Report on Free Speech Issues 2008-2009

Introduction
Milestone
Government restrictions

Internet "clean feed"
Secrecy Law
School League Tables

Freedom of Information

Conclusive Certificates
Queensland FoI
Federal review
NSW review

Constitutional Law

Charter of Rights

Defamation
Privacy

NSW LRC inquiry
Surveillance, Victoria

Protection of confidential sources

Shield Laws
Queensland Crime and Misconduct Act
Western Australia

Public-interest Whistleblowing

Federal developments
NSW Inquiry

Judicial Suppression
Access to courts and documents

Access to courts
Courts need to lift their game
Naming and shaming

Contempt by Publication
Police Matters

Media relationship principles
Victorian Police fee for photos proposal
ANZPAA re ethnic descriptors

Sports accreditation
International

Fiji
Timor Leste

Australia has no constitutional protection for freedom of communication, although both the ACT and Victoria now 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.

Over the past decade there has been an apparent erosion of press freedom in Australia. Recent data suggest that the trend appears to have been halted in the past few years, if not ameliorated. According to Freedom House, in its 2009 report, Australia is now ranked 38th among the nations of the world in so far as press freedom is concerned (from 35 in 2008). Reporters sans Frontieres (in its 2008 list) ranks Australia in 28th place (staying in the same place as the previous year).

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 its 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, its 2007 Supplement and the 2008 State of the News Print Media in Australia, 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 2008-2009.

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Milestone

The newly opened Museum of Australian Democracy housed in Old Parliament House has selected the formation of the Press Council as one of its 400 milestones in Australian democracy. At the exhibit, you'll find our logo there right amongst votes for women and the Eureka Stockade, commemorating the Council's work in promotion of freedom of speech, particularly through the development of the Charter of Press Freedom.

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Government Restrictions

Internet "clean feed"

In December 2008, the Council wrote to Sen. Stephen Conroy, raising concerns it has with his proposal for mandatory internet filters. The Council is always concerned with the proposals that will allow unaccountable bureaucrats or secret processes to censor public access to knowledge. It is especially concerned with proposals that confer powers not subject to public scrutiny and challenge.

The current government proposal to impose mandatory internet filters has just such potential, including the possibility of extension to topics and areas that, unlike pedophilia, even if sensitive, ought not in a democratic society be censored in any way.

The present Classification system for literature already ventures too far in restricting the availability of print material. The Council would agree that, with exceptions like the banned books on euthanasia, it has not generally adversely impacted on the ability of the public to access information. With respect, that is not the point. The point is that it has been used in that way for euthanasia, and could be used again for any of a number of topics that should not be censored.

As far as the internet is concerned, the Council points out that an ACMA internet censoring system already exists. The secret blacklist of sites compiled by ACMA under its power through Schedule 5 of the Broadcasting Services Act already takes secret processes for web censorship too far.

The proposals being tested under the 'clean feed' proposal go even further down the path of providing for unnecessary and obnoxious censorship: with a strong potential for banning legitimate access to information of public interest.

Both the proposed 'opt-out' (rather than an 'opt-in') mandatory restriction on all households and the power given to any government-appointed agency to determine a further, and even more restrictive, blacklist of banned sites are inappropriate. As with the current ACMA powers, there does not appear to be any way in which the justifications for banning decisions by such a body can be known, be made open to public scrutiny or review prior to implementation, or subject to subsequent recourse to the courts. The existing and proposed powers are too great for the bodies involved. The processes allow unfettered censorship.

Whereas the ACMA list is limited largely to sites that exploit children or foster pedophilia, the potential 'clean feed' list could go into very many more areas. The temptation for governments to ban sites as a means of appeasing 'family' parties that may want to limit access to information on assisted suicide, or independents who have an aversion to on-line gambling, or as a means of preventing access by interest groups to information about left-wing or right-wing ideas is obvious. History has again and again shown such temptations are often irresistible.

Most importantly, any such mandatory filtering would inevitably be a hit-and-miss proposition. Filters are not that good. There is a strong likelihood that innocent (or academic) sites will be unintentionally barred, while genuinely offensive material won't be stopped. In any case, such material can and will pass on a person-to-person basis, outside the ambit of the mandatory filter.

None of the above even addresses the fairly conclusive view of experts that all operations via the internet will be slowed dramatically by the operations of the mandatory filter, to the detriment of those seeking to stream audio or video content, or to engage in e-commerce. Does the government really want to make the internet unusable?

The Council would not oppose the persuasive arguments for an opt-in system, where families with children will be able to restrict the availability of a suite of sites with unacceptable content. But the proposal to impose an opt-out system, coupled with a secret blacklist of banned sites, takes what could be a good idea into the realm of dangerous censorship, with strong potential to limit access to important information.

The Press Council urged Sen. Conroy not to proceed with the proposal in its present form.

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Secrecy Law

In February 2009, the Press Council made a submission to the Australian Law Reform Commission in response to Issues Paper 34, Review of Secrecy Laws. The Executive Summary read:

• Any legislative provisions permitting or requiring information to be kept secret should be narrowly drafted so as to reduce the potential for material to be inappropriately classed as secret.
   
• Information should not be classed as secret unless its disclosure would be highly likely to result in significant harm to the public interest.
   
• Any legislative provisions permitting or requiring information to be kept secret should make it clear that open access is the default - access should not be denied unless confidentiality is absolutely necessary to protect some aspect of the public interest.
   
• Any legislation permitting or requiring information to be kept secret should include a preamble or objects clause that emphasises the importance of open government.
   
• Any legislation permitting or requiring information to be kept secret should include a provision making it an offence to class information as secret for an improper purpose.
   
• Mere embarrassment to the government, or to a public official, is not a proper purpose for denying access to information.
   
• It should be defined as improper to withhold information in order to hide maladministration - including corruption, dishonesty, incompetence, negligence, inefficiency, extravagance or waste, inaction, delay and unfairness.
   
• Legislation establishing criminal offences for unauthorised disclosure must be complemented by legislation that provides adequate protection for whistleblowers. To be adequate, such legislation must permit for the making of public interest disclosures to the media.
   
• Adequate protection for whistleblowers includes legislation protecting journalists from being forced to reveal confidential sources.
   
