Submission from the Australian Press Council to the Attorney General of South Australia on the 'Payola' provisions of the Criminal Law Consolidation (Offences of Dishonesty) Amendment Bill 2001.

19 October 2001

1. Executive Summary

The Australian Press Council submits that the 'payola' provisions of the Criminal Law Consolidation (Offences of Dishonesty) Amendment Bill 2001 which attempt to deal with matters arising from the commercial radio cash-for-comment inquiries are so broad and sweeping in their wording and ambit that they pose a threat to the traditional freedoms of the press in Australia.

The provisions are intended as legislation that will deal with a particular and publicly discussed issue, the prevalence of cash-for-comment in commercial radio. However, the legislation drafted is ambiguous and has the potential to catch a wide range of common situations, well beyond that required by any matters arising from concerns with 'payola'. The Council is concerned that the legislation will have the unintended effect of limiting the free flow of information to the public.

The Council calls on the Attorney to withdraw the 'payola' provisions of the Bill and redraft those sections of it before any re-introduction.

The Council and its role

The main principle upon which the Council is based is that the freedom of the press is the freedom of the people to be informed on matters of public interest. The Council is concerned that an attempt to address a problem in one section of the media has resulted in legislation that will adversely affect all sections of the media, even those where there is no hint that 'payola' is a concern.

The Press Council deals with complaints from the public about the ethical behaviour of the print media. It addressed the possibility that there was a concern with cash-for-comment in newspapers and magazines its 1996 review of its Statement of Principles. In that review it added a new clause to principle 5:

A publication is justified in strongly advocating its own views on controversial topics provided that it treats its readers fairly by:

• disclosing any commercial or other interest which might be construed as influencing the publication's presentation of news or opinion.

Since that time, the Council has had to deal with only one formal complaint on the issue (Adjudication No. 1126) which dismissed the complaint and found that there was no basis to say that the editorial content was determined in any way by cash or other consideration. On the basis of complaints received by it and inquiries made of it, the Council does not believe that there is a need for legislation that takes in such a wide range of media activities as the draft Bill.

The print media

Concerns with cash-for-comment arose from particular circumstances related to commercial radio. As a result of its inquiries, the Australian Broadcasting Authority (ABA) issued new guidelines to limit the possibilities of continued cash-for-comment in the electronic media. Those new standards appear to be working. No evidence has been adduced that there is a wider problem in other media or in the community. In any case, publications have taken up the issue through their own written codes of conduct. Potential conflicts of interest or cash-for-comment situations have been dealt with either through bans on journalists accepting largesse or by the publication of statements identifying possible conflicts.

Additionally, there are in the print media no identifiable commentators with the influence of the radio talk-show hosts who were the subject of the ABA inquiries. The particular aspects of commercial radio that gave rise to the cash-for-comment concerns, including the audience reach, the freedom to comment widely and extemporaneously and the established links to advertising material created by the hosts being paid to read ads on-air, are matters peculiar to commercial radio and do not have similar relevance to the print media. Nor are the radio talk-show hosts who were the subject of the inquiries journalists as such, and subject to the journalists' code of ethics or the Press Council's Statement of Principles and complaints procedures.

The Bill

In respect to the 'payola' provisions of the draft Bill, the Council is particularly concerned with the width of the ambit. It refers to any person who holds him/herself out to the public as an independent expert when, in reality, the person has an undisclosed financial interest in giving the advice. Such a definition may include print media journalists and many of their sources. (This includes politicians belonging to political parties which receive donations from organisations which are directly or indirectly affected by the politician's statements.) The legislation appears to prohibit them from expressing an opinion in areas where they have received or expect a benefit, unless an acceptable form of disclosure is made.

While probably not intended to cover such situations, the Bill could affect the review sections of publications, including reviews of restaurants, films or books, and travel and lifestyle sections, in all of which a benefit may be received but would, in most cases, not affect the journalist or the publication. Such a benefit could include something as inconsequential as a seat at a preview of a film, a copy of the book reviewed or even a meal. The benefit might equally include provision of overseas air travel or accommodation of substantially more financial benefit. Yet, by the wording of the Bill, each could lead to the prosecution of a journalist.

However, the disclosure provision [section 152] is not clearly drafted and it is unclear as to whether the current print media practice of a simple declaration of a potential conflict at the end of an article or review is sufficient. In some cases, such as reviews of restaurants, books or films, it has not been the practice to disclose whether or not the service was provided to the journalist or paid for by the publication. The provision of any benefit in such cases is provided without the expectation that the review will be favourable but such a consideration is not provided for in the Bill.

The Council is also concerned that the proposed penalties appear to be unduly harsh and that the Bill may lead to a number of other employees of news organisations (including, but not limited to, editors, sub-editors and publishers) being charged as accessories to any offence under the Bill. Additionally, there is a concern that the wording of the Bill could extend its ambit to cover other material in publications, such as articles and comment and expert analysis and commentary. Such material has traditionally enjoyed some leeway from the courts and the Press Council, to enable the expression of strong opinions and trenchant commentary on matters of significant public interest. In the case of material related to the political process, the High Court has ruled that there is a freedom of communication implied by the federal Constitution.

Finally the Council notes a relevant clause from the Northern Territory's Criminal Code Act 1991:

237. Independent advisor accepting secret commission

Any person who holds himself out to the public as being engaged in the business of making for commercial purposes disinterested selections or examinations, or expressing disinterested opinions in relation to property or services, and who asks for, receives or obtains, or agrees to receive, any property or benefit of any kind in order to influence his selection, examination or opinion, is guilty of a crime and is liable to imprisonment for 3 years.

That formulation, which addresses directly and succinctly the concerns with the possibility of cash-for-comment in the media, or elsewhere, is preferable to the 'payola' provisions in the draft Criminal Law Consolidation (Offences of Dishonesty) Amendment Bill 2001.

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