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Report on Free Speech Issues 2005-2006
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Freedon of the Press FoP Report 2006-2007
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A free press? Australia is among the most liberal societies in the world. It has maintained an open and democratic political structure for over a century. It achieved its independence, and has maintained it, without overt violence. As a nation composed largely of descendants of immigrants, it has developed a multicultural society with a variety of viewpoints that is reflected in its print media. It is against the background of a free and open society, tolerant of opposing opinions, with a tradition of a free press and a freedom of speech that was so obvious to them that the country's founding fathers saw no need to enshrine its protection, that any discussions of press freedom and the availability of information need to be set. Despite its traditions, according to Freedom House, in its 2006 report, Australia is ranked 31st among the nations of the world in so far as press freedom is concerned (down one place). Reporters sans Frontieres (in its 2006 list) places it 35th (down from 31st in 2005). Those positions would shock most Australians. This report on the Council's free speech activities in the 2005-2006 year aims to do two things:
Policy Agenda The Council has worked through a discussion paper, creating a list of the issues to be given priority in its policy development and press freedom efforts. It agreed that the areas for action this year included privacy, especially the development of a public figure test for any putative action; suppression, following up the current proposals before the Chief Justices on developing a uniform suppression reporting system; and other court-related issues, especially contempt and access to documents. With the High Court's decision in McKinnon's case going against The Australian, reform of FoI law, as well as practice, has been added as a leading priority. Professional Privilege Developments in 2005-2006 In addition to the conflict between private rights and the public's right to information, there are conflicts between ethical obligations and a legal requirement to divulge information. In the media this is particularly exemplified by the obligations on journalists not to divulge the identity of confidential sources. Generally, Australian law does not specifically protect the confidentiality of sources. Both governments and private interests have tried to use the courts to discover sources. Publishing and Broadcasting Limited, owners of Channel 9, sought to discover the names of alleged sources responsible for the leaking of an affidavit critical of the recently appointed CEO of the company. There were attempts by the Commonwealth DPP to have Michael Harvey and Gerard McManus reveal the source/s for an article based on leaked material. They were cited for contempt when they did not. The public servant was subsequently convicted, without their testimony being called at the trial. The journalists are still subject to a contempt charge for their earlier refusal, a decision that was appealed. (As this report was being finalised the appeal for judicial review of the decision to charge the journalists was dismissed.) The Australian Law Reform Commission, in co-operation with its NSW and Victorian analogues, reviewed a number of questions related to Evidence Acts, with a view to more uniformity. The issue raised in its Discussion Paper of most interest to the media was whether there should be a privilege to protect journalists' confidential sources. The commission recommended adoption by Victoria and the Commonwealth of the NSW model. At its March meeting, the Standing Committee of Attorneys-General (SCAG) agreed that all states would adopt the commission's recommendations and move towards uniformity in their Evidence Acts. The Media Entertainment and Arts Alliance (MEAA) brought attention to changes in the Telecommunications (Interception) Act that give security agencies and the police extraordinary powers to tap the phones of third parties to suspected terrorist plots. The possibility exists that journalists who speak, albeit innocently, and on a completely unrelated subject, to those suspected of involvement in terrorist actions could themselves be subject to phone tapping on calls unrelated to the alleged terrorist activity. The Council of Civil Liberties notes that, compared to the US, Australia already has 26 times per capita more warrants for phone taps and, unlike the US, warrants here can be issued by officials other than judges. Press Council Professional Privilege activity 2005-2006 Uniform evidence In August, the Council made a submission to the Australian Law Reform Commission (ALRC) on its review of Evidence Acts. The Council's submission concentrated on the question of professional privilege for journalists, arguing for a default situation that recognised a presumption in favour of granting a privilege to protect confidential sources. It cited a clause in a proposed New Zealand Evidence Bill as a model for Australian legislation. The submission has been posted to the Council's website and the gist of it was reiterated in the letter to state and territory Attorneys-General discussed below. The ALRC subsequently released its report, and recommendations, for uniform Acts. On the question of professional privilege, it recommended the adoption of the NSW model as noted above. The Council thought that the proposal did not go far enough in establishing confidentiality as the default position and in June 2006 the Council Chairman wrote to the Attorneys-General prior to the July SCAG meeting:
The Council followed closely the dilemma facing two Herald Sun journalists charged with contempt for refusing to reveal the names of their source/s at a preliminary stage of a prosecution of a public official. In October, it issued General Press Release No. 268 deploring the decision to charge the journalists with contempt. In November, after receiving a letter from the federal Attorney-General critical of aspects of GPR 268, the Council's Chairman responded to Philip Ruddock: Thank you for your recent letter. More particularly, thank you for intervening in the Harvey-McManus case, an action which was no doubt instrumental in the matter being adjourned sine die at last week's hearings. I write again for two reasons. First, I need to respond to your concerns about my statements on ABC radio. You will recall that I was pretty cautious, saying that having been head of a Commonwealth Statutory body myself, I could sympathise with government's pursuit of leakers. My principal reference was to the serious dangers for free speech in pursuing the intermediaries to publication, the journalists. Your text-book explanation of the DPP role is no doubt right, but my experience as head of two agencies working to Commonwealth rules was one of continuing consultation between legal agencies on complex matters, especially on a matter such as this prosecution and possible withdrawal. You did not mention the informal and formal (eg, the Solicitor-General's brief) consultative steps that occur prior to and during any prosecution. In my experience the Attorney-General's views are more than a little influential at all stages. My second, and main reason for responding relates to the many untied ends of the 'Harvey-McManus' case. When Kelly's trial proceeds, scheduled for early in the new year, those concerns will be even more acute. While those concerns remain, indeed increase, especially with the proposed anti-terrorism Act, the Council has well-based concerns about the future capacity of the press to inform the public without serious impediments. Last week's hearing was informed by a clearly determined DPP that the journalists will be subject to questioning again at [the official's] early 2006 trial. One way or the other the outcome of that questioning will establish an undesirable precedent from the point of view of free speech. If they capitulate, the precedent will result in more cases of journalists being forced into court to respond to counsel on fishing expeditions for sources of information. Alternatively, if they refuse to respond, followed by new contempt orders, and ultimately, perhaps, jail, or at least a criminal conviction without further punishment (even a conviction restricts them in many personal ways), there will still be serious flow-on freedom-of-speech effects. You, yourself, have mentioned approvingly the reference on the possibilities for press shield clauses in Evidence Acts to the combined Law Reform Commissions. While acknowledging that the normal pattern is to wait for the formal report on the reference, the Council believes that the really serious freedom of speech difficulties, not just for [this] case, but also arising from it, justify the earliest possible remedial action. One option would be to amend the Evidence Acts immediately along the lines of the media organisations submission to the Law Reform enquiry, as follows:
Another even more immediately available remedy would be to use Clause 64 of the New Zealand Evidence Bill, the text of which is at Attachment A. It has been legally drafted and tested. It could be adopted verbatim. Please note that the Council does not believe that the proposed use of Clause 22 of the NSW Evidence Act goes anywhere near what is required to protect free speech and journalistic sources (that clause is much too open to judicial interpretation). If the Commonwealth could both persuade Victoria and itself insert clauses very similar to New Zealand's Section 64 in the relevant Acts, not only this problem but a significant number of other existing and potential free speech issues (especially the profound concerns arising from the anti-terrorism Act now before parliament) would be diminished. A prompt reform of this kind would be a significant and exemplary protection of free speech by your Government. see also Contempt by Publication Developments in 2005-2006 Contempt of Court charges have been laid against a number of Australian journalists. In addition to the Herald Sun case noted above, publication in the Sunday Herald Sun and in other newspapers, and on television, of a report of a boy who divorced his parents resulted in over twenty journalists, producers and editors being charged. Convictions were recorded against the editors and producers (and the outlets) but not the journalists, in 2006. The Sunday Herald Sun was also subject to charges for publishing an editorial that advocated a tough sentence for a man charged with the murder of his pregnant wife. In that case, the judge said that the prosecution had not proved there was a real risk of interference with the administration of justice. The NSW and Western Australian Law Reform Commissions (NSW LRC Report 100, 2003; WA LRC Report 93, 2003) have put forward to their respective Attorneys-General proposals for tightening contempt by publication provisions but as yet no legislative action has been taken on these recommendations. Press Council Contempt activity 2004-2005 The only activity this year were the actions noted above in relation to McManus and Harvey see also Defamation Developments in 2005-2006 Defamation law should be about finding the balance between competing demands of the private right to reputation and public right to information, with an emphasis on the restoration of reputation where it has been unfairly traduced. Until the beginning of 2006, Australian defamation law did not meet this criterion. After a series of discussions at SCAG, the states and territories agreed in 2005 to enact harmonised and reformed defamation laws. These came into force in the states on 1 January 2006. As noted by Queensland Attorney-General Linda Lavarch at a seminar at QUT in May 2006, the Press Council was the driving force responsible for getting defamation reform back on the SCAG agenda. Among the significant changes in the new harmonised law is the removal of the right to sue by large corporations (although small businesses retain the right.) This means that suits such as that initiated by the public company Gunns in Tasmania against a number of community activists and organisations will be a thing of the past and there will be no further use of defamation law by corporations to stop criticism of their activities. Other changes that have been enacted include:
Early indications are that the emphasis in the legislation on restoring reputation, rather than on damages, has led to a significant increase in the number of matters settled early in the process. In another development of significance, the unsuccessful result of the application for special leave to appeal to the High Court in the O'Shane case in NSW confirms the view that comments on the judiciary appear to be outside of the scope of the implied constitutional guarantee of freedom of political communication (the Lange defence). Press Council defamation activity 2005-2006 Much of the Council's activities involved keeping a watching brief over developments towards the uniform and reformed defamation laws. In Queensland the question was whether there was a requirement for 'public benefit' as an addition to the truth defence. In Tasmania, it was the question of defamation of the dead. By December 2005 the task was virtually complete. All six states had reformed their laws on the basis of the model provisions and the two territories were due to complete passage of their bills shortly. In the end, the Queensland act conformed with the national model, while the Tasmania retained a limited right to sue on behalf of the deceased. The Council prepared an easy-to-read guide to the changes in the law for editors to enable them to become familiar with the new legal environment. This guide was published in the News and has been posted to the Council's website. The Council expressed its pleasure at being able to see its initiative through to such a successful conclusion and congratulated its Chairman, Professor Ken McKinnon, for his work behind the scenes and publicly, in getting uniform defamation on the agenda and enacted by the states. see also Parliamentary Privilege Developments in 2005-2006 As reported last year, the Senate Privileges Committee had moved to strengthen contempt of Parliament sections but narrowed the range of instances to which they apply. Adoption of the committee's recommendations in October 2005 lessens restrictions on press reporting of Parliament, but still focuses on the journalist and editor, rather than the source of the leak, in dealing with any alleged breaches. Similarly, despite a recommendation from a House Committee to review the rules, the House of Representatives has not eased existing strong restrictions on the taking of photographs in the chamber. Both houses of federal parliament have 'right of reply' rules for individuals who are neither Members nor Senators, but who have been unfairly singled out for criticism. The Senate has granted a number of opportunities to reply; the House of Representatives still has yet to grant one. Press Council parliamentary privilege activity 2005-2006 There have been no recent citations for breach of parliamentary privilege nor disciplinary actions against photojournalists in the House. The Council has taken no action in these areas, pending such developments. Media Ownership Developments in 2005-2006 The Minister for Communications, Information Technology and the Arts issued a discussion paper, Meeting the Digital Challenge, on media reform options. The section that potentially impacts on press freedom is that dealing with proposed reforms to the rules governing ownership across different media and with proposed changes to foreign ownership rules. Cross-media ownership is governed by provisions in the Broadcasting Services Act limiting the stake in electronic media for owners of newspapers and vice versa. The proposed new rules would allow for further concentration of media ownership, mandating a minimum of five owners across the media in metropolitan markets and four in regional markets. The principal concern for newspapers would be with any changes that gave any involvement to the government's electronic media regulator, the Australian Communications and Media Authority (ACMA), in the determination of mergers and acquisitions. This might give the authority some de facto power of regulation over the print media. In July 2006, the Minister indicated that she would be proceeding with legislation to introduce her proposed changes to cross-media ownership laws. These were tabled as this report was going to press. Press Council Media Ownership activity 2005-2006 The Council's primary concerns with proposed changes to media-ownership rules were that there be no loss of a diversity of Australian voices in the news media and the possibility of any involvement by the ACMA in the determination of mergers and acquisitions, which might give it some de facto power of regulation over the print media. The Council raised these concerns with the Minister, arguing that cross-media ownership rules should be in line with those governing other industries, with the Australian Competition and Consumer Commission (ACCC) being the supervising authority. In April 2006 the Council sent a formal response to the proposals to the Minister, the Executive Summary of which read:
The complete submission has been posted to the Council's website. The Council awaits the tabling of the Bills being drawn up by the Minister and would seek to speak to her further if its concerns were not addressed in the legislation. The Council's Policy Officer represented it at a round-table meeting on cross-media ownership with Australian Democrats Senators Andrew Murray and Lyn Allison. The meeting was held to identify possible strategies to promote media diversity in Australia in the absence of the cross media ownership rules. As this report was being written the Press Council was considering a revision of its policy on the issue of cross-media ownership, taking into account the MEAA's position. There is a concern that the current policy might see a loss of diversity of voices in the media. Privacy Developments in 2005-2006 Last year the Council noted the development of a new acronym, BOPA as agencies restrict the availability of information "because of the Privacy Act". There appears to be no end to this trend. Perhaps the most egregious example was the decision of the Victoria Police not to release the criminal record of a deceased criminal, suspected of the murder of two sisters. The policeman in charge had this to say:
In another case, the courts upheld an injunction on the publication of names of three AFL players who had tested positive for recreational drugs a second time. The ruling appears to apply to the current case only. State governments have enacted, or are discussing, legislation to govern the use of 'surveillance devices'. The Victorian Parliament has been discussing amendments to workplace surveillance legislation and both NSW and Victoria have foreshadowed laws that would strengthen current surveillance devices legislation outside the workplace. SCAG continues to look at the publication of exploitative and offensive images on the Internet. It has before it proposals that might result in repressive restrictions on taking photos in public places. It invited submissions on the issue. As this report was being written, the issue was still before SCAG and no legislation had been drafted. Following reviews of the Act by the federal Privacy Commissioner and a Senate Committee, in January 2006, the federal Attorney-General referred the question of the federal Privacy Act to the ALRC for a further report. The report is due in mid-2008. The NSW government is reviewing that State's Adoption Act. The NSW Act places greater restrictions on access to some information than its Victorian counterpart. Some liberalisation of the NSW law, to bring it in line with the Victorian one, would seem appropriate. Press Council privacy activity 2005-2006 Privacy policy Following a debate on privacy matters in July 2005, industry member Chris McLeod prepared a position paper that gave a draft summary position and a series of definitions that informed those positions. There were further discussions before the Council adopted a new position on privacy: The Australian Press Council advocates self-regulation by the press as a vital facet of the freedom of communication that's enjoyed in Australia. It calls on all legislators and the judiciary to recognise the importance of the freedom of communication, including press freedom and the right of the public to be informed, as a basic human right on the same footing, no lesser, than other basic human rights such as privacy, freedom of association, reputation etc. In determining the balance between privacy and the right of the public to be informed, the press - and the Press Council - will take account of the following:
Definitions
People who cannot be ranked as above generally would expect - and be entitled to - complete privacy protection unless or until their circumstances changed. Privacy of sensitive information and matters affecting children are protected by a range of laws separately, but warrant consideration by the Press Council along these lines: (i) Children: Young people under the age of 18 years are entitled to the highest level of privacy. Their personal details should only be published where there is overwhelming public interest to do so. Identification of children should be treated with great care and with regard to the circumstances. (ii) Sensitive information is:
Sensitive information about an individual must be kept private unless:
The Australian Press Council in its privacy statement defines public interest as "involving a matter capable of affecting the people at large so they might be legitimately interested in, or concerned about, what is going on, or what may happen to them or to others." The Council discussed matters arising from an injunction on the publication of names of three AFL players who had tested positive for drugs a second time. It was noted that the case had ramifications for journalistic practice. In addition to the concern with suppression of names already published on the Internet, the Council was concerned that the Australian Federal Police could be used to conduct searches of journalists and newspapers to ascertain the source of any leaks in the case. The Council discussed whether this would be a case where the Council might take AFP Commissioner Mick Keelty up on his offer to talk with him on matters of mutual concern. It decided to await the completion of the injunction proceedings before taking further action. Unauthorised images In October 2005, the Council made a submission to SCAG in response to its discussion paper, Unauthorised photographs on the Internet and ancillary privacy issues. The Executive Summary of the submission read:
The complete submission, together with examples of images that might be restricted has been posted to the Council's website. Adoption In May 2006, the Council made a submission to the NSW government on its review of the Adoption Act 2000. The Executive Summary read:
The complete submission has been posted to the Council's website. Identification of a court official The NSW Attorney-General wrote to the Council in September 2005 regarding the identification of judges' home addresses in the media, seeking the Council's action on the matter. The Council decided that the appropriate action was to forward the letter to newspaper editors in NSW for their information and to draw their attention to the dangers of such invasions of officials' privacy. see also Public-interest Whistleblowing Developments in 2005-2006 Public-interest whistleblowing is becoming more hazardous, as exemplified in the case of the public official suspended without pay by the Commonwealth Department of Veterans Affairs, after publication of an article in February 2004 in the Herald Sun (see Harvey/McManus case above) The official was charged with a criminal offence, and convicted in January 2006. He remained suspended without pay for nearly two years until his guilt or innocence was determined. There were further suggestions in mid-2006 that the Australian Federal Police might raid newspaper offices seeking details on sources for stories, currently suppressed, that three AFL players had tested positive for a second time in random drug tests (see above). At the same time as they are refusing to release information under Freedom of Information loopholes (see next section), governments are using the police and the courts to make it as uncomfortable as possible for potential whistleblowers. Press Council Whistleblowing activity 2005-2006 Except as noted in other parts of this report (the McManus-Harvey case and the AFL case), the Council has taken no action in this area this year. Freedom of Information Developments in 2005-2006 In all jurisdictions the ability of journalists to utilise Freedom of Information (FoI) legislation to obtain material that would shed light on government activity is being steadily eroded by the imposition of excessive fees, extensive delays, unreasonable refusal of access, and lengthy lists of exemptions, including privacy. And when all these hurdles have been overcome the applicant can still be confronted with "conclusive certificates" issued by the relevant Minister. Research indicates that, while requests for personal information are likely to be dealt with speedily, requests for non-personal information - the material generally sought by journalists - are far less likely to be dealt with immediately, are more expensive, and less likely to result in a positive outcome. In recent years FoI editor of The Australian, Michael McKinnon, has been battling to obtain documents that provide the public with important information on the effect of bracket creep on income and on the possible abuse of the first-home-buyer's scheme. The Treasurer issued 'conclusive