• Legislation establishing offences for making unauthorised disclosures must include adequate exemptions and defences. Such exemptions and defences should include provision for the making of public interest disclosures to the media.
   
• Where penalties are imposed for making unauthorised disclosures, they should be proportionate to the offence. It is not appropriate to impose criminal convictions where the information disclosed is merely trivial, where the offender had no malice and gained no benefit, or where there was no harm to the public interest or to any individual.
   
• The Protective Security Manual should be declassified and made publicly available.

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

The commission has subsequently published Discussion Paper 74 in June 2009, to which the Council will respond in 2009-2010. The Discussion Paper noted that, in addition to common law offences, the commission had identified 507 secrecy provisions in 175 pieces of primary and subordinate federal legislation, including 358 distinct secrecy offences carrying a wide variety of criminal penalties.

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School League Tables

Following the adoption of amendments to the NSW Education Act, which made it an offence for newspapers to publish certain data related to the comparative performances of schools, the Council wrote to the NSW Opposition Leader and to the Leader of The Greens in the NSW Parliament.

In your public statements of the last week or so, you have suggested that the amendments you pushed through on the Education legislation were all about whether there should be school league tables but they aren't really. And that concerns the Australian Press Council (http://www.presscouncil.org.au).

The amendments you proposed and supported, together with the Legislative Council minor parties, do not stop the production of league tables nor their distribution through any number of media. What they do is single out newspapers and the print media for punishment for printing what other media can publish or broadcast.

The Press Council believes that the freedom of the press is the freedom of the people to be informed on matters of public interest and concern. The Council had concerns when the federal government refused to release details of the impact of bracket creep on income tax rates or the take up of the first home-owners scheme. The excuse given by the then Treasurer was that the public might misunderstand the information when presented by the media.

That also seems to be the rationale for the amendments you proposed and supported. But, it seems to the Council, to be code for: we don't trust the public to be able to properly use information.

It also seems to conflict with the guarantee of free expression in matters related to political concerns that the High Court ruled unanimously was implied by the Constitution.

By proposing and supporting amendments that do not in fact forbid the construction of "simplistic" league tables and allow for such tables to be posted to the internet, broadcast on radio and television, printed in non-commercial publications, or even posted on billboards outside schools, you have not achieved your stated aim of stopping such simplistic league tables.

By threatening newspapers with fines of up to $55,000, how is that anything other than a direct attack on the freedom of the press to report on matters of public interest and concern?

How can your party, which on other matters asserts a very liberal attitude to release of government information, support such a selective restriction on free speech?

The Press Council would urge you to support the withdrawal of the amendments and their replacement by legislation that actually achieves your stated aim, without unfairly targetting one section of the media, or the public's right to information.

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Freedom of Information

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

In a press release on November 26, 2008, the Australian Press Council congratulated the Rudd government on the Bill for reform of FoI law introduced into the Senate that day. In particular, the Press Council is pleased to see that the Bill abolishes the power of Ministers to issue conclusive certificates that forestall the release of information without the need to explain why.

The Bill fulfils in part the government's undertakings to amend the laws and practices related to the availability of information. Journalists have become reluctant to use Freedom of Information requests on matters of public concern because of the costs involved, delays in provision, and the large number of exemptions that allow governments to minimise the release of material.

The Council noted Sen. John Faulkner's statement that further changes to the law will be introduced early next year and it looks forward to consulting with the Minister on those changes.

The Council added: "While today's legislative reform is a positive step towards open and accountable government, laws alone cannot make government information freely available to the public. In order to achieve openness it is necessary to address the culture that predominates in government departments and which acts to obstruct the release of information even where laws require that it be accessible. The challenge for the government will be to see that the policy of openness embodied in today's legislation is fully implemented and that the officers who have responsibility for overseeing FoI decisions are truly committed to the philosophy of open government."

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Conclusive certificates

In December 2008, the Council sent a submission to the Australian Senate Finance and Public Administration Committee Inquiry into the Freedom of Information (Removal of Conclusive Certificates and Other Measures) Bill 2008. The Executive Summary read:

The Australian Press Council congratulates the government on taking action to address problems with the system of Freedom of Information in Australia. The abolition of conclusive certificates will make a positive contribution to the development of open and accountable government.

However, the Press Council is of the view that the Bill does not go far enough towards improving access to government information. The Press Council urges the government to engage in a complete overhaul of the system of Freedom of Information in Australia, with particular emphasis on the reformulation of exemptions.

With specific reference to the Freedom of Information (Removal of Conclusive Certificates and Other Measures) Bill 2008:

• Proposed subsection 7(2B): Wherever security issues are relevant to an freedom of information request, the decision-maker should be required to weigh the public interest in national security against the public interest in accountability and transparency, with specific regard to the documents being sought and the reason for which the application has been lodged, regardless of where the documents originated or by whom they are held.
   
• Proposed section 67: When exercising its power to stay the operation of an AAT decision granting access pending an appeal against that decision, a court should be required to apply a test similar to that which is applied to applications for injunctive relief, i.e. there must be reasonable prospect of the appeal succeeding in order for the stay to be imposed.

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

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Queensland review

On March 30, it made a submission to the Queensland government in response to the draft Right to Information Bill and associated legislation, the Executive Summary of which read:

The Australian Press Council congratulates the government of Queensland on its proposed reforms to Freedom of Information.

The Press Council supports the introduction of proactive disclosure.

The Press Council supports the narrowing of the scope of exemptions, particularly the narrowing of the Cabinet exemption.

The Press Council objects to the inclusion of blanket exemptions of certain agencies from the legislation.

Section 64 should be removed from the draft Right to Information Bill and applicants should have the right to seek review of amounts cited in charges estimate notices.

The legislation should provide for reductions or exemptions of fees where it is in the public interest that information be disclosed.

The full submission has been posted to the website: http://www.presscouncil.org.au/pcsite/fop/fop_subs/qldfoi.html

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Federal FoI

On May 14, it made a submission to the Department of Prime Minister and Cabinet in response to the draft Freedom of Information Amendment (Reform) Bill and the draft Information Commissioner Bill 2009, the Executive Summary of which read:

The Australian Press Council endorses the proposed new objects clause to be inserted into the Freedom of Information Act 1982 and, in particular, the removal of any reference to exemptions from the objects clause.

