Freedom of the Press Positions

Here is a summary of the major positions taken by the Council in its recent submissions. The subjects covered are:

Amicus Curiae
Blasphemy
Confidential Information
Constitutions, State And Federal
Contempt, The Law Of
Defamation
Defamation - Uniformity of Reform
Family Law Matters, Reporting Of
Justice - Open Courts And Suppression Orders
Media Ownership
Parliamentary Privilege
Privacy - basic position
Privacy Legislation
Privacy - Surveillance Devices
Privacy Of Grief
Search And Seizure Of Journalists' Material
Shield Law
Whistleblowers

Amicus Curiae (Friend of the Court)

The Australian Press Council supports the proposition encouraging the development of the role of the amicus curiae in Australia within a statutory framework.

The statutory framework for friends of the court should include the following features.

• At any stage of proceedings a person (a friend of the court) may file in the court and serve on the parties to proceedings a written brief that is no more than seven pages in length setting out matters which he or she considers the court should have regard to when making a decision.
• At any stage of proceedings the court may, on its own motion or on the application of a friend of the court, give leave to a friend of the court to:
  • file and serve a more detailed written submission
  • make oral submissions and, in appropriate cases, otherwise participate in the proceedings subject to such terms and conditions, and with such rights and privileges, as the court determines
• When deciding whether to grant leave the court must have regard to whether the additional written or oral submission will be useful and different from those of the parties to the proceedings and to the capacity of the friend to make such a submission.
• When granting leave to make additional submissions the court should specify the role and manner of participation of the friend of the court including the matters he or she may raise, the length of his or her submissions and the evidence (if any) he or she may adduce. The court should be able to vary a friend's role at a later stage of the proceedings if the circumstances of the case change or it is otherwise appropriate.
• A friend of the court should not recover or be liable for costs other than pursuant to a disciplinary or case management costs order. Where a court allows a friend to play a greater part in the proceedings than was originally specified the court should also address at that time the question of whether and to what extent the friend should pay any costs incurred by the parties as a result of the friend's greater involvement.
• At the time when the Court comes to address the question of costs in relation to granting approval to a friend of the court taking a great part in specific litigation, the friend of the court should be entitled, at that time, to elect whether in fact to take the greater part envisaged.
• A friend of the court is not a party to the proceedings and should have no right to appeal against any decision in the proceedings, either procedural or substantive.
• The court should have the capacity to notify individuals and organisations which it considers may wish to provide assistance to the court by filling a brief.

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Blasphemy

The Australian Press Council believes that the offence of blasphemy should be abolished, without replacement.

for the current state of the law: Press Law in Australia

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Confidential Information

The Australian Press Council supports the proposition that in general the law should proscribe the unauthorised disclosure of confidential personal or commercial information. The Australian Press Council proposes that where confidential information is the subject of unauthorised disclosure, and that information is published by the media, the media be immune from criminal and civil liability if, and only if:

1. the relevant media personnel had no part in the commission of any breach of the law, or encouraging that breach; and
2. the publication is in the public interest, being a matter of serious concern or benefit to the public, and not something merely of interest to the public.

for the current state of the law: Press Law in Australia

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Constitutions, state and federal

Apart from asserting its belief that checks and balances are essential to the maintenance of the Westminster system, the Council suggests that the determination of the form of government of any state should be in the hands of the people. The Council argues, however, that the [state and federal] Constitutions should be changed to entrench a guarantee of freedom of speech and of the press.

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Contempt, the Law of

The Australian Press Council believes reform of the law of sub judice contempt is necessary in a restricted set of circumstances.

The current law assumes that jurors will have come in contact with media publicity surrounding a case, that they will retain the information and that they will be influenced by what they read and hear in the media. It is based on the proposition that proper administration of justice should take precedence over freedom of speech, but that a proper balance needs to be found between the two competing interests.

However, the only available empirical evidence on NSW and similar jurisdictions (Michael Chesterman, Janet Chan and Shelley Hampton, Managing Prejudicial Publicity, Law and Justice Foundation UNSW 2001 and Juries in Criminal Trials, Part Two, Law Commission of New Zealand, Preliminary Paper 37, 1999) underlines the independence of thought that juries bring to their juror duties. The empirical evidence shows jurors and potential jurors are fundamentally responsible, base their reasoning on the evidence and are resistant to, if not scornful of, media reporting. This evidence ought to prompt a fundamental re-think of the starting point for reform of contempt law.

