|
Freedom of the Press
Report
1997-98
The matters considered by the committee in the reporting year included
the following.
Professional Privilege
Contempt
Defamation
Constitutional law
Media ownership
Privacy
Family law
Freedom of information and suppression
Juries
Government suppression
D Notices
Proposed 'Licensing' scheme
Military censorship
Parliamentary inquiries
Senate Select Committee on Information Technologies
International
PNG
Fiji
General
Misuse of media power
Youth suicide
Freedom of the Press Medal
1. Professional privilege
The committee continued to consider the Evidence Amendment (Confidential
Communications Bill) 1997 (NSW) which was referred to in detail in
last year's Annual Report. The Council, while supporting the legislation,
had sought recognition in the Bill of the fundamental role of the press
in informing the public by making such recognition a matter which the
courts might take into account.
The Attorney-General's Department responded:
The Attorney has asked me to thank you for your letter supporting
the [Bill].
The application of Division 1A of the Bill to protected identity information
was designed with claims for the protection of sources in mind. The
definition of harm is an inclusive one and is also framed with an eye
to the potential harms that might be experienced by sources if information
imparted by them in confidence is disclosed. However it is necessary
to frame the privilege to ensure its general application across all
of the categories of professional relationships, and for this reason
the factors in 126B(4) have not been framed to specifically relate to
circumstances peculiar to any one of those relationships.
The legislation will provide important protections for the free flow
of information in the public interest balanced as necessary against
the public interest in the effective operation of the justice system.
The Bill was passed into law in late 1997 and became part of the Evidence
Act.
[return to top]
2. Contempt
The committee continued its look at the Costs in Criminal Cases Amendment
Bill (NSW) referred to in last year's Annual Report. In September
the then Chairman wrote to the leaders of the political parties in the
Legislative Council and to Independent members of the Council:
I am writing to all party leaders and Independents in the Legislative
Council on behalf of the Australian Press Council to argue strongly
against the Costs in Criminal Cases Amendment Bill 1997 which
has already passed through the Assembly and may be considered by your
House in the current session.
This Bill would authorise the taxation of the media for costs of trials
aborted as the result of a contemptuous publication or broadcast. But
the media is not alone in inadvertently publishing or broadcasting such
material. Ministers of the Crown and judges are capable of doing this
and there are recent cases where this has occurred. Yet only the media
will be liable for the very substantial costs involved. These will be
a heavy burden, especially for smaller country and suburban newspapers
and broadcasters.
The Council therefore regards this Bill as a direct attack on freedom
of the press, which is the freedom of the public to be informed on matters
of interest to them. The recent decision to abort a trial in Queanbeyan
following remarks from the Minister of Police in launching a paedophilia
phone-in demonstrates that the definition of what is a contemptuous
action or one that can lead to a trial being aborted is most contentious.
In General Press Release 194 (in
March 1995) the Press Council noted some concerns with the present law
of contempt. In it, the Council referred to the inadvertent publication
of material related to an accused man in a newspaper which led to a
trial being aborted and a charge of contempt against the newspaper and
the writer. Yet the Court of Appeal in ruling on the contempt itself
inadvertently caused a subsequent trial of the same accused person to
be aborted. Under the provisions of the Costs in Criminal Cases Amendment
Bill 1997, the newspaper would be liable for the costs of the first
trial but the judges would incur no liability for the costs of the second.
In the recent matter concerning the Minister of Police, it is possible
that a newspaper reporting the Minister's comments might be liable for
the costs of an aborted trial but the Minister would not be, even if
found to have been in contempt.
The Council is concerned that the Bill will have a chilling effect
on free speech particularly if it were to result in an increased willingness
to abort trials because a media outlet, not the State, would pay for
the aborted trial. In the light of such a possibility, broadcasters
and publishers will tend to err on the side of caution when deciding
what material to run and discussion of matters of public importance,
such as the incidence of child sexual molestation in the community,
is bound to be curtailed or severely limited, despite the public's right
to know the information.
The Council's information is that it is not common for trials to be
aborted as a result of media broadcasts or publications. The case noted
above is the only recent incident we know of in NSW concerning the press.