The Australian Press Council supports the reduction of the length of restricted access for documents under the Archives Act, but is of the view that the periods of 30 years and 20 years respectively are still excessively long.

The Press Council endorses the principle that access to government information should be available to the public unless such access would be contrary to the public interest. However, the Press Council is of the view that this principle should apply to all government information rather than being restricted to specific classes of information.

The Press Council supports the notion that the exemption for Cabinet documents should be reformulated. However, the Press Council is of the view that the revised Cabinet exemption set down in the draft bill is still too restrictive. If there is no risk to the public interest from releasing material to the public, that material should be proactively published as soon as possible after the relevant meeting of Cabinet.

The "deliberative processes" exemption should be removed.

The "research" exemption should be removed.

The revised legislation should include a clause making it an offence to withhold information for an improper purpose.

The Press Council endorses the proposed insertion of a clause excluding certain factors from being taken into account in the application of the public interest test.

The Press Council endorses the inclusion of factors favouring disclosure into the amended legislation.

The Press Council endorses the proposed removal of initial application fees.

The Press Council endorses the proposed five hours of free decision-making time for requests by journalists.

The Press Council endorses the proposed appointment of an independent commissioner to oversee Freedom of Information.

The Press Council endorses the introduction of "proactive disclosure" mechanisms.

The Press Council endorses the proposal to extend Freedom of Information to contractors who provide services on behalf of the Commonwealth.

The full submission has been posted to the website: http://www.presscouncil.org.au/pcsite/fop/fop_subs/fedfoi.html

The Council's Chair and Executive Secretary visited Canberra on May 15 to speak to officers of the Department of Prime Minister and Cabinet on the proposed federal FoI legislation, adding further detail to the submission made.

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NSW FoI

On May 29, it made a submission to the NSW Department of Premier and Cabinet in response to the Open Government Information Bill 2009 and related legislation, the Executive Summary of which read:

The Australian Press Council believes that civil and political rights including, but not limited to, the freedom of expression, and of the press, should be protected preferably by Constitutional entrenchment. As the Consultation is precluded by its terms of reference from recommending constitutional entrenchment of rights, the Council would support the enactment of a statutory Bill or Charter of Rights that includes, but is not limited to, a protection of the freedom of expression and that its formulation be modeled on Article 19 of the International Covenant of Civil and Political Rights (ICCPR).

The full submission has been posted to the website: http://www.presscouncil.org.au/pcsite/fop/fop_subs/bor.html

The Executive Secretary, together with the Policy Officer, participated in a community roundtable organised by the National Human Rights Consultation to consider a possible charter of rights for Australia.

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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 Act. There has still been no equivalent action by other states or territories, nor by the federal government.

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NSW FoI

On May 29, it made a submission to the National Human Rights Consultation on the protection and promotion of human rights, the Executive Summary of which read:

The Australian Press Council endorses the Bills' general thrust and, in particular:

• the abolition of ministerial certificates;
   
• the legislative presumption in favour of disclosure (part 2 div 1 clause 5);
   
• the draft Bills' emphasis on public interest considerations, and on recognisable harm, rather than on categories of exemption;
   
• the appointment of an independent Information Commissioner;
   
• the revised objects clause;
   
• the exclusion of embarrassment as reason for refusal;
   
• the introduction of offences for knowingly breaching the legislation, for influencing a knowing breach, and for the concealing or destruction of records;
   
• the narrowing of the Cabinet exemption; and
   
• the extension of open government to include state-owned corporations within its remit.

However, the Council expresses its strong concern with the inclusion of a "conclusive presumption of over-riding public interest against disclosure" in respect of Cabinet documents and continues to have concerns with regard to the charging of a processing fee on an hourly basis.

The full submission has been posted to the website: http://www.presscouncil.org.au/pcsite/fop/fop_subs/nswfoi.html

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Defamation

The Council kept an eye on developments in this area.

see also
Index on defamation material

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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) have conducted inquiries into aspects of privacy and two have suggested a cause of action for breach of privacy. The Australian Law Reform Commission's May 2008 report, referred to in last year's report, makes such a recommendation. In response to that report, the government has said that the introduction of such a law will occur in the second phase of its response to the report.

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NSW LRC inquiry

The Australian Press Council Submission has made a submission to the NSW Law Reform Commission on its review of NSW privacy legislation.

The Council noted, and agreed with, proposal 3 of the consultation paper states that "New South Wales legislation should only apply to the handling of personal information by public sector agencies", and that privacy in private sector organisations should be regulated by the Commonwealth Privacy Act. As a result, any reforms to the legislation will not adversely impact the media.

The commission's consultation paper also called for uniformity of legislation across Australian jurisdictions. The Council sought clarification as to whether this meant that the commission proposed to leave the private sector to the federal Act or to recommend mirror legislation. If the latter were the case, the legislation needs to include a media/journalism exemption, such as that in the federal Privacy Act.

The Council addressed the question of the specific inclusion of photographs and images into the definition of personal information and said that this is likely to have unanticipated consequences that may impact significantly on the ability of the media to publish photographs of people. Even if any legislation were limited to public agencies, the right to reproduce images for public consumption may be compromised in the case of images held in photo libraries, such as the State Library's.

While images of people may, in certain specific instances, constitute personal information that warrants protection, images of people in general should not be classed as personal. At present the legislation makes no mention of images, neither to exclude nor to specifically include them within the scope of personal information. The Council submitted that, if the legislation makes reference to images, any definitions be extremely narrow.

The full submission has been published on the Council's website: http://www.presscouncil.org.au/pcsite/fop/fop_subs/nswpriv.html

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Surveillance, Victoria

On June 29, it made a submission to the Victorian Law Reform Commission in response to Consultation Paper No. 7, 2009: Surveillance in Public Places, the Executive Summary of which read:

The Australian Press Council is concerned that any regulatory mechanisms risk unintended consequences, including impeding the ability of the media to report on matters of public interest.

Any regulatory mechanisms that have the potential to impact on newsgathering activities should include a media exemption based on adherence to a voluntary code of conduct

Any legislative or regulatory mechanisms must include exemptions and defences designed to ensure press is free to report on matters of public interest.

