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Report on Free Speech Issues 2006-2007
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Freedon of the Press FoP Report 2006-2007
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Australia has no constitutional protection for freedom of communication, although both the ACT and Victoria have recently passed legislation guaranteeing human rights. In the absence of an over-riding guarantee, any action taken by government, the courts or corporations can result in excessive restrictions on the ability of the press freely to report matters of public interest and concern. There is some dispute among the international agencies as to whether the Australian situation is better or worse than in previous years. According to Freedom House, in its 2007 report, Australia is ranked 39th among the nations of the world in so far as press freedom is concerned (from 31 in 2006). Conversely, Reporters sans Frontieres (in its recently released 2007 list) ranks Australia in 28th place (up from 35, after a number of years in which its ranking has consistently fallen). The Press Council's interest in free speech area arises from its Objects, which seek to promote freedom of speech through responsible and independent print media, and adherence to high journalistic and editorial standards by, among other things:
In the Annual Report 29 and Annual Report 30, the Council published material about the current state of play in relation to press freedom issues. In the 2006 State of the News Print Media in Australia, and its 2007 Supplement, the Council has published detailed reports on the issues impacting on freedom of communication. That material is available from the Council's website. This report concentrates solely on the Council's free speech activities in 2006-2007. Come clean campaign The Council has launched a 'come clean' campaign to encourage governments and other holders of information to be more open with the public by providing the media with the information they need to report on matters of public interest and concern. The Council has noted the increasing decline in the openness of information providers. Whether it is through legislation that restricts access to material, the use of 'spin', leaks and media management to release only a part of the story, judicial actions that suppress material before courts, or close the courts, or the abuse of laws intended to make information available (such as the use of conclusive certificates stop material being available under Freedom of Information laws), there has been a marked diminution in the ability of the media accurately and fairly to report matters that are properly in the public interest. One step in this campaign was the publication of an opinion piece (A fight for freedom, written by Council Executive Secretary Jack Herman) in the Melbourne Herald Sun on 14 May. The article has been posted to the Council's website. Another step was the co-hosting of a conference with the University of Melbourne Centre for Communications and Media Law. "Open Justice, the Courts and the Media" was to be held at Melbourne Law School on 27 July. One non-government aspect of the 'come clean' campaign will be support from the Council for media campaigns to ensure that the commercial interests of sporting bodies do not interfere with the ability of the media properly to report matters of public interest arising from sporting events. In this area, the Council has already expressed concern at the failure adequately to accredit on-line journalists and the granting of exclusive rights to cover a sport or exploit images from it. The Council is also concerned when sporting bodies use internal disciplinary procedures, including fines, to try and silence participants and coaches from expressing their views on developments within the game. In the light of its own 'come clean' campaign, the Council welcomed the launch of the Public Right to Know campaign by the proprietors of the print and electronic media. News Limited, Fairfax Media, the ABC, FreeTV Australia, Commercial Radio Australia, SBS, AAP and Sky News are among the campaign's sponsors. The campaign has commissioned an audit of the current state of free speech in Australia and, on the basis of that report, will lobby governments and the judiciary, seeking a major reappraisal of laws and regulations that censor free speech and undermine the right of all Australians to get information that is relevant and important to their lives. Government Suppression Classification In Annual Report 30, the Council noted that the federal government had raised with the states and territories proposal to ban certain books associated with terrorism. When the other Attorneys did not support his proposal, AG Ruddock took up the issue of his own initiative. In May 2007, the Council made a submission to the Attorney on his proposal to amend the Classification Code to prohibit publication of material advocating terrorism. The Executive Summary of the submission read: The Press Council urges the Attorney-General to reconsider the introduction of the proposed amendment to the classification scheme. However, if the government does proceed to introduce a ban on material which advocates terrorism, the Council is of the view that the following recommendations should be implemented:1. The definition of "advocate" should be as narrow as possible in order to avoid the unnecessary and excessive restriction of material which merely comments upon or explains ideologically or politically motivated action. The definition employed should refer to material which overtly or explicitly urges violent action. At the very minimum, the reference to "indirectly" should be omitted from any definition. Material which supports a particular political or ideological point