Australian Press Council Submission to the Victorian Department of Justice commenting on the Police Regulation (Agency Photographs Fees) Regulations 2009 - Regulatory Impact Statement.

June 16, 2009

Executive Summary

• 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.

Submission

The Australian Press Council is opposed to the proposed regulation on the grounds that it represents an unwarranted intrusion on the freedom of the media to report on matters pertaining to crime and justice. Further, the proposal to impose fees on media applications for the release of police photographs, while at the same time assuming that the media will continue to publish images at the request of the police without charges advertising fees, is inequitable and unreasonable.

While there may be variation in the arrangements across the various Australian jurisdictions, there is generally a cooperative arrangement between the police and the press, whereby the media frequently publish images at the request of the police for the purpose of assisting with investigations, while the media sometimes request images of offenders. This arrangement seems to work to the satisfaction of both parties. While the media is not required to pay fees for the release of police images, the police are not required to book advertising space in order to circulate images to the public, leading to cost saving from being relieved of the burden of paying advertising fees. The proposed regulation jeopardises the cooperative relationship between the police and the media.

The "regulatory impact statement" released in support of the proposed regulation is less than persuasive in its rationale for imposing the proposed fees. The assertion that "no substantive argument can be made in favour of setting fees at a level which would achieve less than full cost recovery" is contradicted by the statement that "lack of access to agency photographs would, to some extent, reduce the ability of media organisations to inform the public on certain matters of public interest".

Certain aspects of the regulatory impact statement suggest a lack of understanding of the current situation with regard to newspaper publishers. In addition to being subject to the impact of the current global economic crisis, newspapers are currently suffering a significant drop in advertising revenue due to the shift to online advertising. Many newspapers are quite sensitive to increases in costs at this time, and have been engaging in large scale cost-cutting. In spite of this, the regulatory impact statement claims that it is "unlikely that the adoption of a lower fee would have any significant impact on demand for agency photographs by media organisations".

In addition to failing to grasp the current business climate in the media industry, the regulatory impact statement also fails to acknowledge the monetary value of services that are provided gratis by the media to the police. The regulatory impact statement states that the fee "will not be applied in circumstances in which it is considered that there is a public interest, relating to the demands of community policing or other facts, associated with the release of an agency photograph. That is, the proposed fees will not apply in cases in which there is a public interest element." By publishing, without charge, police images in order to assistance in investigations, the media is foregoing the advertising revenue which they could demand for such publication. If the media were to be charged a significant fee for the provision of images by the police, newspapers would be justified in expecting police to pay for space used for public information campaigns about offenders.

One of the arguments cited in the regulatory impact statement as justification for the proposed fee is the claim that "taxpayers will subsidise the provision of these photographs". This comment fails to recognize that media organisations are themselves taxpayers. In addition, the comment demonstrates a failure to appreciate that the media are not themselves the final recipient of the image, but merely a conduit through which the image is distributed to the public. The imposition of fees for the release of police images can only be manifest in one of two ways - either the fee will act as a disincentive to publishing the images, in which case the tax-paying public are effectively denied the opportunity to view them, or the costs imposed on the media will be passed back onto tax-paying readers in the form of higher cover prices. Ultimately it is the public who will pay.

A further objection of the Australian Press Council is that the fee amounts quoted are excessive. A key rationale put forward in the regulatory impact statement as warranting the introduction of the fee is the administrative costs associated with processing applications for photographs. The amount estimated for the processing of an application is $382.85. This is a significant amount, and suggests that the administrative practices involved are less than maximally efficient. This raises the question, if a fee is indeed warranted, why should police images be treated differently from other Freedom of Information applications?

At the end of the day it is the public who will be impacted by the introduction of the fee. The right of the public to see the images will be limited to the extent that media organisations have a capacity and willingness to pay such large amounts for their release. In the view of the Press Council the fee represents an unacceptable intrusion into the freedom of the press to adequately report criminal matters to the public. The Council urges the government to rethink the proposed regulation.

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