any statutory regulation of the press would be inimical to press freedom and provide governments with overt ways of interfering with editorial decisions which should be free of government influence. The second concern of the Council is that, in your remarks, you overlook the self-regulatory mechanism provided by the Council which offers a service which is cheap, efficient and fast. Its main aim is always to try and resolve disputes amicably and quickly. A substantial number of the complaints we get are resolved - and it usually takes us less than a week to mediate such settlement - achieving the sort of remedy you seek, apology, correction or clarification, or right of reply. Self-regulation works in the Australian print media because the newspaper and magazine publishing industry is committed to it. Throughout the last ten years, every critical adjudication against a mainstream newspaper or magazine by the Council has been printed with due prominence. (This is in addition to the large number of matters resolved successfully by mediation.) The codes of practice of individual publishers recognise the Council's Statement of Principles as an integral part of industry standards - a sign of their commitment to it. The Council has a majority of members on it with no commitment to a publisher or publisher body. This ensures that, although it is funded by the industry for the benefit of complainants, the Council is clearly independent of it. In addition to representatives of the publishers and publisher organizations, there are members of the public, independent of the press, and appointed after wide advertising in the community, and journalist and editor members who cannot be the employee of any publisher. One of the central benefits of press self-regulation is that it combines high standards of ethical reporting with a free press. The Press Council promotes press freedom. through its free speech activities, but it is a press freedom which has to be used responsibly, in accordance with the Statement of Principles. Statutory controls would undermine the freedom of the press - and would not be so successful in raising standards. A statutory tribunal, with any sort of punitive powers, would add to the costs and time taken for complaints to be resolved. Particularly if it involved members of the legal profession. It would become indistinguishable from other legal processes, with long, drawn-out hearings, and potentially appeals to higher authority. It would be of potential use only to the rich and powerful who would be prepared to use the Courts to enforce their rights - and would be misused by the corrupt to stop newspapers from reporting in the public interest. Self-regulation has none of the problems of the law - yet still provides a system in which publications are committed to the highest possible ethical standards. I would seek your investigation of the Press Council's processes before you suggest an alternative system with none of its advantages. National uniform legislation In 2003, the Council noted a number of developments towards more uniformity among the eight extant state and territory defamation laws. In late 2003, the Standing Committee of Attorneys-General (SCAG) formalised a working party of officers to develop proposals for its March meeting. SCAG invited the Council to discuss the contents of any uniform laws with the working party in Sydney in February. The Executive Secretary and Policy Officer represented the Council. Before the working party could report, the recently appointed federal Attorney-General, Philip Ruddock, released, in March 2004, an Outline of possible national defamation law, proposing the development of a single national law in the area. Mr Ruddock conducted a series of consultations with the media and with the legal profession around the country. The Press Council Chairman and Executive Secretary attended the Sydney consultation. Additionally, Inez Ryan met with the departmental officer working on the proposals. Professor McKinnon wrote an analysis of the federal proposals which was published in The Australian on 25 March under the headline, Standard libel laws some way off. The Council sent the following letter to the Attorney: The Australian Press Council warmly supports your reform of defamation law initiative. The task of formulating workable national defamation legislation is a challenging one, but one which has the potential to yield significant national benefits as well as advantaging both plaintiffs and defendants. While the Council is generally supportive of the proposal, it has concerns about both the process by which the legislation will be dealt with and, as you would expect, some details of the proposal. The Council is preparing a submission addressing concerns about those details, addressing more fully the issues it raised with the officials in the Attorney-General's Department working on the proposal. For your information I enclose a copy of those preliminary thoughts. However, given your and your Department's preference that any concerns with particular aspects of the proposal be supported by detailed research and references to particular cases, the Council needs more time to complete background work on the best approach to some important matters. The Council would therefore seek an extension of time to enable it to complete consultations with interested parties in the print media, as well as allowing completion of research currently being conducted into aspects of defamation law which may influence the formulation of the legislation. A week or two extra would enable the Council to address these issues and provide you with the sort of response to your proposals you have sought. Turning to the process to be adopted for the passage of any putative legislation, the Council reiterates its request, which you agreed to orally, that an exposure draft of the proposed legislation be circulated to interested parties well in advance of its submission to Parliament. The history of defamation legislation in the states and territories has demonstrated that the intent of law reform is frequently thwarted by clauses worded in ways that allow advocacy with different intent. In short, some road-testing of the proposed legislation will provide the best chance of the passage of a workable law. Moreover the legislation will have the greatest chance of succeeding if interested parties have an opportunity carefully to analyse the proposed reforms and strongly to advocate it in the print and electronic media. The Council expresses its gratitude to the Attorney-General for giving the Council an opportunity to contribute to the process of developing a new defamation law. In May, after a detailed submission had been made to the Attorney by the major publishers and broadcasters, the Council sent a further letter: The Council has received your letter of 3 May which allowed for an extension of the time until 7 May to make a further formal submission. As you are no doubt aware, the Council, as a representative