of view should be acceptable provided it does not advocate violence. The complete submission has been posted to the Press Council website. Mr Ruddock then introduced the Classification (Publications, Films and Computer Games) Amendment (Terrorist Material) Bill 2007, which expanded the grounds for refusal of classification to material that directly or indirectly counsels a terrorist act. At the end of the reporting year, the Council made a submission to the Senate Legal and Constitutional Affairs Committee Inquiry into the Classification (Publications, Films and Computer Games) Amendment (Terrorist Material) Bill 2007. The Council acknowledged that the Bill in the form in which it was introduced into Parliament has advanced some way towards addressing the concerns raised in its earlier submission, particularly by the inclusion of exemptions and a form of public interest defence in the Bill. However, the Council did not believe that these changes went far enough to adequately protect freedom of speech. Its view remained that the definition of "advocate" used in the Bill was too broad. Two particular phrases needed to be removed from schedule 1 of the Bill. First, the phrase "or indirectly" should be removed from clauses 9A(2)(a) and 9A(2)(b). Secondly the phrase "or any mental impairment" should be removed from clause 9A(2)(c). The inclusion of these phrases has the potential to prevent the publication of material that provides information or commentary and that is appropriate subject matter for public discourse. The Council was also of the view that the wording of the exemption clause was unnecessarily restrictive in its reference to the sort of material that would be protected by the exemption and sought a widening of this definition. The full submission has been posted to the Council's website. Sedition In Annual Report 30, the Council reported that the question of the sedition clauses in the Anti-Terrorism Act, the Crimes Act and the Criminal Code had been referred to the ALRC, which strongly supported proposals for the removal of the sedition sections from the Anti-Terrorism Act and changes to the Crimes Act provisions to ensure a crime would only be committed if it could be proved that any words used were actually intended to provoke violence. The Attorney-General said that the ALRC recommendations on sedition would not be accepted. He considered the urging of the use of violence in its own right to be dangerous and that it should be a separate offence. The Attorney-General also said that other key ALRC criticisms of the legislation would be considered in due course by the Government. The Council awaits his further advice. Security and counter-terrorism In Annual Report 30, there was reference to the Sheller Committee review of federal security and counter-terrorism legislation. The Parliamentary Joint Committee on Intelligence and Security reviewed the Sheller Report. Sheller had drawn attention to section 102.7 of the Criminal Code, which criminalises support for terrorist organisations. The Joint Committee recommended that the wording of the offence of providing support to a terrorist organisation should be changed to "providing material support" to ensure that there would be no ambiguity as to its meaning. The government did not act on that recommendation. Content services The Council discussed the Communications Legislation Amendment (Content Services) Bill 2007, which aimed to regulate the publication of offensive content on the Internet. It noted that the news and current affairs exemption in the Bill should prevent the proposed legislation having any effect on the press. The Council decided to monitor the Bill's progress but took no further action. Freedom of Information McKinnon's case On 6 September 2006, the Press Council issued a press release (General Press Release No. 272) expressing its dismay at the High Court's 3-2 decision to dismiss the appeal from Michael McKinnon, then FoI Editor of The Australian, against the Treasurer's refusal to grant access to information on the first home buyer's scheme and the impact on taxpayers of bracket creep. The Council participated in the case, having lodged an amicus curiae brief in support of the case for better access under Freedom of Information (FoI). In the Council's view, the decision indicates that FoI law, as well as FoI practice, needs urgent reform. As a first step in a process towards achieving those ends, the Council published, in the May APC News, several articles on the way ahead from McKinnon, including analyses of the decision by the Council's Vice Chairman, Professor HP Lee, and its Policy Officer, Inez Ryan, as well as articles by noted FoI experts Moira Paterson and Rick Snell. Other FoI issues Throughout the year the Council discussed cases that reinforced the need for review of FoI law and practice. In particular, it noted the initial failure of authorities to release the names of Sydney restaurants that had breached health regulations, and at the Minister for the Environment's refusal to release the papers that informed the federal government's $10 billion Murray-Darling Rivers proposal. The Victorian Ombudsman's July 2006 report was a further indication that the problems are not confined to the federal government. Events at Macquarie University, involving a squabble between the present and the immediate past Vice Chancellors, showed that public institutions learn quickly from government: after the responsible FoI official released information on the matter, the university decided that authority for the release of material should be held by a more senior official. In contrast, the Free Flow of Information Act 2007, currently before the US Congress, indicates that in comparable democracies there is a stronger commitment to making all relevant information