Report on Free Speech Issues 2007-2008

Introduction
Right to Know
Government restrictions

Classification law changes
Media and terrorism
Sexualisation of children
A complaints clearing house

Freedom of Information

NT Review
Queensland review
NSW review
Federal review
Western Australia

Constitutional Law
Defamation
Privacy

ALRC inquiry
NSW LRC inquiry
Guardianship
WA proposal

Protection of confidential sources

Crime and Corruption Commission
Raid on Sunday Times

Public-interest Whistleblowing
Judicial Suppression
Access to courts and documents

Naming and Shaming
Access to court documents
Commissioner Keelty speaks out

Contempt by Publication
Sports accreditation
International

Fiji
Timor Leste
Indonesia

Australia has no constitutional protection for freedom of communication, although both the ACT and Victoria have legislation guaranteeing human rights. In absence of an over-riding guarantee, any action taken by government, the courts or corporations can have an excessive impact on the ability of the press freely to report matters of public interest and concern.

Among the international agencies there is some agreement the Australian situation is better than in previous years, although only marginally. According to Freedom House, in its 2008 report, Australia is ranked 35th among the nations of the world in so far as press freedom is concerned (from 39 in 2007). Reporters sans Frontieres (in its 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:

• keeping under review, and where appropriate, challenging political, legislative, commercial or other developments which may adversely affect the dissemination of information of public interest, and may consequently threaten the public's right to know;
   
• making representations to governments, public inquiries and other forums as appropriate on matters concerning freedom of speech and access to information; and
   
• undertaking research and consultation on developments in public policy affecting freedom of speech, and promoting public awareness of such issues.

In the previous Annual Reports the Council published material about the current state of play in the issues about which it has made representations. 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. All of that material is available from the Council's website.

This report concentrates solely on the Council's free speech activities in 2007-2008.

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Right to Know campaign

The Council has an on-going '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 material, through the use of 'spin', leaks and media management to release only a part of the story, though judicial actions that suppress material before courts, or close the courts, or through the abuse of laws intended to make information available (such as the use of ministerial certificates to 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.

The major publishers and broadcasters, alarmed at the culture of secrecy in contemporary Australia, initiated the Right to Know campaign in 2007. The first step was an audit of conditions impacting on the Australian media. The audit was headed by former NSW Ombudsman Irene Moss. Representatives of the audit visited the Council in late September to discuss matters of mutual interest. The Council passed along some of its own research on the topics of interest to the audit that the Council had put together over the past decade.

In early November, the audit team presented its report to the Right to Know campaign. It noted about 500 pieces of legislation, at the territory, state or federal level, which restricted media access to information, and the growing trend towards suppression of information by the courts. In particular it found that Freedom of Information laws were ineffective, due to costs, time delays and the imposition of ministerial certificates.

The audit report will be used as the basis of further action by the Right to Know campaign, which is now in the hands of the CEOs of the publishers and broadcasters. To assist the campaign with its efforts, the Council's Chairman has put forward proposals for actions that the campaign can now initiate, and met with Creina Chapman, from News Limited, to discuss these proposals. The Council sees as priorities the reform of FoI law and practice, and the opening up to public scrutiny of government information generally; the enactment of effective shield laws that will enable journalists to protect their confidential sources; and changes to court procedures to ensure that information from open courts are available to the public through the media.

The Right to Know campaign has appointed Press Council journalist member Prue Innes to lead an inquiry into judicial suppression orders. The report is to be completed by November 2008.

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Government Restrictions

Classification law changes

As noted in last year's report, in early July, the Press 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 Senate committee recommended some anodyne changes to the proposed Bil. So, on August 6, the Chairman of the Australian Press Council, Professor Ken McKinnon, issued a statement (GPR 280) in which he said,

"The proposed amendment to classification laws, currently before the Senate, aimed at restricting the publication of material that 'advocates' terrorism, are unnecessary, dangerous and inimical to essential freedom of communication. It is a further egregious example of the government's consistent tendency to legislate limits on the public's access to information."

The government has already demonstrated that it has at its disposal powers more than sufficient to restrict dangerous publications, including laws against sedition, advocacy of violence, racial vilification and various provisions within the Criminal Code and anti-terrorism legislation. The issuing of an "RC" classification by the Classification Review Board against Defence of the Muslim Lands and Join the Caravan in 2006 clearly shows that the present scheme leads to bans on public access to material that advocates terrorism. In fact, the current classification powers are so sweeping that they even allowed the banning of Dr Philip Nitschke's, The Peaceful Pill Handbook, action well beyond any desirable public restrictions on the free flow of information.

The new proposals, if enacted, will not only put material that directly advocates terrorism outside the law but also anything considered by authorities to indirectly advocate terrorism. Opinion or commentary upon the news, or material that analyses the underlying causes of terrorism, may still be banned, given the narrow scope of the exemptions in the Bill. There is a justifiable fear that such material may be incorrectly regarded as "indirectly advocating" terrorism, which would inevitably lessen the availability of information to the public.

Moreover, the fact that the standard of proof in classification will be "on the balance of probabilities", a much lower standard than the normal criminal requirement of beyond reasonable doubt, will make the proposed regime abhorrent.

In dealing with the threat of terrorism it is important that the public is well informed on matters related to it. Research into the background of terrorism and terrorist groups can assist in safeguarding an open and liberal democracy. Similarly, there is a need to ensure that material that can aid research, add to our understanding of terrorism and assist in reasoned debate on the issues should not be arbitrarily restricted as a result of a Bill that contains definitions of "advocacy" that are far too wide.

Despite the Council objections, the legislation was enacted.

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Sexualisation of children

The Press Council made a submission to the Senate Standing Committee on Environment, Communications and the Arts' Inquiry into The Sexualisation of Children in the Contemporary Media Environment. The submission's Executive Summary read:

• Images of children that appear in print publications are regulated by the Classification Act and Regulations
   
• Australia's print media represents children in a responsible manner
   
• Advertising which includes images of children or which is directed to children is subject to regulation by the Advertising Standards Board and publishers are required to distinguish between advertising and editorial content.
   
• Images and editorial content in print publications are subject to the Press Council's principles and guidelines.
   
• It is preferable to address the issue of the sexualisation of children by way of self-regulatory mechanisms rather than to impose censorship restrictions which have the potential to result in unintended restrictions on freedom of the press.

The full submission has been posted to the Council's website at: http://www.presscouncil.org.au/pcsite/fop/fop_subs/kids.html

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A complaints clearing house

In its June report on Sexualisation of Children, a Senate committee recommended, among other things, the development of a complaints clearing house to facilitate the lodging of complaints to the appropriate regulatory or self-regulatory body. The Press Council took up this issue with the Advertising Standards Board (ASB) and Free TV, copying in the Australian Communications and Media Authority, the MEAA and Commercial Radio Australia, amongst other bodies. The Council wrote:

In its report of 26 June, Sexualisation of children in the contemporary media, the Senate Environment, Communications and the Arts Committee recommended:

... that the Advertising Standards Board and Free TV Australia consider establishing a media and advertising complaint clearing house whose functions would be restricted to:

• receiving complaints and forwarding them to the appropriate body for consideration;
   
• advising complainants that their complaint has been forwarded to a particular organisation; and
   
• giving complainants direct contact details and an outline of the processes of the organisation the complaint had been forwarded to.