The appropriate approach would be to turn the proposed assumption on its head. If a sub judice law is deemed necessary, it should start from the assumption that freedom of the press is freedom of the people to be informed on matters of public interest or matters on the public record, including reports of matters held in open courts. And that this freedom needs to be balanced against the 'due process of law', with an assessment of the competing interests on a case-by-case basis. There should be no blanket restriction on publication. Any law should only cover the exceptional circumstances in which restrictions should apply. For instance, the Council agrees that publication should be restricted where the published material will have an effect on perceptions, eg, photographs that might affect jurors or witnesses where identification is contested.

Specifically, the Council believes that the following principles should be observed with any contempt law:

• the law should make the principals responsible, not the advisers, distributors and vendors low on the food chain;
• the standard to be met should be that the material creates a substantial risk that the publication will adversely influence a jury and that for a matter to place a publication at risk, or lead a judge to conclude that a jury should be dismissed, s/he would need to be satisfied that there was a substantial risk that the jury members or witnesses will have seen the material; that they recalled it contents; and they had been influenced by it to such a degree as to seriously prejudice the fairness of the trial;
• like all criminal offences contempt cases should be heard and decided by a jury, and that an alleged offender cannot be found guilty unless he has a 'guilty mind'.

Legislation aimed at taxing the media for aborted trials

The Council opposes the introduction of legislation that would tax the press for the costs of any trial prematurely ended. The risk and threat of excessive costs as much as anything else will result in inappropriate media self-censorship. The Council believes that the issue of a trial abortion, or a judge's decision to continue the trial, should properly be a matter for a judge to consider when assessing any penalty for a conviction on a contempt charge.

The Council is concerned that the such legislation will have a 'chilling effect' on free speech, particularly if it were to result in an increased willingness to abort trials because a media outlet, not the State, would pay for the aborted trial. In the light of such a possibility, broadcasters and publishers will tend to err on the side of caution when deciding what material to run and discussion of matters of public importance, such as the incidence of child sexual molestation in the community, is bound to be curtailed or severely limited, despite the public's right to know the information.

The Council's information is that it is not common for trials to be aborted as a result of media broadcasts or publications. ... There have been a number of aborted trials arising from discussions on talk-back radio programs but not so many as to cause a major concern to the community. This porposal addresses a problem that does not merit such a draconian approach and does so in a way that will, inevitably, have negative consequences on the public's right to information that would enable it to participate in important community debates.

see also
Index on courts and contempt material

Defamation

The Australian Press Council has for many years advocated uniform defamation laws in Australia (see below).

The objectives of any reasonable reform of defamation include speedy correction of factual error and compensation for maliciously inflicted financial damage while preserving freedom of speech and avoiding lengthy lottery-like trials. There are five main proposals.

1. The first is for an up-graded Offer-of-Amends process, post-writ and pre-trial. It is envisaged that there will be a requirement for the parties to attempt to settle grievances. The intent should be to achieve voluntary amends (published correction, apology or financial settlement) satisfactory to the plaintiff. If a settlement cannot be reached through the initial offer the parties should be required to employ a mutually acceptable mediator (not court ordered or supervised) in an attempt to reach a compromise. A mutually acceptable compromise offer will include the terms on which the proceedings will be terminated. If there is no such compromise and the case proceeds to trial the plaintiff will be responsible for the subsequent costs of both parties if the trial judge considers the Offer-of-Amends to have been reasonable.
2. Judges should be required to take a stronger view of the capacity of material to carry imputations, only referring to the jury claims that are more likely than not to have been conveyed in the article.
3. The trial process itself should be amended to bring the jury into both the imputations and the defences stages. At the start of the trial the jury should have the right to read the material complained of before being addressed by counsel for either side. The jury should hear the imputations representations of counsel then retire and decide whether any imputations need to be defended. When they return the trial will either terminate with a decision for the defendants or continue with the hearing of defences.
4. The law of qualified privilege should be extended to cover a greater range of circumstances, especially the fair reporting of public comment, including third party statements
5. The judge alone should decide the damages payable to a successful plaintiff guided by clauses within the legislation comparable with amounts possible under other legislation/court guidelines.

Two additional matters.