certificates', saying that it was not in the public interest to release the documents. McKinnon's case against the Treasurer's issuing of the certificates has now gone to the High Court. As this report was being written, the Court, in delivering its findings, by a 3-2 decision, said that the power of a tribunal to question the appropriateness or legitimacy of a certificate is effectively confined to deciding whether or not the decision to issue the certificate was irrational or absurd. In other words, it will in practice be impossible successfully to challenge a Minister's decision to refuse to disclose information, even where such information should rightfully be in the public domain. Ironically, while the case was proceeding, McKinnon discovered through a separate FoI request that senior bureaucrats had been briefed on ways they can better ensure that conclusive certificates were issued and not challenged, in order to protect their Ministers from the release of information. A report from the Commonwealth Ombudsman on FoI reinforced concerns, when it found that "there is an uneven culture of support for FoI among Australian Government agencies". The frustrations with government attitudes to FoI requests are not confined to the federal sphere, but have an impact at state level as well. As pointed out by Press Council Chairman Professor Ken McKinnon on World Press Freedom Day, May 2006, the Beattie government in Queensland was notorious for wheeling potentially embarrassing documents into Cabinet to protect them from scrutiny under FoI laws. A June 2006 review by the Victorian Ombudsman is highly critical of that state's FoI regime, citing particularly delays in processing requests, a lack of quality in reasons for decisions, poor levels of assistance and some deficient internal practices within departments. He has recommended legislative change as well as a review of the FoI culture within departments. Nonetheless, newspapers continue to use freedom of information laws to obtain information from governments, and both The Sydney Morning Herald and The West Australian appointed FoI editors during the year. Press Council Freedom of Information activity in 2005-2006 McKinnon's case In September, the Council noted that Michael McKinnon's full Federal Court verdict had been 2-1 in favour of the status quo. It decided that, if the leave to appeal to the High Court were granted, the Council would seek to present an amicus curiae (friend of the court) brief in support of the company's position. Vice Chairman Professor HP Lee was asked to co-ordinate a small group of experts to develop arguments for such a brief. The Council has only once previously lodged such a brief, in the Levy and Lange cases in 1995, but regarded McKinnon's case as so important to the viability of FoI in Australia that it would seek to intervene. In April 2006, the Press Council lodged its amicus brief with the High Court. The appeal was heard by the High Court on 18 May in Canberra, with the Press Council as the only party seeking to intervene. The counsel for the government opposed the acceptance of the Council's written brief. He argued that, on the basis of some principles enunciated by Sir Gerard Brennan in Levy v Victoria, the brief should not be received. The counsel for The Australian simply stated that the brief should be received and the Chief Justice agreed. The summary of the Council's brief read:
The complete amicus brief has been posted to the Council's website. The 3-2 decision against The Australian was delivered as this report was being finalised. The Council is considering what steps to take now to make FoI legislation and practice reflect the ideals expressed at the time of the introduction of the legislation. Suppression Developments in 2005-2006 The impression that most observers have is that the courts are issuing suppression orders with increasing frequency in many jurisdictions. In mid-2006 the News Ltd database carried 971 notifications (a growth of about 300 over the previous year). The total number of orders is, in fact, higher, because the company's offices are not always made aware of suppression orders, some orders are made without hearing counsel and some courts suppress the very fact that a suppression order has been made. News Ltd says that the higher figure equates to about four instances of suppression every court-sitting day somewhere in Australia. Some jurisdictions have developed sophisticated systems for ensuring that participating media are made aware of suppression orders - although only those orders where the issuing office, usually the court media liaison officer, has been advised by the judge's associate. In other jurisdictions journalists have to be attendance or see a hand-written register of orders available only during Registry hours, which is not much use when an article is being put together after hours. The Press Council, in consultation with publishers and with electronic media outlets, has taken an initiative, approaching the Chief Justices of the state, territory and federal Supreme Courts, seeking to develop with them a uniform, and more effective, method of notifying suppression orders, and changes to, or removal of, such orders, in the various state and territory jurisdictions. Press Council suppression orders activity in 2005-2006 After agreement from the ABC, FreeTV Australia and Commercial Radio Australia to join the Council and the publishers in a submission to the Chief Justices of the Federal Court and the state and territory Supreme Courts, the Council wrote to the Justices, pressing them to develop a uniform system for recording active suppression orders and for making them available to the media. It noted that the current ad hoc system meant that the press occasionally, usually inadvertently, breached such orders because of ignorance of its existence. This problem was exacerbated by the fact that most publications and broadcasters cross state boundaries in their publication, and were unaware that an order has been issued in another state. The Council noted that some good systems exist, particularly in Victoria, where advice on extant suppression orders were sent regularly to subscribing media. In the interests of reducing the risk of interference in the administration of justice, it proposed a model based in part on the Victorian system, but with greater use of secure sections of courts' websites. This has merit, particularly if it offers out-of-hours access for any media person wanting to check a database of orders.