In its report on broadcasting regulation, the committee made a number of recommendations and suggestions with regard to improving the operation of complaints systems, particularly:

• that all broadcasters and ACMA should ensure that the homepage of the websites have a clearly marked 'complaints' icon;
   
• that the complaints page be accessed only by one key-stoke or mouse click; and
   
• that complaints should be received electronically and by email in addition to written or faxed complaints.

I write to you on behalf of the Australian Press Council, which considered this recommendation at its July meeting.

Have either of your bodies determined to initiate action along the lines recommended by the committee?

It seemed to the Council that such a 'clearing house', if limited solely to the ASB and Free TV Australia, would not serve a useful purpose, as it would leave out a number of organisations that deal with complaints about ethical matters in the Australian press. While the ASB has carriage of complaints about advertising, news material in the various media are handled variously by the Press Council, ACMA and the MEAA. If such a clearing house were to be established, it would need to include those organisations, as well as representatives of the commercial television and radio broadcasters and the national broadcasters, who each have their own complaints process.

The Council would appreciate your advice if you determine to take any action as it would like to be involved in such discussions. I am copying in the other relevant bodies, as well as the Minister and Chair of the committee so that they are aware of the action being taken.

Subsequently the Council has met with the Chief Executive Officer of the ASB, who is coordinating meetings with other interested bodies, to discuss the proposal and other relevant issues. It seems likely that discussions towards some form of 'clearing house' will continue.

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Freedom of Information

During the years, there has been movement on FoI reform in several states and at the federal level.

Just before the federal election was called, the then federal Attorney-General referred the issue of FoI reform to the Australian Law Reform Commission. After the then Prime Minister John Howard indicated that a more open policy was likely to emerge during the election campaign, the Council's Chairman wrote an opinion piece for The Australian on this promise and the ALP's promised reforms. The article was published on Thursday October 25 under the heading, Secrecy impedes informed discourse. The in-coming government undertook to reform FoI law as one of its priorities. The ALRC has on the books a series of recommendations from 1996, which were not taken up by the Coalition government but which the Press Council suggested could be the basis for meaningful reform of the law. The election of the ALP government led to a postponement of the ALRC inquiry and, eventually, to a situation where such an inquiry is unlikely.

The new Premiers in Victoria and Queensland also undertook to review FoI law and practice in their states. The Queensland government also initiated an inquiry into reform of FoI legislation. It was headed by David Solomon, formerly the head of the Electoral and Administrative Reform Commission and a former contributing editor of The Courier-Mail. The Solomon inquiry sought input from the Council. Towards the end on 2007, the Northern Territory government announced a review of its FoI legislation. In Western Australia, the then ALP government replaced the independent FoI Commissioner with a former member of staff of the Cabinet Office. The Press Council expressed its concern with a possible impact on the Commissioner's ability to act as a reviewer of the actions of Ministers and officials who refuse to grant FoI requests.

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NT Review

In January 2008, the Council sent a submission to the Northern Territory Department of Justice, on its five-year review of the Information Act 2002. In the submission the Council noted that the media's attitude towards the Act after its first five years of operation is mixed: while the introduction of the legislation is seen as having been a positive step, there is a strong view that the access to government information is not as open as it should be and that reform is necessary if the Act is to fulfil its aim of making information available to the public and thereby promoting efficient and accountable government.

The primary concern expressed by news editors in relation to the operation of the Information Act is the process by which access to information is administered. Editors have emphasised that the period between the time when an application is lodged and when information is received is far too long. A further criticism which is often made by editors is that the fees charged for access to information are frequently prohibitive. When taken together, these two problems are usually sufficient to dissuade many media organisations from submitting FoI applications.

While the appointment of an Information Commissioner was applauded, the Council noted that the commissioner's published statistics do not distinguish between applications of a personal nature and those concerned with government accountability. In order to assess the degree to which FoI is effective in facilitating public scrutiny of government, it is important that statistics on applications be broken down according to the nature of the information sought and the category of the applicant. Such numbers would help ascertain the effectiveness of the Act.

In addition to the problems with the procedure for applying for access to information, the Council expressed a number of concerns with the Information Act itself. In particular, the Council is of the view that the exemptions are too broad and need to be narrowed. This includes the section that gives the government the ability to refuse access to documents which have been considered by an executive body or which have been created for that purpose or the purpose of briefing Ministers in relation to matters to be considered by an executive body. When contemplating why this material should be kept secret, it is difficult to avoid the conclusion that it is primarily to avoid embarrassment to Ministers or officials. Such embarrassment is not a persuasive reason, of itself, to justify secrecy.

A further section of the Act provides broad scope to withhold material from public scrutiny on the grounds that such material was brought into existence for the purpose of "deliberative processes". In the view of the Press Council, if a government is provided with advice or recommendations and chooses not to follow that advice, it is a legitimate expectation on the part of the public that it is entitled to see that advice and ask why the government chose to disregard it. In most instances a refusal to recognise the legitimacy of that entitlement amounts to a rejection of the principle of accountability in government. In particular, the subsections that refer to "mischievous interpretation of information", and "confusion and unnecessary debate" refect an attitude that is contemptuous of the public and of democracy.

The Council argued that, by default, all information should be available under FoI. Where officials seek to withhold information on the premise that it is part of a deliberative process, the onus should be on the officials to demonstrate why the information should not be released. The legislation should list narrowly and specifically the instances when the default rule should not apply. Such instances might include:

• that the information or advice was superseded by later, more accurate or detailed information or advice;
   
• that the advice was generated at a very early stage in the process, prior to the formulation of recommendations for Cabinet consideration;
   
• that the advice has been found to be unreliable or inaccurate;
   
• that the advice, if released, would present a risk to public safety or security.

To ensure that such discretionary decisions are made in the spirit of accountable government, the Council proposed that a clause be inserted into the legislation that makes it an offence to withhold a document in order to conceal incompetence, corruption, an untruth or a conflict of interest.

The Council also objected, in principle, to the use of conclusive certificates as a mechanism to by-pass processes for the review of decisions to refuse access to government information. It expressed the view that the availability of mechanism of conclusive certificates is antithetical to the principle of accountability in government and recommended that the relevant sections of the Act be repealed.

The full submission has been posted to the Council's website (http://www.presscouncil.org.au/pcsite/fop/fop_subs/ntinfo.html).