There have been a number of aborted trials arising from discussions
on talk-back radio programs but not so many as to cause a major concern
to the community. This Bill addresses a problem that does not merit
such a draconian approach and does so in a way that will, inevitably,
have negative consequences on the public's right to information that
would enable it to participate in important community debates.
In GPR 194, the Council also noted that under the present law of contempt
guilt is determined by a judge alone, without the benefit of a jury
trial, and that no "guilty mind" needs to be demonstrated. Thus a guilty
verdict is much more easily obtained on a contempt charge, even when
the alleged contempt was inadvertent, as in the cases noted above. The
Costs in Criminal Cases Amendment Bill 1997 will exacerbate this
concern as charges of contempt, arising from inadvertence, could also
lead to substantial secondary monetary penalties, but for one section
of society only.
The Council urges you to oppose this Bill.
A General Press Release along the same lines was also released. Additionally,
the Chairman also wrote to the editors of major NSW newspapers and proprietors
of the major broadcasting companies, drawing their attention to the legislation.
The leaders of the Liberal Party, National Party and Democrats wrote
back to say they would consider the Council's advice. The Leader of the
Government in the Legislative Council passed the letter along to the relevant
minister. In the light of the responses, it was decided that the in-coming
Chairman, Professor Pearce, would seek an interview with the Attorney-General
to make further submissions. The Council also wrote to the Leader of the
Opposition seeking his support for the withdrawal of the Bill.
The ABC and the Federation of Australian Commercial Television Stations
made submissions to the government, opposing the passage of the Bill.
Before Professor Pearce could meet with the Attorney, a joint News Limited/John
Fairfax Publications submission on the Bill was made, and its position
was also supported by the highest rating commercial radio station, 2UE.
The result of these submissions was that, in January, the Bill was withdrawn
for reconsideration. The Attorney referred the whole question of contempt
law to the NSW Law Reform Commission for consideration and advice.
The committee sought to develop a comprehensive Council position on contempt
law reform. At the end of the reporting year, the committee was still
looking at this matter. It was also seeking the advice of the Law Reform
Commission on the form its inquiry would take.
One case which the committee looked at was a contempt charge brought
against Mark Westfield, a columnist for The Australian. He, the publisher,
the editor-in-chief and the printer were charged with contempt arising
from a few paragraphs which commented on the trial of a prominent businessman.
The court found the journalist guilty and fined him. The committee determined
not to pursue that particular case further.
see also
Index on courts and contempt material
[return to top]
3. Defamation
The Defamation Bill 1996 (NSW), which had been the subject of
public submissions in previous years, was due to be re-introduced into
the Parliament in late 1997. However, the High Court's decision in the
Lange case meant that the Bill had to be withdrawn for further
consideration. At the end of the reporting year, the NSW Attorney had
not indicated the form that this reconsideration would take.
It was suggested to the committee that, in the light of the Lange
decision, the Council should write to the Justices of the High Court,
drawing their attention to deficiencies in the judgment and in the legal
consideration of defamation matters. The committee decided not to act
in this way but to invite Evan Whitton, a Journalist Alternate Member
of the Council, to submit an article to the APC News for publication.
It was published in the News, Vol. 10, No. 1, February 1998.
In early 1998, the Standing Committee of Attorneys-General (SCAG) did
not agree with the NSW Attorney that defamation law should be reformed
at the national level to provide for a uniform code across all jurisdictions.
At the end of the reporting year, defamation law remains different in
each state and territory and there is no current move towards uniformity.
The Freedom of the Press Committee is developing arguments in favour of
uniform reform for submission to the SCAG.
The Chakravarti case in May 1998 gave the High Court another opportunity
to comment on aspects of defamation law. The committee considered the
judgments and asked the Chairman to discuss them in the APC News.
Articles on the case were planned
for the August 1998 issue of the News.
see also
Index on Defamation Law material
[return to top]
4. Constitutional Law
In September 1997, the Queensland Parliamentary Legal Constitutional
and Administrative Review Committee released an issues paper on "The Preservation
and Enhancement of Individuals' Rights and Freedoms: Should Queensland
Adopt a Bill of Rights?" The committee submitted that the entrenchment
of free speech should be in the Constitution or in over-riding legislation
but found the suggested Bill of Rights otherwise reasonable.