available to the public. Media Ownership The decision by the federal Minister for Communications to proceed with alterations to the cross-media prompted the Council's Chairman and the Executive Secretary meet with Helen Coonan to discuss the issues. In September 2006, the Minister tabled legislation to effect the government's proposed changes. These Bills were referred to the Senate Committee for Environment, Communications, Information Technology and the Arts for inquiry. Despite the limited time frame between tabling of the Bills and the committee's two-days of hearings, the Council made a submission on the Broadcasting Service Amendment (Media Ownership) Bill 2006 and related bills. Its Executive Summary read: The Australian Press Council accepts the need for the government to change limitations on cross-media ownership. It believes that any such changes need to ensure that there remains a diversity of Australian voices in the media, that the rules governing mergers and acquisitions within the media sector be fair and that Australian newspapers remain independent of government regulation or control. The Council doubts that the proposed changes will achieve these objectives. The complete submission has been posted to the Council's website. The Council was invited to give oral evidence to the committee at its hearings but, due to previous commitments, the Council's Chairman was unable to attend on either day. The Senate made some changes to the legislation, which have the effect of further limiting the capacity for cross-media ownership, by restricting control to only two out of three platforms (print, free-to-air-television and radio) in any market. But the Bills retain requirement for newspapers to register cross-media interests with ACMA) and mandate disclosures of conflicts of cross-media interests in newspapers, with ACMA responsible for enforcement of these provisions. While the Bills were before Parliament, the Council's Chairman and Executive Secretary met with Senator Coonan to discuss the proposals. One aspect that was covered was the Minister's apparent commitment to continuing self-regulation of the press, and her assurance that she saw no regulatory role for ACMA in regard to the print media. The Council discussed the legislation as passed by the Parliament and agreed that it should await the introduction of the new regulations on registration and on declarations of conflict of interest and see how they pan out in reality before expressing any views on the possibility that they could lead to a form of de facto government regulation of newspapers. Defamation The Council has kept an eye on developments in defamation since the commencement of the uniform Defamation Acts. Most of the cases before the courts in the reporting year were initiated before the introduction of the revised and harmonised defamation laws. The number of new defamation actions has apparently decreased significantly since the commencement of the harmonised Defamation Acts. The Herald and Weekly Times has received NO writs in relation to material published after commencement of the uniform legislation, but has received three notices of concern, which were settled. Fairfax Media has received one writ in the 18 months to July 2007 against its Melbourne masthead, The Age, and six statements of claim, five relating to material published after the commencement of the uniform defamation legislation, against its Sydney newspapers, The Sydney Morning Herald and The Sun Herald. Perhaps the most notable defamation matter in 2006-2007 was the High Court's decision on aspects of John Fairfax Publications Pty Ltd v Gacic. The High Court ruled that the NSW Court of Appeal has the right to substitute its own decision for that of the jury if it finds the jury's decision to have been unreasonable. The High Court also found that the appropriate standards to apply in cases of "business defamation" are different from the community standards that apply in other defamation matters. The NSW Supreme Court has yet to hear the newspaper's defences so the Gacic case has not yet been finally determined. A case note on the Gacic case was to be published in the August 2007 APC News. The case of Obeid v John Fairfax Publications Pty Limited, again under the old laws, highlighted an aspect of defamation law that has concerned legal professionals who act for media defendants. While the Reynolds principles laid down by the House of Lords were intended as a guide to whether a defendant had acted reasonably, the courts appear in many instances to be treating the Reynolds principles as "hurdles" that media defendants must overcome. By contrast, in the UK case of Jameel & Ors v Wall Street Journal Europe Sprl, the House of Lords has more recently indicated that the emphasis should be on the professional judgment of editors and journalists, suggesting that, where there is a public interest in the publication of a news story, a publisher establishing an absence of carelessness would establish qualified privilege. The Council noted some recent attempts to get around new defamation laws by using other causes of action. Alan Bond, for example, launched an action that claimed that a newspaper article written by Paul Barry was misleading and deceptive and therefore in breach of the Trade Practices Act. The court rejected that contention and dismissed the matter. Posted defamatory material The US case, Barrett v Rosenthal, which dealt with aspects of defamation via the Internet, interested the Council and led it to make submissions to the federal, state and territory governments seeking changes to the way in which laws deal with potentially defamatory or offensive material posted by users to website discussion forums. The Council is seeking changes to the Commonwealth Broadcasting Services Act and to the