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Queensland review

In March 2008, the Council made a submission to the Independent Review of the Freedom of Information Act 1992 (Qld), the Executive Summary of which read:

Freedom of Information in Queensland is in need of significant revision. Amendment to Freedom of Information must address three main areas of concern:

1. The excessive delays in processing and reviewing applications must be dramatically reduced.
    
2. The exorbitant fees imposed upon applicants seeking non-personal information must be brought down to modest amounts.
    
3. The proportion of documents to which access is granted must be increased. In order to achieve this, the scope of exemptions must be narrowed; when making decisions as to whether or not to release material under FoI, officers must be required to take into account the public interest in disclosing information for the purpose of facilitating accountability. The default position set down in the legislation should be a requirement that information must be released unless it meets very limited conditions that define disclosure as being "not in the public interest".

In addition, the government should make freely accessible via the internet a wide range of material which facilitates public scrutiny of government policy and conduct.

The full submission has been posted to the Council's website at: http://www.presscouncil.org.au/pcsite/fop/fop_subs/foiqld.html

A detailed report to the Queensland government on FoI reform was published in late June. An article by FoI expert Moira Paterson on the Solomon report is to be published in August issue of the Press Council News.

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NSW review

Later the same month, the Council wrote to the NSW Ombudsman seeking from him a formal review of the NSW Freedom of Information Act 1989. The Executive Summary of that submission read:

The media have three areas of concern with regard to FoI:

• The excessive cost involved in pursuing Freedom of Information applications
   
• The lengthy delays often experienced in seeking material pursuant to Freedom of Information
   
• The high proportion of refusals of access to material under Freedom of Information.

In order to address these concerns, the Press Council seeks the following reforms:

• Elimination of Ministerial certificates
   
• Narrowing of the scope of exemptions
   
• Disclosure as default position unless there is overwhelming public interest in confidentiality
   
• Introduction of a clause making it a illegal to withhold information for improper purpose.
   
• Change in the Freedom of Information fee structure to charging for documents received rather than processing time.
   
• Refund of application fees where there is a lengthy delay.
   
• Improved access to material via the Internet.
   
• Publication of FoI statistics in collated form.

The full submission has been posted to the Council's website at: http://www.presscouncil.org.au/pcsite/fop/fop_subs/foinsw.html

The NSW Ombudsman has subsequently undertaken a formal review of NSW FoI law and practice.

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Federal review

In early May, the Council's Chairman, Professor Ken McKinnon, and Executive Secretary, Jack Herman, met with Senator John Faulkner to discuss with him his government's pre-election promises to introduce changes to the laws and culture of FoI. Those undertakings included the abolition of conclusive certificates; the post of federal Information Commissioner will be established; and the establishment of open and accountable government.

The Council endorsed those objectives and argued that to achieve open government, the following are necessary:

• The requirement for open and accountable government should be explicit in the legislation in sufficiently unequivocal terms in a main operative clause, expressing openness as the default position.
   
• The information provision default clause should require that documents are available for public scrutiny unless there is an over-riding public interest in their confidentiality
   
• Safeguards are desirable in the legislation to prevent back-sliding from the general access position.

After constructive discussions of the government's intention to introduce legislation to change FoI laws in line with the government's election commitments, the Senator agreed to meet with the Council and other interested bodies to discuss further changes to the law and culture of freedom of information at the federal level.

Subsequently, the Council's Chairman and Executive Secretary met in July with Senator Faulkner's staff, and a representative of the Department of Prime Minister and Cabinet, in Sydney, to discuss in detail proposed FoI changes. Those discussions were informed by the report to the Queensland government by David Solomon's Independent Review. The Chairman detailed actions the government could take administratively, similar to those taken by Attorney-General Janet Reno in the US in 1993, to change the culture of FoI within the public service, and outlined amendments to the legislation to achieve the Council's objective of making the law workable for journalists. Subsequent to the meeting Senator Faulkner announced that conclusive certificates were to be abolished and that he would consult on other proposed changes to FoI legislation with a view to introducing such changes in 2009.

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Western Australia

On November 5, the Council wrote to the WA Attorney-General, saying:

The Council has noted reports on proposed changes in WA regarding Freedom of Information and a proposed privacy law.

The Council is concerned that any such changes should not adversely impact on the ability of the press properly to report matters of public interest.

Implementation of the proposal to bypass the office of Information Commissioner and refer FoI appeals to a tribunal would be a backward step. Independent Information Commissioners are the best protection for the integrity of the FoI process. A Queensland Legislative Committee reached a similar conclusion a few years ago, recommending the establishment of such a position in that state and the ALRC in 1996 also recommended such a position. Moreover, your federal Labor colleagues, should they win government, have pledged to go in that direction.

In the light of the experience of journalists who have sought to use freedom of information laws to access material on matters of public concern, it is essential that the office of Information Commissioner be kept completely independent of the executive and of the public service. This is axiomatic, since it is the commissioner's role to act as the body that oversees the compliance of Ministers and officials with the FoI regime. The sidelining of the independent commissioner and her replacement, even in an acting capacity, by an official with strong links to the bureaucracy does not make it look like the WA government is taking freedom of information seriously. John Lightowers was one of the representatives of the WA government at the Press Council hearing of the complaint brought by the Department of Premier and Cabinet against The West Australian. There has to be doubts about his independence, given his role in that matter.

On the question of the putative Privacy Bill the Council would seek to consult with you on its contents. The press is currently exempt from the ambit of the federal Privacy Act when engaged in journalism, provided there is a public commitment to a set of privacy standards, such as those administered by the Press Council. There may need to be an analogous provision in the WA legislation to ensure that it will not be in conflict with the federal Act, and there also needs to be a strong public interest defence ensuring that privacy legislation is not used as a way of stopping the press reporting on legitimate matters of public concern.

In view of your excellent record of leadership in legal reform, the Council has been looking to you to lead your interstate and federal colleagues in strengthening Freedom of Information law and practice. That can only happen if the present proposals are replaced by actions similar to recently announced as federal Labor Party policy. The Executive Secretary of the Council, Jack Herman, can be made available for any desired assistance.

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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. In 2006, Victoria passed into law the Charter of Human Rights and Responsibilities Bill. There has still 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. Neither party made a commitment to a Bill of Rights.

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Defamation

The Council kept an eye on developments in this area. The first cases before the courts under the revised and harmonised defamation laws have been finalised. Judy Davis won her case against Nationwide News and was awarded substantial damages. Mercedes Corby won a case against Today Tonight, which settled before the hearing on damages. In Brett Holmes v Andrew Fraser, damages were awarded against a state MP in a NSW case heard before a judge alone. Generally, the harmonised laws appear to be working well.

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see also
Index on defamation material

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 were judicial, legal and political activity in the area of privacy, apparently moving towards the development of such an action. Three separate Law Reform Commissions (Australia, NSW and Victoria) are conducting inquiries into aspects of privacy and two have suggested that they have a recommendation for a cause of action for breach of privacy.