The full submission has been posted to the website: http://www.presscouncil.org.au/pcsite/fop/fop_subs/vic_surv.html

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.

In December 2008, the Press Council wrote to all Attorneys-General, and their Shadows, about the protection of journalists' confidential sources, a matter still before the Standing Committee of Attorneys-General. The Council continues to hold the view that the law should protect journalists who report well-founded but confidentially sourced information that authorities, or others, seek to keep from the public.

The Council remains concerned that the extant proposal for such a law is the current NSW Evidence Act, which it believes to be an ineffectual protection. The fact that groups as diverse and the NRMA and the NSW Law Society thought that the Act would provide insufficient protection for the identity of confidential sources is a clear indication that the NSW provision is insufficiently robust.

The Council is again writing to federal, state and territory Attorneys-General strongly advocating that an approach based on the 2006 New Zealand Evidence Act is more likely to achieve the desired result of protecting confidential sources in all but the most serious cases.

The existing NSW Evidence Act leaves open what might happen. It merely says that judges 'may' take into account the desirability of not calling professionals (in this case, journalists) to reveal sources. This leaves journalists vulnerable to legal fishing expeditions that may make them subject to contempt of court charges for failure to divulge sources, simply, in most cases, because the litigants are unwilling to do the work to unmask the sources. In short, the relevant clause in NSW Evidence Act is no real protection at all.

It is the possibility that journalists will be jailed for doing their job in making information available to the public, and then abiding by their ethical responsibilities to protect the confidentiality of their sources, that most disturbs the Council. Such a possibility should disturb all those who believe that a free press is the best guarantee of a vibrant liberal democracy.

In a comparative democracy, in December, 2006, 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 dire of circumstances.

New Zealand felt the need to protect journalists from having to reveal confidential sources in most circumstances important enough to develop a better law. It has come up with a workable solution to the difficult task of isolating those few extreme occasions that should require journalists sources to be identified in court situations (e.g., in extremis murder or terrorism cases or to prevent miscarriage of justice for individuals). They have done so while establishing a default position that courts should not allow legal fishing expeditions just because particular authorities (or public figure litigants) are miffed that news the public has a right to know has been reported.

The Council believes that the New Zealand legislation provides a sound basis for a putative Australian shield law. The Council also notes that the New Zealand legislation has emerged since the most recent ALRC report on professional privilege.

The bottom line is that while legislation that protects the messengers (journalists) from being required to reveal sources in the courts is an essential element of our democracy, legislation based on the NSW model, and even the most recent proposals from the federal Attorney-General intended to tighten the federal law based on the NSW Act, will not do that job. It will be ineffective.

The Council has asked the Attorneys-General to revise the proposed uniform national shield proposals to, in fact, protect journalists and keep them out of jail.

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Shield Laws

On April 9, it made a submission to the Senate Standing Committee on Legal and Constitutional Affairs' Inquiry into the Evidence Amendment (Journalists' Privilege) Bill 2009, the Executive Summary of which read:

The Australian Press Council welcomes efforts to strengthen the protection for journalists whose ethics prevent them from disclosing the identities of their confidential sources of information.

To be an effective measure to protect journalists who refuse to disclose their confidential sources of information, legislation should include a rebuttable presumption that journalists cannot be compelled to do so.

The presumption should be rebuttable on presentation of evidence that the disclosure is in the public interest and that, in the circumstances, the public interest served by the disclosure outweighs the public interest in access to information that would be served by the non-disclosure of the confidential source of the information.

The proposed objects clause is an improvement but does not go far enough.

The Australian Press Council welcomes the strengthening of s126B(4) of the Evidence Act.

The Australian Press Council welcomes the inclusion of journalists within the scope of s126B(3) of the Act.

The Australian Press Council welcomes the removal of s126D of the Evidence Act.

Journalists' shield laws are only effective when combined with adequate whistleblower protection legislation.

The full submission has been posted to the website: http://www.presscouncil.org.au/pcsite/fop/fop_subs/sources09.html

The Council Chair, Professor Ken McKinnon, appeared before the Committee by teleconference to add oral evidence to the written submission.

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Queensland Crime and Misconduct Act

The Council expressed concern with the proposed amendments to the Act that would narrow the scope of the public interest immunity currently available to witnesses who appear before the Crime and Misconduct Commission. The public interest immunity provides the Commissioner with discretion to exempt witnesses from answering questions in certain circumstances. A letter was sent to the Queensland Premier requesting that the proposed amendment be reworded and that the legislation should include a right for journalists to refuse to disclose confidential sources.

The Press Council is aware that the Queensland government is proposing to amend s192 of the Crime and Misconduct Act in order to remove the right to refuse to answer questions on the ground of self-incrimination or the ground of confidentiality.

The Press Council is concerned that the proposed amendment, as currently worded, may have the unintended consequence of narrowing the scope of the public interest immunity which is currently available under s 192(2)(b)(ii).

The concept of "public interest immunity", although ultimately a matter of judicial discretion, includes within its scope certain obligations of confidence falling outside the definition of privilege. The inclusion of the phrase "on the ground of confidentiality" as a circumstance in which there is no entitlement to refuse to answer questions may be interpreted by a court as excluding such confidential obligations from the class of circumstances in which public interest immunity might claimed.

One of the class of confidential relationships which would be affected by such a narrowing of the scope of the public interest immunity would be the right of journalists to protect the identities of those persons who provide them with information in confidence. The law as it presently stands, although it provides no protection for journalists, does provide the court with sufficient discretion to be able to excuse journalists where this is regarded as being appropriate and in the public interest. The amended legislation appears to remove that discretion. The consequence of such an amendment is the potential for journalists to be imprisoned under s 192.

The Press Council calls on the Queensland government, not only to redraft the amendment to ensure that the scope of the public interest immunity is not narrowed, but also to insert into the legislation a clause recognising the right of journalists to refuse to disclose the sources of confidential information without risking penalty.

In mid-November, the Council received a response from the Premier's parliamentary Secretary in which he noted:

The recent amendments to the Act are intended to ensure that the Crime and Misconduct Commission (CMC) is able to continue its valuable role in fighting crime and public sector misconduct.