body, has not been able to meet that deadline. Earlier, after consulting members, the Council developed a summary reaction to your March 2004 paper, Outline of possible national defamation law. It forwarded that response to you in the letter dated 20 April. The Council's Policy Officer, Inez Ryan, has since discussed key points of the Council's position orally and in some detail with the nominated officer within the Department. While appreciative of the usefulness of that dialogue and the way in which it was conducted, it certainly became clear that several of the points advocated by the Council would not at that stage have a high chance of acceptance. This was a disappointing outcome because the Council was already pretty much aware of the potential 'show stoppers' in your initial proposals and had included alternative better approaches. Although the Council has not yet had time to conclude further detailed arguments commensurate with the importance of the legislation, it is aware that you have by now received a combined and extensively detailed submission from the main media organisations, including rationales for many of the positive proposals the Council itself has been advocating. The Council is continuing to work up further its position and will be in a position to make substantive and, it hopes, helpful comments on legislative proposals when the exposure draft of any proposed legislation, whether federal or state, is released for public discussion. The Council is of course advocating the same points it has been making to you to the SCAG working party for state and territory laws. We are continuing to work with them. While we have not seen any firm proposals we have been advised that the July deadline will be met, as has been your stated preference so, while appreciating Commonwealth election-year imperatives, federal legislation at the pace you envisage may slow down, rather than facilitate, a speedy and eventually favourable national outcome. The Council believes that it is will turn out to be essential that successful legislation has at least the co-operation of the states and territories. This is particularly so if the legislation, in the cause of uniformity, is to avoid exacerbating the worse aspects of current defamation law. Reform must not become the occasion for another Commonwealth-State stoush or proceed unilaterally on unacceptable premises. Both approaches would probably mean that reform becomes completely stymied yet again. Moreover, given some of the constitutional concerns to which your March 2004 paper alludes, we also hope enough joint progress can be achieved to put the Council in a position to advocate tabled draft legislation without the need for it to become the subject of detailed and lengthy committee review in the Senate. In short, the Council urges a slightly more measured pace and tactical caution. In the light of your undertaking to release an exposure draft of the legislation, the Council at this time will not elaborate on its 20 April submission, but certainly is prepared to respond to any desire for further consultation. I can be available personally at fairly short notice. In early April, after its March meeting, SCAG noted that its group was making further progress towards 'eliminating differences in Australian defamation laws' and would consider a detailed proposal at its July meeting. The Council's Policy Officer continued to liaise with SCAG through the NSW Attorney-General's department and to press for the sort of reforms that the Council has been proposing for any uniform law. The Council encouraged the states and territories to move towards a set of proposals which would eliminate differences between the extant laws in what constitutes defamatory material and what defences are available. In late July SCAG discussed a detailed set of proposals for uniform defamation law which appeared to address most of these issues. A day later Philip Ruddock released a Revised outline of possible national defamation law, moving further towards the development of a separate national defamation law. He claimed that the SCAG paper had 'failed to address significant issues and demonstrates the lack of commitment by the States to achieving genuine uniform law'. At the time of writing this report, the Council is looking at both sets proposals with a view to making detailed submissions to their proponents. Its major concern is that a national law, developed in isolation from the work of the state and territory Attorneys-General, and supplementing rather than replacing the extant laws, will just add another layer of complication for publishers who already have to deal with eight separate laws. It appears that Australia is closer to some form of harmonisation of defamation laws, either through SCAG, or through federal action, than it has previously been. see also 4. Parliamentary Privilege No new matters. See "Government Suppression" (below) for details on attempts at restricting the open reporting of Parliament. 5. Media Ownership With the retirement from Parliament of Sen. Richard Alston, Daryl Williams QC MP became the new federal Minister for Communications, Information Technology and the Arts. He discussed the re-introduction of the Broadcasting Service Amendment (Media Ownership) Act which last year's report noted had been rejected earlier by the Senate. When Mr Williams announced his impending retirement and Sen. Helen Coonan was made the new Minister, she too talked of the possibility of re-introducing the Bill, perhaps in a revised form. At the time of writing this report it had not been further debated and it seems likely that further action will be taken in the new Parliament. 6. Privacy The committee took note of two matters which continued from the previous year. A judgment in Queensland in Grosse v Purvis (which relied on of the Lenah Game Meats case) saw a judge find that people can sue for the tort of invasion of their privacy. The committee noted that there was no public interest defence available to the defendant. The decision may, therefore, have limited relevance for the press. The NSW government continued with the Health Records and Information Privacy Act which came into force as this report was being written. The committee noted that the Act appeared to contain sufficient exemptions for the media. Privacy - a Council position The committee developed a policy position for the Council on general questions of privacy, which the Council adopted in April 2004 and which is posted elsewhere on this website. Surveillance devices legislation The committee was asked by the Council to develop a general policy position on putative surveillance devices legislation, which the Council adopted in April 2004 and which is posted elsewhere on this website. Crimes (Stalking) Bill The committee looked at the Victorian Crimes (Stalking) Bill 2003 and expressed concerns with some provisions. Through its Victorian affiliates, the Council made representations to the government on the need for a