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ALRC inquiry

In December 2007, the Council has responded to the Australian Law Reform Commission's Discussion Paper 72, Review of Australian Privacy Law. The Executive Summary of the submission read:

The Australian Press Council urges the Australian Law Reform Commission to recommend the introduction of a statutory protection for freedom of speech in order to ensure that increases in privacy protection do not erode freedom of speech in Australia.

The Press Council regards a statutory cause of action for breach of privacy as unnecessary and, in the absence of a guarantee of free speech, a potential threat to the freedom of the press to report, and comment, on matters of public interest and concern. If, despite the undesirability of so doing, a recommendation for introducing a statutory cause of action is included in the final ALRC report the Press Council urges explicit recognition that the proposed scope of the cause of action be precise and limited, and that the proposed defences appropriately expanded. The discussion paper proposed undesirable scope for judicial activism and personal opinion.

The Press Council emphasises the importance of the media exemption in the Privacy Act in ensuring the freedom of the Australian media to perform their role of keeping the public informed on matters of public interest and concern. For this reason, there should be no narrowing of the exemption. Additionally, the Press Council argues that a definition of journalism in the Act is unnecessary and the definition proposed is so narrow as to exclude a good deal of modern journalistic activity.

The full submission has been posted to the Council's website (http://www.presscouncil.org.au/pcsite/fop/fop_subs/alrc_dp72.html).

A major section of the submission deals with the commission's attempts to define "journalism" within the Act. The commission notes in its paper that the Act should continue to exempt from its remit media organisations that publicly subscribe to a set of privacy standards when acting in the course of journalism. It then seeks severely to curtail that exemption by trying to define 'journalism' to fit its own preconceptions of what journalism is, or should be.

The commission's final report, Australian Privacy Law and Practice, dated May 2008, was released in August 2008, and will be discussed in next year's report.

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NSW LRC inquiry

In September 2007, the Council responded to the New South Wales Law Reform Commission's Consultation Paper, Invasion of Privacy, with a detailed submission.

The Executive Summary of the submission read:

The NSW Law Reform Commission has been asked to look at three particular matters in respect to privacy. Its consultation paper concentrates on one of those matters, the question of a putative statutory cause of action in privacy, while largely neglecting the other two matters:

• the question of national consistency in any privacy regime; and
   
• how best to harmonise the existing privacy regime in NSW.

The Australian Press Council's response to the consultation paper argues that there is no persuasive case for a statutory cause of action, and suggests that the question can only be properly addressed within the context of the other two specific terms of reference.

The full submission is available on the Council's website (http://www.presscouncil.org.au/pcsite/fop/fop_subs/nsw_priv_07.html)

In July 2008, the commission released its Consultation Paper 3 (2008) - Privacy legislation in New South Wales, which will be discussed in next year's report.

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Guardianship

In last year's report, there was reference to a submission to the Queensland Law Reform Commission on guardianship issues. The commission recommended changes to the way in which matters before the Guardianship Tribunal will be handled. In line with the Council's submission, it has recommended opening up the process more to public scrutiny. The Council was of the view that, if the government followed through on these recommendations, there should be action to see that other Queensland tribunals were also opened up.

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WA proposal

In its November 5 letter, above under Freedom of Information, the Council also sought to consult with the government on any putative privacy legislation.

see also
Index on privacy material on the website

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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 their confidential sources.

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Crime and Corruption Commission

The Council discussed the activities the WA CCC, which has been conducting secret hearings in which journalists are being interrogated with the aim of identifying the sources of leaks. It was noted that journalists subject to these hearings are threatened with prosecution and hefty fines if they disclose to anybody (including their employer) the fact of their interrogation. As a result of these discussions it was agreed that an opinion piece should be submitted over the name of the Chairman for publication in The West Australian. That article was published on 15 December 2007, under the headline, CCC must end Star Chamber tactics.

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Raid on Sunday Times

In May 2008, the Council wrote to the WA Premier Alan Carpenter to express its condemnation of the police raid on the offices on of The Sunday Times.

The Council wrote to federal Attorney-General, Philip Ruddock, on 28 March 2007:

The Council holds the view that searches and seizures of material held by journalists is only justified in extreme circumstances:

• where there is probable cause to believe the journalist has committed the criminal offence (and not merely a breach of "official secrecy" provisions) to which the materials relate;
   
• where there is reason to believe immediate seizure is necessary to prevent the death of, or serious bodily injury to, a human being; or
   
• where the search or seizure relates only to documents pertaining to a serious crime, but not to the journalist's own notes and other "work product materials", and the journalist refuses to produce documents under a court order or there is reason to believe they will be destroyed or hidden if a subpoena is issued.

The raid on The Sunday Times to seek material related to a story published in February - a story that may have embarrassed a senior Minister of the government but was otherwise unrelated to any serious breach of the law - does not meet any of these criteria. In fact, it would appear that the only justification for the raid was a clumsy attempt to try and identify the person who may have leaked the story to The Sunday Times journalist. As a former journalist the Premier should have been well aware of the importance of leaked material in exposing crime, corruption and incompetence in both the public sector and the private sector. Heavy-handed attempts by governments, and their operatives, to seek to identify and intimidate whistle-blowers say much about the government making such an attempt.

In any case, it would seem very late in the piece for such a raid to take place, many months after the initial story was written. While the use of such intimidatory force may appeal to some elements in the government, or in the bureaucracy, a raid at the end of April concerning an article written in February seems more Keystone Kops than CSI.

The Council is aware that, under the previous federal government, the AFP spent $2 million and over 2,100 man-hours in a five-year period trying to track down public interest whistle-blowers in the federal public service. Is a state ALP government going to copy their example?

The use of first the CCC and now the police Fraud Squad in attempts to stifle whistle-blowers does not contribute towards the free and responsible discussion of matters of public interest and concern in the press. The WA government has in the recent past sought the assistance of the Council in ensuring that reporting about the government is responsible. The Council now seeks the government's assistance in seeking to ensure that the press in Western Australia is free from unnecessary intimidation in its attempts freely to report matters of public concern.

see also
Index on protection of sources material

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Public-interest Whistleblowing

There are separate inquiries in the Australian and NSW jurisdictions on changes to whistleblower legislation. The Council agreed that it should make submissions seeking protection for whistleblowers to make disclosures to the media. Policy Officer Inez Ryan was commissioned by the Gazette of Law and Journalism to write an article on the inquiries and the options for change. That article was subsequently posted to the Gazette's website. In August 2008, the Council submissions to the Australian House of Representatives Standing Committee on Legal and Constitutional Affairs and to the NSW Parliamentary Committee on the Independent Commission Against Corruption on their separate references. These will be reported in next year's report.