In response to the Council's proposals, several courts indicated a willingness to listen although none saw its own system as deficient. High Court Chief Justice Murray Gleeson, chair of the Council of Chief Justices indicated that the Press Council's proposal on a uniform reporting system was to be discussed at the next council meeting, in April 2006. Subsequent to the meeting of that council, a letter from Chief Justice Gleeson was received. It said in part
The Press Council has decided to collect and collate statistics on the issuing of suppression orders, and the basis for their issue, in the separate states. On the basis of that information, it will make further approaches to the Chief Justices on the question of how such suppressions should be notified and whether uniform registers should be maintained. see also Access to courts and documents Developments in 2005-2006 The Chief Justice referred in his April 2006 letter (cited above) to suppressions mandated by legislation. There are an increasing number of laws that have the effect of closing courts, or making it more difficult for the media to get information on what has transpired. Some of these arise out of anti-terrorism legislation, referred to separately. Others relate to everyday cases with no national security implications. Changes in evidence laws in NSW allegedly designed to enhance access to the courts have had the opposite effect. They are regularly used by magistrates and prosecutors to withhold police charge sheets and other court documents. Material that once was routinely available throughout the court system (and through tribunals) is being withheld in NSW (and elsewhere). The resulting restriction on information flow is exacerbated by the increased use of hand-up documents in hearings. The only way of accessing this material is through application to the court registry. Registrars are limiting its availability. As this report is being written, there are reviews in both Victoria and NSW on access to court records. The Victorian County Court and the NSW Attorney-General's Department have issued separate discussion papers on the question and sought submissions on their proposals. The NSW paper would appear to have the potential to make access easier and could form the basis for a uniform national system. Press Council court access activity in 2005-2006 WA Court Transcript Last year's report referred to the decision by the acting Principal Registrar of the WA Supreme Court not to release a transcript of a case that was aborted by the then Chief Justice. It led the Council to issue General Press Release No. 267 in July 2005. Reviews of access to court documents The Council decided to make submissions to the reviews by the Victorian County Court and by the NSW Attorney-General. The Council drafted a general paper on the issue of access that emphasised that open access should be the general principle. The Council also sought to have the question of access placed on the SCAG agenda, in a move towards uniformity of approach across jurisdictions. At the end of the reporting period, the Council submitted material to both reviews. It included the general paper, as well as specific answers to the specific questions raised by each inquiry. The Executive Summary of the general paper read:
The complete submissions have been posted to the Council's website. see also Government Suppression Developments in 2005-2006 Anti-terrorism and related legislation The government, in its 2005 anti-terrorism legislation, revived anachronistic sedition laws and 'unlawful association' provisions, which have the capacity to severely curtail commentary on government performance and to criminalise satire. The Senate Committee reviewing the legislation recommended against the inclusion of the sedition provisions, even though the committee had a majority of government members. Backbenchers from the House of Representatives also expressed concern with the provisions, but the Attorney-General maintained them, in a slightly amended form, with a promise of a review subsequent to their passage. The question was referred to the ALRC, which, in its preliminary report, supported proposals for the removal of the sedition sections from the Anti-Terrorism Act and changes to the Crimes Act provisions. While the ALRC review continues, the laws remain on the books. These provisions expose journalists, and other commentators, to prosecution for expressing views that might be seen as "seditious", and has undoubtedly led to self-censorship. As this report was being finalised, the ALRC released its final report, again calling for changes in the sedition sections. The Attorney has apparently rejected those proposals and is likely to retain the sedition offences in their current form. There have been a small number of committals and trials held since the passage of the National Security Information (Criminal Proceedings) Act 2004 (which came into effect in August 2005), which effectively closes courts in cases where national security related evidence might be adduced. In the Lodhi case, the judge went to some lengths to keep the court open as far as possible (actions endorsed by the NSW Criminal Court of Appeal), indicating that the judiciary is using its discretion to maintain open justice as far as is practical. However, in that case, and in others, court closures have already meant that some evidence cannot be reported. In last year's report there was discussion of the review of the Australian Security Intelligence Organisation Act. In 2006, a parliamentary Joint Committee reviewing the Act recommended some minor changes that would better define the term "operational information" and would make the penalty for revelation of "operational information" the same as the penalty for an ASIO officer who contravenes the safeguards. It also recommended that the Division be retained for a further five years before review. The government has accepted the latter recommendation but rejected the minor changes to the legislation proposed by the committee. In October 2005, the Attorney-General commissioned an independent committee, headed by retired judge Simon Sheller, to review the federal security and counter terrorism legislation. The report, tabled in June 2006, was referred to the Parliamentary Joint Committee on Intelligence and Security, which conducted a review of the Sheller Committee's findings. At the time of writing this report, the joint committee was yet to report. The possible impact of the amended The Telecommunications (Interception) Act is dealt with above, in the section on Professional Privilege. Its likely curtailment of a free press is noted therein. In the middle