In January 1998, the Council made a submission to the Constitutional
Convention, convened to discuss possible changes in the Head of State.
The Executive Summary of the submission, which
was published in full as a supplement to the APC News, Vol. 10,
No. 1, February 1998, read:
The Council takes no position on the question of the Head of State
but argues strongly that the Australian Constitution should be changed
to entrench a guarantee of freedom of speech and of the press.
The submission was received by the convention which took no action on
suggestions other than those directly related to the position of Head
of State.
[return to top]
5. Media ownership
In August 1997, the Government floated proposals to review the cross-media
ownership rules, to allow for the Australian Broadcasting Authority to
authorise increased ownership of media companies above the limits imposed
by the Broadcasting Services Act and to permit increased foreign
ownership of broadcasting media.
Subsequently, the Government decided not to proceed with the proposed
changes but to maintain the status quo in respect of the cross-media
ownership rules, which limit players to a 15% stake in the electronic
media in areas where they control newspapers and vice versa. The
government foreshadowed the possibility of presenting its proposed changes
to the rules as part of its platform at the next election.
[return to top]
6. Privacy
In Annual Report 21, there were references to the issues paper, "Privacy
in Queensland", from the Legal Constitutional and Administrative Review
Committee of the Queensland Parliament and an issues paper, "Review of
Visual and Aural Surveillance Devices", from the NSW Law Reform Commission.
In late July 1997, the Council responded to both issues papers with submissions,
in largely identical words, that concentrated on those aspects of them
which related to the media. The Executive Summary of the submissions,
one of which was published in full as a supplement to the APC News,
Vol. 9, No. 3, July 1997, read:
The Council sees no public interest in the introduction of laws which
would regulate news gathering activities, in public, whether or not
assisted by unusual skills or manufactured devices.
The Council has itself looked at, and has ruled on, the ethical legitimacy
of alleged intrusions by invasive means into private property and believes
such intrusions by the press are not a serious concern in Australia.
The Queensland Committee reported before that state's 1998 election.
It referred questions of the use of surveillance devices to the Senate
Information Technologies Committee which was, at that stage, conducting
its inquiry. (Details of this inquiry are to be
found in section 11 of this committee overview.)
In the wake of the events arising from the death of Diana, Princess of
Wales, the UK Press Complaints Commission reviewed its own code of ethics,
particularly with respect to media intrusions on privacy, strengthening
aspects of that code, and providing for a more general public interest
defence. As part of that review, it undertook to make formal inquiries
of similar self-regulatory bodies elsewhere as to their approach to questions
of invasion of privacy. The Chair of the PCC, Lord Wakeham, visited Australia
in November and raised some of these issues informally with the Council's
Chairman, Professor Pearce. However, no formal approach to the Council
has been made.
In February, solicitors acting for West Australian Newspapers sought
the co-operation of the Council in using its submission to the Queensland
Parliament and NSW Law Reform Committee as a part of its response to a
move by the WA state government to introduce a Surveillance Devices
Bill. At the end of the reporting year, such a Bill was before the
WA Parliament and the newspaper company was making further representations
to ensure adequate defences existed for media defendants.
Demands from the New Zealand Privacy Commissioner, including demands
for information on a reporter's sources was the impetus for the Newspaper
Publishers Association and the NZ Commonwealth Press Union to put together
a series of essays, "Privacy: A Need for Balance". The committee
was particularly impressed by Professor Marilyn Ireland's essay on privacy
which was the keynote essay in the book and detailed the difficulties
of having a privacy law in the absence of a constitutional guarantee of
freedom of speech.
see also
Index on privacy material
[return to top]
7. Family Law
In Annual Report 21, there were references to the issues paper, "Publicity
in Family Law Cases", issued by the federal Attorney-General. The proposals
in the paper would ease the restrictions on reporting family law matters.