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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. Nonetheless, the Council continues to note the use of suppression orders by judges in most jurisdictions. News Limited now has nearly 1000 separate matters on its database of suppression orders

In mid-2007, 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 was investigating the possibility of a national register of suppression orders, something very close to the Council's original proposal to the chief justices. It asked for information on the following:

1. Is there a problem in the media of inadvertent non-compliance with suppression orders due to lack of knowledge about their existence and duration?
    
2. Does the Press Council have any views on the establishment of a national register of suppression orders to aid compliance?

In response the Council wrote, in early September:

Thank you for the email. There has been a problem with the inadvertent publication of suppressed material, particularly in interstate newspapers that may sell a few copies in the jurisdiction in which the suppression order was issued. One real problem is that there is no uniformity in the way in which suppression orders are issued in the various jurisdictions, and no uniformity in the way in which cancellation or variation of suppression orders are notified.

The Council's view has been that the best system would be the development of a uniform national system, so that each state and territory Supreme Court, and the Federal Court, would be responsible for ensuring that all suppression orders from the various levels of courts and tribunals in its jurisdiction were made known to the media. A national register is a possible method by which this might be achieved.

The News Limited national database of suppression orders now contains 887 extant orders (many of which may have been withdrawn without adequate notification) of which 221 have been added since 1 January 2007. The database relies on (1) the local News Limited staff member being made aware of the order - this works best in Victoria and NSW where court liaison officers fax or email new orders to those journalists registered to receive them - and (2) the local News Limited staff member notifying the head office database manager of the order. So there continue to be a large number of suppression orders issued and this continues to be a problem for media operating outside the jurisdiction on which they are issued.

...

In the Council's view a password-moderated website, either national or drawing together the input from each jurisdiction, summarising the extant orders, notifying variations to orders, and updating information when orders are withdrawn, would be the best way of ensuring media compliance with suppression orders.

The Council also forwarded its considered view on suppression orders and copies of draft templates for the notification of orders in any uniform scheme.

The department has at the time of writing this report made no recommendation public.

see also
Index on courts and contempt material

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Access to courts and court documents

Naming and shaming

In December 2007, the Council has made a submission to the NSW Legislative Council Standing Committee Law and Justice Inquiry into the prohibition on the publication of names of children involved in criminal proceedings. The Executive Summary of the submission read:

The Australian Press Council is of the view that legislation that prohibits the publication of the names of minors involved in criminal proceedings should be revised. The revised legislation should distinguish between children, being minors under the age of sixteen, and young adults, being aged between sixteen and eighteen years of age. Where the relevant individual is sixteen or over, there should be a presumption in favour of publication. In such instances the party seeking orders prohibiting publication would bear the onus of persuading the court that suppression would be in the public interest. Where the relevant individual is fifteen or under, there should be a presumption in favour of confidentiality, whereby the party seeking publication or disclosure should bear the onus of establishing the public interest in doing so. The Press Council's submission is that there should be a presumption in favour of naming people over the age of 16 who have been convicted of offences, and that restrictions on naming children as witnesses can be removed in some circumstances.

The full submission has been posted to the Council's website (http://www.presscouncil.org.au/pcsite/fop/fop_subs/minornames.html).

The Council's Executive Secretary, Jack Herman, appeared before the committee at a public hearing in late February to discuss the Council's submission.

Subsequently, the Council wrote to the NSW Attorney-General to express its concerns with the recommendations in the report of the Legislative Council Standing Committee on Law and Justice: The prohibition on publication of names of children involved in criminal proceedings.

In the Council's view many of the recommendations, particularly recommendations one and four, are unlikely to improve the situation and may make it worse. It therefore suggests that the government take no action to implement either recommendation one or recommendation four.

Additionally the Council is concerned that no recommendation has been made to ameliorate the negative impact on reporting of matters of public interest and concern of the 2004 and 2007 amendments to the Children (Criminal Proceedings) Act. In the Council's view, the government should immediately amend the Act to return it to the position that existed before the 2004 and 2007 amendments.

The Press Council has no major concerns with the philosophy underlying the committee's report. It agrees that there is a greater impact on juvenile offenders who are named as a result of their involvement in criminal proceedings and that the current regime of restricting such information unless a judicial officer specifically releases it is a reasonable one. Indeed, before the 2004 amendments were introduced to the Act, the press expressed no reservations about the operations of the provisions restricting the naming of juvenile offenders.

It is the 2004 amendments, and the 2007 changes to them, that have caused difficulties, and this is a problem not addressed adequately by the committee in its report. The 2004 amendments effectively prohibit the identification of deceased child victims in order to minimise the trauma to the family of the deceased, especially surviving child siblings. Problems with the amendments, which were passed without adequate consultation with the media, led to the 2007 changes. These allow for the senior available next of kin (SANoK) to give permission for the deceased child to be named.

The media submissions, in writing and orally, to the committee pointed out some of the anomalies in these changes. For instance, until a charge is laid, the press can report matters, including the name of the deceased child. A number of these cases have involved matters of significant public policy, especially related to the performance of the Department of Community Services. The effect of the amendments is that the press can report these matters, with names, up to the time that charges are made, and then has to cease reporting them, unless permission is obtained from the SANoK. The press is far less likely to report when no names can be used. Reports that omit names are likely to have less impact. Thus, matters of public interest and concern are kept away from the arena of public debate, to the detriment of proper public scrutiny.

But the anomalies inherent in the 2004 and 2007 amendments go further. The ostensible reason for non-publication of the names of deceased children is protection of their surviving siblings. No such consideration is given when the victim (or alleged perpetrator) is an adult, yet the impact on surviving siblings or children is just as great. No consideration is given in the Act for those deceased children who have no surviving siblings. In such cases, what is the public policy benefit in maintaining the prohibition? In cases where names are used before a charge is laid, for example, in a police announcement of the identity of a person they are seeking to assist them with their inquiries, the public may never be made aware of the fact that someone has been apprehended and charged because of the effect of the 2004 amendments.

The SANoK mechanism does not address the concerns with the 2004 amendments, and creates some problems of its own. In cases where one or both of the parents of the deceased child is charged with the crime, or is already incarcerated, there may be no SANoK available, so the prohibition favours only the person charged with the crime, surely a contradiction of the rationale for the openness of the adult courts. In cases where there may be a SANoK who may not be a member of the immediate nuclear family of the deceased child, attempts by the media to discover the identity of such a person, and to seek their permission as per the Act, may involve a greater invasion into the privacy of grief than would have occurred if the prohibition did not exist.

The committee may have considered these anomalies but its recommendations indicate that it did not fully understand them. When it was pointed out to the committee that NSW is out of step not only with comparable overseas justice systems, and with every other state and territory jurisdiction in Australia, the committee's response was not to consider that NSW might have got it wrong, but to assert that NSW alone has got it right. The committee recommends that the government seek to bring all the other states and territories into line with NSW, rather than bring NSW in line with the rest. An example of the sort of reporting that would be prohibited in NSW is in The Australian of 14 May. In the notorious case of a toddler dumped in a South Australian mineshaft, allegedly by his father, a matter that reflects on a significant public policy area, the application of mental health orders, the newspaper was able to report the father's court appearance without the necessity of invading the privacy of the toddler's mother in order to do so.

