State of the News Print Media in Australia 2006

Chapter 9

Press Law and Practice

How free is the Australian press?

Australia is among the most liberal societies in the world. It has maintained an open and democratic political structure for over a century. It achieved its independence, and has maintained it, without overt violence. As a nation composed largely of immigrants, it has developed a multicultural society with a variety of viewpoints that is reflected in its print media. It is against the background of a free and open society, tolerant of opposing opinions, with a tradition of a free press and a freedom of speech that was so obvious to them that the country's founding fathers saw no need to enshrine its protection, that the question needs to be asked: Is the media free to report on matters of public interest and concern and is the information they require to do so available to them?

Cartoon: You can't believe anything you read in the papers... by Tanbberg

According to Freedom House, however, in its 2006 ranking Australia is equal 31st among the nations of the world in so far as press freedom is concerned. Reporters sans Frontieres in 2005 placed it in the same position. Although both organisations note the Australian press is fundamentally free, the rankings indicate that these international organisations see areas of concern.

The fact that there are 30 countries with a higher rating would shock most Australians who regard Australia as a place where the press is free to report on matters of import so voters can have the information they need to make a choice at election time. The reality does not reflect this perception.

This chapter on issues affecting the capacity of the press to freely report all issues of public interest reviews the background and the apparent trends in each area where there is a real or possible threat to press freedom.

Press freedom in Australia

The Press Council looks at free speech issues from the perspective of its Charter for a Free Press (see Addendum) that was formulated in 2003 to give weight to the notions of freedom of communication.

The Charter underpins the Press Council's own approach to policy development that argues the need to balance the public interest in information against the putative benefits to the community of any legislative or regulatory development that might restrict access to information on matters of public concern. It is also the basis for the Council's support for inclusion of freedom of speech, and of the press, in any development of a Bill of Rights for Australia.

Unlike in the United States, the United Kingdom, the European Union, and in many other democratic countries, there is no national Bill of Rights in Australia or any constitutional guarantee of freedoms in the federal or state constitutions or in any over-riding law. The Australian Capital Territory enacted the nation's first bill of rights in the form of the Human Rights Act 2004. The Act establishes at section 6 that "only individuals have human rights'. There is no general right to media freedom featured in the Act, though Section 16 (2) states: "Everyone has the right to freedom of expression. This right includes the freedom to seek, receive and impart information and ideas of all kinds, regardless of borders, whether orally, in writing or in print, by way of art, or in another way chosen by him or her.'

Balancing this right are competing individual rights such as the rights to privacy and reputation and the right to a fair trial. At the time of publication, the movement for bills of rights in other jurisdictions was gathering some momentum. Victoria introduced the Charter of Human Rights and Responsibilities Bill in May 2006, while Tasmania, NSW and WA were all contemplating legislation. A federal Liberal MP, Steven Ciobo, called for a national bill of rights in an ABC interview in late 2005. In September 2005, a movement towards the enactment of a Bill of Rights was started by a citizens" group, through an online magazine's website.

Unlike comparable democracies, where any legislation restricting free speech is viewed through the lens of such a guarantee, Australia relies solely on a right to political communication that the High Court found, in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, was implied in the Constitution

Government restrictions on information

It would appear to be axiomatic that the free flow of information about matters related to government is an essential element of a liberal democracy. As the group editorial manager of News Limited stated in an address to the Australian Press Council in 2005, "Freedom of the press, exercised responsibly, is the base line for freedom of speech generally in the community."

In fact, the High Court has identified an implication in the Australian Constitution of free speech in matters related to politics and elections. However, the trend would appear to be away from the free flow of information towards more restrictions and secrecy, with governments of all colours trying to use their control of information to set the agenda. In this regard the current federal government would appear to be the trendsetter.

Anti-terrorism and related legislation

Since the terrorist attacks on the United States in 2001, the contemporary reality of terrorism has led to legislation that has had the consequence of exacerbating the tendency of governments towards secrecy. The press has recognised the necessity of additional legislation to address the community's concerns with the possibility of terrorism in Australia.

It argues, however, that such legislation must be balanced against the traditions of Australian society, including access by the press to information on matters of public concern. It is also wary of governments using the fear of terrorism to promulgate overly restrictive legislation.

Much of the new anti-terrorism legislation, however necessary it may be deemed, seem, constitutes a significant threat to free speech. Anti-terrorism, espionage, ASIO, telecommunications interception and national security legislation have all proposed expanded restrictions on the ability of the press to report matters of public interest.

Examination of the drafting of successive Bills has exposed concerns, particularly in definitions of terms such as "national security', and with the reversal of the onus of proof so that defendants have to prove that they are not in possession of information.

Many provisions included in these Acts seem draconian and to go farther than necessary. Such laws must take account of the traditional rights and freedoms of the citizens, and not forfeit the very freedoms they are aimed to protect from terrorism.

The government, in its 2005 anti-terrorism legislation, revived anachronistic sedition laws and "unlawful association" provisions, which have the capacity to severely curtail commentary on government performance and to criminalise satire. The Senate Committee reviewing the legislation recommended against the inclusion of the sedition provisions, even though there was a majority of government members on it. Backbenchers from the House of Representatives also expressed concern with the provisions, but the Attorney-General maintained them, in a slightly amended form, with a promise of a review subsequent to their passage.

The question was referred to the Australian Law Reform Commission (ALRC), which, strongly supported proposals for the removal of the sedition sections from the Anti-Terrorism Act and changes to the Crimes Act provisions to ensure a crime would only be committed if it could be proved that any words used were actually intended to provoke violence. At the time of going to press with this report the Attorney-General has just announced that the ALRC recommendations on sedition would not be accepted. He considered the urging of the use of violence in its own right to be dangerous and that it should be a separate offence. The Attorney-General also said that other key ALRC criticisms of the legislation would be considered in due course by the Government. As they stand the present provisions expose journalists, and other commentators, to prosecution for expressing views that might be seen as "seditious', and has undoubtedly led to self-censorship.

The National Security Information (Criminal Proceedings) Bill 2004 and the complementary National Security Information Legislation Bill 2005 sought to mandate the closing of courts that are hearing evidence in cases where the "national security" might be compromised by the exposure of information, particularly related to the security services and their methods of gathering evidence on terrorist threats. It was only after representation from the media that the definition of "national security', and the potential for the Bill to restrict the public's right to be informed about matters of legitimate public concern, was narrowed.

The legislation removes a court's discretion on the holding of closed hearings and the treatment of evidence taken in camera. The provisions originally proposed gave the court little option but to hold proceedings in camera. A Senate committee reviewing the legislation recommended giving the court discretion to decide whether closure is appropriate. The proposed modifications gave a court greater flexibility in deciding whether to make transcripts of evidence available to the parties or to the public and sought to make the court and the Attorney-General accountable for any decision to hold proceedings in camera, by requiring the publication of reasons.