media exemption. This was to recognise that it is reasonable for the press, when preparing material which may be critical of an individual, to approach them for their comment. The government agreed and incorporated a double-barrel defence that addressed these concerns. There is a defence for absence of malice in the normal course of a lawful business (including publication of news material). Additionally there is a defence when the matter arises from discussion or communication of 'public affairs'. Protecting Harry During a working visit to Australia in late 2003, Prince Harry was subject to intense media scrutiny. Through the British Press Complaints Commission, the Prince of Wales' press secretary sought Australian Press Council intervention, especially in regard to journalists who were 'staking-out' a country property on which he was staying. The Council contacted the press secretary noting that most of the journalists involved were from the electronic media and, therefore, outside the Council's remit. The Council also noted the more robust nature of the Australian press and said that it would be happy to deal with a complaint about the press' behaviour but would not attempt to deal with the matter in the absence of some specific complaint. see also 7. Whistleblowers There were no new matters related particularly to whistleblowers, although the Council's submissions on the Protection of Classified and Security Sensitive Information dealt, in part, with such concerns. 8. Freedom of Information and Suppression Freedom of Information Federal report In July 2003 the federal Attorney-General, Daryl Williams, responded in detail to an analysis of journalists' use of Freedom of Information (FoI) with a letter outlining a review by his department of FoI procedures. In 2002, the Press Council sought a national uniform approach on improving public access to government information by, inter alia, 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 successful in an appeals process. The analysis, commissioned by the Council, found:
A copy of the Attorney's response, together with comments on it from journalists at The Australian expert in FoI activities and a press release from the federal Opposition which seems to confirm the study's finding on the negative impact of prohibitive costs were posted on the Council's website as an addendum to the August 2003 APC News. State reports The Council subsequently sought from the state and territory Attorneys-General similar reviews of their government's performance in FoI matters. One sent in a previously compiled report and one Attorney said that FoI was the responsibility of the Premier's department, not his. These responses and other material collated by the Council's Policy Officer led to material to be used in a speech on the need to reform FoI, to be delivered by the Council's Executive Secretary at a Public Right to Know conference. Best practice manual The Council has commissioned a former FoI administrator to develop a best practice manual to assist newsrooms in better utilizing FoI in the development of stories. A series of unfortunate events have befallen the Council's consultant, resulting in a delay in the production of the manual. Suppression of criminal charge The committee discussed attempts in two states to amend the Evidence Act (or similar legislation). The thrust of these moves was to suppress reporting of criminal matters until either a conviction or the exhausting of all appeals. Such suggestions were the subject of a Parliamentary inquiry in South Australia and were part of a Private Member's Bill in NSW. The Council, which supports the principle of open justice in open courts, opposes any such suggestion. At the time of writing, no legislative change appeared likely but the committee is keeping a watching brief. The committee discussed changes to procedures in NSW courts which appear to give more authority to Court registry officers to determine which documents tendered in court but not referred to orally will be released. These changes were outlined in last year's report. The Council's Chairman discussed the changes with the Director-General of the NSW Attorney-General's department. The Director argued that the changes had been modified to make media access easier. However, a complaint brought to the Council in late 2003 offered a different perspective. A magistrate complained about a report in a metropolitan newspaper of a case over which he had presided. When the Council discussed the matter with the newspaper with a view to mediating a settlement, it discovered that the article was a good faith report based on material supplied to the journalist by registry staff. They had not passed along some vital material related to the magistrate's determination, nor sought the judicial officer's view on what material should be released. The discussion led to an amicable settlement of the magistrate's concern but demonstrated the pitfalls in the current regime for release of court documents. In mid 2004, the Council was given the opportunity of making a submission to the NSW Supreme Court on its policy on access to court records. In June 2004, it made a submission: Thank you for providing the Press Council with an opportunity to comment on the Supreme Court's draft policy on access to court records. The ideal of open justice is a key pillar of the common law tradition upon which the Australian legal system is founded. In contemporary society, open justice is achieved by the publication of fair and accurate reports of court proceedings by the media. Through such media reporting court proceedings are rendered transparent to the public. In order to ensure that media reports of court proceedings are indeed fair and accurate it is essential that journalists have an opportunity to view all documents which are considered by the court in making a determination. In the absence of an opportunity to view such documents journalists are at a major disadvantage when attempting to comprehend and accurately report on court proceedings. In instances where journalists have been denied access to court documents the consequences may often be a misunderstanding of court proceedings and consequently misleading or factually incorrect reports of those proceedings by the media. In order for journalists to gain an understanding of court proceedings and thus prepare a fair and accurate report for publication, it is not sufficient to have access only to the most basic information, such as court attendance notices, orders and police fact sheets. For the purpose of preparing fair and accurate reports of proceedings it is necessary that journalists have access to all documents which have been considered by the court in formulating its decision, including affidavits and other evidence which has been tendered. While the Press Council recognises that there are circumstances in which access to court records must be restricted in order to protect the rights of parties or witnesses, the Council is of the view