Freedom of the Press
Report 1998-99

The matters considered by the committee in the reporting year included the following.

1. Contempt

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. Over the year, the committee discussed the issue on several occasions and took steps to better inform itself on the current situation. Early in the reporting year, the committee sought to invite a judge or recently retired judge to address the Council on the courts' view of the influence of the press on trials. Several invitees expressed interest but no firm date could be set and the matter was laid aside.

The Council's Chairman participated in a seminar in November, organised by the University of Technology, Sydney, on questions of the courts and the media. He raised several of the issues before the committee for discussion but was not rewarded by a positive response. As a result, he consulted personally with the Chief Justice of South Australia, Justice John Doyle, on the matter. Justice Doyle suggested that the Council should prepare a paper on its views and seek to present it at one of the up-coming judicial conferences. In that way it could seek the response of the judicial officers present.

Early in 1999 the Council began collecting data on the incidence of contempt actions against the media in the various Australian jurisdictions and sought the assistance of various bodies to ensure that it had the most up-to-date information. It received the assistance of editors in Western Australia, Queensland, NSW and Victoria, as well as the Federation of Australian Commercial Television Stations (FACTS). It also made inquiries in the UK to see if there was a similar incidence of contempt citations there. The Press Complaints Commission said it could not quantify the incidence of such cases but that "there were very few such cases".

At the end of the reporting year, the committee was gathering together the data it had collected and moving towards the writing of a paper such as that suggested by Justice Doyle.

In NSW, the Costs in Criminal Cases Amendment Bill had been withdrawn and the whole matter of contempt law sent to the Law Reform Commission. The committee determined to make a strong submission to the Commission. It was also seeking the advice of the Commission on the form its inquiry would take. The committee suggested to the Commission that it seek the advice of a committee of non-lawyers, including journalists and members of the public, before arriving at its decision. At the end of the reporting year, the committee learned that Professor Michael Chesterman would have carriage of the matter in the Commission and that he had not as yet announced the form his inquiry would take.

The committee reviewed several specific contempt cases but decided not to take any action on any of them. Two it looked at in particular were

• the Zammit case where the judge refused to find the broadcaster in contempt despite the broadcast leading to the abortion of a trial; and
  
  
• the Duong Va Ia case in which the defendant newspaper argued that research demonstrated that readers have little recall of stories, within minutes of reading them, and that, as a result, press stories can have little effect on juries. The judge in the case did not accept the newspaper's argument but dismissed the contempt case on other grounds.

The committee also viewed with concern the inauguration speech of the new Victorian Chief Magistrate who suggested less co-operation by magistrates with the media. It decided to maintain a watching brief on developments in the Victorian lower courts.

see also
Index on courts and contempt material

[ return to top ]

2. Defamation

The Committee determined to try and work towards reinstating uniform defamation law reform on the agenda of the Standing Committee of Attorneys-General (SCAG). It decided that uniform defamation law was a priority and that the content of that law could be a matter for discussion. On 13 October it issued a submission to the State and Federal Attorneys, the Executive Summary of which read:

The Press Council recommends that the state, territory and federal attorneys-general should resume discussions with the aim of achieving uniform defamation laws throughout Australia as quickly as possible, first by supporting the reinstatement of uniform defamation law on the agenda of the Standing Committee of Attorneys-General (SCAG), and then by taking immediate steps towards the codification of such uniform defamation law.

The submission was published as a supplement to the APC News, Vol. 10, No 4, November 1998. General Press Release No 223 was issued on 16 October.

As a result of the submission, the Chairman had detailed discussions, over several months, with officers of the federal Attorney-General's Department. The department was keen for the Council to organise a seminar to take up the issues in its submission and suggested it co-opt the participation of the electronic media as well. Accordingly, the Chairman met with representatives of FACTS, FARB, and the ABC to seek their co-operation. The electronic media expressed interest but said that the lead needed to come from the Attorneys.

In the absence of any enthusiasm from the state Attorneys-General for the proposal for uniform defamation law, the initiative lapsed.

In September 1998, the ACT Attorney-General issued draft proposals for defamation law reform. These proposals were originally tied to a suggestion that there be a simultaneous introduction of privacy legislation. Later in the reporting year the ACT AG indicated that he would be pressing ahead with a revised law but that the privacy law would not be a part of the proposals. The revised law would introduce a defence of truth and limit damages to actual loss. While there were other provisions that were not so favourably viewed by the committee, it viewed the ACT proposals as steps in the right direction and, at the end of the reporting year, was awaiting the final form of the proposed Bill.