state and territory Defamation Acts. The Executive Summary of the submission to the federal government read: The Australian Press Council brings to the attention of the Commonwealth government the problem of defamatory or offensive material being posted by users to website forum discussions and the associated exposure of publishers to the risk of liability. The submissions to the state and territory governments were in similar terms, with the final paragraph of the Executive Summary reading: The Press Council urges governments to reform the Defamation Act in order to ensure that publishers are not exposed to excessive risk in relation to material that they have not authored. Such reform could also ensure that publishers deal appropriately with defamatory posts when they are aware of them. The complete submissions have been posted to the Press Council website (http://www.presscouncil.org.au/pcsite/fop/fop_subs/bsa_defam.html and http://www.presscouncil.org.au/pcsite/fop/fop_subs/in_dissem.html, respectively). see also Privacy In Australia, there is a federal Privacy Act, which largely deals with protection of the confidentiality of information on individuals held by government and by the private sector. There are also a myriad of federal, state and territory laws that regulate privacy protection, in areas such as telecommunications, surveillance, listening devices, health records, data matching, trespass, matters affecting children, adoption, sexual offences, juries, prisoners, security, and family law. But there is no common law or statutory cause of action for breach of privacy. Throughout the year there has been judicial, legal and political activity in the area of privacy, apparently moving towards the development of such a cause of action. Three separate Law Reform Commissions (Australia, NSW and Victoria) are conducting inquiries into aspects of privacy and two have foreshadowed proposing a cause of action for breach of privacy. ALRC inquiry In January 2006, the federal Attorney-General commissioned the Australian Law Reform Commission (ALRC) to review the Privacy Act, with a reporting date of March 2008. The ALRC inquiry is the third such inquiry in recent times. In 2005 both the Privacy Commissioner and a Senate Committee conducted inquiries into the Act. The Council's submissions to those inquiries were reported in Annual Report 29. The outcomes of those reviews and the Council's subsequent submission to the Attorney-General, especially related to the media exemption in the Act, were also reported in Annual Report No 29. The commission conducted a preliminary community consultation, including a "national phone-in" in early June 2006. The phone-in demonstrated that telemarketing and information privacy are the top community concerns. Three out of four callers nominated unsolicited telemarketing as their number one privacy complaint. About 1,300 people took part over the two days. In addition to their concerns with intrusive calls from telemarketers, a large number of callers also raised concerns about how private sector organisations and government agencies stored and shared their personal information. Other major privacy concerns included the security of personal information provided over the Internet, access to electronic health records and surveillance in public places and at work. In its preliminary phase the inquiry developed an Issues Paper for circulation in September 2006. After further consultations it wrote a Discussion Paper that was released in September 2007, inviting final submissions. On 8 August 2006 the Australian Press Council sent a preliminary submission to the ALRC for consideration in developing the Issues Paper. The Executive Summary of the submission read: The Australian Press Council argues that questions of privacy require acknowledgement of the balance between private rights and the public's right to know and that any developments must stress the public interest as an appropriate criterion. As the body which administers the Privacy Standards for the Print Media under the media exemption in the Privacy Act 1988, the Council submits that the media exemption inserted into the Act is working well, that the Council's experience indicates that an appropriate balance between the flow of information on matters of public concern and individuals' rights to privacy in their private affairs has been struck. The Council also appends a brief summary of the privacy matters with which it has dealt since the introduction of the media exemption. The full submission has been posted to the Council's website. In January 2007, the Council made a submission to the ALRC's Issues Paper 31, Review of Privacy. The Council congratulated the ALRC on the scope and detail of its review of privacy and of the Privacy Act. In its submission on the Issues Paper, the Council addressed two issues only:
On the first aspect, the Council noted: Governments and the courts, acting separately, are moving towards the development of further privacy law, through a putative tort of privacy that is legislated or developed through case law. The judicial system seems either unaware of, or uncaring for, the importance of press freedom and how it contributes to a system of transparent justice. The possibility exists that any expansion of individual privacy rights will not take into account the balance question noted above. The difficulty of leaning heavily towards more privacy protection (at the expense of public rights to information) is that it seems impossible to avoid reinforcement of trends towards more secrecy on matters where public debate is essential for the proper functioning of a liberal democracy. The danger exists that any putative cause of action for breach of privacy will be just another weapon in the arsenal of those in society who would seek