The committee's recommendations were included in the National Security Information (Criminal Proceedings) Act 2004 (which came into effect in August 2005), mitigating some of the most questionable aspects of the proposals, while still leaving courts with little room to manoeuvre. There has been a small number of committals and trials held since the passage of the laws. In the Lodhi case, the judge went to some lengths to keep the court open as far as possible (actions endorsed by the NSW Criminal Court of Appeal), indicating that the judiciary is using its discretion to maintain open justice as far as is practicable. However, in that case, and in others, court closures have already meant that some evidence adduced cannot be reported.

In 2003, the Australian Security Intelligence Organisation Act was adopted with a three-year sunset clause on the section relating to secrecy of operational information arising from ASIO warrants and questioning. The provisions of the legislation, and other related laws, not only preclude reporting of the existence of ASIO and police warrants in many cases, or of control orders or preventative detention orders, but also stop the reporting of these after they have expired.

This ban places unfair restrictions on those subject to the warrants or orders, on their families, their lawyers and on any journalist who may learn of the existence of the warrants. But, in the light of published stories, it doesn't appear to stop the police or security services selectively leaking information on raids to the media or alerting them to such raids. As a result, the press is frequently prevented from reporting the full story, or relies on the information it receives, un-attributed, from agencies.

In 2006, a parliamentary Joint Committee reviewed the Act and recommended some minor changes that would better define the term "operational information" and would make the penalty for revelation of "operational information" the same as the penalty for an ASIO officer who contravenes the safeguards (under the law, the officer is subject to a maximum two years and the journalist who publishes material exposing malfeasance, judged to be disclosure of "operational information', faces five years). It also recommended that the Division be retained for a further five years before review. The government has accepted the latter recommendation but rejected the minor changes to the legislation proposed by the committee.

The Telecommunications (Interception) Act 1979, as amended since 2001, gives security agencies and the police powers to tap the phones of third parties to suspected terrorist plots. The possibility exists that journalists, who speak, albeit innocently, and on a completely unrelated subject, to those suspected of involvement in terrorist actions, could themselves be subject to phone tapping on calls unrelated to the alleged terrorist activity, potentially exposing confidential sources and whistle-blowers. This legislation comes at a time when, compared to the US, Australia already has 26 times per capita more warrants for phone taps and, unlike the US, warrants here can be issued by officials other than judges (NSW Council of Civil Liberties, 13 January 2006).

In the middle of 2006, the Federal Attorney-General sought the cooperation of his state and territory colleagues to extend the powers of classification bodies to restrict publication of books said to be promoting terrorism. After the Attorney had sought to restrict publication of eight books and had been successful in only two cases, he argued the definitions needed to be widened. The matter was discussed at the Standing Committee of Attorneys-General (SCAG) and the proposals are being reviewed for further discussion later in the year. The wider definitions would appear to be capable of censoring distribution of a number of publications that had only a marginal possibility of encouraging terrorism.

Trend

The federal government, citing the threat of terrorism, threatens to so restrict the flow of information that the result is a threat to those values they are trying to protect. Loose drafting and overly restrictive laws give rise to a genuine concern for free speech, and to the ability of the press to report matters of public interest.

In addition to the threats the laws offer to journalists, they are leading to greater self-censorship because of the uncertainty of what information can legitimately be reported, or commented on. Ironically, they have served the ultimate goals of the terrorism they were meant to counter. In the words of Justice Ahron Barak, President of the Israeli Supreme Court in 2002: "Terrorism does not justify the neglect of accepted legal norms. This is how we distinguish ourselves from the terrorists themselves.'


Border protection

In addition to matters related to terrorism, the federal government's restrictions on media access to asylum seekers and detention centres, and the increased use of off-shore centres to process asylum seekers, has meant that the public cannot be properly informed on issues of genuine public interest. Such issues include the reasons refugees are coming to Australia, whether they are genuine asylum seekers or not, and whether the application of immigration rules unfairly impacts on Australian citizens.

Trend

The federal government, seeking the protection of the privacy of asylum seekers, is denying even those seeking to speak the opportunity so to do. Recent legislation that will mean more processing of asylum seekers will occur off-shore will exacerbate the restrictions on information.


Censorship

In recent times, there has been little threat of government censorship. The Office of Film and Literature Classification issues rating on films and, very occasionally, bans the release of a film.

It can also classify an organ of the print media. Such classification can restrict the sale of the publication, or how it can be displayed. The Broadcasting Services Act gives the Australian Media and Communications Authority (ACMA) some powers over offensive material on the Internet.

Given that the media are generally free from government censorship, the recent closing down of a satirical website, johnhowardpm.org, apparently at the behest of the Department of Prime Minister and Cabinet, provides a warning. According to the site's creator, Richard Neville (www.richardneville.com.au), its host, Melbourne IT closed the site just 36 hours after it went live. He says that a call to the host from an official from the Department of the Prime Minister and Cabinet led to the closure and not, as has been asserted elsewhere, advice from the Australian Federal Police. The AFP, he says, states:


Trend

The action of a federal government official in closing a satirical website despite AFP advice that no law was broken is worrying. It points to governments tending to restrict information to that which it controls, as the next section also indicates.


Spin and leaks

In all areas of their activities, governments are increasingly ready to restrict the release of information. They make more use of unattributable comments (leaks) and one-sided spin to replace balanced information and the openness of press conferences. Never before have journalists had to cut their way through so much flak and spin to get the real story.

Governments (and corporations imitating their "success') have highly paid public relations outfits whose role is to market the approved version of a story. The journalist's role is to cut through this static. This is not made easier by increased use of exemptions to limit information available under Freedom of Information law (see below for details).

The limit on the flow of information, and threats to cut journalists off from even that limited supply, leads to sanitised and uncritical reports. A prime example of such limits on information, related directly to the border protection question raised above, was reported by the ABC's Media Watch program in May 2004, when journalists on a Customs vessel near Ashmore Reef were stonewalled by the Immigration Minister's office when they sought permission to visit the reef to photograph and interview a group of Indonesian boatpeople there. (Media Watch, 10/ 05/ 2004).

Media management is a contagious disease which governments, sporting and media companies themselves have all caught. Governments want to "accredit" (i.e., select or limit) journalists able to access Heads of Government and sometimes other meetings and conferences. Football codes try to control the image of the game and even the reputations of players who take drugs. Media companies try to trump rivals by buying exclusive rights to public events. The public is entitled to an open flow of information, favourable or unfavourable, and to the ebb and flow of opinion about all of these.

Trend

The use of "media management" techniques may be the greatest threat to the press's ability properly to report on matters of public interest and concern. The fact that other institutions, the courts, the police, business, universities and sporting bodies, among many others, have looked at and learned from government on these techniques means the situation will only worsen.