The committee looked at a number of defamation cases and rulings through the year. The two cases which attracted the most attention were the suit brought by Victorian Premier, Jeff Kennett, against The Australian over the publication of rumours about extra-marital affairs; and the case brought by two federal Ministers, Tony Abbott and Peter Costello, and their wives, against the publishers of a book which contained details which they found offensive.

see also
Index on Defamation Law material

[ return to top ]

3. Media ownership

In early 1999, the federal government referred to the Productivity Commission questions of broadcasting law. The commission published an issues paper in March 1999 and invited submissions. The committee recommended to the Council that it make a submission solely on the questions of cross-media ownership rules raised in the issues paper. The Council agreed and on 25 May a submission was sent to the commission. The submission contained several recommendations. They were:

A. Certain principles should form the basis for the future regulation of media ownership. These principles should include:

• the promotion of the plurality of media ownership and of media outlets, and the diversity of content and opinion in a competitive media market;
• flexibility, so that the law does not become outdated with every new development and convergence between technologies is not hindered;
• neutrality between different technologies, so that the media is normally treated as one single market or markets geographically defined;
• transparency, so that their application should be clearly seen as being removed from the exercise of political patronage;
• justiciability, that is so that at least the fairness of the process if not the decisions themselves can be reviewed by a court;
• awareness of the benefits which can flow from globalisation;
• emphasis that the purpose of the application of the law is to promote freedom of speech and of the press (including the electronic media); and
• reliance on a case by case approach determining whether a merger substantially lessens competition. It is recommended that research indicating consumer choice and use, particularly the time consumers allocate to using different media, constitute the principal tool in measuring the level of concentration in the market.

B. The Council recommends that the Trade Practices Act constitute the only law governing competition in the media market, in particular in determining whether a merger would have the effect, or be likely to have the effect, of substantially lessening competition in a media market. To achieve this the Council recommends that the Trade Practices Act be amended to provide that:

• the principles in recommendation 'A' are incorporated as paramount considerations to guide the regulatory authorities;
• the market include the broad media market;
• for the purpose of determining the level of concentration in the media market, consumer choice be the principal tool in measuring market shares;
• consumer choice in the broad media market principally means the amount of time the consumer allocates to the use of the relevant media; and
• he principal purpose of applying competition law to a media market (or sub-market) is to promote freedom of speech and of the press.

C. The Council also recommends that the Trade Practices Act be amended to provide that, where the acquisition of a newspaper, magazine or other media outlet would have the effect or be likely to have the effect of substantially lessening competition, and

(a) there is no persuasive evidence before the Australian Competition and Consumer Commission of an alternative proposal to acquire the newspaper, magazine or other media outlet on similar or better terms; and

(b) the vendor indicates that if the acquisition does not proceed the newspaper or magazine or other media outlet will be closed,

the acquisition shall be deemed to be likely to result in such a benefit to the public that the acquisition should be allowed to take place.

D. The Press Council sees no cogent reason why foreign investment in new media outlets should not be allowed. Legislation relating to foreign investment should:

• affirm the application of the Trade Practices Act to the media market, including foreign investment therein;
• establish a threshold in the broad media market and in geographically defined markets below which no approval for foreign investment is required;
• provide that applications for foreign investment above the threshold be determined by the regulator;
• provide that the test to be applied by the regulator in deciding on a foreign investment proposal be whether the proposal would be likely to result in such a benefit to the public that it should be allowed to proceed;
• provide that there be a common regulator under the Trade Practices Act and the Foreign Acquisition and Takeovers Act in relation to the media market (the Press Council recommends the Australian Competition and Consumer Commission play this role); and
• provide that decisions by the regulator be subject to review, and that at least the fairness of the process be also subject to review by the courts.

The submission was to be published as a supplement to the APC News, Vol. 11, No 3, August 1999. On 9 June, Professor Dennis Pearce, accompanied by Professor Hoong Phun Lee, gave evidence to the commission at its Melbourne public hearings.

[ return to top ]

4. Privacy

A call for submissions from the Victorian Department of State Development on the Data Protection and Electronic Framework discussion papers was looked at by the committee which decided that no submission was necessary.