to deflect public scrutiny of their possible malfeasance or non-feasance. Addressing the question of the media exemption in the Privacy Act, the Council noted that, in its June 2005 review, The Real Big Brother, the Senate Legal and Constitutional References Committee makes no recommendation for change, even though it recommends the removal of another exemption. The Council submitted that the current exemption, and the Press Council's administration of it for the print media, strikes an appropriate balance between the availability of information to the public and the protection of individual's privacy. The Council's Executive Secretary took part in an ALRC roundtable with representatives of a range of media groups after the close of submissions on the Issues Paper. NSW and Victorian LRC inquiries Despite the fact that there is existing federal privacy legislation, and an on-going review of that legislation due for report in 2008, and the fact that there are close to a 100 pieces of legislation in the states and territories that protect aspects of personal privacy, two state-based Law Reform Commissions have initiated inquiries into questions of personal privacy: The Vice Chairman and the Executive Secretary attended a consultation in June with the Victorian Law Reform Commission on the question of surveillance in public places. The VLRC's consultations are to be completed by July, and then it will release an issues paper. The NSW Law Reform Commission has been asked to look at three issues: how best to develop a consistent national privacy regime; how best to harmonise the various laws that form the existing privacy protections in NSW; and whether there is a need for a statutory tort of privacy in NSW. The LRC has issued a Consultation Paper that concentrates largely on the third term of reference - one already being addressed by the ALRC in its review. The Council is developing a response to the Paper to be submitted by mid-September 2007. Guardianship The Queensland Law Reform Commission (QLRC) issued a discussion paper, Confidentiality in the Guardianship System: Public Justice, Private Lives, on proposed reforms to the Guardianship and Administration Act 2000 (Qld). The reforms relate to the legislation's confidentiality provisions. The Council's Policy Officer, Inez Ryan, drafted a submission arguing that section 112(3) of the Act, which prohibits the publication of information concerning proceedings of the Guardianship Tribunal, should be either repealed or amended to allow the publication of information concerning proceedings unless the tribunal issues a suppression order. A further issue for consideration was whether newspapers should be able to publish identifying information or only "de-identified" information. At the end of October, the Press Council made a submission to QLRC, the Executive Summary of which read: It is critical to the efficient functioning of our legal system that an appropriate balance be struck between the principle of open justice and the need to protect the confidentiality of parties. It is the contention of the Australian Press Council that Queensland's Guardianship and Administration Act 2000 fails to achieve such a balance. While the Press Council recognizes the need to protect certain vulnerable individuals who fall within the guardianship jurisdiction, the use of mechanisms such as suppression orders and closed hearings should be minimised. The prohibition in the Act against the publication of information about tribunal proceedings should be removed and disclosure of information should be permitted unless confidentiality is absolutely necessary to protect the welfare of parties, witnesses and other individuals involved in tribunal proceedings. The complete submission has been posted to the Council's website. Other privacy issues In late July 2006 the Victorian Attorney-General said that SCAG would be looking at the issue of unauthorised photos, particularly those involving 'upskirting' and 'downblousing', and that new national laws would be the result. The Council still awaits the drafting of such legislation. The case of Doe v ABC, which concerned the identification of a victim of sexual assault, was another step along the path towards a judicially developed cause of action for breach of privacy. Like Grosse v Purvis, it involved a lower court and has little precedential value. What made the case a matter of concern for the Council, and a potential threat to press freedom, is that one of the causes of action cited and accepted by the court was for breach of the plaintiff's privacy. This was in spite of the availability of a cause of action for breach of statutory duty. A case note on the matter was published in the May 2007 APC News. According to press reports, the NSW Attorney-General has rejected the NSW LRC on its recommendations on reform of surveillance devices legislation, reforms that would have had a major impact on the ability of the press to use images, even when taken in public places. The Council's submissions to the LRC had been discussed in Annual Report 27. see also Protection of confidential sources The Council has been lobbying the state, territory and federal Attorneys-General to ensure that there is a more workable protection for journalists who want to protect thenidentities of their confidential sources. The most recent impetus for this was the conviction and sentencing of Gerard McManus and Michael Harvey, two Herald Sun journalists called to give evidence in the preliminary stages of the prosecution of a public official who was alleged to be their source. McManus and Harvey On 25 June 2007, the day that two journalists were sentenced for their refusal to disclose the confidential sources for a story, the Press Council issued a statement arguing that the conviction, and