The committee's other response to the anomalies created by the fact that matters of public interest may be reported prior to charges being laid, and then suddenly not, if no SANoK can be found to give permission, is to suggest that the prohibition be extended backwards to a time before charges are laid. Under the committee's proposals the media will be asked to apply a test of 'reasonable likelihood'. If it is reasonably likely that a charge will be laid, then reporting of the name of the alleged offender (or of a deceased child) should not be used. There might be some arguments to support the idea with respect to the naming of those arrested but not yet charged, but thought needs to be given to the impact such an extended prohibition would have on the investigation of the case, in particular with the publication of material released by the police aimed at seeking public assistance in finding a possible offender.

In cases where the matter involves the naming of deceased children, rather than the naming of a possible juvenile offender, the argument is even less persuasive. In cases involving significant public policy questions, including those involving the Department of Community Services, the prohibition on the use of names where there is a reasonable likelihood of charges being laid at some future point would impede the investigation of the matter and would impede public debate on matters of clear public interest.

One final issue that the committee does not adequately address: the timing of any proceedings to seek the exercise of the judicial discretion to release the names of juvenile offenders. At the present time, the Act provides that such discretion can only be made at the time of sentencing. The application by Herald Publications for the naming of the K brothers, none of whom can be named because two of them were juveniles at the time of their crimes, indicates the problem. In this matter there was a series of related trials. Some of the brothers were sentenced in adult courts and others in children's courts. By the time all the actions had been finalised, and the Herald sought the exercise of the judicial discretion, so that both the adult and juvenile offenders could be named, it was ruled to be too late because it was no longer at the time of sentencing. In many of the cases involving serious crimes where the release of names might be thought appropriate, there will be a similar complexity of matters to be considered by the judiciary. Some thought might be given to an amendment that would allow for an application for the exercise of the judicial discretion at a time when all matters have been completed.

An example of a UK case, where the release of the name of the deceased, comments by her family and the identification of the juvenile accused were important aspects of a story about an obvious matter of public interest, juvenile binge dinking and concomitant violence, can be found at http://www.dailymail.co.uk/news/article-547708/The-haunting-picture-Sophie-Lancaster-beaten-death-Goth.html. In this case the release of names was at the time of conviction, not sentencing, and it is a case that may not have been reported in NSW, to the detriment of the public interest, particularly had the victim herself been a juvenile.

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Access to court documents

The Council considered developments in the UK in the relationship between the media and the courts and looked to use the UK example as a model for lobbying the government and the judiciary for greater court access in Australia.

Editor member Gary Evans corresponded with UK lawyer John Battle, on the recent changes in the UK courts. Journalist member Prue Innes contacted court officials in the UK to get their input on the impact of the changes. Those members, together with Executive Secretary, Jack Herman, put together a proposal for the Council, which resulted in a letter to the Directors of Public Prosecutions in the various Australian jurisdictions, urging the adoption of a protocol based on the UK practice aiming to facilitate media access to material tendered in open court. The letter followed changes in the NSW court procedures on access to documents, which has freed up access somewhat in that state. The letter read:

Largely as a result of the efforts of the UK Crown Prosecution Service, a Protocol has been introduced into the courts of England and Wales that has greatly benefited the fair and accurate reporting of court proceeding and made courts more open to the public through media exposure.

The Crown Prosecution Service introduced the Protocol after consultation with the police and with a panel of media representatives.

On behalf of the Australian Press Council, the self-regulatory body of the Australian print media, comprised of representatives of publishers, journalists and the public, I bring this Protocol to your attention. It is an essential aspect of the Council's remit to make representations that would ensure the traditional freedom of the press to report fairly and responsibly on matters of public interest and concern.

In the light of this, the Council is seeking the cooperation of federal, state and territory DPPs to have a similar Protocol introduced, on a uniform basis across all jurisdictions, into the Australian court processes.

The general underlining principle as outlined in the Protocol adopted in 2005 is that if material has been shown in court it should be available for broadcast and publication to the general public as quickly as practicable, usually the same day on which it is adduced in court.

There are two categories of material -

What normally will be disclosed:

• Police videos of the crime scene or property seized, transcripts of interviews read out in court, videos or photographs showing reconstruction of the crime and CCTV footage of the defendant.

What may be disclosed:

• CCTV footage or photographs of the defendant and victim or the victim alone may be released after consultation with victims and witnesses. Crown prosecutors will consult witnesses and victims before disclosure of sensitive footage.

Under the operation of this Protocol, in most courts, material is now released on the day it is shown in court, if requested.

There are appeal procedures in place that involve a reference to the Crown Prosecutor's Head of Strategic Communications for determination on the release of contested material.

While the Protocol seems to advantage television news, many non-video exhibits are presented in court that would be of use to newspapers. Video would also be available to on-line sites of media organisations, whether they are primarily print of electronic media.

In the UK the Protocol has led to greater coverage of the courts, and is seen to have made court reports more accurate and comprehensive. On television and on-line, news reports are visually led. The most welcome attribute has been that greater accuracy is obtained in reporting, as journalists do not have to rely on muffled recordings that are played in court. They are given transcripts of what is said.

The Council is aware of the attitude of openness to court reporting espoused by Prosecutors in Australian jurisdictions and would welcome the opportunity to discuss the introduction of a model similar to that operating in England and Wales here in Australia.

A complementary approach, raised at the Standing Committee of Attorneys-General in July, and reflected in the Report on Access to Court Information issued by the NSW Attorney-General's Department, is to create a public (and media) right of access to court documents in both civil and criminal proceedings. Briefly summarised, this would include transcript of evidence in open court proceedings, statements and affidavits admitted into evidence, and police fact sheets. There would also be a category of restricted access including matters that had been struck out, medical and psychiatric reports, and information the subject of a non-publication or suppression order. The Press Council also welcomes this proposal as creating clarity and consistency, and removing barriers that now exist as a result of the exercise of arbitrary discretion when the media must seek permission for access.

The Council would welcome the opportunity for preliminary discussions with you or your representative about how a system similar to that operating in Britain might be introduced across Australian jurisdictions. These discussions could initially be of a preliminary nature, bearing in mind the various attitudes that might pertain to individual administrations.

Perhaps you could suggest a suitable person to liaise with so that talks could commence to achieve our mutual goal of more open, fair and free reporting of court proceedings.

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Commissioner Keelty speaks out

A speech given by Federal Police Commissioner, Mick Keelty, to the Sydney Institute argued there should be a blackout on reporting of trials involving terrorism suspects "until the full gamut of judicial processes has been exhausted". In part, his argument was based on a misinterpretation of the current state of the law on reporting trials in the UK, as he argued that there was a ban on such reporting. The Council again asked its Chairman to write an op/ed piece commenting on Commissioner Keelty's views with respect to the role of the media in reporting courts in terrorism matters. This article was published in The Australian of 2-3 February under the headline, No Need to Muzzle Media.