The amendments to the Act clarify that a person is not entitled to remain silent or refuse to answer a question put to the witness at a misconduct investigation except on the grounds of legal professional privilege, public interest immunity, or parliamentary privilege.

The amendments to the Act were prompted by a recent decision in Witness "0" v Crime and Misconduct Commission [2008] QSC 155 where the court interpreted the Act, particularly the former section 192, as allowing a witness to refuse to answer a question in a misconduct investigation based on the privilege against self-incrimination.

As a result of the decision in the Witness "0" case, the CMC would not be able to direct witnesses in misconduct hearings to answer questions where the answers may incriminate the witness. This meant that evidence previously obtained by the CMC could potentially have been inadmissible and a number of current and past CMC misconduct investigations and hearings would be compromised.

Consequently, the Queensland Government acted to clarify the privileges that can be claimed under the Act and ensure that the CMC is able to continue its important work.

In response to concerns about the scope of the amendments to the Act expressed by the media profession, the Attorney-General has decided to refer the issue of what privileges or protections should be granted in legal proceedings to members of various professions, including journalists, in the exercise of their professional duties to the Queensland Law Reform Commission (QLRC). The Queensland Government will give serious consideration to any recommendations the QLRC may make. However, until the QLRC has reported, the Queensland Government does not intend to reconsider the recent amendments to the Act.

The Press Council will, of course, be making submissions to the QLRC on the general question of the protection of journalists' confidential sources.

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Western Australia

The decision in a Western Australian court to order a newspaper to hand over recordings that would reveal the identity of a confidential source exposes the continued failure of governments to enact proper protections for journalists and their sources.

Subsequently the Supreme Court has stayed the execution of the order until an appeal can be heard.

In civil matters, the Australian Press Council believes that questions about the accuracy and reliability of sources are matters that should be tested when, and if, defendants rely on a defence of truth, or a defence of qualified privilege, where they have to show that they took all reasonable steps to check the accuracy of the material they published.

To have courts ordering defendants early in proceedings to surrender documents that would reveal the identity of their sources does nothing more than expose those sources, where known to the plaintiff, to some form of retribution. This was the view taken by The Sydney Morning Herald in the Cojuangco case, where it gave up its qualified privilege defence rather than reveal to an associate of Ferdinand Marcos the identity of their informants.

The best reason for the application of the "newspaper rule" to defamation proceedings so that publisher defendants will not be compelled during preliminary proceedings to disclose the sources on which an article depends was best summarised by Dixon J in McGuiness's case:

the special position of those publishing and conducting newspapers, who accept responsibility for and are liable in respect of the matter contained in their journals, and the desirability of protecting those who contribute to their columns from the consequence of unnecessary disclosure of their identity (at page 104).

While the sources in the WA case might not be subject to violence, they may be subject to other punitive measures should their identity become known. And the likelihood that others will blow the whistle on similar matters will be diminished.

That's why the "newspaper rule" must be applied in the civil courts and why workable shield laws are needed in the criminal courts.

The Standing Committee of Attorney-General agreed some time ago to introduce such protections to ensure that journalists and editors were not penalised for abiding by their ethical obligation to protect the identity of their sources. A working group is due to report to SCAG at the end of this year.

Late last year, the federal law was amended to reflect the NSW law, which pays lip-service to such protection, but leaves the discretion solely with the judge.

The Press Council believes that such legislation should place the onus on those seeking to obtain the identity of the source in criminal matters and that it should only used in the case of serious crimes or matters involving health and safety.

The federal Attorney-General has now foreshadowed further amendments, which would bring the law closer to the New Zealand model, which mandates that the default position is the right to protect confidential sources unless exceptional circumstances apply. The Council has not as yet seen how the federal proposals would be phrased in legislation but sees the move as a forward step. The Queensland government has referred the question to its Law Reform Commission, and the new Western Australian AG has said that legislation will be introduced in his state in the near future.

see also
Index on protection of sources material

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Public-interest Whistleblowing

There were separate inquiries in the Australian and NSW parliaments 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.

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Federal Parliamentary Inquiry

On 12 August 2008, the Australian Press Council made a submission to the Australian House of Representatives Standing Committee on Legal and Constitutional Affairs Inquiry into Whistleblower Protection within the Public Sector, the Executive Summary of which read:

The Australian Press Council calls upon the Commonwealth government to introduce legislation to provide protection for individuals who make public interest disclosures. In order to ensure this legislation is effective, it should include the following:

• It should be an offence to penalise, discriminate against, harass, victimise or retaliate against an individual who makes a public interest disclosure.
   
• The legislation should establish an immunity from internal disciplinary action for making a public interest disclosure, including disclosures made to the public via the media.
   
• The legislation should establish an immunity from criminal prosecution for breaching any secrecy or confidentiality requirements in the course of making a public interest disclosure, including disclosures made to the public via the media.
   
• The legislation should establish an immunity from civil action for making a public interest disclosure, including disclosures made to the public via the media.
   
• The legislation should establish a right to claim compensation for loss or injury suffered as a result of making a public interest disclosure, including disclosures made to the public via the media.
   
• Government employees who do not fall under the Public Service Act should be included in the scope of any legislation dealing with public interest disclosures.
   
• Provision should be made for public interest disclosures by contractors who provide services to government and their employees.
   
• The legislation should make provision for disclosures to be made to the media in certain specified circumstances.
   
• Where a public interest disclosure has been made to a designated government agency or officer, that agency or officer should be required to investigate promptly and to publish the results of that investigation, together with any recommendations for rectifying action, when it is complete.

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

On October 27, in Sydney, the Chairman, Professor Ken McKinnon, and the Executive Secretary, Jack Herman, appeared before the committee to give oral evidence.

Whistleblower protection improved, but ...

In a press release issued on February 25, 2009, Professor Ken McKinnon, the Chairman of the Australian Press Council, said that the report on improved whistleblower protection tabled in federal Parliament that day was a forward-looking proposal that contains several helpful recommendations.

"But", he added, "the quite inadequate recommendation on whistleblowing to the media will ensure that the future situation will be hardly better than it is today."

The report of a parliamentary committee, chaired by Mark Dreyfus QC, Whistleblower protection: a comprehensive scheme for the Commonwealth public sector, has recommended a series of changes that will make it easier for public officials to blow the whistle on corruption, malpractice and chicanery. And it will provide strong protection for those who do so through official channels.