However, a call for submissions from the Victorian Attorney-General's Department on a draft Surveillance Devices Bill was taken up by the Council. On 19 August it issued a submission, the Executive Summary of which 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 Council is concerned that some provisions of the draft Bill will hinder the publication of the news to the detriment of the Victorian people.

The submission was published as a supplement to the APC News, Vol. 10, No 4, November 1998.

Earlier, a draft Surveillance Devices Bill had been introduced in Western Australia. With the Council's permission, West Australian Newspapers incorporated aspects of the Council's submissions on similar matters to the Queensland government in its submission to the WA Attorney-General. The Council decided to make no separate submission.

see also
Index on privacy material

[ return to top ]

5. Freedom of Information and Suppression

In September, a photo-journalist approached the Council with a concern that a sporting federation and the PR company it employed were favouring certain organisations when it came to accreditation of journalists for events. The secretariat sought the views of the federation and, when the matter was placed before the committee, it determined that there was no threat to the freedom of the press involved. The federation undertook to accredit the complainant.

In September 1998, the NSW Attorney-General's Department sought submissions on guidelines to be issued pursuant to the new State Records Act, which replaced the Archives Act and applied to material more than 30 years old. After consultation with the major NSW publishers, the committee agreed to respond to the invitation. On 22 October it issued a submission, the Executive Summary of which read:

The Press Council endorses full access to state records after thirty years, except in limited cases where the records expose personal, private information of individuals, who are not, or were not, public figures; or the records disclose customary law and traditions of Indigenous communities against their will. Even in such cases the Council proposes a very strict assessment process and an immediate appeals procedure.

The submission was published as a supplement to the APC News, Vol. 10, No 4, November 1998.

In January the Victorian Premier called for a review or repeal of that state's FoI laws. The committee discussed the issue, which arose from a court ordered release of information sought by a convicted murderer. In addition to discussing the limitations placed on FoI material by public servants and politicians, the committee noted the prohibitive costs that can be involved. Publishers noted a case where $330,000 had been sought to cover the costs for one such search and another where $1.2 million had been assessed as the cost of researching material on MPs' travel costs.

As a result of these discussions, the Council issued General Press Release No 226 on 25 January 1999.

The GPR led to an article in the Victorian Law Institute Journal by Professor Pearce to which the Victorian Attorney-General responded that, as a result of the case noted above, she was considering changes to the Victorian Act. Professor Pearce responded:

Thank you for responding to my letter relating to Freedom of Information published in the Law Institute Journal.

I appreciate your concern that an application under the FoI Act resulted in the disclosure of information that should not have occurred. However, my understanding of the matter is that the disclosure arose, not because of the terms of the Act, but because of a failure on the part of the agency concerned to place matters before the Court. The Council's concern is that reaction to one case can lead to the public good that the legislation was enacted to serve being overlooked. Inappropriate disclosure is proscribed by the Act. If these proscriptions are not invoked by those concerned this is not the fault of the legislation.

I am sure that you and your government will approach this matter with the wider issue in mind that it is desirable in our democratic society that citizens have access to government information and that you will not allow one hard case to make bad law.

The Victorian government introduced amending legislation in May 1999. The committee noted the changes, which further restricted the availability of personal information about third persons discoverable by FoI applications.

In March, a Queensland Parliamentary review of its Freedom of Information Act was initiated. The Review Committee sought submissions on the questions related to the application and scope of FoI law in Queensland. After discussing the matter with Queensland publishers and members of the Council, the committee recommended a submission in very general terms. Accordingly, the Council's Chairman wrote to the Review Committee in the following terms:

The Press Council has noted that your Committee has been invited to review certain aspects of the operation of the Freedom of Information Act 1992. The Council is not in a position to offer views on the specific issues relating to the working of the Act that are set out in your terms of reference. However, it would like to bring to your attention some general matters relating to FOI legislation which it considers apposite to the Committee's deliberations.

The Council believes that a Freedom of Information Act is one of the most significant pieces of legislation protecting the public interest. Such an Act provides the only means by which citizens (or their legal representatives) can gain access to information affecting them personally or as citizens of the State.

It is only through the use of this legislation that persons can discover what information relating to them is held by the government. The Act also provides the only means available to a person to correct errors in that information.

The Press Council also believes that government information should be made more freely available in society, particularly in matters relating to the way that the government conducts itself. The public has a right to know how it is being governed. It should be able to gain access to the information that it wants and not be limited to what government hands out. Without guaranteed access to information this is not possible.