Restrictive legislation in the states

Queensland and Victoria, among other jurisdictions, retain strong restrictions on media contact with prisoners. The Queensland legislation is particularly concerning because it mandates that journalists" access to prisoners will not be allowed if the interview relates to issues of the offender's guilt or innocence. This legislation has led to a conviction in Queensland in December 2005, despite the fact that the journalist and filmmaker, Anne Delaney, did not conduct a formal interview with the prisoner, nor publish or broadcast a story as a result of the interview.

Media monitoring and reporting of crime activity is being seriously curtailed by the switch by police in several states from analogue to digital radio transmission and, sometimes, by supposed privacy concerns. In South Australia, for example, according to a list of SAPOL (South Australian police) incident codes annotated by the Sunday Mail, journalists are given access to less than a quarter of police incident categories, and delayed access to some important ones, such as siege situations, where immediate advice to the public in the vicinity might seem to be of some importance. In Queensland, in 2004, police switched to digital encrypted communications without warning the media, prompting a Crime and Misconduct Commission inquiry into the matter. Despite submissions calling for privileged media access to live feeds, reporters were unhappy with the outcome – a new system of delayed alerts channelled through the police communications centre.

Journalists in Victoria still monitoring analogue transmissions have been told this has to stop because of privacy laws. The media exemption to federal privacy law would allow newspapers to publish this information but the police apparently believe there are restrictions on allowing the media to have it. (See also the "Privacy" section, below, for more examples of the denial of access to information.)

As a result of the denial of access to radio transmissions, in many locations journalists are now unable to report on crimes and police activity unless the police media liaison officers brief them. This gives the police ability to withhold stories from the public and, when they do release them, to "spin" stories to their own advantage. Even when journalists are being informed there is often an unacceptable delay between the event and the communication of that event to the media. Claims that police are being selective about which stories are being passed on to the media are as yet anecdotal.

This development is all the more disturbing given instances in some states of police using powers directly against reporters and photographers trying to cover news events. The MEAA (Press Freedom report, 2006) recorded two such episodes – one in NSW where police used the Summary Offences Act "move-on" provisions against journalists who had gathered in a public park to cover former Opposition leader Mark Latham's resignation, and another where Queensland police media officers had emailed the Queensland Times newspaper threatening to use similar powers against reporters in that state under the Police Powers and Responsibilities Act 2000. Queensland police went even further in October 2005 when they threw into a paddy wagon a Gold Coast Bulletin reporter after he took photos of an arrest. (Gold Coast Bulletin, October 27, 2005).

Legislation to restrict hate speech, if badly drafted or too vague, can have negative consequences on free speech. For example, Victorian anti-vilification laws have been used to prosecute two Christian ministers for allegedly anti-Islamic comments ( Herald Sun, 23 June 2005). The possibility exists for the prosecution, on similar grounds, of opinion-writers in the media making legitimate comments on the news.

Another disturbing area of state and territory law emerged from the ALRC's Discussion Paper 71 Review of Sedition Laws, released in May 2006. The commission reported the anachronistic and varying laws of sedition across states and territories, Queensland, West Australian and Tasmanian laws still protect the Sovereign, government and constitution of the United Kingdom from seditious conduct. The commission has proposed removal of the term “sedition” from state and territory laws.

Trend

The states have also absorbed the lessons of media management and are restricting information as far as possible in their own sphere.


Public-interest whistle-blowing

Public-interest whistle-blowing is becoming more difficult, as exemplified in the case of the public official suspended without pay by the Commonwealth Department of Veterans Affairs, after publication of an article in February 2004 in the Herald Sun . The official was charged with a criminal offence, and convicted in January 2006. He remained suspended without pay for nearly two years until the case was determined. He was sentenced to be of good behaviour for 12 months and faced dismissal from the Commonwealth Public Service.

A number of newsrooms have been visited in recent times by police looking for evidence that might help convict public officials suspected of whistle-blowing. One such took place in October 2004 when police arrived at News House (in Sydney) and demanded Natalie O'Brien of The Australian hand over ASIO documents relating to the Bali bombing and associated terrorism that they suspected were in her possession. No one was charged as a result of this.

There was a raid in November 2004 on the National Indigenous Times, after publication of an article related to ATSIC, seeking to recover documents alleged to be in the newspaper's possession. The political hypocrisy involved in these actions is revealed by the fact that the Australian Financial Review, which published the same story on the same day, based on the same documents was not raided.

Nor was the Herald Sun raided for evidence a year earlier when whistleblower Andrew Wilkie was heavily criticised by commentator Andrew Bolt using secret material from a secret Office of National Assessments analysis that came into his hands. In a March 2006 speech, ALP Senator John Faulkner suggested that the source of this leak was the Foreign Minister's office.

There were further suggestions in mid-2006 that the Australian Federal Police might raid newspaper offices seeking details on sources for stories, currently suppressed, that three AFL players had tested positive for a second time in random drug tests.

Trend

At the same time as they are refusing to release information under Freedom of Information loopholes, governments are using the police and the courts to make it as uncomfortable as possible for potential whistleblowers.


Freedom of Information

In all jurisdictions the ability of journalists to utilise Freedom of Information (FoI) legislation to obtain material that would shed light on government activity is being steadily eroded by the imposition of excessive fees, extensive delays, unreasonable refusal of access, and lengthy lists of exemptions. And when all these hurdles have been overcome the applicant can still be confronted with "conclusive certificates" issued by the relevant federal Minister.

One request relating to animal health issues was held up because terms such as "animal" were not, it was claimed, adequately defined. Research indicates that, while requests for personal information are likely to be dealt with speedily, requests for non-personal information, the material generally sought by journalists, is far less likely to be dealt with immediately, are more expensive, and less likely to result in a positive outcome.

In recent years The Australian 's Michael McKinnon has been battling to obtain documents that would provide the public with important information on the effect of bracket creep on income, on the possible abuse of the First-Home Owners scheme (both from Treasury) and the legal advice given on the validity of internment of Australians by US forces in Guantanamo Bay (from the Department of Foreign Affairs). In all these cases, the relevant minister issued "conclusive certificates', saying that it was not in the public interest to release the documents. His case against the Treasurer's issuing of the certificates eventually went to the High Court, which by a 3-2 decision said that the power of a tribunal to question the appropriateness or legitimacy of a certificate is effectively confined to deciding whether or not the decision to issue the certificate was irrational or absurd. In other words, it will in practice be impossible successfully to challenge a Minister's decision to refuse to disclose information, even where such information should rightfully be in the public domain. Ironically, McKinnon has discovered through an FoI request that senior bureaucrats have been briefed on ways they can better ensure that conclusive certificates are issued and not challenged, in order to protect their ministers from the release of information. ( The Australian, 21 July 2006)

The frustrations with government attitudes to FOI requests are not confined to the federal sphere, but have an impact at state level as well. For example, as pointed out by Press Council Chairman Professor Ken McKinnon on World Press Freedom Day, 2006, the Beattie government in Queensland was notorious for wheeling potentially embarrassing documents into Cabinet to protect them from scrutiny under FoI laws ( The Courier-Mail, 4 May 2006, p. 9). A June 2006 review by the Victorian Ombudsman is highly critical of that state's FoI regime, citing particularly delays in processing requests, a lack of quality in reasons for decisions, poor levels of assistance and some deficient internal practices within departments. He has recommended legislative change as well as a review of the FoI culture within departments.