The Press Council's main concern is with the proposal that limits protection of public interest whistleblowers who go to the media. They are protected only when they have disclosed internally and externally, when "reasonable" time has elapsed, and the matter involves "immediate serious harm to public health and safety". Such limits will ensure that the bureaucracy can defeat all attempts to disclose information in a protected way. The weasel words 'reasonable' and 'nature of the matter' in particular tip the scales away from even the most conscientious whistleblowers. "Who will decide what is reasonable?" asked Professor McKinnon.

He added, "Whistleblowers know that their best and quickest chance of rectifying corruption, waste and general governmental incompetence is to go directly to the press. The press has a responsibility to investigate and check the accuracy and fairness of informants before publication. Any failure to do this is open to a complaint that the Press Council will adjudicate, and, if necessary, it will hold the newspaper publicly to account."

Professor McKinnon is worried that, had the proposed "protection" been in force, it would not have protected those who told journalists Harvey and McManus of a cabinet decision to renege on an election promise to veterans. It would not have protected the individuals who exposed government failure to act on a report on deficiencies in Customs at Sydney Airport. It would not protect public officials who blow the whistle on corruption, where there is no threat to "public health and safety".

Professor McKinnon concluded, "The Press Council applauds the effort made by the Dreyfus Committee and the many good suggestions for improvement, but without a better media clause, which the Council will continue to lobby for strenuously, regrettably the proposals will not make enough difference to get anywhere near achieving the objective of a free flow of public interest information."

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NSW Inquiry

On 26 August 2008, Australian Press Council Submission to the NSW Parliamentary Committee on the Independent Commission Against Corruption, The Protection of Public Sector Whistleblowers, in largely similar terms to its submission to the federal Parliamentary committee. Its Executive Summary read:

The Australian Press Council calls on the government of New South Wales to reform the Protected Disclosures Act 1994 in order to strengthen the protection of public employees who make public interest disclosures in the following terms:

Section 19 of the Act should be amended in order to provide for public interest disclosures to the media or a parliamentarian to be protected in the following circumstances:


• Where the officer making the disclosure honestly believes, on reasonable grounds, that to make the disclosure along internal channels would be futile or could result in victimisation, OR
   
• Where the officer making the disclosure honestly believes, on reasonable grounds, that the disclosure is of such a serious nature that it should be brought to the immediate attention of the public, OR
   
• Where the officer making the disclosure honestly believes, on reasonable grounds, that there is a risk to health or safety, OR
   
• Where internal disclosure has failed to result in prompt investigation and corrective action.

 
1. Section 19(3) of the Act should be amended so as to remove or significantly shorten the period of time which a public official is required to wait after making an internal disclosure before approaching the media.
    
2. The scope of the protection provided by the Act should be extended to encompass employees of private organisations who are contracted to provide services to or on behalf of the NSW government.
    
3. The Act should be amended by the insertion of a section that provides a right to claim compensation for loss or injury suffered as a result of making a public interest disclosure, including disclosures made to the public via the media.
    
4. The Act should be amended by the insertion of section which obligates a public agency to promptly investigate any matter which comes to its notice by way of a public interest disclosure, and to publish the results of that investigation, together with any recommendations for rectifying action, when the investigation is complete.

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

The committee issued a Discussion Paper in early 2009, addressing a number of the terms of reference, but containing no discussion of any of the issues touching upon the question of public-interest whistleblowing to the media. The committee invited further comment.

On April 9, 2009 the Council wrote to the ICAC Committee Chair, thanking him for his invitation to make a submission in response to the committee's Discussion Paper, Protection of Public Sector Whisteblower Employees. The letter read:

As you may be aware, a submission was forwarded to the committee, on 26 August, 2008, on behalf of the Press Council, making representations with respect to the treatment of whistleblowers who make public interest disclosures to the media.

I was disappointed that the Discussion Paper, when it was released, made no reference to the Press Council's submission or to any of the arguments presented therein. I was also surprised that the Discussion Paper made no reference to any of the representations made on behalf of other media organisations on the subject of public interest disclosures to the media.

I have attached, for your further consideration, a copy of the Press Council's original submission. The members of the Press Council would be grateful if you and the members of the ICAC Committee would carefully consider the role of the media in relation to the making of public interest disclosures in New South Wales.

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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. At last count a News Limited database of suppression orders had over 1000 separate matters on it.

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.

At the time of writing this report, a discussion paper from the Attorney-General's Department, making recommendations largely along the lines originally proposed by the Council to the Chief Justices has been released for comment. It will be addressed in next year's Annual Report.

see also
Index on courts and contempt material

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Access to courts and court documents

Access to courts

In the Australian's Media section of October 13 Sally Jackson reported that the Press Council has called on crown prosecutors to import a British protocol giving media access to court evidence on the same day it is tendered, saying it would lead to more open, fair and free reporting of court proceedings.

The Council said it hoped commonwealth, state and territory directors of public prosecutions would consider the proposal when they met in Melbourne on October 27.

If that does not bring results, the Council will pursue it through the Standing Committee of Attorneys-General, which is due to convene in Brisbane on November 6.

"We are trying to achieve, bit by bit, open courts accurately and quickly reported by the press, which we think is for the public good,'' Council secretary Jack Herman said.

A protocol introduced in English and Welsh courts in 2005 meant most material tendered in court was made available to the media as quickly as possible, usually later the same day.

Material normally released included police videos of crime scenes and of seized property, transcripts of interviews read out in court, videos and photographs showing reconstructions of crimes and CCTV footage of defendants.

CCTV footage or photographs of the defendant and the victim, or of the victim alone, might also be released after consultation.

There was an appeal procedure to deal with contested material.

"The protocol has led to greater coverage of the courts and is seen to have made court reports more accurate and comprehensive,'' the council says in a letter to the DPPs.

"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.''

In contrast, very little evidence tendered in Australian courts was made available to the media, especially so quickly, Mr Herman said.

"The press has to make special applications through the judge or the court registry to get that material and often it isn't released,'' he said.

"Whereas in Britain, unless there's a good reason not to release it, it is released as a matter of course.

"Rather than relying on journalists interpreting it, viewers have a chance to see the exact footage.''