To succeed in a defamation action people of public prominence should have to prove malice and actual harm to reputation

Government departments and corporations should not be able to sue individuals for defamation.

see also
Index on defamation material

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Defamation - Uniformity of Reform

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.

see also
Index on defamation law material

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Family Law matters, Reporting of

After careful consideration and after attempting to balance the public interest against the rights of privacy of parties and, above all, children involved in cases before the Family Court, the Press Council is inclined to adopt the view that there should be greater access for journalists to the Family Court..

The Press Council believes that the relevant Act be amended to provide that the court's decisions may be reported with an identification of the parties but not the evidence, but that there should be a power to prohibit publication in appropriate circumstances for the purpose of protecting children.

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Return to Freedom of the Press overview

The Council believes:

1. That the principle of open justice has been established at common law and internationally.
2. That the open administration of justice is a guarantee of civil liberties.
3. That there are many advantages which flow from the open administration of justice.
4. That access by the press and the media to the courts should be assured because the public is the ultimate beneficiary of such access.
5. That the press and the media should have standing in proceedings concerning suppression applications, both original and appellate, or by way of an application for a prerogative order.
6. That the class of cases where closure may be granted to protect the subjects of crime be limited to those analogous to victims of blackmail.
7. That any statutory power of magistrates be exercisable only where closure is necessary for the administration of justice.
8. That liability for publication in breach of any suppression order should not lie with the reporter but with the relevant media organisation.
9. That there should be no constructive notice of a suppression order.
10. That representatives of the media be entitled to inspect court records as recommended.
11. That any person, not being a party, be permitted to obtain transcripts and copies of court records on establishing "sufficient cause".
12. That no application for access be granted until notice is given but the criterion for refusal be only where it is necessary for the administration of justice.

see also
Index on courts and contempt material

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Media ownership

Access by all Australians to full, truthful, unbiased information about world and domestic events and to a pluralist range of opinions and commentary about those matters from an Australian perspective is the key issue to be considered in determining government policy on media ownership.

Different media feed off each other in the race to present the news first and best. The print media in particular presents the depth and diversity of analysis and commentary on news and events that enhance the democratic qualities of our society.

Accordingly the Press Council has adopted the following policies.

1. Freedom of the press and of the media should be guaranteed by inclusion in the Constitution or, at least, by statute.
2. Plurality of media outlets, diversity of views, and the regard for Australian content in the print media are issues of key importance.
3. Media ownership should be governed by competition law. Regulation should be achieved primarily by the Australian Competition and Consumer Commission (ACCC) under the competition policy aspects of the Trade Practices Act.
4. Judgments on substantial lessening of competition should be made on the basis of impact, circulation and penetration, considering the media as a single market.
5. Foreign takeovers of major capital city newspapers and free-to-air TV channels should continue to be subject to the Foreign Acquisitions and Takeovers Act.

See also: 2002 Submission to Senate Committee on proposed changes to cross-media laws
Productivity Commission Submission
for the current state of the law: Press Law in Australia

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Parliamentary privilege

The Council recommends that the publication of reports and proceedings of [parliamentary] committees, whether public or not, be permitted, unless it is demonstrated that there is strong justification, in the public interest, for secrecy. In fact, the decisions of the committee not to impose a sanction, and earlier instances of no or nominal sanctions, suggest that publication should rarely constitute breach of privilege. This would mean there would be a presumption of a right of access to and a right to publish all committee proceedings, except those in specified narrowly defined circumstances. This could then mean that the relevant Chamber would need to resolve, affirmatively, that certain proceedings, and certain reports, were to be withheld after addressing the need for secrecy, according to one of the permitted categories. A breach of secrecy in most circumstances could be pursued by appropriate legal action in a court of law rather than in parliament.

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Australian Press Council Privacy Policy

The Australian Press Council advocates self-regulation by the press as a vital facet of the freedom of communication that's enjoyed in Australia.

It calls on all legislators and the judiciary to recognise the importance of the freedom of communication, including press freedom and the right of the public to be informed, as a basic human right on the same footing, no lesser, than other basic human rights such as privacy, freedom of association, reputation etc.

In determining the balance between privacy and the right of the public to be informed, the press - and the Press Council - will take account of the following:

1. Consent and harm
   
   
   • Whether there is consent, implied or direct, on the part of individual/s concerned.
      
   • Whether the parties directly involved have complained.
      
   • Whether harm has been done.
   
    
2. Public interest. Whether there is a level of public interest sufficient to justify invasion of privacy.
    
3. The extent to which the individual is a public figure and to what level of privacy the individual is entitled as such.
    