Trend

The utility of FoI for journalists greatly depended on the High Court's ruling in the McKinnon case. The practical effect of the High Court's determination will be fresh impetus for governments to suppress information that is embarrassing or politically inconvenient. Attempts by journalists to use FoI to report on matters of public interest will be subject to ministerial whim as to whether material will be released. The decision indicates that FoI law, as well as FoI practice, needs urgent reform.


Parliamentary privilege

The Senate Privileges Committee has moved to strengthen contempt of Parliament sections but narrowed the range of instances to which they apply. The new proposals comprise a classic "good news-bad news" scenario. The committee did not want to establish a Parliamentary "CSI lab" to investigate the records of senators who might be the source of leaks of confidential material from Senate Committees at the same time as the government was happy to investigate more than 3000 phone records in an attempt to pin down the identity of a public servant who leaked embarrassing material.

Instead of tracing the leaker (the Privileges Committee admits that in almost all cases it is a senator), the recommendations again target the journalists and editors who print the leaks. The Committee of Privileges" report recommended changes to the way it should be empowered to deal with the publication of leaked material from Senate committees. Only publication of in camera hearings and submissions would be automatically referred to the Privileges Committee and these would be regarded, prima facie, as contempt of Parliament. Other leaks, such as the early release of a committee's findings, would not be so regarded and would be dealt with, in the first instance by the committee concerned.

Adoption of the committee's recommendations in October 2005 lessens restrictions on press reporting of Parliament, but still focuses on the journalist and editor, rather than the source of the leak.

Similarly, despite a recommendation from a House Committee to review the rules, the House of Representatives has not eased existing strong restrictions on the taking of photographs in the chamber. These have been used to threaten media organisations and limit their ability to report, through photojournalism, matters of public interest.

Both houses of federal parliament have "right of reply" rules for individuals who are neither members nor Senators, but who have been unfairly singled out for criticism. The Senate has granted a number of opportunities to reply; the House of Representatives has yet to grant one.

Trend

There have been no recent citations for breach of parliamentary privilege nor disciplinary actions against photojournalists in the House. Pending such developments it is hard to know how these matters will play out.


Media ownership

The Minister for Communications, Information Technology and the Arts issued a discussion paper, Meeting the Digital Challenge, on media reform options. The section that potentially impacts on press freedom is that dealing with proposed reforms to the rules governing ownership across different media and with proposed changes to foreign ownership rules. Cross-media ownership is governed by provisions in the Broadcasting Services Act limiting the stake in electronic media for owners of newspapers and vice versa.

The proposed new rules would allow for further concentration of media ownership, mandating a minimum of five owners across the media in metropolitan markets and four in regional markets. The principal concern for newspapers would be with changes that gave any involvement to the government's electronic media regulator, ACMA, in the determination of mergers and acquisitions. This might give the authority some de facto power of regulation over the print media.

In September 2006, the Minister tabled legislation to introduce her proposed changes to cross-media ownership laws. The bills have been referred to a Senate Committee for report in early October.

The concern over federal regulation of print media was reinforced by the federal Attorney-General Phillip Ruddock's comments on the possible scope of a national defamation law in his first proposal on the matter in March 2004. He claimed Commonwealth constitutional powers over territories, trade and commerce, postal and telegraphic services and corporations would mean a national defamation law would apply to most outlets, even without a reference of powers from the states.

Trend

The potential in the proposals to concentrate media ownership gives rise to concerns about the ability of the media to present a plurality of viewpoints and about the ability of journalists to move between employers. The possibility of a government-appointed regulator having some say in the composition of print media newsrooms could also be seen as a major threat to press freedom.


Judicial restrictions on information

Australia has a system of open justice. The media act for the public in covering the courts. Each time a court is closed, information is suppressed or a law restricts the ability of the media to report, the public is denied information.


Suppression

The impression that most observers have is that suppression orders are being issued by the courts with increasing frequency in many jurisdictions.

It has been argued that South Australia, where 328 suppression orders were granted in the peak year of 2001 and in the notorious Snowtown "bodies in the barrels" case where more than 220 suppression orders is atypical. Facts as mundane as the name of an accused's dog, the fact an accused wanted to get a tattoo of a Nazi symbol and the colour of the barrels were suppressed.

It is therefore startling to find that across Australia in mid-2006 the News Limited database carried 971 active notifications (a growth of about 300 over the previous year). The total number of orders is, in fact, higher, because the company's offices are not always made aware of suppression orders, and because some courts issue suppression orders on the very fact that a suppression order has been made, particularly in lower courts. News Limited says that the higher figure equates to about four instances of suppression every court-sitting day somewhere in Australia.

There are also unnecessary problems with the notification of orders from some courts and with information on alterations and removals. For example, in the NSW courts, judges" associates are meant to pass along details of suppressions to the Supreme Court's Public Information Officers. Those in the District Court and Magistrates Courts do not always do so. Nor do they always pass along the advice that an order has been altered or removed. There are concerns with standing to contest orders in some jurisdictions, even when information on them is available.

Orders by magistrates and judges are often too broad or imprecise. For instance, a ban on reference to any mention of any family members of an accused whose trial was due to begin in two months came the day before members of the family were referred to in evidence in a separate inquest. In that case alone there have been twenty-two orders and variations since 1 June 2005. Moreover challenges to orders that are too broad or imprecise, or just plain unnecessary, cost an average of around $50,000 for each application, often without success.

Judicial recognition of the problem is increasing. In September 2004, NSW Chief Justice, James Spigelman, pointed out that jurors are not fragile or easily influenced by the media and can be trusted to follow directions. Anyone who restricts reporting of a trial should have much better reason than believing a fair trial is at risk.

Similarly, in September 2005, Chief Justice Marilyn Warren of the Supreme Court of Victoria said that a course on suppression orders was being drafted by the Judicial College of Victoria, to "raise awareness, educate and develop sensitivity [among judges] as to cases that are appropriate and cases that are inappropriate for suppression orders, and the need to carefully consider the ambit of such orders." Nevertheless there has not as yet been an actual decrease in the rate of suppression orders being issued in the state. Moreover, it appears from one decision this year in Victoria that there is no appeal from a Supreme Court suppression order other than a High Court challenge.