As an example, Mr Herman said, CCTV footage shown at the trial of the men behind the attempted London bomb attacks of July 21, 2005, had been released to the media the same day.

This contradicted the widely reported speech made earlier this year by Australian Federal Police Commissioner Mick Keelty in which he called for a media blackout on terrorism cases and pointed to the British legal system as a model.

"Keelty was saying there should be less reporting of terror trials and he used Britain as an example, but in fact the exact opposite is happening there," Mr Herman said.

Independent journalist member of the Council, Prue Innes, who served for many years as the public information officer for the Victorian courts, attended the DPPs' meeting and spent about three-quarters of an hour with them discussing the proposal. No action on the matter has followed.

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Courts need to lift their game

Australians are being denied their right to see how justice is done because courts are inconsistent or unhelpful about releasing information, a new report has found.

The report, commissioned by Public Right to Know, the free speech advocacy group formed by the publishers and broadcasters, arose from a five-month research project. It calls for a raft of changes to ensure the public can be quickly and fully informed about court cases.

The director of the research was Prue Innes, a journalist member of the Council. With a background both as a court reporter and as a public information officer for the Victorian courts, Prue Innes was ideally suited to lead the research.

The report suggests that the use of suppression orders, which gag the media from reporting particular details of trials, is inconsistent and some courts have "no idea how many orders they make, and no systems to inform the media of them".

"For too long the media has had unnecessary barriers placed in their way in obtaining information that the general public is entitled to know," Prue Innes said.

The research aimed to establish how well the principle of open justice is working in practice in Australia. Not surprisingly, with nine separate jurisdictions, there was some inconsistency around the country.

Prue Innes said that the public interest is not served if journalists cannot access material put before the courts on which judicial decisions are based.

The report called for all courts to examine their processes to ensure that transcripts, documents and exhibits were readily and quickly available to the media except where publication might interfere with a fair trial.

Noting that laws already prohibit the publication of many details from court cases, such as the identity of sexual assault victims, children and details about an defendant's past record, the report also found that courts impose a large number of discretionary suppression orders. It said that courts could be too quick to issue sweeping, open-ended and badly worded suppression orders that were often unnecessary.

Prue Innes concluded that the laws limiting publication of details are effective and the media abide by them, "but when suppression orders are placed on top, they are almost always unnecessary."

The key recommendations of the report are:

• Court files and transcripts should be readily available to the media
   
• Judges should provide copies of their sentencing remarks to the media as an aid to accuracy in reporting them
   
• Sentences and decisions should be posted on court websites quickly
   
• Suppression Orders should be made only when they are essential to prevent a threat to justice
   
• Orders should be clear, specific and worded so that they suppress only the information that was intended
   
• Orders should state their reasons and have sunset clauses so they expire when no longer needed
   
• The media should be properly informed of Orders
   
• Reporters' recording devices should be allowed in courts where possible, to aid accuracy of reporting.

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Naming and shaming

As reported in last year's Annual Report, the Council wrote to NSW Attorney-General, John Hatzistegos, about the report of the Legislative Council Standing Committee on Law and Justice report, The prohibition on publication of names of children involved in criminal proceedings. In the Council's view many of the committee's recommendations are unlikely to improve the situation and may make it worse. It suggested that the government take no action to implement either recommendation 1 (seeking to have other states, none of which have similar provisions, fall in line with NSW) or recommendation 4 (which would extend the ambit of any ban on publication of names of children to a time when juveniles are "reasonably likely to become involved in criminal proceedings"). In July 2009, the Attorney circulated for comment some amendments to the legislation, based on the committee's report. The proposal in Recommendation 4 is not included in the proposed changes and some attempt has been made to address concerns with the Senior Available Next of Kin provisions, to which the Council drew the Attorney's attention. The Council has told the Attorney-General's Department that it would rely on its May 2008 letter as its position in respect of the proposed changes.

see also
Index on courts and contempt material on the website

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Contempt by Publication

There were no matters this year.

see also
Index on courts and contempt material on the website

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Police Matters

Media relationship principles

In June 20099, after earlier consultations, the Council made submissions to the Queensland Police on its proposed "Media Relationship Principles", a set of principles aimed at formalising the relationship between the police and the media, and ensuring a flow of information. Being developed by the Media and Public Affairs Branch, the document seeks to deal with the Police obligations to the media, and the media's reciprocal obligations. The Council has argued that the police should sufficient information to satisfy the public interest and assume as the default policy position the release of information rather than its suppression. The Council has also sought that contact not always be through the Media Branch, but that station staff, particularly in regional districts, of both senior and junior rank, should be both entitled and encouraged to assist with, and comment upon, matters of a local nature. In return the Council has recognised that the media should be honest in their inquiries and the fact that responses may be delayed when they concern matters of grave importance, including the reporting of disasters. A revised version of the agreement was forwarded to the Media Branch for its consideration.

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Victorian Police fee for photos proposal

In June 2009, the Council sent a submission Victorian Police on a fee for photos proposal, which suggests that media outlets be charged for the provision of images of accused and convicted persons. The Executive Summary read:

• The Australian Press Council objects to the proposed fees for the provision of police images.
   
• The amounts of fees estimated are excessive.
   
• If newspapers are required to pay a fee for the provision of images by the police, newspapers would be justified in expecting police to pay for space used in newspapers for publication of images on request It is preferable to maintain a cooperative arrangement between the media and the police, whereby the media will voluntarily publish images in order to assist with police investigations and, in exchange, the police provide images without charge on request from the media.

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

The Council also alerted The Herald Sun and The Age to the proposals so that they could take action as well.

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ANZPAA re ethnic descriptors

The Council received a request from the Australia New Zealand Policing Advisory Agency for a response on a guideline it was developing on the use of ethnic descriptors of those sought in relation to crimes. The Council's response, based on consultation with some industry members of Council, read:

The general view of the Council is that whether they are called 'Ethnic Descriptors' or 'Witness Perceived Ethnic Descriptors', they run the risk of reinforcing negative stereotypes about people of different ethnic communities. This is particularly the case where people from a number of different and distinct ethnic backgrounds are drawn into one descriptor (people "of Asian appearance" covers a range of east Asian ethnicities; and Pacific Islander people come from a wide range of backgrounds) or where false distinctions are made amongst groups. How is a witness to perceive the difference between "Mediterranean", "Middle Eastern" and "South American" when all have the same physical characteristics, for example? In any case, most of the people in these three groups are "Caucasian", yet that term is used to specify one set of ethnic characteristics from amongst various forms of Caucasian people.