The Council urges the Committee, as representative of the people of Queensland, to oppose any attempt to interfere with this important piece of legislation in a way that would reduce access to government information. It favours broadening the way in which access can be achieved. It opposes any imposition of fees that allow an agency to set fees at a level that makes access impractical. It urges the Committee to examine sceptically proposals argued in terms of resource implications as it is by this means that governments secure changes in the law designed to limit access.

In March, the committee received and noted a paper published by the Australian Centre for Independent Journalism, Print Media Use of Freedom of Information Laws in Australia, written by Nigel Waters.

[ return to top ]

6. Juries

In August 1998, the committee noted that Professor Michael Chesterman was to head a study of the influence of media reporting on juries. The two-year study would involve interviews with jurors from about 40 cases. The committee is keeping a watching brief on developments.

[ return to top ]

7. Government suppression

Tobacco Advertising
In July - the NSW Department of Health wrote to a newspaper company warning it that incidental images of tobacco products in news photographs could infringe the NSW Act prohibiting tobacco advertising and that newspapers might have to use technology to "black out", "distort" or "obscure" the offending logo. After looking at the NSW Act, the Council's Chairman concluded that the department's interpretation of its provisions was probably accurate. The committee asked him to write to the Premier of NSW seeking changes to the Act so that newspapers were not put in the position of needing to infringe ethical responsibilities in the fair presentation of news by the onus to alter images in the way suggested.

In September, he wrote to the Premier in these terms:

The Australian Press Council has had brought to its attention the attached letter from the NSW Department of Health to Nationwide News. The requirements imposed on newspapers as set out in that letter cause considerable concern to the Council. The Council does not suggest that the interpretation of the Tobacco Advertising Prohibition Act 1991 set out in the letter is wrong. Rather its concern is that the Act imposes an obligation on newspapers published in NSW that is unreasonable and out of line with the legislative requirements in other States and the Commonwealth

The definition of advertising in the NSW Tobacco Advertising Prohibition Act is very wide. It seems to cover the publication of photographs that incidentally reveal tobacco advertising material on such entities as racing cars, footballers' jumpers, etc, as is indicated in the letter to Nationwide News. This is in marked contrast to other legislation dealing with the topic. The Commonwealth Act, for example, exempts from its strictures advertisements that are an accidental or incidental accompaniment to the publication of other matter where the publisher receives no benefit from publishing the advertisement.

While we have not looked at the legislation in all other jurisdictions, we note that the Victorian and South Australian Acts exclude newspapers from the restrictions on advertising. Queensland appears to have no legislation on the topic at all.

The letter to Nationwide News suggests that newspapers should manipulate photographs to black out or obscure references to tobacco products. Apart from the technical difficulties that such action entails, particularly when publishing deadlines have to be met, it is the strongly held view of the Council that photographs published in newspapers should not be altered.

The Council considers that the public should be presented with the news as it is. It opposes the manipulation of material that is presented as factual even if it is thought that for some reason the material may be undesirable in some respect. ... General Press Release No 220 sets out the Council's position.

All of this, in the view of the Council, means that the law in NSW is unreasonable and that it should be amended to bring it into line with the provisions in other jurisdictions. At the very least, the approach adopted in the Commonwealth Act of exempting incidental reproduction of references to tobacco should be followed However, it seems significant to the Council that other States do not seem to feel the need to impose the limitations on the print media that the NSW Act includes.

The Council invites you to consider the terms of the Tobacco Advertising Prohibition Act which in its view imposes unreasonable limitations on the Press and exposes it to penalties that are unfair and out of line with the position in other States.

In November, the Premier wrote, in response, that he had referred the matter to the Minister for Health, whom the Council waits to hear from.

[ return to top ]

8. Parliamentary inquiries

Senate Select Committee on Information Technologies
This committee had not reported on its inquiry into the appropriateness, effectiveness and privacy implications of the existing self-regulatory framework in the information and communications industries before the previous Parliament was prorogued. In November it submitted a report to the Senate, calling for its re-appointment. The report made no reference to print media and, indeed, the minority report from Sen. Stott-Despoja appeared to want to steer the select committee towards an exclusive look at the "on-line issues".

In May 1999, the select committee invited submissions on its review of legislation intended to regulate Internet content. The FoP committee decided that the matter lay outside the Council's remit.