The Press Council approached the Chief Justices of the state, territory and federal Supreme Courts, seeking to develop with them a uniform, and more effective, method of notifying suppression orders, and changes to, or removal of, such orders, in the various state and territory jurisdictions. The Council of Chief Justices agreed to consider the Council's submission at its April 2006 meeting. Subsequent to the meeting of that council, a letter from Murray Gleeson, Chief Justice of the High Court, was received. It said in part

It was pointed out in the course of discussion that, in many, perhaps most, Australian jurisdictions, suppression, when it occurs, is mandated by legislation, and is not the result of an exercise of judicial discretion.

It was also pointed out that circumstances, including legislative provisions, and available resources, vary between individual jurisdictions. The Chief Justices, while happy to examine the issue in the light of circumstances in their respective jurisdictions, did not consider a standardised, Australia-wide procedure, to be a feasible course.

Trend

The trend here appears to be towards more discretionary suppressions from the bench, but the lack of a uniform method of reporting and recording these, plus the tendency to suppress reference to suppressions, makes it difficult to know. Some jurisdictions have developed good methods of informing the press of the existence of suppression orders but, even in these states, there is a reliance on judges" associates keeping the media liaison officers informed. The number and complexity of suppression orders in some cases that involve multiple trials on overlapping charges make it difficult for the media to provide the linking articles that would clarify the situation.


Access to courts and documents

The Chief Justice referred in his April 2006 letter (cited above) to suppressions mandated by legislation. There is an increasing number of laws that have the effect of closing courts, or making it more difficult for the media to get information on what has transpired. Some of these arise out of anti-terrorism legislation, referred to separately. Others relate to the everyday cases with no national security implications.

In NSW, the Criminal Procedure Further Amendment (Evidence) Bill 2005 and amendments to the Children (Criminal Proceedings) Act 1987 have had an impact on the ability of the media to report. The former would, among other things, automatically close courts when victims of sexual assaults were giving evidence; the latter would preclude the publication of identifying details of minors involved in criminal proceedings as witnesses, victims and, broadly, in any other way, even after their death.

Representations have been made to the NSW Attorney-General to the effect that the changes go farther than is necessary. The legislation relating to children would appear to prohibit the naming of Graham Thorne, even though his kidnapping and murder happened 45 years ago and has been reported, and commented on, ever since. The Attorney-General agreed to amend the Criminal Procedure Further Amendment (Evidence) Act to enable the media fairly to report the evidence of victims of sexual assault even if they were not able to be present in the court.

Changes in evidence laws in NSW allegedly designed to enhance access to the courts have had the opposite effect. They are regularly used by magistrates and prosecutors to withhold police charge sheets and other court documents. Material that once was routinely available throughout the court system (and through tribunals) is being systematically locked down in NSW and elsewhere.

The resulting restriction on information flow is exacerbated by the increased use of hand-up documents in hearings: material that was formerly spoken of in the court is now routinely passed from the prosecutor or defence lawyer to the bench, without oral reference to it. The only way of accessing this material is through application to the court registry. Registrars are limiting its availability.

There are examples of courts preventing journalists" access to court documents, even where these are on the public record as having been presented in open court. The WA Supreme Court registrar originally refused public access to the transcripts of proceedings demonstrating judicial error that led to the abortion of the trial ( The Australian, 22 July 2005), although, six months later, after the retirement of the presiding judge, the national newspaper was given access to the transcript.

In Victoria, there was a request by a magistrate for an editor to attend court and explain coverage of a case before him. Such requests unfairly intimidate editors and are destructive of the principle of open courts.

As this report is being written, there are reviews in both Victoria and NSW on access to court records. The Victorian County Court and the NSW Attorney-General's Department have issued separate discussion papers on the question and sought submissions on their proposals. The NSW paper would appear to have the potential to make access easier and could form the basis for a uniform national system.

Trend

The drafting of legislation with laudable aims in such a way as to widen unnecessarily the ambit of the laws means that there is a restriction on the ability of the media to report matters properly in the public interest and a removal from judicial officers of a discretion to consider extraordinary circumstances. This has led to more mandatory suppressions and failures to disclose information.


Contempt by publication

Contempt of Court charges (including charges of breaching suppression orders and technical breaches of legislation restricting the identification of parties in some cases) have been laid against a large number of journalists in recent years. Publication in the Sunday Herald Sun and on television, in 2004, of a report of a boy who "divorced" his parents resulted in more than 20 journalists, producers and editors being charged in 2005. Convictions were recorded against the editors and producers (and the outlets) but not the journalists, in 2006. The Sunday Herald Sun was also subject to charges for publishing an editorial that advocated a tough sentence for a man charged with the murder of his pregnant wife. In that case, the judge said that the prosecution had not proved there was a real risk of interference with the administration of justice.

Cartoon: by Tandberg - Read All About It!

A published report of a settlement in relation to action in the Victorian Civil and Administrative Tribunal led to contempt charges against a Herald Sun journalist, and contempt charges were threatened against an editor in relation to reports of a rape charge against a relative of the Danish Princess Mary. The editor of The West Australian pleaded guilty to contempt over the identification of a nine-year-old in print while a similar charge related to the paper's website was dropped.

Victorian courts have raised the possibility of judges seeking to have media organisations remove potentially contemptuous material from their publicly available electronic databases to forestall jury members accessing material related to the accused. NSW Chief Justice James Spigelman was reported to have made similar remarks, although his references were not specifically aimed at media websites.

The NSW and Western Australian Law Reform Commissions (NSW LRC Report 100, 2003; WA LRC Report 93, 2003) have put forward to their respective Attorneys-General proposals for tightening contempt by publication provisions but no legislative action has been taken on these recommendations as yet.

Trend

There appear to be more actions being taken in this area against media defendants, even though there seem to be few trials being aborted as a result of media reports. No state has yet enacted a cost-in-criminal-cases law that would tax the media for aborted trials where media reports were the proximate cause.


Mental health restrictions

All states and territories have restrictions on the reporting of mental health tribunal proceedings and on identifying individuals whose cases are being considered by such bodies. This counters the basic principle of open justice that applies to the court system and means proceedings to some high-profile crimes move into secret chambers once it has been decided that the accused was not criminally responsible on mental health grounds. The issue flared again in Queensland in May 2006 when it was revealed mentally ill killer Claude John Gabriel had been given day release with only his parents as his chaperones on 12 occasions over a two-month period, despite having escaped previously when in their care. He could only be identified after being named in Parliament by the Opposition Leader ( The Courier-Mail, May 25, 2006).

Trend

While mental health processes exist as an alternative to the criminal justice system, the fact that these are conducted in secrecy prevents effective public debate about their operation and effectiveness.


Alternative dispute resolution

Legislators and judicial officers have moved over the past decade to encouraging alternative methods of resolving disputes to ease the burden on the court system. These might include mediation, arbitration or negotiation. Even the reformed uniform defamation laws (see below) have provisions encouraging such alternative methods. While such alternatives may save parties time and court costs, their processes and outcomes – often known as out-of-court settlements—are clothed in secrecy.