4. Whether the individual is a child and warrants a greater level of privacy protection than any of the rankings offer.
    
5. Whether the personal information being disclosed concerns sensitive matters as defined in the Privacy Act, such as health information, and whether disclosure can be justified.

Definitions

1. Limited purpose public figures: A person who becomes a public figure for a limited range of issues surrounding a particular public controversy. This would include people who are drawn into legal conflicts as witnesses or who enter public debate temporarily on a specific issue. Such people would be entitled to the highest level of privacy protection (not absolute) to the extent that publication of personal information about them should be relevant only to establishing their qualification to be identified publicly or to make public statements.
    
2. Occasional public figures. A person who conveys willingly and reasonably regularly to the public a certain impression or image of themselves either directly or through intermediaries, or those who make comments on matters of general interest to the public. This would include such people as performers, sportspeople, commentators, broadcasters, celebrities, journalists etc. Such people would be entitled to privacy protection for personal information not relevant to any public perception of the person or the person's stated position on an issue.
    
3. General public figures: A person who seeks to hold or does hold either by election or by appointment a public office. This would include members of parliament and public servants. Such a person should be entitled to privacy protection for personal information that is not relevant to the performance of their duties or office.

People who cannot be ranked as above generally would expect - and be entitled to - complete privacy protection unless or until their circumstances changed.

Privacy of sensitive information and matters affecting children are protected by a range of laws separately, but warrant consideration by the Press Council along these lines:

(i) Children: Young people under the age of 18 years are entitled to the highest level of privacy. Their personal details should only be published where there is overwhelming public interest to do so. Identification of children should be treated with great care and with regard to the circumstances.

(ii) Sensitive information is:

1. information or an opinion about an individual's:
   
   
   1. racial or ethnic origin; or
       
   2. political opinions; or
       
   3. membership of a political association; or
       
   4. religious beliefs or affiliations; or
       
   5. philosophical beliefs; or
       
   6. membership of a professional or trade association; or
       
   7. membership of a trade union; or
       
   8. sexual preferences or practices; or
       
   9. criminal record;
   
   
   that is also personal information; or
    
2. health information about an individual.

Sensitive information about an individual must be kept private unless:

1. There is consent from the person directly concerned to make it public; and/or
    
2. Public interest is established in having the information made public.

The Australian Press Council in its privacy statement defines public interest as "involving a matter capable of affecting the people at large so they might be legitimately interested in, or concerned about, what is going on, or what may happen to them or to others."

see also
Index on privacy material

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Privacy Legislation

The Press Council's chief concern is the absence in Australia of any express guarantee of freedom of communication in the Constitution.

The Council accepts that constitutional recognition of the principle of freedom of communication in Australia (the absence of which can be contrasted with the position in comparable democracies such as Canada and the USA) is a discrete issue that requires a time frame quite separate from the introduction of privacy legislation. Similarly the alternative approach of the passage of a statutory Bill of Rights, as in New Zealand, is not a likely initiative at present. However, the Council strongly recommends that any privacy legislation should include a statement that the administration of the Act should recognise the importance of the principle of freedom of communication and that this principle should be taken into account when decisions relating to claimed breaches of privacy are being made.

The following are the major concerns of the press in comparative countries to the introduction of privacy legislation in the absence of adequate guarantees of freedom of communication.

• The loss of access to information is society's loss, not that of the press, as the freedom of the press is based on the interest of the public in not having limits placed on the information with which it is provided.
• The move to privatisation of government activity has resulted in a loss of access to information that was formerly available through such mechanisms as freedom of information and parliamentary oversight.
• Privacy legislation is enforced by a commissioner whose task is to regulate access to information, rather than work from the assumption that information in the public interest should be available.
• The defence of revelation of information in the public interest (such as the disclosure of commission of offences or practices deleterious to the public interest) is insufficiently spelled out.
• The effect of the constraints on revealing information has had a 'chilling effect' on the ability of the press to obtain information in that persons and organisations (including governments) are now induced not to disclose material that they would previously have made available lest the privacy regime be breached.
• The problems referred to have arisen in part from the vague language used in the privacy principles which take the form of broad statements rather than legislative proscriptions. This has made the principles difficult to apply in practice.
• The news gathering exemption does not help if a body that holds information is bound by the legislation and therefore denies access to the information. This is made worse if the body uses the legislation as an excuse not to disclose information. The significance of media reporting is its immediacy. The press needs information promptly. It usually cannot await the delay associated with an appeal process.

see also
Index on privacy material

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Privacy - Surveillance devices

The Council notes with concern the developing law of privacy protection. In addition to monitoring the currently embryonic common law tort of breach of privacy, which has been given limited recognition by some courts, the Council anticipates that legislation to regulate the use of 'surveillance devices', including mobile phone cameras, will be introduced and may derogate from the media's ability to collect information on matters of public interest and concern.