In August, the then Chairman, Prof Flint, wrote to the Attorney:
The Australian Press Council has had the opportunity to reflect on
the report, "Publicity in Family Law Cases". The Council has previously
taken a position on the question of reporting of family law cases. I
am enclosing a copy of our submission [to the Joint Select Committee
of 28 August 1991].
The Council considers that the proposals for change in the report
are broadly consistent with its own position. It therefore welcomes
the proposal and thanks you for the opportunity to comment.
[return to top]
8. Freedom of Information and Suppression
In July, the Council received letters from an academic and a former public
servant in Queensland seeking its assistance with a matter that may have
been a threat to the traditional freedoms of the press. Such complaints
are routinely referred to the Freedom of the Press Committee for action.
In this case Assoc Prof Bruce Grundy and Mr Kevin Lindeberg were concerned
that the Connolly/Ryan Inquiry, appointed to investigate matters arising
from the Carruthers Inquiry, after Justice Carruthers had withdrawn from
his commission, had suppressed a document which it had earlier accepted
as an exhibit (0394) and which had been posted on the inquiry's Internet
site.
The then Chairman, Prof Flint, wrote to Queensland Newspapers to seek
its advice on the matter. The newspaper company, which publishes the major
daily and Sunday newspapers in Brisbane, argued that the suppression was
not a threat to freedom of the press and the information in the documents
was available by other means, including through a Freedom of Information
request.
Meanwhile the Queensland Supreme Court closed down the Connolly/Ryan
Inquiry. The Queensland Attorney-General informed the Council, in response
to a request from it, that the suppression order would stand.
The Speaker of the Queensland Parliament declined to intervene in the
matter, stating that any decision rested with the Attorney. After his
appointment, the in-coming Chairman, Professor Pearce, agreed to look
into the legal situation and write to the appropriate authority. Having
looked at the Commissions Act, Professor Pearce concluded that
the Attorney has no power to reverse the Inquiry's decision and that the
suppression order was voided by the cessation of the Inquiry. His conclusion,
which was passed along to the complainants, was that there was no impediment
to the publication of the exhibit or the source material for it. By this
stage, Prof Grundy's department had posted the information to its Internet
site without incurring the wrath of the authorities.
In a separate matter, two tourists raised with the Council the possibility
of a threat to freedom of the press arising from an exclusion of journalists,
inter alia, from a logging site in northern Tasmania. The office contacted
the editors of the three daily newspapers in Tasmania and each reported
that the alleged exclusion was no impediment to the reporting of the issues
by his newspaper.
The committee decided therefore not to take the matter any further. The
committee also looked at Draft Classification guidelines issued by the
federal Office of Film and Literature Classifications. These guidelines
determine when a publication is classified for restricted sale. The committee
agreed that no response called for.
[return to top]
9. Juries
The committee noted, in April, the application to the NSW Attorney-General
from Professor Michael Chesterman for permission to interview former jurors.
Prof Chesterman has received a grant to look, among other things, at the
effect, if any, of media reports on juries' decision-making. The committee
thought that such an investigation could produce some worthwhile information.
[return to top]
10. Government suppression
D Notices
In September, the committee sought information from the federal Government
on current proposals for a renewed D Notice system. At the end of the
reporting period, the government had not developed concrete proposals.
Proposed 'licensing' scheme
In early 1998, the committee discussed a scheme proposed by the federal
government to require news organisations to submit lists of journalists
who would then be credentialled for particular major events or VIP visits.
This scheme was characterised as a "licensing" scheme. The committee sent
a letter to the federal Attorney-General seeking details on the scheme
and received a response from the Minister for Justice.
Thank you for your letter ... of 27 January 1998 to the Attorney-General
... about a media pass system. Mr Williams has asked me to reply because
I am responsible for the Protective Security Coordination Centre (PSCC)
within the portfolio. The PSCC provides the secretariat and some funding
for the Standing Advisory Committee on Commonwealth/State Cooperation
for Protection Against Violence, a consultative body representing all
State and Territory Premiers' and Chief Ministers' departments and police
services as well as relevant Commonwealth agencies.