Sometimes high profile cases that have been covered by media outlets over long periods result in a confidential negotiated settlement leaving the public in ignorance as to the outcome. One possible solution would be for courts to read into the official record the facts of a negotiated settlement of those cases partly heard in open courts so it could be reported.

Trend

Cumming and Wilson (Literacy, numeracy and alternative dispute resolution, 2005, p. 9) reported a strong increase in alternative dispute resolution in the Australian legal system, with some 60-70 per cent of cases settled that way across all states in 2002-2003. Given that mediation and negotiation is usually conducted behind closed doors, this indicates fewer cases are available for media reporting.


Media restrictions on information

Sometimes the media can be its own worst enemy. There are issues within the media where the ability to report matters of public interest is restricted.

Exclusive agreements/ chequebook journalism

The use of agreements to restrict coverage of a news event to a particular outlet has a negative effect. It often forces other outlets to use questionable sources, when the primary source is cut off from them. Where the payment of money involves witnesses in court cases, the media can be accused of interfering in the course of justice. How such matters play out varies from case to case, but the trend is for those in the public spotlight to seek agents and for the agents to seek exclusive contracts that mean their clients are rewarded for divulging their story.

Lack of resources

The ability of the media to report fully on matters of public interest can be compromised by the slashing of editorial budgets, leading to fewer journalists trying to fill the same space. The pressure of deadlines on fewer staff frequently means there are insufficient resources for long-term investigative journalism, and leads to greater reliance on the public relations machines to provide information used in stories. The growth of PR firms at a time of reduced editorial numbers has exacerbated this trend.

Corporate cross-promotion and advertorials

Media outlets, particularly television and magazines, routinely cross-promote their own companies" products and parade them as "news'. In March 2004 ACCC chairman Graeme Samuel warned his organisation would be cracking down on misleading advertising and endorsements in advertorials (i.e., paid advertising disguised as editorial content), infomercials, lifestyle and current affairs programs.


Cross-media injunctions

A recent case where Channel 9 sought to injunct a press outlet from revealing details of an affidavit indicates that, for all their protestations about respect for the traditions of a free press, a media organisation remains a corporation which is willing to place its corporate rights before its allegiance to press freedom.

Trend

There are a number of areas where media organisations are likely to have a negative effect on their own freedom. These are generally areas where commercial imperatives overrule commitment to liberal values. The area where there seems to be the greatest negative trend is in the allocation of resources to newsrooms and, as pressures on the bottom line increase, this is an area that may have the most influence on the ability of media outlets to report on matters of public interest and concern.


Private rights affecting press freedom

A number of issues with potential to impact on the ability of the press to report freely are related to conflicts between private rights and the right of the public to information on matters of public interest. Where the line is drawn between the public interest and the individual's right to privacy in their private life, the protection of reputation, or the protection of personal or corporate commercial interests is always going to be controversial. There are similar concerns when ethical obligations to respect a confidence conflicts with an attempt to find the information held by an individual and with the use of language that may give offence to individuals or groups. There is a question of balance in all of these questions, and any movement to an extreme position is likely to adversely affect either private rights or public rights.


Privacy

The Press Council, in dealing with questions of privacy, says that the following need to be taken into account in determining the balance between privacy and the right of the public to be informed:

Privacy developments are already having an impact on press freedom. Things like the proliferation of CCTV cameras throughout cities, constant mini-cam surveillance of work places and monitoring of office computers have left people with the view that little they do is private any more.

This has combined with the cross-matching of information on ever more extensive databases to exacerbate the feeling. While potential intrusion of the privacy of private individuals by the media is not as pervasive, the rare examples of it (usually having a negative impact on the individuals involved) fuel a perception that the media are contributing to this loss of privacy.

Governments and the courts, acting separately, are developing further privacy law. Additions to privacy legislation and decisions that threaten a tort of privacy in common law together undermine the importance of transparent justice and the right of the public to be informed about matters of public interest. The possibility exists that such expansion of privacy rights will not take into account the balance questions noted above. The difficulty of leaning heavily towards more privacy protection is that it seems impossible to avoid reinforcement of trends towards more secrecy.

There is a perception of an over-emphasis on privacy, reflected in irrational reporting restrictions on children, in the closing of courts, in the denial of information regarding people charged with crimes, and in restrictions on photographers. Most citizens are not even allowed to have printed copies of the electoral rolls any more (political parties being excepted).

A new acronym, BOPA, has come into common parlance as agencies restrict the availability of information "because of the Privacy Act'. Examples of this are rife. For example, access to files in the Administrative Appeals Tribunals and other similar tribunal hearings are being refused before the hearing on grounds of privacy. Access to police mug shots on court files, even of convicted persons, is regularly denied on privacy grounds until after sentencing. (In one particularly egregious case, a newspaper has been refused access by the police to the record of a deceased criminal on the grounds that he had not given his consent to the release.)

The High Court (in Lenah Game Meats) has already hinted at the possibility of a tort of "breach of privacy', although it recognised the existence of public interest defences in such cases. A lower court in Queensland has established a de facto tort of privacy in a recent judgement (Grosse v Purvis) where there was no public interest justification for the defendant's acts. These cases follow similar trends in comparative jurisdictions: an expansion of breach of confidence as an action in the United Kingdom to become a virtual privacy tort, and the development of an actual privacy tort by the New Zealand High Court in the case of Hosking v. Runting in 2004.

State governments have enacted, or are discussing, legislation to govern the use of "surveillance devices'. Western Australia has the strongest law but the courts have interpreted the definitions of public and private places quite strictly.

In other states, proposed definitions are so badly constructed that hearing aids and contact lenses would be classed as "covert surveillance devices'. NSW and Victoria have developed workplace surveillance laws that have no immediate impact on the media but definitions in them may be applied in putative legislation on more general surveillance issues.

The Standing Committee of Attorneys-General (SCAG), in a recent discussion paper arising from a desire to limit the publication of exploitative and offensive images on the Internet, has made proposals that might result in repressive restrictions on taking photos in public places. The ability of photojournalists to record the culture and history of Australia is under threat from such proposals.

This follows a British court inventing the crime of "image theft" by a photographer and attempts by sporting and entertainment personalities to "protect their image" by using the law to restrict the ability of the media to publish photographs, even when taken in public places (see “Unsporting restrictions” below for more details).

Both the federal Privacy Commissioner and a Senate Committee have conducted reviews of the Federal Privacy Act. The commissioner's review called for revision of the Act's media exemption; the Senate Committee did not. In January 2006, the federal Attorney-General referred the matter to the ALRC for a further report.

The NSW government is reviewing that State's Adoption Act. The NSW Act places greater restrictions on access to some information than its Victorian counterpart. Some liberalisation of the NSW law, to bring it in line with the Victorian one, would seem appropriate.


