7. Press Freedom 2007:
Developments affecting the freedom of communication
The erosion of free speech that has taken place in Australia in the last decade has continued in the last year. From 2006 to 2007 Australia has moved further down the Freedom House press freedom rankings from 31st to 39th place. The restrictions on press freedom come primarily from governments and the courts, with the federal government setting the tone for other levels of government.
Anti-terrorism and related legislation
Anti-terror laws have again been a key theme in 2006-2007, although the implication that the terrorism threat in Australia has increased, or even genuinely warrants the existing restrictions on personal and media freedom, is doubtful. For the Press Council, the concern is that these laws have also had the effect of shielding governments from public scrutiny. Even if anti-terrorism measures could be shown to be necessary for the protection of Australia 's security, there is a widespread belief that they go much further than is necessary and intrude excessively into freedom of expression.
The most disturbing development in the last year has been the federal government 's moves to censor material classed as "advocating terrorism" . The Classification (Publications, Films and Computer Games) Amendment (Terrorist Material) Bill 2007 provides for the refusal of classification of material that directly or indirectly counsels a terrorist act. The government proceeded with this legislation in spite of the fact that existing censorship regulation enabled the banning of two questionable books (Join the Caravan and Defence of the Muslim Lands). A number of organisations believe that the way that legislation has been drafted will extend the scope of the ban to material that it was not intended to capture, necessarily forcing self-censorship by publishers and artists. The legislation has been amended with a view to ameliorating some of these concerns, but retains its potential to facilitate the banning of material intended to contribute to public discussion or debate, in particular, material that is in the nature of opinion or commentary.
In June 2006 the Parliamentary Joint Committee on Intelligence and Security reviewed the Sheller Report - a report commissioned by the Attorney-General to look at federal security and counter-terrorism legislation. Sheller had drawn attention to section 102.7 of the Commonwealth Criminal Code, which criminalises support for terrorist organisations. Submissions to the Committee noted that the section had the potential to act as an impediment to free speech, and that this potential should be minimised by narrowly defining "support" in order to ensure that commentary or the expression of political views would not fall within the definition. The Attorney-General, Philip Ruddock, submitted that the word "support" could not be construed so as to ban publication of views favourable to a proscribed organisation, but the Committee recommended that the wording of the offence of providing support to a terrorist organisation should be changed to "providing material support" to ensure that there would be no ambiguity as to its meaning. The government did not act on that recommendation.
The imposition of statutory restrictions or specific orders preventing suspects from speaking to the media about their experience continues to impact on press freedom. Section 3ZQT of the Anti-Terrorism Act 2005, for example, prevents the disclosure of the fact that an individual has received a notice to produce documents to the Australian Federal Police in relation to a terrorism investigation. The media circus that ensued in the wake of the Haneef case is something of an aberration. The news media became a platform that was exploited by the prosecution and politicians, and subsequently by defence lawyers, to manipulate public perceptions of Dr Haneef 's conduct and the government 's actions. (For more details on the Haneef case, see Issues in press ethics, in Chapter 5.) The media generally have difficulty gaining access to terrorism suspects.
Members of the Australian media are also affected by extra-territorial measures intended to address terrorism. In the case of David Hicks, an order precluding media interviews was issued by the US as a condition of Hicks ' return to Australia. There has been some debate as to whether the order is enforceable in Australia. Whether enforceable or not, it has had the effect of silencing Hicks and preventing any media interviews from being conducted.
There appears to be a growing intolerance by Australian governments of alternative or critical views that might be held by intending visitors to our shores. Most recently, the author Abdel Bari-Atwan had difficulty obtaining a visa to enable him to attend the Brisbane Writers Festival to discuss his book, The Secret Life of al-Qa 'ida. Mr Bari-Atwan was ultimately provided with an Australian visa, but only after media coverage exposed the unconscionable delay in the issuing of a visa.
Undoubtedly the highest profile media event during 2007 was the APEC meeting in Sydney. The security enforced during APEC was the most restrictive in Australia 's history, with large areas of the city being closed in order to protect the visiting heads of state and to exclude protestors.
Leaving aside questions of excessive security, from the perspective of press freedom, the media accreditation system appeared to be used politically. Even accredited journalists and photographers were, in certain instances, removed from press conferences and photo opportunities in order to avoid potential embarrassment to foreign leaders. In one notable example, a photographer accredited by The Epoch Times was excluded from a press conference with the Chinese President, apparently due to fears that she would raise issues related to Falun Gong. This was in spite of the presence of a government minder sitting nearby to ensure that no disruption occurred. Several other journalists and photographers are alleged to have been removed from the room at the same time, including a photographer from The Sydney Morning Herald, evidently to avoid the impression that The Epoch Times was being singled out.
In camera hearings have been a feature of the anti-terrorism legislation. In 2007 evidence was taken in camera in the Benbrika trial. It is impossible to know the true number of in camera proceedings since, by definition, they are secret. But the number of in camera proceedings will almost certainly increase in the near future as a number of terrorist suspects are presently in custody.
Court action to inhibit the free flow of information
In addition to the hearing of terrorism cases in secret, closed courts, poor access to court documents and extensive use of suppression orders continue to frustrate journalists attempting to report matters of public interest in Australian courts.