that such restrictions should be applied only in the most exceptional circumstances and when absolutely necessary. Where publication of information pertaining to a party or a witness would jeopardise that individual's rights or safety it may be appropriate to issue orders preventing the media from accessing the relevant documents. However, in the absence of an order from a judicial officer restricting access for such purposes, court reporters should have free access to all documents which form part of the court record. see also 9. Juries No new matters were discussed during the reporting year. see also 10. Government Suppression ASIO Legislation Amendment Bill 2003 [No. 2] Following the passing of earlier anti-terrorism legislation, as noted in last year's report, the federal Government introduced the ASIO Legislation Amendment Bill 2003 [No. 2] which would increase the powers of the agency to deal with putative terrorist incidents. The media, concerned that the Bill was being debated without sufficient community consultation, and concerned that it contained provisions which might adversely affect the ability of the media to report on matters of public interest and concern, made a joint submission to the Minister seeking further discussions and some changes to the legislation. In particular the media were concerned with provisions which could lead to five-year jail terms for reporting details of "operational matters". In addition to co-signing the media's letter, the Council sent separate letters to the Attorney-General and to the leaders of the major parties in the Senate: The Australian Press Council writes to express its concern with aspects of the ASIO Legislation Amendment Bill 2003 [No. 2]. The Council, the self-regulatory body of print media, which oversights the freedom and the responsibility of the Australian press, has co-signed a letter from a number of media organizations detailing concerns with aspects of the Bill, but write separately to reinforce some of those concerns. The Council notes that earlier this year the Parliament agreed to an amended version of the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002. Under this legislation ASIO already has wide-ranging powers to deal with terrorist threats to Australia. That legislation retains an reversal of the burden of proof and allows for individuals, such as journalists, to be detailed and interrogated when they have at best second-hand information on a possible terrorist act. The Council is not aware of any occasion on which these powers have been tried and found wanting, and so is at a loss to see why further, more restrictive legislation is required. The Council's main concern is with the proposed restrictions on disclosure of operational matters, broadly defined in the Bill. Where such disclosure would have an adverse impact on national security or defence it is already covered by changes made through the Criminal Code (Espionage and Related Offences) Amendment Bill 2001. The need, therefore, for even more draconian restrictions has not been demonstrated. Even if justification for such restrictions were given, the Council would be concerned with a blanket two-year extension on disclosure of operational information arising from a warrant. The effect of the original restrictions and the extension of the restrictions is that the reporting of matters of public interest and concern could be suppressed. The Council believes that, unless otherwise determined on reasonable grounds, matters of public interest should be reported and the public should have access to information. The philosophy behind the currently proposed legislation is that matters are to be suppressed and that the public kept ignorant of developments in this area, except in exceptional circumstances. For these reasons, the Council believes that further discussion, and a wider public consultation, on the proposals is justified and calls on the Senate to refer the matter to committee for such consultation and discussion. The Council would be happy to appear before such a committee to discuss these matters. The Council and other interested parties received a detailed response from the Attorney-General. As a result of consultations with the ALP, the government was able to avoid a Senate committee hearing and a slightly amended version of the Bill was passed. Many of the matters of concern noted by the media and by the Council, including the reversal of onus of proof, remain in the Act as agreed to. NSW Freedom of Information Amendment (Terrorist and Criminal Intelligence) Bill 2004 In early 2004, the Press Council wrote to NSW Premier Bob Carr to express its strong objections to the Freedom of Information Amendment (Terrorist and Criminal Intelligence) Bill 2004: In addition to exempting documents "which could be reasonably expected to facilitate the commission of terrorist acts", the Bill, if it were passed, would provide blanket exemptions from FoI for all documents created by the NSW Police's Counter Terrorist Co-ordination Command, the State Crime Command, the Corrections Intelligence Group of the Department of Corrective Services and the NSW Crime Commission. The Council believes that blanket exemptions from FoI are inappropriate, unnecessary and inconsistent with the notion of open and accountable government. It recognises that certain government agencies deal extensively with security sensitive information, which it is proper to keep confidential. However, it believes that, in determining whether such information should be disclosed under FoI, reference should be made to criteria which have been formulated for the purpose of assisting government officers to discriminate between information which should be kept confidential and information which should be accessible to the public. Even those agencies which deal primarily with security sensitive information hold some information which is not sensitive and which might be considered appropriate for public consideration, or which has relevance to court actions. Agencies which deal with confidential information should be required to justify their refusal to disclose that information. The Council believes that the Freedom of Information Amendment (Terrorist and Criminal Intelligence) Bill 2004 is unnecessary and should be withdrawn, since current legislation makes adequate provision for exemptions for sensitive information. If, despite the Council's objections, the government decides to proceed with legislation to protect security sensitive information, that legislation should not rely on blanket exemptions to ensure the confidentiality of sensitive information. Instead, officers who refuse to disclose information should be required to justify that refusal. Legislation should set down criteria to be referred to when seeking to make such justifications. The Council appreciates that such criteria cannot be framed in terms which require officers to disclose the nature of the material refused, but criteria can be framed in ways which put a clear