The Council has recognised in adjudications and in its Privacy Standards that even public figures may have a right to privacy in their private lives (see Adjudication No. 916). For that reason it recognises that surveillance devices legislation which is strictly confined to surveillance of private matters would be acceptable, provided that there were sufficient public interest defences available for cases where the surveillance of private conversations or events was necessary to uncover matters of public interest and concern.

It would seek to have the following principles incorporated into any such legislation:

• Any legislation introduced to regulate the use of surveillance devices should recognise and protect the media's right to report on public behaviour, particularly that of public figures.
   
• Any legislation should ensure the availability of public interest defences where the right to a private life is breached in order to inform the public on a matter of public interest. (Such defences would make it possible to expose illegal or unethical conduct by those in public life, who might use a wide-ranging surveillance devices regime as yet another weapon in their attempts to limit proper scrutiny of their actions.)
   
• Any legislation should include a media exemption based on s7B(4) of the Commonwealth Privacy Act.
   
• The Council opposes any legislation which has the effect of restricting the right of the media to report, or comment on matters, of public interest and concern.
   
• Any proposed surveillance devices legislation should be formulated with reference to the Council's Charter for a Free Press in Australia, particularly principle number 6:

  Laws, regulations and practices which in any way restrict or inhibit the right of the press freely to gather and distribute news, views and information are unacceptable unless it can be shown that the public interest is better served by such laws, regulations or practices than the public interest in the people's right to know.

see also
Index on privacy material

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Privacy of Grief

The principles of the Australian Press Council have been approved and adopted by the Australian press. Given the role of the Council in maintaining the standards set out in those principles and in providing an efficient and effective forum for the hearing of complaints against the press, and having regard to the very small number of complaints the Council actually receives in relation to the invasion of privacy in times of personal grief, the Council suggests that there is no demonstrable need for legislation in this area.

see also
Index on privacy material

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Search and seizure of journalists' material

The Council proposes that searches and seizures be limited to those cases

• where there is probable cause to believe the journalist has committed the criminal offence (and not merely a breach of "official secrecy" provisions) to which the materials relate;
• where there is reason to believe immediate seizure is necessary to prevent the death of, or serious bodily injury to, a human being; or
• where the search or seizure relates only to documents but not to the journalist's own notes and other "work product materials", and the journalist refuses to produce documents under a court order or there is reason to believe they will be destroyed or hidden if a subpoena is issued.

The Council proposes changes to limit the extraordinary powers vested in law enforcement agencies and investigative bodies. To guarantee the integrity of the new limitations, the Council proposes that these be constrained by the issuing of guidelines or by legislation so as to preserve the confidentiality of sources outside of the limitation and by providing remedies, including damages, but allowing a defence of good faith.

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Shield Law

The Council continues to believe that journalists should only be compelled to reveal their confidential sources under stringent conditions, analogous to its position on disclosures in legal actions, where it argues for compulsion only:

• where a prosecutor can show that there is a probable cause to believe that the journalist has information that is clearly relevant to a specific probable violation of the criminal law, constituting a serious criminal offence (obviously excluding any offence arising from the disclosure of the contents of an official document);
• where the plaintiff can demonstrate that the information sought cannot be obtained by alternative means less destructive of freedom of speech and of the press; and
• where the plaintiff can demonstrate a compelling and over-riding interest in the information.

for the current state of the law: Press Law in Australia

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Whistleblowers

The Council supports the statutory protection of whistleblowers which it sees as based on freedom of expression. The Council submits that disclosure to a journalist, or to the media in general, should be a protected disclosure under any legislation where the whistleblower, in good faith, believes in the truth of the matter and that it is in the public interest, for example, to disclose corrupt conduct, maladministration or substantial waste to a journalist or to the media. The Council proposes that all initial disclosures by a whistleblower, including those where a decision is taken not to investigate, should be protected.

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