sentencing, of journalists protecting their sources illustrates the failure of governments to make themselves properly accountable to the electorate. Through the suppression of information and the rorting of freedom of information law, material directly related to government performance is not available through the press. The Australian Press Council challenged all governments to come clean and ensure relevant details are available to the public. General Press Release 279 is published in this report on page 67. Uniform Evidence Acts The Council wrote to federal Attorney-General, Philip Ruddock, on 28 March 2007: Last year, when Michael Harvey and Gerard McManus were before a court in Victoria, you said that the ability of journalists to protect their confidential sources should be better protected. The federal Attorney advised the Council that legislation would be introduced in the Budget session of Parliament and would be based on the existing NSW legislation, not the stronger New Zealand proposal. The federal Attorney also said that he was seeking to press his state and territory counterparts to enact similar provisions. The Western Australian Attorney-General suggested that his decision as to whether to introduce such legislation would be conditional on West Australian Newspapers replacing the editor of its daily newspaper. Subsequently, the Council, which remains convinced that the NSW model is not sufficiently strong to protect journalists, again wrote to all Attorneys drawing their attention to better models, more likely to protect journalists from being forced to choose between jail and the revelation of a confidential source, in legislation from comparable democracies. The US House of Representatives is currently dealing with a proposed new law, the Free Flow of Information Act, which is discussed by Bree Nordenson in the Columbia Journalism Review May/June 2007. The New Zealand Parliament passed a new Evidence Act that, in Section 64, made protection of sources the default position from which courts can only move, in the interests of justice, in the most extreme circumstances. New Zealand and the USA feel the need to protect journalists from having to reveal confidential sources in most circumstances important enough to develop better laws. They have in fact come up with workable solutions to the difficult task of isolating those few extreme occasions that should require journalists' sources to be identified in court. They have done so while establishing a default position that courts should not allow legal fishing expeditions just because particular authorities are miffed that news the public has a right to know has been reported. While the language of either proposal may not be the same as an Australian law would use, the Council believes that the US and New Zealand legislation both provide sound bases for a putative Australian shield law. The Council has asked the Attorneys-General to revise the proposed uniform national shield proposals so that they would in fact protect journalists and keep them out of jail. The federal Attorney indeed introduced reforms to the Evidence Act to give courts discretion to excuse journalists from being required to identify their sources. The federal reform as enacted generally copies the NSW Act, which the Council sees as inadequate and no real protection for journalists or their sources. Geoffrey Robertson QC has described the provision as a "snare" for journalists and their legal representatives. The states and territories are still discussing the form any uniform reform of their Evidence Acts will take but appear set to use the NSW Act as their model. see also Public-interest Whistleblowing The role of whistleblowers in maintaining government accountability has become a significant issue in recent years. The basic problem of the vulnerability of government employees who disclose malfeasance or mismanagement will remain until there is statutory protection for genuine public-interest whistleblowers who go the media after official channels have let them down. The cases of Alan Kessing (who was convicted after a report he wrote on inadequacies in Customs at Sydney Airport was leaked) and Desmond Kelly (the official at the centre of the Harvey and McManus case who was exonerated on appeal) demonstrate the federal government's ruthless attitude to unendorsed leakers. Figures revealed in the Australian Parliament indicate that, in a four-year period, the Australian Federal Police spent over 2100 hours and $2 million trying to track down whistleblowers within the federal public service. Judicial Suppression In Annual Report 30, the Council noted the rejection by the Conference of Chief Justices of its proposal for a uniform method of reporting suppression orders. Despite the assertion by Chief Justice Gleeson in his correspondence with the Council that the majority of suppression orders are mandated by law, the Council continues to note the use of suppression orders by judges in most jurisdictions. By the end of the reporting year, News Limited had 887 matters on its database of suppression orders (those were the ones of which its employees were aware and which they had reported to the database manager) and over 200 new orders had been entered in 2007 alone. The Council noted that the legislation foreshadowed by SA Attorney-General Michael Atkinson before the most recent South Australian election had been passed in mid-2006. The new laws were intended to make it tougher for judges to issue suppression orders. The impact on the number of such orders in the "suppression state" is still being assessed. Towards the end of the reporting year, the federal Attorney-Generals' department sought advice from the Council whether there was inadvertent non-compliance with suppression orders by the media due to a lack