onus on officers not to keep secret material that would otherwise be in the public domain simply because the material is embarrassing or because the officers are secretive by nature or training. The Council subsequently received a letter from Premier Carr about aspects of the proposed legislation. The Council noted proposed development of the legislation and thanked the Premier for his advice on the Bill and especially for those aspects of it that will ensure its better workability. The Council will, of course, keep an eye on the matter to ensure that the proposals do not result in the undue restriction on publication in the press of matters of public interest and concern. Pecuniary Interest of the Press Gallery In March 2004, ALP backbencher Arch Bevis gave notice of a motion to require all journalists in the federal parliamentary Press Gallery to register their pecuniary interests. The committee noted that, after a debate, the motion was allowed to lapse. The Council's principles already mandate that the print media should disclose any pecuniary, or other interests, which may affect the reporting of any matter. It would be concerned with any move by a Parliament which might be seen as a further restriction on the ability of the press to report proceedings fairly (see also the next item). In February 2004, the Council wrote to the Leader of the House of Representatives expressing its concerns with actions by the Speaker of the House in enforcing "unpredictable and out-of-date rules" relating to publication of images of activities within the Parliamentary Chamber. After an incident in the House when an intruder had jumped from the Gallery onto the floor of the Parliament, before being restrained and removed by security officers, most newspapers published images of the event, showing the intruder. Applying the House's rules on the publication of images from within the Chamber, Speaker Neil Andrew withdrew the accreditation of several press photographers for a couple of weeks. This is despite the obvious news interest involved in a matter of public concern at a time when the government was warning citizens to be "alert but not alarmed" about the dangers of terrorism. The Council's letter read: In a previous instance, in 2000, the Council's then Chairman met with the Speaker about guidelines that should govern the taking of pictures within the House, in particular, as in the present case, on the floor of the Chamber. The Speaker was concerned primarily with the dignity of the Parliament, and ensuring that photographs were not taken of activities in the Galleries, taking the view, in a letter to the Council 'that proceedings of the House take place on the floor of the Chamber, where Australians elected by their fellow citizens participate in the legislative and other parliamentary processes'. The Guidelines on access for Press Gallery photographers quite reasonably forbid the use of images for advertising or elections or for commercial purposes. They also forbid use of photographs for satire or ridicule. In the current case the images used did not fall within those forbidden categories. They were undeniably news photographs properly published to ensure public understanding of the possible threats posed by an intruder. To ban photographers because newspapers published images of a really serious intrusion makes no sense. In the Council's view, it makes no sense to approve journalists reporting the intrusion, and newspapers publishing those reports, while taking offence at the publication of images that allow readers better to understand what actually occurred. How is the public to understand fully the degree to which the security of the Chamber was compromised if such photographs are banned? It cannot be that photographs per se are to be banned because the Speaker is still allowing AAP to transmit images of activities within the Chamber for publication by the banned newspapers. A worrying conclusion might well be that the Speaker wishes to have de facto censorship rights, allowing only those who toe a particular line. The Council has asserted that both interpretations are detrimental to the Parliament. It is an eighteenth-century view that the dignity and decorum of Parliament might be put at risk by photography. The reverse is true. Democracy can only function where citizens are fully informed. It is surely the right of the public to have access via newspapers' words and pictures to matters of public interest and concern. Particularly those that inform them on matters related to the legislature, the activities of government and other matters essential to an informed exercise of the franchise. Thoughtless over-regulation and prohibition of images of the legislature at work, particularly as the images of this instance demonstrate, derogate from the public's ability to understand what is happening in the legislature. Australians need more, not a curtailed, understanding of their national legislature. The Council recommended that the suspensions be lifted immediately and the guidelines rethought better to reflect contemporary society. It awaited a response either from the Leader of the House or the Speaker. The Leader of the House, the Hon. Tony Abbott, responded on 1 July, well after the temporary suspension of the photographers' access had ended: I can understand your concerns about this decision however the Speaker of the House of Representatives has sole responsibility for this issue. He is responsible for the guidelines and for enforcing them as he sees appropriate. There is no formal consultation required when he determines the guidelines. Unfortunately I am unable to be of any further assistance to you in this matter but I thank you for raising it with me. In May, the Council's Chairman was invited to participate in a round-table discussion with the House of Representatives' Standing Committee on Procedure which was reviewing all aspects of media coverage of the House's proceedings. At the round-table, in June, Professor McKinnon noted the ban on photographs in the House of those without the call, restrictions on photographs of apparently newsworthy stories, such as the presence of an intruder on the floor of the House, and of demonstrations in the Gallery. He put the case for more openness and for the House not to be too arbitrary with its rules on photographs. In an interim report the committee recommended some changes, including expansion of the opportunities photographers in the Press Gallery would have to take images in the House. The Speaker had not taken any action on the recommendations at the time of the writing of this report. The Standing Committee's proposals will be a matter for the newly-elected Speaker. 