Professor McKinnon said in part:

Our freedoms must not be destroyed in the name of defending freedom. We have open courts so that citizens may be assured by attendance or media reports that their freedoms are being preserved. Only in the most extreme circumstances should courts be closed. The public interest is the standard by which matters investigated and reported by the media should be judged. Delaying the reporting of terrorism trials as a matter of course would be entirely against the public interest.

The ... Commissioner's assertion that in the UK a media blackout on the reporting of such proceedings from the time a person is charged with the crime until "after the case is disposed of, abandoned, discontinued or withdrawn" would surprise the judicial officers, lawyers, defendants and press who were present at the trial of those accused of the bombings in London on 21 July 2005.

The trial was widely covered in the media and the daily reporting of the trial from a summary of week one posted on Friday 19 January 2007 through the verdict on 9 July 2007 can still be accessed on the BBC website.

see also
Index on courts and contempt material on the website

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Contempt by Publication

In a case in Western Australia, Paul Armstrong, the editor of The West Australian, had been charged with contempt after the publication of a letter to the editor. He was exonerated and judgment now stands as an incontrovertible declaration of the right of the press to publish material critical of judicial processes and, moreover, of the public benefit in the exercise of that right.

The letter appeared in The West Australian on 11 December 2006, while the relevant trial was in its closing stages. On the same day the trial judge discharged the jury on the grounds that the letter had caused such a significant degree of prejudice to the accused that the prejudice could not be cured by any directions to the jury.

In finding that The West Australian's publication of the letter had not prejudiced the administration of justice, WA Chief Justice Wayne Martin made a definitive statement of the importance of the public right to criticise judicial processes:

The efficient administration of justice depends heavily upon public confidence in the fairness and integrity of the processes employed. Public confidence in the integrity of the judicial process requires that conduct which, as a matter of practical reality, has a real or clear and definite tendency to cause jurors to take extraneous matters into account when considering their verdict, be constrained and where necessary, punished. However, public confidence in the administration of justice also depends upon the freedom of the printed and electronic media to provide the public with full and complete information as to legal proceedings. It also depends upon full and open public debate about events which occur in the courts. Subject to the limited constraint imposed by the law of contempt to which I have referred, every member of our society must be free to express his or her view in relation to the adequacy and propriety of the systems and processes used in the administration of justice. It is the function of the courts to protect the freedom of that debate, irrespective of the stridency of the criticisms that may be directed to the courts in its course. Public confidence in the courts and in the administration of justice requires nothing less.

Justices Wheeler and Miller joined with Martin in dismissing the motion for contempt on the basis that the jurors would have been capable of reading the letter without being consequently prejudiced against the accused. However, Miller JA expressed a degree of caution, commenting that it was 'unwise' to publish the letter during the final days of the trial, the publisher having been aware that the letter related to a trial in progress at the time of publication.

However, this view was rejected by the Chief Justice who responded with an unequivocal expression of support for the press's right to publish without interference from the judiciary:

Reporting of, and commentary upon, legal proceedings serves a vital public interest, by providing information to the public about what is occurring in our courts. Such publications should only be constrained when it is established, beyond reasonable doubt, that they have the proscribed effect upon the administration of justice to which I have referred. That is why, with respect, I do not share the view expressed by Miller JA that it is highly undesirable for a newspaper to publish letters to the editor which contain material relating to a criminal trial which is being conducted at the same time. In my respectful opinion, it is no part of this Court's function to advise editors of newspapers what is desirable or wise.

The press, notwithstanding these comments, will always have a moral responsibility to be mindful of the impact of published material on the course of legal proceedings. However, Chief Justice Martin's judgment, in particular, stands as a significant recognition of the validity of the media's role in scrutinising the legal system and of the right of the media to publish material critical of the judiciary.

see also
Index on courts and contempt material on the website

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Sports accreditation

As a part of the News Media Coalition, the Council took part in representations to the organisers of the 2007 Rugby world cup and to Cricket Australia about accreditation for journalists to the Australia/Sri Lanka Cricket test series. The coalition was also dealing more generally with various sporting bodies on the question of issues relating to rights to reproduce sports images. These negotiations are on-going.

In Australia, a particular issue arose from the decision o the Australian Football League not to accredit photographers from Australian Associated Press.

In 2007 the Australian Press Council had correspondence with the AFL over its media policy. The Council expressed concern at the accreditation policy employed by the AFL that saw it exclude photographers from overseas news agencies from its list of accredited journalists. In response to the Council's concerns with what looked like an attempt by the AFL to commercialise the reporting of news, the AFL said, inter alia:

To assist rural newspapers who do not have the resources to provide their own photojournalists, the AFL accredits 12 AAP photographers. The photos provided by AAP are free of charge to rural newspapers, provided they are used for editorial purposes and are not for resale.

In April 2008, the Council wrote again to the AFL expressing surprise that, this year, it has decided not to accredit AAP photographers. In the light of the league's decision also to accredit photo-journalists from other publishers only on the basis of a continuance of their current arrangements for syndication of images, thereby not allowing for the supply of images to rural and regional publishers that previously relied on AAP, what conclusion can the Press Council come to other than that the AFL is seeking to commercialise the reporting of the game by making the publications that previously relied on AAP use AFL Photos for any pictorial coverage of the game.

Major sporting events are undoubtedly legitimate news. Actions by sporting bodies that threaten the ability of the press freely to report news are inimical to the standards of press freedom to which Australian society subscribes.

Last year the AFL justified the exclusion of overseas agencies by referring to the accreditation of AAP. This year it has disaccredited AAP. The Council asks, is there any reason to believe that the AFL will not go further in its attempts to control the legitimate reporting of public events? Which journalists or photojournalists will it next exclude?

The Press Council is seeking the advice of the AFL as to whether there is any good reason for the exclusion of AAP photographers, and thus for the deprivation of its rural and regional clients of an independent source for news images from AFL games.

In early June, Dr Colin McLeod, the General Manager, Marketing, Communications & Public Affairs of the AFL responded to the Council, arguing that "the AFL offered to accredit AAP photographers on identical terms to previous years, including the provision of photos to rural newspapers on a free of charge basis. However, AAP chose not to accept accreditation on this basis. The AFL would have preferred that AAP continue the existing arrangements and to thereby ensure continuity of the supply of images to rural newspapers. However, the decision ultimately rests with AAP."

The Council passed this letter along to AAP for its advice. AAP immediately approached the AFL to take up the implied offer of accreditation in the AFL's letter. When this proved fruitless, AAP editor in chief Tony Gillies wrote to the AFL, noting that its letter to the Council, "contains a number of incorrect and misleading assertions about AAP's treatment ..." He added:

Firstly, the Letter states that the AFL offered to accredit AAP photographers "on identical terms to previous years, including the provision of photos to rural newspapers on a free of charge basis". This statement is incorrect.