of 2006, the federal Attorney-General sought the cooperation of his state and territory colleagues to extend the powers of classification bodies to restrict publication of books said to be promoting terrorism. The matter was discussed at SCAG and the proposals are being reviewed for further discussion later in the year. In addition to matters related to terrorism, the federal government's restrictions on media access to asylum seekers and detention centres, and the increased use of off-shore centres to process asylum seekers, has meant that the public cannot be properly informed on issues of genuine public interest. Such issues include the reasons refugees give for coming to Australia, whether they are genuine asylum seekers or not, and whether the application of immigration rules unfairly impacts on Australian citizens. Given that the media are generally free from government censorship, the recent closing down of a satirical website, johnhowardpm.org, apparently at the behest of the Department of Prime Minister and Cabinet, provides a warning. According to the site's creator, Richard Neville (www.richardneville.com.au), its host Melbourne IT closed the site just 36 hours after it went live. He says that a call to the host from an official from the Department of the Prime Minister and Cabinet led to the closure and not, as has been asserted elsewhere, advice from the Australian Federal Police. In all areas of their activities, governments are increasingly ready to restrict the release of information. They make more use of unattributable comments (leaks) and one-sided spin to replace balanced information and the openness of press conferences. This trend continued in 2005-2006. Restrictive legislation in the states Queensland and Victoria, among other jurisdictions, retain strong restrictions on media contact with prisoners. The Queensland legislation is particularly concerning because it mandates that journalists' access to prisoners will not be allowed if the interview relates to issues of the offender's guilt or innocence. This legislation has led to a further conviction in Queensland in December 2005, despite the fact that the journalist and filmmaker, Anne Delaney, did not conduct a formal interview with the prisoner, nor publish or broadcast a story as a result of the interview. There are reports of some state police using powers directly against reporters and photographers trying to cover news events. The MEAA reported two such episodes - one in NSW where police used the Summary Offences Act "move-on" provisions against journalists who had gathered in a public park to cover a politician's resignation, and another where Queensland police media officers had emailed the Queensland Times newspaper threatening to use similar powers against reporters in that state under the Police Powers and Responsibilities Act 2000. Queensland police went even further in October 2005 when they threw into a paddy wagon a Gold Coast Bulletin reporter after he took photos of an arrest. The ALRC's Discussion Paper 71 Review of Sedition Laws, released in May 2006, reported the anachronistic and varying laws of sedition across states and territories. Queensland, Western Australian and Tasmanian laws still protect the Sovereign, government and constitution of the United Kingdom from seditious conduct. The commission has proposed removal of the term "sedition" from state and territory laws. Press Council government suppression activity 2005-2006 In November 2005 the Council made a submission to the Senate Legal and Constitutional Legislation Committee inquiry into the Anti-Terrorism Bill (No. 2) 2005. The Executive Summary read:
The full submission has been posted to the website. The Council also issued General Press Release No. 269 on the Bill. In April 2006, following reference of the matter to the ALRC, the Council made a submission to the Commission's review of Schedule 7 of the Anti-Terrorism Act (No. 2) 2005 and the provisions of Part IIA of the Crimes Act 1914, the Executive Summary of which read:
The full submission has been posted to the website. The ALRC released a Discussion paper, No. 71 Review of Sedition Laws, based on the submissions received and invited further comment. The Council responded on 22 June 2006:
The full submission has been posted to the website. Review of Australia's Security and Counter Terrorism Legislation At the start of 2006, the Council forwarded to the Sheller Committee copies of its previous submissions on anti-terrorism legislation. It made no new submission to the committee. However, in June 2006, the Council made a submission to the Parliamentary Joint Committee on Intelligence and Security commenting on the recommendations of the Sheller Inquiry. This read in part:
The full submission, giving the Council's reasons for supporting those recommendations, has been posted to the Council's website. The Press Council expressed concern with the Commonwealth Attorney-General's proposals to seek state support for extending restrictions on the publication and distribution of books allegedly associated with terrorism. Prior to the most recent meeting of SCAG, the Council sent email messages to the state and territory Attorneys-General objecting to the widening of the classification restrictions. The email read:
The Council followed the prosecution, and conviction, in Queensland of ABC journalist Ann Delaney under the Queensland Corrective Services Act for allegedly interviewing a prisoner. The Council had, as a result of previous prosecutions, expressed concerns with sections of this Act in 2000-2001. It was seeking to co-operate with Ms Delaney's legal team in any efforts to assist her and to see changes made to the legislation. Constitutional Law Developments in 2005-2006 Unlike in the United States, the United Kingdom, the European Union, and in many other democratic countries, there is no national Bill of Rights in Australia nor any constitutional guarantee of freedoms in the federal or state constitutions or in any over-riding law. The Australian Capital Territory enacted the nation's first Bill of Rights in the form of the Human Rights Act 2004. The Act establishes at section 6 that "only individuals have human rights". There is no general right to media freedom featured in the Act, though Section 16 (2) states: "Everyone has the right to freedom of expression. This right includes the freedom to seek, receive and impart information and ideas of all kinds, regardless of borders, whether orally, in writing or in print, by way of art, or in another way chosen by him or her." Balancing this right are competing individual rights such as the rights to privacy and reputation and the