As the guidelines say, the best descriptions are those that specify the characteristics of the person of interest, in some detail, and without necessarily relying on a perceived ethnic descriptor. Many press outlets already have their own codes of ethics, as well as the MEAA's code of ethics for journalists and the Press Council's Statement of Principles, to guide them as to what they should publish. They will more likely be guided by those, most of which suggest that ethnic descriptors not be used where they are gratuitous or where they may reinforce a negative stereotype.

In general, the Council would prefer to see the guidelines place even stronger emphasis on the fact that WPED should only be used as a last resort and that descriptions should be as accurate as possible and be accompanied by a detailed physical description. This might be achieved by reversing the form of the guideline, placing the national guidelines first and placing the revised WPEDs at the end.

In particular, the Council would suggest that the "Mediterranean", "Middle Eastern" and "South American" descriptors be combined as people "of Mediterranean or Middle Eastern appearance" and what is currently "Caucasian" be renamed as "of White European appearance".

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Sports accreditation

On April 7, it made a submission to the Senate Environment, Communications and the Arts Committee on its inquiry into the reporting of sports news and the emergence of digital media, the Executive Summary of which read:

The public has a right to receive sports news in the same way as other news. There should be minimal interference with the collection and reporting of sports news, in words and images, whatever the form that news takes and in whatever medium it is published or broadcast. The same principle should also apply to the publication in any medium of commentary upon that news. Sports bodies and media organisations need to get together and work out an agreement that will allow such reporting to occur.

The full submission has been posted to the website: http://www.presscouncil.org.au/pcsite/fop/fop_subs/sports09.html

On April 16, The Executive Secretary appeared on behalf of the Council before the Senate Committee. The questions largely related to the AFL's disaccreditation of AAP photographers and to the "conflict" between publishers' commercial interests and sports bodies' commercial interest.

The committee's report rejected calls by sports bodies to allow sporting events to be protected under copyright laws, allowing them to censor journalists' reports and choose which photos would be allowed for publication. Instead, the committee reaffirmed the right of the media to cover sports, unfettered by restrictive accreditation agreements.

The report said that all "bona fide journalists, including photojournalists and news agencies, should be able to access sporting events regardless of their technological platform", and that negotiations for media access should be based on that principle.

It warned that if such negotiations were to break down, a code administered under the Trade Practices Act could be developed, to be enforced by the ACCC.

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International

Fiji

Jack R Herman, Executive Secretary of the Australian Press Council, completed a Review of the Fiji Media Council. A decision to conduct a Review of its aims and its operations was taken in late 2008 by the Fiji Council. It sought and received a grant from AusAid for the Review. The Media Council invited Mr Herman to convene the Review team, which also included Suliana Siwatibau, who has extensive experience with Fiji NGOs, and Barrie Sweetman, a retired lawyer with knowledge of the Fiji legal system.

The terms of reference called on the Review to look at all aspects of the Council's operations.

The Review team met in Suva on February 9. The team read through and discussed each of the written submissions and a number of relevant articles and earlier reports on the Fiji Media Council and the Fiji media. It also looked at comparable self-regulatory organisations in other countries. The Review invited a number of individuals and organisations to meet with it, most of whom agreed. They covered a range of people including media proprietors, journalists, politicians and public officials, as well as representatives of influential NGOs. On February 11, the Review met with the Fiji Media Council to discuss the issues arising from the terms of reference and from the submissions. The Review completed its face-to-face meetings on February 13, and agreed on the substance of its recommendations.

Between February 16 and February 27, the report went through a number of drafts, until the team agreed on the final form for the content. The report was submitted to the Chairman of the Fiji Media Council on February 28 and will be tabled at that Council's March meeting.

Unfortunately, after the report was tabled, but before the Council could act on the recommendations for reform, the President dismissed the interim government and the military imposed tighter restrictions on the media. The Media Council has not been allowed to meet since that coup.

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Timor Leste

On April 8, 2009, the Council issued a press release to the media of Timor Leste related to the development of a proposed media law in that country:

The Australian Press Council has expressed concerns about proposals to license journalists in East Timor.

The Council Chairman Professor Ken McKinnon said the proposed scheme could greatly affect the operation of a free press in the world's newest democracy.

The proposal is to establish a media council as part of a parcel of laws regulating the media in East Timor. Journalists who wished to work in the media industry, including foreign correspondents, would have to be licensed by the media council.

The council would have members appointed by the East Timor parliament and a further member selected by the parliamentary appointees.

Such a body could clearly been seen to politically aligned. It would also oversee complaints and have powers to revoke journalists' licenses or impose fines on journalists for professional transgressions.

"These aspects were clearly outside internationally recognised standards for the media in a democracy and represented restrictions on free speech", Prof McKinnon said.

Professor McKinnon said that the Australian Press Council had been represented at a workshop in Dili in July last year. The workshop was told how the Australian Press Council operated as a non-legal body for dispute resolution and a watchdog on threats to freedom of speech, and of the press.

"Journalists attending the workshop welcomed the suggestion that the country adopt the Australian Press Council structure as a model," Prof. McKinnon said.

The licensing issue raised by the UN-appointed Portuguese lawyer tasked with suggesting media laws was widely criticised at the workshop. Despite this criticism, journalist licensing remained a part of the draft laws.

Prof McKinnon said other proposed new laws, which allowed for widespread freedom of information disclosure, were welcome as was the decision not to include defamation in the country's penal code.

The laws will be further reviewed by Fernanda Borges, a member of parliament who chairs the committee that will make final recommendation to parliament.

Ms Borges has said that the registration of journalists remained problematic.

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Indonesian amicus brief

In last year's report, reference was made to an amicus curiae submission to the Supreme Court of Indonesia, in support of action by Time magazine to reverse a $US106 million judgment. The Press Council was a signatory to the brief. In April 2009, the Supreme Court ruled in favour of Time. The award was nullified.

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