11. Parliamentary and other Inquiries House of Commons' Culture, Media and Sport Committee In the previous annual report, it was noted that this committee, to which the Council had made submissions, had made recommendations to the UK Press Complaints Commission on matters related to privacy and the press. Those recommendations included changes to the Code, procedures and appointments practices of the commission. The Australian Press Council discussed those recommendations, and the UK government's response to them (which rejected Commons' Committee's call for a privacy law), and decided that the recommendations which might be of most relevance to Australia reflected the Council's current practice. It agreed, however, that a more detailed analysis of the recommendations should be made as a part of the Council's next triennial Planning Day. Protection of Classified and Security Sensitive Information In July 2003, the Australian Law Reform Commission issued a Background Paper on the Protection of Classified and Security Sensitive Information. The commission was particularly concerned with measures to protect such information that may arise in the course of investigations and proceedings, particularly in court. The Council, in its submission to the commission, addressed many of the general issues. The Executive Summary of the submission read: The Australian Press Council, the self-regulatory body of the print media, oversees the freedom and the responsibility of the Australian press. The Council acknowledges the importance of protecting highly sensitive information in order to protect Australia's interests. However, this need to protect Australia's security must be balanced against the importance of facilitating democratic processes by granting the public access, through the media, to information on matters of public interest and concern, including information about government processes. In particular, The Council
The full submission has been posted on the Council's website. In January 2004, based on submissions received, the commission issued a more comprehensive Discussion Paper and sought further input. The Council's Chairman, Professor Ken McKinnon, accompanied by the Executive Secretary and Policy Officer, met with the commission Chair and the commissioner in charge to discuss some aspects of the original decision and the commission's responses to it, as reflected in the Discussion Paper. In particular, the Council noted the difficulties of making submissions on the contents of the Commonwealth's Protective Services Manual without access to the document. Following those discussions, the Council has made a detailed submission to the commission on its Discussion Paper. The Executive Summary of the submission read: The Australian Press Council, while appreciating the Discussion Paper's expansion of the issues considered in Background Paper No. 8, presses the following proposals:
The full submission has been posted on the Council's website. The Commission then issued a report on the matter, Keeping Secrets, in May 2004. National Security Information (Criminal Proceedings) Bill Following the release of Keeping Secrets, the federal Government introduced the National Security Information (Criminal Proceedings) Bill 2004 and the National Security Information (Criminal Proceedings) (Consequential Amendments) Bill 2004, which addressed some aspects of the same issues discussed by the Australian Law Reform Commission in its papers and report. The Senate referred the Bill to the Senate Legal and Constitutional References Committee which, on 18 June, sought submissions on the matter by 2 July. Despite the short time period within which the Council had to respond (an issue it intends to take up with the Senate after the federal elections), it made a detailed submission on the Bills. The Executive Summary of that submission read: The Australian Press Council recognizes the necessity of legislation to address the issues which arose in the Lappas case and acknowledges that the bill seeks to make a compromise between the need to protect security sensitive information and the importance of a fair system of justice in which the court retains a significant level of discretion. However, the Australian Press Council has concerns over certain aspects of the proposed legislation, in particular the broad scope of the definition of "national security", and the potential for the bill to restrict the public's right to be informed in relation to matters of legitimate public concern. The Council is also concerned that the bill, in its current form, may be unfair to defendants. The Press Council proposes several amendments to the bill which aim to address these concerns, including a revised definition of "national security", the insertion into the bill of an offence for issuing a certificate for inappropriate purposes, and defences for disclosure of information in the public interest. The full submission has been posted on the Council's website. As this report was being written, the Senate Committee's report was presented with fourteen amendments, most of which are minor. That leaves the Bills with an overly wide definition of 'national security', for example. The Council and some media organizations were in the process of taking up these matters with the Senate Committee Chair when Parliament was prorogued, and will do so when the new Parliament convenes after the elections. Review of the Tobacco Advertising Prohibition Act The federal Department of Health initiated an internal review of the Tobacco Advertising Prohibition Act in mid 2003, including the establishment of a panel with expertise in legal, public policy, public health, broadcasting and tobacco control. The panels was named as Professor David Hill (behavioural scientist and director of Victorian Cancer Council), Professor Rob Donovan (director of behavioural research in cancer control), Dr Lyn Roberts (national heart Foundation), Dr Chris Reynolds (Flinders Uni Law School), Dr Christopher Lennings (Sydney Uni School of Community Health/Sciences), Ken Roberts (marketing and Corporate Affairs Consultant), James Carter (Commonwealth DPP's office), Dr John Sanders (Tobacco Policy Unit, NSW Health), Jenny Hefford - Chair (Drug Strategy Branch, Commonwealth Health Dept). Other expertise may be co-opted. There did not appear to be any 'expert' in broadcasting on the panel, nor one with expertise in the print media. In October 2003, the Council made a submission to the review, part of which read: The Council's principal concern The Council is concerned with the third particular term of reference (the extent and impact of media reporting and portrayal of smoking in the media) and views with dismay the Review's attempts to widen the definition of 'advertising' to encompass material that it neither advertising nor promotional. The paper fails to recognise that there is a distinction between advertising and editorial content. It seeks to intrude into the reporting of, and commentary on, matters of public interest and concern, while purportedly dealing with advertising. The Act as it stands concerns advertising, and not the editorial content of the press. In all the print media, the two functions are clearly separated. The Press Council has issued statements about the confusion between them, condemning advertising disguised as editorial. Most print media respect the distinction between advertising and editorial content but the Review appears to conflate the two, seeking to intrude into the reporting and commentary role of the press. The Council would regard any such attempts at expanding the Act's remit as an unnecessary and dangerous restriction on the traditional freedom of the Australian press to publish matters of public interest and concern, for the information of their readers. ... Conclusions The Press Council submits that