... AAP was advised that the only way it could supply its subscribers ... with photographs of AFL matches was to purchase images that had been captured by the AFL (through GSP) for a fee. In implementing these arrangements, the AFL denied AAP the ability to undertake impartial photographic news coverage of AFL matches. ...

AAP photographers have been accredited with the AFL for news and photographic coverage since 2003 ... However this arrangement changed with the most recent terms and conditions of accreditation which did not include rights for AAP to capture images of AFL matches. In light of this, it is implausible to assert that the "AFL would have preferred that AAP continue the existing arrangements and to thereby ensure continuity of the supply of images to rural newspapers ". ... it is unfortunately entirely true to say that the AFL has "decided not to accredit AAP photographers" and that the AFL have "disaccredited AAP".

Even recently, AAP again approached the AFL on the basis of the representations contained in the Letter [to the Press Council] and requested that it be accredited on the basis of the conditions that have applied in previous years ... This request was again denied.

As the national news wire agency, AAP has a fundamental mandate to preserve and protect its editorial integrity. ... AAP was not granted the photographic accreditation that it sought and it was not able to accept the AFL's proposed "alternative" (namely that AAP use AFL images sourced from GSP) as that alternative runs entirely against the principle of freedom of the press.

The Council also wrote again to the AFL:

... The agency again sought to have its photographers accredited based on the offer implied in your 6 June letter. The AFL has again refused the agency accreditation.

The Council can draw no conclusion other than that the AFL is seeking to limit access of outside photographers to events that are clearly news events. It is seeking bit-by-bit to limit news coverage to those images available through its own affiliated photography outlet.

When the Council queried the disaccreditation of overseas news agency in 2007, it was assured that AAP would continue to be accredited, enabling the smaller and independent regional press to continue to have access to an independent source of news photographs. In 2008, the AFL apparently changes its mind about access of independent photographers. It seeks to limit those outlets to those images released by its own people, leading to a suspicion that it may censor news images in the interest of its own image or the interests of its sponsors. ...

The AFL leaves the Council no choice but to take up this issue as a serious threat to press freedom - the freedom of the press to inform the public on matters of interest and to report properly on news events without the intermediation of those seeking to 'manage' the news.

As the finals approached, AAP still has no accreditation for its photographers.

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International

Fiji

On 29 February 2008 the Council issued a press release (GPR 282) urging the interim government of Fiji to refrain from further damaging press freedom in Fiji. The Council condemned the expulsion of newspaper publisher Russell Hunter by the interim government and called on the government to reverse this decision. In doing so, it joined the Fiji Media Council, Reporters without Borders, Pacific Islands News Association, International Press Institute, PNG Media Council and many others in denouncing the government's actions.

In the Council's view, the deportation of Mr Hunter and his family from Fiji amounted to a disgraceful attempt to intimidate the media and bully anyone who criticises the government, or holds it accountable for its conduct.

Apart from being an appalling attack on freedom of speech, the deportation of Mr Hunter will achieve no political advantage for the Fijian government, as Mr Hunter has stated his intention to continue writing and publishing for The Fiji Sun from Australia.

This is not the first time that the interim government has penalised the media for its critical stance. If it is to develop a stable democracy in Fiji, with a press free to report on matters of public interest and concern, the government must permit Mr Hunter and his family to return immediately.

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Timor Leste

The Press Council has been invited by Kolkos (The Commission for Media Law) in Timor Leste to participate in a workshop aimed at collecting different perspectives on questions relating to the drafting of a media law in that emerging country. The workshop will take inputs from government, church and NGOs on topics such as freedom of expression, broadcasting law and press self-regulation. The Council's involvement follows a visit to Timor Leste by Gary Evans, an editor member of the Council. One particularly worrying development was the possibility of a move towards the incorporation of criminal defamation in any legislation. The Council sought AusAid assistance in getting delegates to Dili for the workshop.

Mr. Evans represented it, with AusAid assistance, at the workshop in Dili. The workshop was aimed at informing the process of developing Timor's media law and practice. Legislators there are considering proceeding with criminal defamation law and the licensing of journalists, advised by Portuguese representatives who were making such proposals. Gary Evans and the Press Council were suggesting a self-regulatory model might be more practical. Mr Evans' report noted, in part:

As a representative of the Press Council, I outlined the history of the organisation's foundation in 1976 and explained its operation in detail. Emphasis was put on the Council's role as an alternative dispute resolution body to the civil law action of defamation.

The process of handling complaints was explained and details of the operation of the Council as a "watchdog" on freedom of the press issues was outlined.

Despite opposition from journalists and media management present it was obvious that a recommendation that defamation be included in the penal code will be submitted to the government for consideration.

A representative of the United Nations, Dr Isabel Duarte, a lawyer from Portugal, was commissioned to attend the district workshops and to suggest general principles for media laws for presentation to the government. These suggestions have been prepared and included defamation in the penal code.

They also call for the licensing of journalists by a body administered by Parliament but not established as a statutory authority controlled by government. It would be composed of journalists and media representatives outside government but reporting to the Timor Leste Parliament. This body would include a disciplinary "watchdog" ...

At the conclusion of the workshop Kolkos president Ottelio Ote said is was an historic meeting attended by 70 journalists and media representative and the first such meeting in Timor Leste. Kolkos would now further consult following the general principles as outlined by Dr Duarte. Kolkos would talk more about licensing and defamation and would formalise a clear position on issues it wanted in the law. Concerning defamation within the penal code if the government did not wish to support Kolkos's position it may be that the organisation would consider other ways for journalists to be free to do their job the Kolkos president said.

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Indonesian amicus brief

The Press Council is a signatory to an amicus curiae petition submitted to the Supreme Court of Indonesia, seeking review of its decision in the case of H M Suharto v Time Inc Asia, et al. The case involves a defamation action brought against Time magazine by former President Suharto, which saw the court ordering Time to pay $US106 millions in damages. The ruling is seen as inimical to the push for press freedom in Indonesia. The Council agreed to become involved following discussions with the Indonesia Press Council representatives who visited Australia in May. In addition to the two Press Councils, other signatories to the petition include the Alliance of Independent Journalists, Article 19, Associated Press, CNN, the Campaign for Press and Broadcasting Freedom, the Committee to Protect Journalists, Dow Jones & Company, The Economist, The Financial Times, Human Rights Watch, Index on Censorship, International Bar Association Human Rights Institute, the International Federation of Journalists, the International Media Lawyers Association, The Jakarta Post, MediaWise Trust, National Union of Journalists, Newsweek, The New York Times, the Southeast Asian Press Alliance, SBS, Tempo Magazine, The Times and The Washington Post.

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