of knowledge of their existence. The department is investigating the possibility of a national register of suppression orders, something very close to the Council's original proposal to the chief justices. The Council's response and any action by the department will be discussed in Annual Report 32. Access to courts and documents In Annual Report 30, it was reported that two submissions have been made on the issue of media access to court documents: one submission to the Victorian County Court and another to the NSW Attorney-General. The Council has heard nothing further on either review. see also Constitutional Law 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. During the year, Victoria passed into law the Charter of Human Rights and Responsibilities Bill. Both were based on the International Covenant on Civil and Political Rights. There has been no equivalent action by other states or territories, nor by the federal government. The Council, which strongly supports the enactment of a Bill of Rights either into the Constitution, or failing that into federal law, decided that, in the period leading up to the 2007 federal election, it would seek the advice of the major parties as to whether they would commit to the introduction of such legislation. Sports accreditation Attempts by sporting bodies to restrict access of some journalists, particularly on-line journalists, to sporting events and to restrict the availability of footage that can be broadcast on news websites has been of growing concern to the media. This led to an effort by media organisations to gain open access for journalists seeking to attend press conferences and other public events attached to sports events and not covered by exclusive rights agreements. In late 2006, Cricket Australia threatened to exclude print journalists if their organisations did not agree to restrict their use of on-line material to 30 seconds of footage to be shown no earlier than one hour after play. Additionally organisations were to be allowed to post only 12 photos, to be updated daily. The restrictions on on-line journalists' attendance at press conferences remained as well. These issues were resolved eventually by negotiation and compromise agreements reached. Similarly a compromise was eventually found in the dispute between News Limited, Telstra and the Rugby League over the use of video footage from NRL games on news websites. There have also been on-going concerns with the granting of exclusive rights to photograph AFL fixtures (particularly impacting on overseas news organisations) and possible future attempts in the future to limit the number of photographers who have AFL access. The Council took up this issue with the AFL: I am writing on behalf of the Australian Press Council to express its concerns with proposed restrictions on the reporting of news events by sports bodies, including the Australian Football League. Most recently a coalition of international news organisations has been in negotiation with the International Rugby Board over coverage of the 2007 world cup. These negotiations have led to concessions while there remain limits on the number of images that can be used from any game. The reason for the media's actions in this area were summarised in a December 2006 press release (General Press Release 276) from Press Council Chairman, Professor Ken McKinnon. He said, "The Press Council regards reporting of sports events as legitimate news. It is alarmed that sports organisations, both locally and internationally, are attempting to limit coverage of events, and of press conferences, as part of agreements with broadcast (and on-line) partners. "Our general and strong position is that there should be minimum interference with the collection and reporting of news, in words and images, whatever the form that news takes. ... "Journalists should be allowed to do their job, no matter what medium they report in." International In December, the Australian Press Council condemned the actions of the military in Fiji in targetting the free media. The Council's press release (General Press Release 275) condemned the military's restriction on the people's access to information of public interest and concern were reprehensible, especially the visits to newspapers and broadcasters in an attempt to censor their news coverage. It endorsed the statements of Daryl Tarte, the Chairman of the Fiji Media Council, who has said: "The media organisations of Fiji ... will, at all times, continue to champion the ideals of freedom of the media enshrined in the Fiji Constitution Bill of Rights." The Australian Press Council particularly supported the actions of The Fiji Times, its managing director Tony Yianni and editor Samisoni Kakaivalu, in suspending publication after the military ordered the paper not to publish any "propaganda" against the new political leadership; and the actions of The Fiji Daily Post and its editor in chief Robert Wolfgramm in suspending publication after being warned by the military not to continue supporting Prime Minister Qarase. Chris McLeod, an industry member of the Council, went to Fiji to speak at World Press Freedom Day events in May 2007. There was considerable coverage of the visit and other activities, both in the print and electronic media. Mr McLeod had four meetings with various media people, including the Fiji Media Council and employees at The Fiji Times, did an interview with a journalist and gave the keynote speech. The speech turned out to be a big occasion: there was seating for 100 people but 250 turned up. The people at the forum would have gained a clear understanding from all the speakers that journalists operate in Fiji at present under pretty trying circumstances. Return to Documents with the |
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