These Commonwealth, State and Territory agencies agreed that the existing
annual accreditation scheme for media wishing to gain access to formal
media events involving visiting foreign dignitaries, such as press conferences
and official functions, was not working as well as it should. The Commonwealth
visits media accreditation system, which has been managed for many years
by the Department of the Prime Minister and Cabinet (and still is),
could not cope well with the sudden increase of applications to cover
official visits, for example, by the Pope and US President Clinton.
As each State and Territory also had their own media accreditation systems,
media access arrangements were cumbersome, and certainly less effective,
when official visitors travelled to more than one State/Territory.
State and Territory visits and security planning officials have agreed
to recognise the media pass issued by the Department of the Prime Minister
and Cabinet (the National Visits Media Pass) as the primary method of
facilitating media access to major visits and events sponsored by their
Governments. Applications for passes are channelled through agencies
nominated by the States and Territories. In most cases, this is the
protocol area of the Premiers'/Chief Ministers' departments; in others,
it is the police media liaison unit. In the spirit of national recognition,
the passes now bear the Coat of Arms of both the State/Territory, and
the Commonwealth.
The newspaper article [you cite] refers to a claim that the National
Visits Media Pass is akin to the "State licensing of journalists". This
is not true. The pass is issued to any person who can verify their bona
fides as a media worker, whether they be a journalist, photographer
or sound technician; from the print, or electronic media; from a major
media outlet or a small one or are freelance; or whether they are locally
or foreign based. All they require to be issued with a pass is verification
from their chief of staff or a similar authority that they are genuinely
employed in the profession. Once issued, the pass is valid until December
1999.
The National Visits Media Pass is not new; however, its Australia-wide
acceptance by visit planners is a welcome consolidation of the previous
scheme. Let me assure you that the pass is not a de facto licensing
of journalists by government. Its sole purpose is to facilitate media
access planning for formal media events involving visiting dignitaries
and major events sponsored by Government. It does not impinge upon the
media's right to report events in any way they see fit and it does not
prevent media, including those without passes, from covering other aspects
of visits and events, such as demonstrations against a visiting foreign
dignitary. But it does provide a useful tool for all concerned: for
the media, by having a pass with long validity; for media managers,
by having staff already accredited so they can allocate work at short
notice; and for visit organisers, by being assured that media people
attending functions are indeed genuine media. This last point is also
helpful to police security planners, who are concerned to ensure that
access be denied to individuals who might pose as the media to gain
close access to a foreign dignitary.
The scheme attempts to strike a balance between the need for the media
to have reasonable access to high level visitors, the need to facilitate
media access planning and, of course, the need to provide an appropriate
level of security. I am sure you will agree that Australia's arrangements
for the media are in no way as restrictive as arrangements in many other
comparable democracies.
Should you wish to know more detail about the National Visits Media
Pass, I am pleased to invite you to contact Peter Burns of the PSCC,
who can arrange for the appropriate officer from the Department of the
Prime Minister and Cabinet to brief you personally. I would also appreciate
any further comments you may wish to make; perhaps you could discuss
then with those officers in the first instance. I trust that I have
been of some assistance to you.
The Minister for Communications also responded to the Council, noting:
I understand that the system proposed does not entail a de facto
licensing of journalist, rather it facilitates media access planning
to formal media events involving visiting foreign dignitaries and major
events sponsored by Government. As such, the system represents a streamlining
of existing security arrangements for formal media events.
Professor Pearce took up the Minister for Justice's offer to meet with
the officers from the Department of Prime Minister and Cabinet. His report
to the committee noted that the scheme was being implemented and the committee
decided to keep a watching brief on the scheme to see whether it infringed
on press freedom.
Military censorship
Dr Peter Young wrote to the Council, following the publication of his
book, The Media and the Military: From the Crimea to Desert Strike,
suggesting that the Council consider the establishment of a "media defence
preparedness committee" so that the media would be prepared for action
in the event of a future war. This committee would help protect the rights
of the media from infringement by the military in time of war. The committee
recommended that the Council take no action on the proposal. The Council
concurred.
