Second Supplementary Submission by the Australian Press Council to the Senate Select Committee on Information Technologies on its Inquiry into Self-regulation in the Information and Communications Industries.

[Note: A submission was sent to the committee in early 1998 and a supplementary submission was sent to the committee some months later.]

1. Introduction

This is a Second Supplementary Submission from the Australian Press Council to the Senate Select Committee on Information Technologies, following its 28 June 1999 request for additional material on developments since the Council presented material to the committee in 1998.

This additional submission is concerned with a limited number of matters:

• the proposition that powers additional to those presently available to the Press Council should be given to the Council or to another body established to deal with complaints against the print media;
  
  
• the Council's commitment to reviewing the appropriateness and effectiveness of its procedures;
  
  
• the establishment and the functioning of the Press Complaints Commission (UK).

Comments additional to those in the Council's original submission were provided to the committee on 9 April 1998. The Council invites the committee to look again at that supplementary submission as it contains material that rebuts a number of errors and clarifies several issues relating to the work of the Council that emerged during the committee's hearings.

2. Increasing the powers of a body to deal with complaints against the print media.

It must be noted at the outset that the Press Council is a self-regulatory body established and funded by the print media. Its power in relation to the receipt and determination of complaints is that which is given to it by the media which established it. The Australian Press Council's power generally replicates that of independent press councils in other countries, notably the United Kingdom and New Zealand and some Canadian provinces.

It is most improbable that the print media in Australia would agree to the extension of the Press Council's power. To do so would be seen to run counter to the concept of self-regulation in that another body, albeit one established by the print media, would be giving directions to papers on what they should publish. Any suggestion from the committee that the present Council should have the power to consider a wider range of complaints or be able to demand action from the press of a kind other than the present requirement to publish the Council's adjudication is unlikely to result in any positive response.

Accordingly, if the committee were to consider it desirable for additional power to be given to a body to deal with print media complaints it would be necessary for the committee to recommend legislation to establish a statutory body and invest it with whatever are considered to be appropriate powers.

It should be recognised that such a step would bring the status of the print media in this country closer to that in countries where there is no freedom of the press. In particular, it would place Australia at risk of being classed amongst those countries where the expression of critical opinion by the press may attract political or economic sanctions.

However, if the committee proposes going down the pathway of suggesting the establishment of a statutory complaints mechanism, there are a number of matters that the Council considers that the committee's report must address if the committee's proposal is to have any status.

2.1 Constitutional issues

The Commonwealth has constitutional power to control the electronic media through the wide interpretation given to s 51(v) of the Constitution (the post and telegraph power) and the external affairs power. There is no equivalent direct head of power applicable to the print media. It may be possible to rely on the trade and commerce power in s 51(i) but this would not extend to controls over newspapers that have no interstate trade. The Press Council's remit includes all print media, including regional, local, suburban and ethnic newspapers. It is doubtful if the Commonwealth could legislate to encompass all these different outlets.

A second issue with which it would be necessary to grapple is the type of power that could be given a complaints mechanism. A Commonwealth tribunal cannot be given the power to impose penalties. This power can only be exercised by a court. Likewise, care needs to be taken in providing for the enforcement of a ruling of a tribunal. If a newspaper did not comply with the order of the tribunal, a means would have to be set up for the order to be made the order of a court before it could be enforced.

Thirdly, the High Court in Lange v ABC (1997) 145 ALR 96 reaffirmed the implied right of freedom of communication provided by the Constitution. Any constraint on what the press might publish would have to be very carefully crafted to avoid offending this principle.

2.2 Cost

The Press Council costs taxpayers nothing. A statutory complaints mechanism would have to be funded by the government unless it is thought that some levy could be imposed on newspapers to pay for the cost of the mechanism. To achieve this, the newspapers to be levied would have to be recognised through some form of registration and licensing process such as applies to the electronic media. However, unlike the electronic media which uses a scarce resource, newspapers have historically been able to be established by any citizen who wishes to do so. In no true democracy are newspapers licensed.

2.3 Appointments

Appointments of members of tribunals are made by the government of the day. Obviously such appointments may be perceived by the public as having been made to reflect the interests of that government. Because of the power that a print complaints mechanism could exercise over the dissemination of news critical of government policy, appointments to the complaints body would be scrutinised with particular care. It would be difficult to persuade an opposition party and the community generally that a complaints body would deal with complaints from the government about perceived unfair comment impartially when the government has control over the appointment of the adjudicators. Similarly opposition parties would doubt that they would get a fair hearing in respect of their complaints from a government appointed body dependent for retaining office on the government.