The full submission has been posted on the Council's website. At the time of the writing of this report, the Council had not heard further on this review. ACCC guidelines for developing and endorsing effective voluntary industry codes In October the Australian Competition and Consumers Commission sought submissions on guidelines for developing and endorsing effective voluntary industry codes. In response to an inquiry from the Council, the ACCC noted that the guidelines were meant for codes arising from matters covered by the Trade Practices Act. That meant that the Council's Code was outside the remit of the proposed system. The Council decided, therefore, that no submission was required. Police Radio Communications Access In early 2004, the Queensland Police Service began to introduce a secure digital radio communication system to replace the existing analogue system which the media could monitor. The Crime and Misconduct Commission was asked to inquire into the extent to which it was appropriate for the media to have access to the police radio system and the best options for providing such access. The Council made a submission to the CMC, the Executive Summary of which read: The Australian Press Council is opposed to the exclusion of the news media from access to the Queensland police radio system. The monitoring of police radio by journalists makes a significant contribution to ensuring that the police service is accountable to the public. By scrutinising police activity the media provide the police with an incentive to behave with integrity and commitment. That scrutiny would be dramatically reduced if journalists were unable to monitor police activity by listening to police radio messages. The information which is disseminated by police media units cannot provide a satisfactory substitute for that which is currently derived from police radio, and relying on police media units facilitates the manipulation of the media for the purposes of propaganda. The full submission has been posted on the Council's website. The Council's Executive Secretary and its Policy Officer appeared before the CMC to offer further oral evidence to the inquiry. At the time of the writing of this report, the CMC was still considering the matter and its report was awaited. 12. International The committee kept a watching brief on developments in the Pacific, where threats to the print media in a number of the island nations continued through the year. In particular the situation in Tonga, which was referred to in detail in last year's report, continued to play out as restrictions on the ability of the media to report were increased through changes to the constitution enacted by the island's monarch. An expatriate press tried to maintain the availability of information. In Fiji there were intermittent threats of legislative action to regulate the media. The Fiji News Council continues to provide a self-regulatory regime and co-ordinates opposition to any draconian legislative proposals. The Cook Islands media were looking at the formation of a News Council, similar to the one in Fiji, to forestall any possibility of restrictive legislation. In addition to the Australian Press Council, there are a number of international bodies making representations to Pacific governments trying to curb the media, including a couple of cross-Pacific media organizations, PIMA and PINA, and the Commonwealth Press Union, which continues to promote the establishment of independent press councils as a way of dealing with calls for responsible reporting in developing countries. 13. General Regulation of the media Following an internal review into the ABC's reporting of the aspects of the war in Iraq, based on complaints from the then federal Minister for Communications, there were suggestions that the minister was considering the establishment of a further regulatory body to consider complaints against the national broadcaster. As a result it issued General Press Release 258. Arising out of a report of the Joint Standing Committee on Electoral Matters, the federal government took forward a proposal to limit the availability of printed copies of the electoral roll. The Council wrote in late 2003 to the Special Minister of State, Eric Abetz, on the proposals which would potentially limit the use of the roll by the press as a fact-checking mechanism, especially with respect to the bona fides of writers of letters to the editor and other legitimate fact-checking purposes. The Council was concerned that this resource, long used by journalists and publications to ensure the accuracy of their work, was to be discontinued in hard copy and only be available in electronic form in a way that is not particularly useful to the print media. Four months later, the Minister responded to the Council, largely rejecting its concerns. The Council then wrote further to the Minister: Thank you for your letter of 23 April, regarding the intention to restrict the availability of the printed version of the Electoral Roll, which the Council discussed at its recent meeting. The Council is disappointed that the government sees the use of the Electoral Roll for the purpose of ensuring that letter writers are bona fide, and for other legitimate fact-checking purposes within the print media, in the same light as the commercial use of the roll. While such use of the roll may not have been intended by the 1918 Act, it remains the case that for some time the print media industry has made a legitimate, non-commercial, use of the roll to ensure that some ethical standards are maintained in respect of letter writers, and for other legitimate ethical fact-checking purposes. Some might even argue that the use made of the roll by newspapers and journalists is for legitimate research purposes, although not of course for the research of political parties or medical researchers. Viewing the use in this light may have been more helpful than seeing the use of the roll for fact-checking as a 'commercial' use. That neither your department nor the Joint Standing Committee has given adequate consideration to the use of the roll for legitimate fact-checking purposes within newspapers is equally disappointing. Your comment 'how these changes to public access will affect members of the Australian Press Council will depend on how your members access the roll' is disingenuous when you have recognised that the 'secondary' use of the roll will be made unavailable by the proposed restrictions on