right to a fair trial. At the time of publication, there are moves for bills of rights in other jurisdictions. Victoria introduced the Charter of Human Rights and Responsibilities Bill in May 2006, while Tasmania, NSW and WA were all contemplating legislation. In September 2005, a movement towards the enactment of a Bill of Rights was started by a citizens' group, through the New Matilda website. Press Council constitutional law activity in 2005-2006 In December, the Council noted that New Matilda has arranged for the drafting of a Bill of Rights and that this draft Bill was available on the New Matilda website. It took no further action on the matter at that time. Reporting of crime Developments in 2005-2006 Media monitoring and reporting of crime activity is being seriously curtailed by the switch by police in several states from analogue to digital radio transmission, and, sometimes, privacy concerns. In South Australia, for example, according to a list of SAPOL (South Australian Police) incident codes annotated by the Sunday Mail, journalists are given access to less than a quarter of police incident categories, and delayed access to some important ones, such as siege situations, where immediate advice to the public in the vicinity might seem to be of some importance. In Queensland, in 2004, police switched to digital encrypted communications without warning the media, prompting a Crime and Misconduct Commission inquiry into the matter. Despite submissions calling for privileged media access to live feeds, reporters were unhappy with the outcome - a new system of delayed alerts channelled through the police communications centre. Journalists in Victoria still monitoring analogue transmissions have been told this has to stop because of privacy laws. The media exemption to federal privacy law would allow newspapers to publish this information but the police apparently believe there are restrictions on allowing the media to have it. (See also Privacy, above, for more examples of the denial of access to information.) As the change from analogue to digital is completed, future access to the police radio network is unlikely in NSW. Press Council crime reporting activity 2005-2006 The Council kept a watching brief on developments in Queensland, where it is represented on the panel reviewing the operations of the new arrangements. It was concerned that the Queensland Police were failing to advise on many issues and incidents, in particular 24-hour blackouts on reporting in relation to two separate incidents (a car accident resulting in decapitation and riot in indigenous community). Press Council activity on other matters 2005-2006 Reporting of suicide A letter from Professor Warwick Blood and Dr Trish Payne (the University of Canberra) seeking support for a research project on the media handling of John Brogden's resignation was discussed by the Council, which decided that the project's remit extended further than the print media and declined to support it. It recommended that the academics might approach media organisations seeking donations of material required for the research. The Joint Standing Committee on Community Development of the Tasmanian Parliament has been conducting an inquiry into suicide prevention. One of its terms of reference is "the role of the media in suicide prevention". The Council's Executive Secretary gave oral evidence to the committee via a phone hook-up in late September 2005. He gave the Council's view on reporting of suicide and of particular instances of suicide and the impact such reporting might have. Reporting of sdrugs, children, schools, mental health, body imaging, unauthorised arrivals etc etc There are persistent calls for restrictive, prescriptive guidelines on press reporting of these, and many other issues. The Council has a number of non-prescriptive guideline statements on its website. These are largely of an advisory nature and draw the attention of editors and journalists to the need for caution in addressing some issues. Among the issues dealt with in 2005-2006 were:
State of the News Print Media The Council convened a further meeting with academic researchers in journalism, ethics and the law on 22 August 2005. The main proposal arising from the meeting was agreement in principle that, instead of a research grant, the Council would develop a State of the Print Media project similar to a research project undertaken by the Columbia School of Journalism in the US. The Council decided that the project would remain in the Council's hands and that, while some research would be allocated to universities, the final form of the report would be the Council's. Due for publication in September 2006, the first report of its type in Australia will present a snapshot of the print media in mid-2006 and serve as a baseline for future reports that will note developing trends and feature further original research. Other research Following the decision of the Council of Chief Justices not to proceed towards an uniform national reporting of suppression orders (see Suppression, above), the Council has decided that further research should be conducted on suppression orders - including the number issued by different courts in different jurisdictions, the basis for the orders, the length of time for which orders are in force and so on. It will initially use the database of orders kept by News Ltd that has more than 900 orders listed, as well as some original research in the various jurisdictions. The Council will engage an academic expert in the field to analyse the data. The question of alleged bias of newspapers during election campaigns is one that comes before the Council perennially, although most such complaints have not supplied sufficient information to establish a convincing case for the allegations. The Council has now decided to take some initiative in this area and commission studies of newspaper coverage of the next three state elections, starting with the 2006 Queensland election. It will select one newspaper in each state and have the election coverage analysed by academic researchers both for the amount of coverage in news and in commentary for each of the political parties, and for independents, and for the general slant (pro, anti, neutral) of those pieces. It has already sought the cooperation of journalism departments in a number of universities and will look to publish the results towards the middle of 2007. On 3 May, the Council's Chairman held a press conference in Townsville to mark World Press Freedom Day. At that time he released General Press Release No. 271. Return to Documents with the |
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