On 28 June, the select committee advised the Council (and other submitters to its earlier inquiry into the information and communications industries) that it was taking up the unpublished report of the previous Parliament's select committee and was inviting submissions from interested parties on developments since it took evidence in 1998. The Council was considering this invitation at the end of the reporting period.

[ return to top ]

9. International

Fiji

In August, the committee sought the advice of the Fiji Media Council on new media codes proposed by the government. The Media Council responded that, after talks it had established better relations with the government and no action from the Australian Press Council was called for.

Later in 1998, the Media Council invited Professor Pearce to attend and address a forum it had organised on election reporting. Professor Pearce outlined the Australian Press Council's determinations on such reporting.

Samoa

The committee noted and kept a watching brief on developments in Samoa, where the publisher and editor of the Samoan Observer were subject of a criminal libel charge from former members of the government, charges that were not dropped until late in 1999.

In February 1999, injunctions restricting the reporting of details of pay deals of senior executives of a local airline were upheld by the local courts.

As a result of these developments, the Council sponsored the visit of the publisher of the Samoan Observer to the WAPC Conference in Brisbane so that he could outline in detail his difficulties.

World Association of Press Councils

At its 1998 conference in Istanbul, the WAPC moved towards the establishment of a Trans-National Complaints Mechanism and an International Code of Ethics. After discussing these matters the committee recommended to the Council that it dissociate itself from these moves. As a result, the Chairman to wrote an article for the APC News, Vol 10, No 4, November 1998, and sent copies of the article to international bodies interested in the matter. The Council received numerous letters of support. Justice PB Sawant, President of the association, took issue with Professor Pearce's arguments. His letter in response was published in the APC News, Vol 11, No 1, February 1999.

In March, Professor Pearce circulated the draft of a paper, intended as a report of a WAPC committee he was chairing, arguing that the association should concentrate on its role as a progenitor of local councils in developing countries. The committee endorsed the draft.

[ return to top ]

10. General

Political bans

In July, the committee discussed the exclusion of Queensland Times journalists from a One Nation press conference in Ipswich. As a result of those discussions, the Council issued, General Press Release No 221 condemning the action.

Goods and Services Tax

In November, the committee discussed whether it should look into the impact, if any, on freedom of the press issues of the imposition of a GST newspapers. It decided that the matter, being more of a commercial nature, was one for the publishers, not the Council.

Asian Media Council of Australia

The Council's Chairman and Executive Secretary met with Sydney Deputy Lord Mayor, Cr Henry Tsang, and Francis Lee, from SBS, founders of the AMCA, intended as a lobby group to act on behalf of the publishers and broadcasters of the Asian-language media. The Council officers undertook to give the AMCA the Council's co-operation. The AMCA asked Professor Pearce to act as an adviser, and he agreed to so act.

Ads for Collectable Knives

In January, the NSW Premier called for Press Council action on the plethora of print media ads for collectable knives, at a time when his government was taking steps to get dangerous weapons out of the hands of gangs. The committee noted the approach and the Chairman wrote to the Premier that the matter, concerning as it did advertising, lay outside the Council's remit.

Sydney Organising Committee for the Olympic Games

In early 1999, there was some discussion of the exclusive arrangements between SOCOG and some newspaper companies, which gave those companies first use of certain SOCOG material. After discussing the matters with the companies concerned, the committee decided that the arrangements were 'promotion' not news, and did not interfere with the reporting of important events connected with Games.

Youth suicide

In June 1999, the federal Department of Health and Family Services finalised drafts of guidelines on suicide reporting and the reporting of mental illness. The drafts sent with only a few days to comment so the Council contacted the ad hoc committee of publishers' representatives which had been advising it on such matters. The representatives agreed that, while the drafts were not in line with the Council's suggestions, they at least reflected the reservations held by the industry as to some of the assumptions made. These views were conveyed to the department.

As a result of the attitude taken by the industry and the Council, the Chairman would not endorse the documents, but noted the Council's agreement to be included among the bodies consulted.

Press Council Medal

In late 1998, the committee continued to work towards a design of the medal and to consider possible recipients. In the end, the committee and the designer could not agree on a suitable design and the committee agreed to pay him out for his time and effort.

In June 1999, the Council determined to make the inaugural ward of the medal later that year and asked the secretariat to secure some designs for the 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.