2.4 Standing to complain

The Press Council accepts complaints from any member of the community. Tribunals traditionally deal only with complaints from persons affected by the decision in question. If the concept of a statutory body to handle complaints against the print media were to be developed any further, it would be necessary for the committee to indicate who would have the right to bring a matter before that body. The Press Council believes that it would be counter to the public interest to have this scope narrowed.

2.5 Procedure of complaints body

The Press Council's procedure is informal and flexible, indeed it has been criticised by newspapers for being too flexible. The history of tribunal procedure in this country has been that it becomes more inflexible the longer the tribunal continues in existence, despite any exhortations that may be contained in the establishing legislation. This is often because persons affected by a tribunal decision which they do not like appeal to a court. The court then examines closely the procedure followed by the tribunal and the matters taken into account in reaching its decision. This leads inevitably to the tribunal feeling constrained to act more formally.

The Press Council has actively discouraged the involvement of lawyers in its procedures. This is harder for a statutory body to do - witness the attempts to keep the migration review tribunals lawyer-free. If the print media complaints tribunal were given directive or punitive powers it could be expected that newspapers would oppose action brought by a complainant by employing legal expertise. It is also probable that newspapers would appeal adverse decisions of a statutory body, particularly if penalties or directions to publish material were involved. In contrast, the print media may object to a Press Council ruling, but the affected publication prints the adjudication as it is the policy of the mainstream media to recognise the jurisdiction of the Council.

At present a person can complain to the Press Council at no cost at all. This would not be the case with a statutory complaints procedure and, depending on the outcome and the attitude of the newspaper involved, high costs could be incurred by a complainant. The need to seek assistance for the purposes of putting a case before a statutory body and the risk that its ruling might be appealed to a court will inevitably lead people to think twice about venturing into a statutory review process.

2.6 Time for dealing with complaints

Misleading information was provided by other witnesses to the committee at its hearings about the time taken by the Press Council to deal with complaints. As noted in its first supplementary submission to the committee, the Council has reviewed its procedures and complaints are now dealt with very quickly.

In 1998-99 there were 58 cases that went to adjudication by the Council. From receipt of the first letter to the Council from a complainant to the date of the adjudication the longest period that elapsed was 32 weeks and the shortest 5 weeks. The average was 13 weeks. Adjudicated cases are those which take the longest time to resolve. They represent only one-fifth of the Council's dispute resolution work. Most complaints are dealt with very quickly through informal approaches or mediation. So much have the circumstances changed since the time to which witnesses to the committee were referring that the Council at its last meeting was able to say that it would not deal with complaints that were more than 6 months old. It would be most unusual for a tribunal to be able to offer this sort of turn around time, particularly if newspapers were not prepared to cooperate with the review body.

It is of value to compare the system that applies to the resolution of complaints against the electronic media. There the lengthy period that the broadcaster is given by statute to formulate an initial response to a complainant and before the complainant can bring a matter to the attention of the Australian Broadcasting Authority has resulted in a substantially lower number of complaints being managed in a longer time frame and at a very much greater cost than that for the service provided by the Press Council.

It is also instructive to compare the time taken for defamation proceedings against a newspaper to be finalised. It is common for up to 6 years to elapse before a matter is resolved. The remedy provided by the Press Council compares favourably with this cumbersome means of calling a newspaper to account for what it has published.

2.7 Conclusion

It may appear that the Council is presenting the worst possible scenario for a statutory body. However, the issues raised are genuine concerns that the committee would have to deal with if it went down the pathway of recommending a statutory complaints mechanism. To do otherwise would leave the committee's recommendations open to the allegation of being ill-thought through.

3. Review of the Council's practices

The Press Council knows that, like any organisation providing a service to the public, it has a responsibility to keep the appropriateness and effectiveness of its procedures under review. It maintains this commitment through several avenues.

3.1 Survey of Complainants and Editors

The committee's attention was drawn in the Council's previous supplementary submission to the 1994 Survey of Complainants and Editors. The results, and an analysis of the survey results, were published and have been made available to the committee.

The Council recognises that the markets in which newspapers are publishing, and the public's acceptance of opportunities to complain about various aspects of economic, social, or political activity, are subject to continuous change and evolution. It has observed some of the effects of this climate of change in its work with both editors and complainants, and believes that it may be timely to conduct a second survey of these broad interest groups with more recent experience of dealing with the Council. The Council will be considering this option shortly.

3.2 Public meetings and training workshops

Within its annual program of ten full Council meetings, the Council aims to conduct at least two in State capitals or regional centres outside Sydney. For several years it has combined these meetings with a seminar open to the general public, often organised in conjunction with local press representatives and a local tertiary educational institution.