Trend

Privacy is the area where the greatest potential danger to press freedom lies. In leveraging legitimate community concerns with privacy, public figures (and corporations) are trying to wind back legitimate media coverage of their activities. In many cases the actions arising in this area are more concerned with the maintenance of commercial rights over images (see below), and very few are like the recent Nicole Kidman action that exposed genuine concerns with surveillance.

The likelihood of judicial or legislative action towards greater protection of privacy is high, and the need for a balancing test of the public interest is imperative if such developments are not to adversely affect the media's ability to report matters properly of public concern.


Defamation

The protection of one's reputation is a legitimate right of the individual. Frequently information on matters of public interest will damage the reputation of an individual or corporation. Defamation law should be about finding the balance between these competing demands, with an emphasis on the restoration of reputation where it has been unfairly traduced. Until the beginning of 2006 Australian defamation law did not meet this criterion. There were eight separate jurisdictions, with different standards for what constituted defamation and the defences capable of being offered. Additionally, defamation law was being used to intimidate the press (and community activists) from exposing corruption and incompetence.

The cost of defending actions and the possibility of large damages from continued coverage of a matter were seen as good reasons to back off from further action. The laws in most jurisdictions also placed too much emphasis on litigation, and the awarding of monetary damages, and not enough emphasis on a quick resolution, and restoration of reputation.

After a series of discussions at SCAG, the states and territories agreed in 2005 to enact harmonised and reformed defamation laws. These came into force in the states on 1 January 2006. As noted by Queensland Attorney-General Linda Lavarch at a seminar at QUT in May 2006, the Press Council was the driving force responsible for getting defamation reform back on the SCAG agenda. The Press Council initiated a push for uniformity in 2001. SCAG took up the question in 2003 and convened a working party of officers to develop proposals.

At that point the federal Attorney-General Phillip Ruddock intervened, announcing he would develop an over-riding federal law if the States did not agree to a uniform set of laws. In late July 2004 SCAG discussed a detailed set of proposals for uniform defamation law. A day later federal Attorney-General Ruddock, arguing that the SCAG paper had "failed to address significant issues and demonstrates the lack of commitment by the States to achieving genuine uniform law', released a revised outline of possible national defamation law, moving further towards the development of a separate national defamation law.

At the SCAG meetings in November 2004 and May 2005 the states and territories moved through the final steps to an agreement on a model uniform law. The State legislatures enacted harmonised laws in line with the model by the end of 2005, and the new regime was introduced on 1 January 2006. The federal Attorney-General seems to have accepted that separate federal legislation will not be required.

Among the significant changes in the new harmonised law is the removal of the right to sue by large corporations (although small businesses retain the right). This means that suits such as that initiated by the public company Gunns in Tasmania against a number of community activists and organisations will be a thing of the past and there will be no further use of defamation law by corporations to stop criticism of their activities. Other changes that have been enacted include:

Early indications are that the emphasis in the legislation on restoring reputation, rather than on damages, has led to a significant increase in the number of matters settled early in the process.

The issues arising from the decision by the Board of the Australian Broadcasting Corporation not to publish a biography of broadcaster Alan Jones demonstrate that the changes are not necessarily going to be seen as sufficient. Despite the introduction of a truth-alone defence, the broadcaster's lawyers indicated that defamation action was likely to arise from publication of the book and the Board decided the threat of such action from the broadcaster was enough to threaten the book's commercial success. Chris Masters, the book's author, subsequently found a publisher willing to print and distribute the book.

In other developments in defamation law in the past year, it appears that, based on the O'Shane case in NSW and the refusal of the High Court to take up an appeal in the Popovic case, the judiciary has decided that the Lange defence, available to defendants who want to plead that it was reasonable to publish the material complained of because it relates to matters covered by the freedom of expression implied in the Constitution, does not apply to judicial officers.

Trend

The defamation reforms appear to have made actions on defamation more about reputation than mulcting of funds. The unknown in the matter is the extent to which removal of the "public benefit" test in defamation might lead towards separate actions in privacy. The Attorneys-General have indicated they have placed this on a "watching brief" (Pearson, The Australian, May 18, 2006). There are also concerns about the operations of the new qualified privilege defence, which may require journalists to reveal confidential sources if their actions are to be deemed "reasonable" under the defence's requirements.


Unsporting restrictions

Some people see their commercial "rights" as being as important as the protection of their privacy or their reputation. Given the amounts of money available to some sporting bodies and individuals through broadcast rights and commercial exploitation of their image, the protection of such "rights" is likely to become an increasing area of conflict between the press wanting to report the news and the organisations and individuals who want to maximise their incomes.

Attempts by sporting bodies to restrict or sanitise coverage of their sports have led to restrictions on a free press. So too have attempts by athletes (and some "personalities') to control the use of their images. A recent court case involved Lleyton and Bec Hewitt using the courts to seek damages from the unauthorised use of their images, citing invasion of privacy and loss of commercial opportunity as causes (Sydney Morning Herald, 7 February 2006).

The recent Commonwealth Games in Melbourne banned or restricted media coverage of some events, partly because of exclusivity agreements. FIFA promulgated very restrictive rules on coverage of the 2006 World Cup. In both cases, the penalty for breach of the rules was exclusion from access to the entire event. Other organisations have used restrictive agreements or copyright claims to limit access of photographers.

Far more threatening is the use of large fines by sporting authorities assessed on players or coaches who "bring the game into disrepute'. In an attempt to forestall negative comments about their code, the organisations are limiting the ability of their members to comment openly. This can appear hypocritical, as in the case of the AFL in 2005, when coaches were fined for speaking out of turn, but the CEO was allowed to make adverse comments on one of the teams that would appear to have done more to "bring the game into disrepute."

Trend

The situation is worsening, particularly in the area of limitations on the use of images, and attempts by players, and their managers, to control their images. Sporting bodies, like other organisations, have learned the lesson of media management (see "Spin" above).


Professional privilege

In addition to the conflict between private rights and the public's right to information, there are conflicts between ethical obligations and a legal requirement to divulge information. In the media, this is particularly exemplified by the obligations on journalists not to divulge the identity of confidential sources. Generally, Australian law does not specifically protect the confidentiality of journalists" sources. Historically, the record is not good.

Tony Barrass was imprisoned and ultimately fined in a Western Australian case in 1989-1990. In March 1992, Joe Budd was jailed for failure to disclose his sources for a story that had resulted in a defamation suit against The Courier-Mail . There were four cases in 1993. In South Australia, Advertiser journalist David Hellaby was fined and the ABC's Chris Nicholls jailed for separate breaches. In NSW, Deborah Cornwall, then with The Sydney Morning Herald, was ordered to perform community service after being found guilty of contempt of the ICAC and The Sun-Herald 's John Synott was threatened with prosecution for contempt of the Parliament when he refused to reveal the name of a source. In Queensland in 1994, Madonna King of The Australian and Paul Whittaker of The Courier-Mail were threatened with contempt charges after printing material arising from CJC investigations.

