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Submission
from the Australian Press Council to the Department of Justice, Victoria
on its Discussion Paper, "Surveillance Devices Bill, July
1998".
1. Executive Summary
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.
2. Privacy and the Australian Press Council
- The Australian Press Council believes that freedom of the press is
the freedom of the people to be informed. This is the justification
for upholding press freedom as an essential feature of a democratic
society. This freedom, won in centuries of struggle against political
and commercial interests, includes the right of a newspaper to publish
what it reasonably considers to be news, without fear or favour, and
the right to comment fairly upon it.
- The Council believes that freedom of the press is more important because
of the obligations it entails towards the people than because of the
rights it gives to the press.
- The Council has adopted certain general propositions on those obligations.
These are contained in the Statement
of Principles. Of particular relevance is Principle 3 which
provides:
Readers of publications are entitled to have news and comment presented
to them honestly and fairly, and with respect for the privacy and sensibilities
of individuals. However, the right to privacy should not prevent publication
of matters of public record or obvious or significant public interest.
Rumour and unconfirmed reports, if published at all, should be identified
as such.
- The Council believes that while there is a need to make better provision
for the protection of privacy in relation to electronic data bases,
the existing common and statutory law provides sufficient protection
of personal privacy.
- In particular, the Council stresses that unlike most comparable democracies,
Australia makes no express provision in the Constitution guaranteeing
freedom of speech and of the press. In this submission the "press" may
be taken to refer to the media generally. (There is a however limited
freedom of political communication recognised as arising from the concept
of representative and responsible government: see Lange v ABC
(1997) 145 Australian Law Reports 96).
- In the absence of such an express guarantee, and the minimal impact
of the implied freedom of political communication, laws restricting
free speech and the media will not therefore be subject to the same
judicial scrutiny as in most comparable countries. Hence there is need
for great care in enacting new legislation in this area.
- The Council believes that the role of the press in informing the people
on all matters of public interest necessarily requires that the press
be able to gather that information. Without this prior ability, the
press would be unable to exercise the role which society expects the
press to play.
- The Council has itself ruled on the ethical legitimacy of the intrusion
by invasive means into private property in Adjudication
No. 916. It believes that most of the press respect such restrictions
and that, based on the small number of complaints it receives in this
area and the small number of such complaints received by, for example,
the NSW Privacy Commission on similar matters, such intrusions by the
press are not a serious concern in Australia.
- The Council accepts the justification for laws respecting privacy
on private property but it is opposed to laws that restrict legitimate
newsgathering activities in public places. The Council is therefore
pleased to see that the two primary provisions of the Bill, clauses
5 and 6, are limited to the use of devices in relation to private activities.
However, it is concerned about certain aspects of clause 10.
- The clause prevents the disclosure of a private conversation without
the consent of each party unless it is in the public interest for such
a disclosure to be made. By way of contrast, the prohibition of recording
such a conversation in cl 5 is dependent only upon the consent of the
parties. It seems to the Council that if a conversation has been recorded
with the approval of a party, it should not be necessary to obtain the
further consent of that party to its publication. It would impose a
major burden on the press if it had to show that it was in the public
interest for comments to be published where a person who had initially
consented to an interview sought to retreat from their comments and
refused to allow publication. The assessment of public interest in cases
of this kind is problematical at the best of times and in relation to
the collection and speedy publication of news is impractical.
- Clause 10 provides an escape clause permitting a person to publish
material in circumstances that would otherwise be forbidden if the publication
is "in the course of the person's duty" (cl 10(2)(a)(ii)). It is not
clear to the Council whether the publication of material by a journalist
would be covered by this exception. The Council suggests that an explanatory
provision to this effect be included in the legislation.
- The present structure of the clause also raises the issue whether
another newspaper may republish material that has already appeared in
one paper. It seems possible to argue that the clause would allow the
interviewing paper to withhold consent to the publication in its capacity
as a party to the conversation. Again it would be necessary to show
that there was a public interest in republication. The Bill has the
possibility of placing a person in the position of being able to monopolise
the access to the news of the day.
- Apart from these concerns about the operation of cl 10, the Council
is of the view that limitations of the kind included in the Bill should
be subject to an overriding public interest test. The role of the press
is to reveal matters that persons and governments wish to keep hidden.
The Bill will assist in preventing the revelation of corruption of the
kind that was revealed, for example, in the Fitzgerald Inquiry. Without
an active press that is able to reveal information obtained by means
that would be prohibited under the Bill, material of the kind that emerged
at that inquiry would remain hidden unless there is some overriding
public interest defence recognised in the legislation.
See also
1997-8
Freedom of the Press Report- privacy
for the current state of the law: Press
Law in Australia
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