the roll's availability. Certainly the requirement that a date of birth will be required, in addition to name and address, to confirm the identity of a voter, will render the Electoral Roll, in its revised availability, unsuitable for its traditional, non-commercial, use within the print media. It might have been more reasonable for you, your department or the Joint Standing Committee to consider the legitimate use of the roll by citizens and organizations other than Members of Parliament and political parties, particularly the long-standing use of it to ensure that letter-writers are genuine and for other fact-checking purposes within newsrooms. A month later the Council was told that the letter implied a misunderstanding of the Minister's position. The media, the Council was told, would have continued access to the electoral roll for the purpose of checking the names of letter writers and that a date of birth would not be necessary for this purpose. This was subsequently confirmed in writing by the Minister who added that newspapers "will still be able to verify the identity of letter writers in all but a very small minority of cases using the Internet checking facility". Therapeutic Goods Advertising code Following trans-Tasman negotiations, the advertising codes for therapeutic goods in Australia and New Zealand were harmonised. The Australian Publishers Bureau was concerned that the changes would mean that some editorial matters might be considered advertising for the purposes of the code and sought from the Press Council some changes in its Principles to clearly distinguish editorial matter from advertising. The Council considered the request and determined not to make any changes in its Principles along the lines suggested. It noted that any concerns arose from the definitions within the therapeutic goods advertising code and that changes should be made in that document if there were any concerns. Following a number of complaints of a general nature and particular concerns with a number of articles in the press, the Council considered whether it needed to make a statement on the terminology that should, or should not, be used with respect to asylum seekers and refugees. In particular, correspondents were concerned with the term "illegal immigrants", arguing that Australia's international commitments meant that no law was broken by those seeking asylum or refugee status in Australia. The Council decided to await the reference of particular complaints to it before making any statement, but sought the advice of some academic experts in the legal implications of the various terms used. In June, following The Sydney Morning Herald's use of the term "illegal immigrant children" in a headline on a report of reactions to a High Court case, the Council issued Adjudication No. 1242. At the same time the Council issued Guideline No. 262 which sought to assist the press in the terminology which might be used in reporting matters related to asylum seekers. Like all of the Council advisories to the press on general aspects of reporting, this guideline has been posted to the Council website. A letter from an officer of the Department of Immigration was received by the Council, taking issue with the adjudication and with some of the advice in the guideline. The Council responded to the officer, with a copy to the Minister, suggesting that he had misinterpreted the adjudication and guideline. The Australian Press Council has received your letter of 28 June 2004, commenting on its Adjudication No 1242 and Guideline No. 262. Your correspondence was discussed at the Council's July meeting. The Council has asked me to respond to your comments. First, with regard to Adjudication No. 1242, The Sydney Morning Herald's website headline that was the subject of complaint was over comments by the Prime Minister about a High Court decision. Neither the article in question, nor the Prime Minister, referred to "illegal immigrants". Nor did the High Court, which commented on the use in the Migration Act of the term "unlawful non-citizens". Whether or not the latter term is synonymous with "illegal immigrant" is not a question upon which the Council commented. The Herald's 'admission', and the Council's ruling, was based on the fact that the headline did not reflect the content of the article, nor the language used by the Court or the Prime Minister. The Council notes your assertion that the use of 'illegal immigrant' or 'illegal entrant' is not pejorative. That is your interpretation but not, as is clear from the number of complaints received by the Council, an opinion shared across the community. Turning to the Guideline issued by the Council subsequently, I enclose a copy for your information. You will see that the Guideline does not refer to, or question, the use of the term "illegal immigrant". It is concerned with the attachment of "illegal" to terms such as refugee or asylum seeker, and with its unqualified use in reference to asylum seekers. The Council recognises that the Act refers to "unlawful non-citizens" and that a person entering a country without proper accreditation, or overstaying such accreditation, may be deemed 'unlawful'. But such people are not 'illegal' refugees or asylum seekers, since their status vis-a-vis the Australian Migration Act does not impinge on their rights to refugee status or to seek asylum under international conventions. The Council, in its Guideline, has sought from newspapers that they exercise caution in how they describe asylum seekers who arrive with proper authority. It has not issued an edict against the term "illegal immigrant". Finally I turn to your final paragraph where you assert that "asylum seeker" would not be an appropriate term to apply to the respondents in the recent High Court case which was the subject of the Herald report. Since they sought asylum, they might very well be classed as 'asylum seekers'. If, however, your department wanted 'a more factual, informative and appropriate way' to describe these people, it would be the Act's "unlawful non-citizen", rather than "illegal immigrant". Last year's report noted that the Council had met with a group co-ordinated by the Human Rights and Equal Opportunity Commission working on the elimination of prejudice against Arab and Muslim Australians. In June 2004, the group issued a report, Ismae - Listen, which recommended, among other issues: That the relevant industry groups, the Australian Broadcasting Authority and the Australian Press Council, consider undertaking information campaigns in relevant community languages and in a variety of formats to inform Arab and Muslim organizations and community members about their standards and complaint processes. The committee considered the matter and recommended that the Council should conduct a mail out to the ethnic community media in response to the HREOC recommendations. Return to Documents with the |
Freedon of the Press FoP Report 2006-2007
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