These seminars offer an opportunity for the public to participate in discussion with the Council about issues of interest in the press or the media generally, as well as to provide the Council with feedback about its own operations.

In recent years, the Council has also developed a role as a source of practical education and training material for secondary and tertiary students, and for younger journalists who may not have been directly exposed to its remit. Workshops based on complaints case studies adapted from the Council's records provide these different groups and their teachers with an opportunity both to reach their own conclusions on specific cases, and to comment on Council principles and procedures.

The continuing development of the Press Council's Internet site is expected, over time, to open further public feedback channels to the organisation.

3.3 Council Planning Meeting

In March 1999, the Press Council conducted a planning meeting over one and a half days, to discuss a wide range of topics related to the press environment in which it works, to different perceptions of its role in the community, and to its internal procedures and structure. The planning meeting generated over 40 proposals for possible further development, on matters including: o

• The desirability and feasibility of extending the Council's role to cover Internet editions published by newspapers.
  
  
• The need for clearer policy guidelines for the adjudication of complaints about newspapers' alleged failure to distinguish between fact and opinion.
  
  
• The Council's jurisdiction with regard to new forms of publication such as 'lifestyle magazines', that rely heavily on stories and reports submitted by members of the public.
  
  
• The establishment of a committee to co-ordinate and extend activities promoting the Council amongst newspapers, in educational institutions, and in the community at large. Avenues of promotion being explored by the committee include:
  
  
  • making available a wider range of publicity material about the Press Council to newspapers, for use as occasional feature or filler copy;
  • developing a Press Council education kit for both electronic and hard-copy distribution;
  • expanding the training workshop program outlined above;
  • encouraging and facilitating wider publicity of Press Council determinations the relevance of which extends beyond the newspaper(s) immediately affected by a particular adjudication;
  • pursuing opportunities for promoting the Council's role and work through the broadcast media;
  • raising the Council's profile as a proactive commentator on broader issues in the press.
    
    
• A procedural framework for the Council to deal with broad issues of public concern about the print media and 'class actions', beyond the immediate scope of perceived threats to press freedom and of complaints received on specific articles.
  
  
• Opportunities for further increasing the use of mediation as a means of addressing complaints, and for involving Council members in the mediation process.
  
  
• Streamlining the complaints handling process to ensure all matters are dealt with within 6 months of publication of an article giving rise to a complaint.
  
  
• Monitoring the Council's consistent application of its principles across the print media.
  
  
• Options for amending the basis of public, editorial, and journalist membership of the Council.

The Council has set in train a process for developing and costing detailed proposals in these and other areas.

3.4 Summary

In summary, the Press Council is evolving a number of mechanisms for policy and procedural review, to keep pace with broader developments in the media environment in which it operates.

The Council is actively responsive to changes in the communities of interest that it serves, within the limits of the financial and other resources available to it. In the Council's view, this responsiveness echoes and enhances the commitment to self-regulation on which its role and functions are based.

4. Press Complaints Commission (UK)

The Council is led to believe that the committee may be under some misapprehension with respect to certain matters relating to the UK Press Complaints Commission. The name "Commission" may have misled the committee. The Commission is appointed and funded by the newspaper industry in the same way as the Australian Press Council. It has the same power of intervention as the Council in that it adjudicates complaints and makes a finding which is then published by the newspaper concerned. The Commission has no directive or punitive powers.

The strength of the Commission's privacy code may perhaps be judged by the recent publication of photographs in the UK of Sophie Rhys-Jones.

Another significant distinction between the powers of the UK Commission and the Australian Press Council is that the Council can receive complaints from members of the public who are not directly affected by published material but are concerned about its content. In the UK only the person affected can complain. As pointed out in the Council's supplementary submission, the Senator Bob Woods photograph has not at any time been the subject of complaint by the people shown in it. The Press Council dealt with the matter following the lodging of a complaint by a third party. This would not have been possible in the UK. Indeed if Ms Rhys-Jones had not chosen to complain, the publication of the photograph of her could not have been dealt with by the Commission.

Finally on this issue of comparison, a complainant does not have a right to present a case in person before the UK Commission. Matters are dealt with entirely on the correspondence The Council is strongly of the view that attendance should not be obligatory but that a complainant should have the right to "a day in court" if they so choose.

See also
1997-8 Freedom of the Press Report- for developments involving the Senate Select Committee on Information Technologies

Original submission to the Senate Select Committee on Information Technologies
Supplementary submission to the Senate Select Committee on Information Technologies

Return to
Submissions list
Freedom of the Press overview

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