[return to top]
11. Parliamentary inquiries
Senate Select Committee on Information Technologies
This committee was asked to inquire into Self-Regulation in the Information
and Communications Industries. The specific term of reference was
to evaluate the appropriateness, effectiveness and privacy implications
of the existing self-regulatory framework in relation to the information
and communications industries and, in particular, the adequacy of the
complaints regime.
In late January, the Council made a submission.
The Introduction of the submission, which argued that self-regulation
works and which was published in full as a supplement to the APC News,
Vol. 10, No. 1, February 1998, read, in part:
The Council believes that its background and experience of the self-regulation
of the print media will provide useful information to the committee.
On the particular aspect of privacy, the Council sees no public interest
in the introduction of laws which would regulate news gathering activities,
in public, whether or not assisted by unusual skills or manufactured
devices.
The Council has itself looked at, and has ruled on, the ethical legitimacy
of alleged intrusions by invasive means into private property and believes
such intrusions by the press are not a serious concern in Australia.
At public hearings held in February, the Executive Secretary, Jack Herman,
and an Editor member of the Council, John Morgan, appeared before the
Select Committee and gave further oral evidence.
Subsequent to their appearance, the committee sought the other submissions
made to the Select Committee and the transcripts of its public hearings.
In the light of those hearings, particularly the appearance by video-conference,
of Lord Wakeham, Chairman of the UK Press Complaints Commission, the Council
made a further submission.
This supplementary submission which was published in full in the APC
News, Vol. 10, No. 2, May 1998, was introduced:
The Council has now had the opportunity to read the submissions to
the Committee and the transcripts of hearings of the Committee. There
are some matters of fact appearing in those documents that the Council
wishes to correct. There are also some matters raised in the material
on which the Council wishes to comment, lest the Committee be misled.
It included sections on: Questions of privacy - Australia and the UK;
Third Party Complaints; Following-up Adjudications; Complaints Committee
Hearings; Informal Discussions with Editors; Martin Bryant Photos; Time
Taken for Complaints; The Media at Tragedies; and The Prominence of Adjudications.
The Select Committee, which was due to report in June 1998, had not delivered
its report at the end of the reporting period.
[return to top]
12. International
PNG
The committee kept a watching brief on developments in Papua New Guinea
where the local media were trying to introduce self-regulation. The Government
at times supported such a move but at others made threatening moves towards
the media.
Fiji
The Thomson Foundation sent a consultative team, headed by a former Director
of the British Press Council, to Fiji to look at the development of a
media code of ethics. Its work was being supported by the recently established
Fiji News Council, which invited the then Chairman of the Council, Prof
Flint, to address a public forum in late 1997. In mid 1998, the Government
was considering Emergency Powers legislation which would undermine the self-regulatory codes and freedom
of the press. The committee kept a watching brief on these developments.
[return to top]
13. General
Misuse of media power
A concern in provincial South Australia that a media proprietor was abusing
freedom of the press by allegedly using his position to influence the
local authorities towards the use of his companies, was handled by the
acting Chairman, Lange Powell. The Council endorsed Mr Powell's actions
which had resulted in no further action being taken in the matter.
Youth suicide
The committee considered a draft booklet, prepared by the Federal Department
of Health and mental health experts, intended to be a Resource Kit for
the media on the question of the reporting of suicide, particularly youth
suicide. The Executive Secretary convened a group of publishers' representatives
and this group drafted a detailed response to the proposed Resource Kit.
This feedback was sent to the appropriate authorities and an
edited version of it was published in the APC News, Vol.
10, No. 1, February 1998.
The Department and its associates decided to look more fully at the questions
raised by the Council and by other feedback. The Resource Kit was withdrawn
for redrafting and a former journalist brought in to assist in the process.
The same group of publishers' representatives assisted in provision of
feedback on a separate Resource Kit on the reporting of mental health
issues.
Freedom of the Press Medal
The Council agreed in principle to the institution of an occasional award
for contribution to the advancement of freedom of the press in Australia.
At the end of the reporting year, the committee was considering the design
of the medal and possible recipients of the inaugural medal.
[return to top]
Return to
Freedom of the Press overview
Documents with the  icon require the Acrobat Reader, a Free Utility from Adobe. Click here for more information.
|