More recently, the NRMA (in 2002) and the Law Society (in 2005) have tried to use the NSW courts to force journalists to reveal the names of alleged sources for stories arising from disputes within their respective Boards of Directors. As this report was being written, Publishing and Broadcasting Limited, owners of Channel 9, also sought to discover the names of alleged sources responsible for the leaking of an affidavit critical of the recently appointed CEO of the company.

In Victoria, in 2005, the Commonwealth Director of Public prosecutions sought to have Michael Harvey and Gerard McManus reveal the source/ s for an article based on material leaked from the Department of Veterans Affairs. They had been called to give evidence at the preliminary stage of the trial of a public official and cited for contempt when they would not. The public servant was subsequently convicted, without their testimony being called at the trial. Despite their not being called to give evidence at the trial, the journalists are still subject to a contempt charge for their earlier refusal. The decision to cite Harvey and McManus was appealed, but rejected.

There is the potential for similar instances of a journalist being placed in the position of following the journalists" Code of Ethics rather than a direction of a court. In the Cojuangco case, the defendant publisher had to withdraw its reliance on the defence of qualified privilege (see "Defamation" above), rather than have its reporter required to reveal a confidential source, even in the early stages of the litigation.

In late 1997, NSW amended its Evidence Act to allow judges to exclude evidence of confidential communications between professionals and their clients. The court must not order that confidential communication be revealed if there is any likelihood of harm and the nature of this harm outweighs the desirability of having the evidence released. This provision has been of little use to journalists who remain bound either by their union's code of ethics, or their employer's codes of conduct, to respect all confidences. Nor did it stop the NRMA, the Law Society and Channel 9 trying to use the courts to force journalists to reveal their sources, although none has been successful.

The ALRC, in co-operation with its NSW and Victorian analogues, reviewed a number of questions related to Evidence Acts, with a view to more uniformity. The issue raised in its Discussion Paper of most interest to the media was whether there should be a privilege to protect journalists" confidential sources. The commission recommended adoption by Victoria and the Commonwealth of the NSW model. At its March meeting, the SCAG agreed that all states would adopt the commission's recommendations and move towards uniformity in their Evidence Acts.

The Press Council has expressed the view that the NSW Act does not go far enough in establishing a privilege and has recommended the adoption of a clause based on a New Zealand Evidence Bill. Unlike the NSW model, which places the discretion squarely with the judge, the NZ model adopts the default position that the journalist is entitled to protect the confidentiality of the source and the judge must find exceptional circumstances exist before ordering the identity of a source be revealed.

Trend

The adoption of the ALRC recommendation indicates that the undertakings given by the Federal and Victorian Attorneys-General to review the legislation that left McManus and Harvey vulnerable to citation for contempt have been addressed.

The question remaining is whether the NSW model actually offers enough protection. It places a greater discretion in the hands of judges, but actions by the NRMA and the Law Society indicate that the privilege in the NSW Act may not be enough to keep journalists out of jail for obeying their professional ethics.


Restrictions on language use

A large number of interest groups in a wide range of areas seek from the press the use of language that will not offend them. If the press were to pay heed to all such calls, there would be an unacceptable restriction on its ability to report properly on matters of public interest. Additionally, such requests change from time to time as terminology goes in and out of fashion, and what was last year an acceptable euphemism becomes this year's term of vilification.

One area where this has played out in recent times has been in the terminology to be applied to those seeking asylum in Australia. The use of the term "illegal immigrant" has been roundly condemned and alternative formulations suggested. The extent to which such constructions are used is often governed by the political stance of the writer and they appear more frequently in opinion articles than in news reports.

The Press Council is frequently approached by groups seeking to have terminology censored from newspapers. It is generally reluctant to issue prohibitions that say this term or that should not be used. The reporting of suicide, particularly youth suicide, of drugs and drug usage and of various physical and intellectual handicaps are other areas where there are repeated calls for restrictions on language use.

The Council's view is that the context will determine if particular terms are appropriate and that society generally decides over a period of time what words should or should not be used. One pressure group frequently heard by the Council is those Australians of British descent who regard the term "pom" as a racially abusive epithet and seek its removal from the set of acceptable words. The Council has ruled that, except in cases where its use together with other words would be seen to reinforce some negative ethnic stereotype, such words will not be ruled as inappropriate.

Trend

With increasing sensitivity of ethnic and religious groups, and with greater advocacy by a large number of other lobby groups, the press is facing greater pressure to eliminate words from usage. These pressures will increase despite the efforts by some to ridicule the extremes of "political correctness'. There is no reason civil discourse and respect for individuals should not be reflected in the press but, even so, there will continue to be those offended by the word choice of the print media and see pejorative connotations in words used.


Bright spots

Finally, it is important to note the victories, where the threats to free speech have been rolled back. The new uniform defamation legislation, noted above, is one such case, though the price the media have paid for uniformity will only be known over coming years in the areas of privacy, qualified privilege as a defence, and damages assessment. So too was the media's ability to have an exemption inserted in the federal privacy law, to have the "official secrets" provisions removed from espionage laws, to give judges a discretion to keep courts open in national security cases, to ease confidentiality requirements in court proceedings, to force a review and likely wind-back of sedition laws and to have financial services legislation amended so that most journalists do not need a Financial Services Licence, except for those who give personal financial product advice.

The Department of Health recently reviewed legislation restricting the placement of advertising for tobacco products in the media. There was an attempt to widen the definition of advertising to encompass material that was neither advertising nor promotional, but incidental references to tobacco. In the end, a review "…concluded that the Act is currently working well to protect the Australian public from advertising messages and the gains made by making amendments to the Act would be insignificant. As a result, the Government does not intend changing the Act at this time.'



Charter for a Free Press in Australia

Preamble

Freedom of opinion and expression is an inalienable right of a free people. Australia is committed to The Universal Declaration of Human Rights. Article 19 of the Declaration provides:

Everyone has the right of freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.

In a truly democratic society open debate, discussion, criticism and dissent are central to the process of generating informed and considered choices. These processes are crucial to the formation of values and priorities and help in assessing and finding solutions to social, economic and political problems. A free press means a free people and the people of Australia have a right to freedom of information and access to differing views and opinions and declare that the following principles are basic to an unfettered flow of news and information both within Australia and across the nation's borders.

The Principles

  1. Freedom of the press means the right of the people to be informed by the press on matters of public interest so that they may exercise their rights and duties as citizens.
  2. The press shall not be subject to government licence and government authorities should not interfere with the content of news nor restrict access to any news source.
  3. The press has a responsibility to the public to commit itself to self-regulation that provides a mechanism for dealing with the concerns of members of the public and the maintenance of the ethical standards and journalistic professionalism of the press.
  4. It is in the public interest for the press to make available to the people a wide diversity of views and opinions.
  5. It is the responsibility of the press to protect the people's right to know and to contest encroachments upon that right by governments, groups or individuals.
  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.