The News Limited database records at least 221 new suppression orders that were issued by Australian courts between 1 January and 1 September 2007. In total, the database lists 887 extant suppression orders. That number is additional to those instances of suppression that are mandated by legislation, such as the Family Law Act and other laws limiting the reporting of matters pertaining to minors and sexual assault victims, amongst others.
On a positive note, certain members of the judiciary have indicated an intention to adopt a more open posture with regard to the media. Justice Cummins in the Victorian Supreme Court has stated that he will release film of his decision in the matter of Dupas, while Queensland Chief Justice De Jersey announced that he will, in future, allow journalists to make audio recordings of court proceedings.
Similarly, in Victoria, the government has responded to media criticism in relation to the difficulty of obtaining police images by passing the Justice and Road Legislation (Law Enforcement) Bill 2007, which establishes a procedure for the provision of police mug shots to the media for a specified time following the conviction of offenders. The legislation is a positive development.
Access to government information
Less than twelve months after his success in the High Court in the McKinnon case, the Treasurer, Peter Costello, is now expanding the power of the Trade Practices Commission to sue groups who encourage participation in secondary boycotts. Senior lawyers warn that members of the media may find themselves subject to action for breach of the Trade Practices Act where they publish material that could be interpreted as being supportive of those who advocate boycotts.
Australia 's Freedom of Information procedures, which have for some time been found to be an inadequate tool for journalists seeking information in relation to government policy, have continued to present a bottleneck for press freedom. Federal Environment Minister Malcolm Turnbull refused an FoI application on behalf of Channel Seven seeking access to documents relating to the federal government 's plans to take control of the Murray-Darling Basin. The government claimed that publication of the documents would damage federal-state relations.
The current restrictive access to information under FoI procedures, and the use of the laws to selectively release information that may denigrate others, highlights the importance of developing objective criteria against which decisions to disclose information can be measured, and the need for independent administrators to decide whether or not documents should be released. The default position needs to be release of information, with an ability to withhold matters of public interest on in the most extreme cases, and only when defensible public interest justifications can be evinced.
There are potentially positive developments. Victorian Premier John Brumby has announced that he intends to reform Victoria 's FoI legislation. A similar, more recent, announcement has been made by new Queensland Premier, Anna Bligh, promising an overhaul of the Freedom of Information Act 1992 (Qld) to be conducted by an independent panel, chaired by former the chairman of Queensland 's Electoral and Administrative Review Committee (and retired The Courier-Mail journalist) David Solomon.
In addition, the nation 's two most prominent FoI investigative journalists, Michael McKinnon and Matthew Moore, have had some notable successes in the last year, including the release of information concerning the quality of restaurant food, the extent of equipment failure experienced by troops in Afghanistan, and a promise from the minister in charge of the NSW Food Authority to legislate to allow the publication of information concerning restaurant inspections.
The role of whistleblowers in maintaining government accountability has become a significant issue. The basic problem of the vulnerability of government and corporate employees who disclose misconduct and mismanagement will remain, until there is statutory protection for genuine public interest whistleblowers. A substantial deterrent to legislation is the fact that a clear distinction between those in that category and those addicted to unjustified leaks for less admirable reasons is very hard, nigh impossible, to draw legislatively.
The federal Attorney-General promised in June 2007 to introduce reforms to the Evidence Act to give courts discretion to excuse journalists from being required to identify their sources. He also urged state and territory Attorneys-General to enact matching legislation. The federal reform as enacted copies the NSW Act and has been described as inadequate and no real protection for journalists or their sources (Australian Press Council letter to Attorneys-General, 22 May 2007). Geoffrey Robertson QC describes the provision as a "snare" for journalists and their legal representatives. Consequently, a key issue that needs to be addressed in any attempt to promote a truly free press in Australia must be the introduction of a shield law that places the onus on the necessity of proving that there is a strong public interest in journalists revealing their sources in any particular case. (For more details on protection of sources, see Issues in press ethics, in Chapter 5.)
Defamation
Litigation in relation to defamation has been a major issue for publishers for decades, not only because of the "chilling effect" that is often referred to, but also because of the significant cost to publishers of defending actions, even where such actions are futile and vexatious.
The number of new defamation actions has apparently decreased significantly since the commencement of the harmonised Defamation Acts. The Herald and Weekly Times has received NO writs in relation to material published after commencement of the uniform legislation, but has received three notices of concern, which were settled. Fairfax Media has received one writ in the 18 months to July 2007 against its Melbourne masthead, The Age, and six statements of claim, five relating to material published after the commencement of the uniform defamation legislation, against its Sydney newspapers, The Sydney Morning Herald and The Sun Herald.
Nevertheless there are still actions under the old laws passing through the courts. Several high profile cases have been determined recently. Perhaps the most notable was the High Court 's decision on aspects of John Fairfax Publications Pty Ltd v Gacic [2007] HCA 28. That decision dealt with a restaurant review and the role of the jury in defamation cases. The High Court declared that the NSW Court of Appeal has the right to substitute its own decision for that of the jury if it finds the jury 's decision to have been unreasonable. The High Court also found that the appropriate standards to apply in cases of "business defamation" are different from the community standards that apply in other defamation matters. In practical terms, the decision implies that, where a business suffers injury as a result of a negative article, the jury will be required to decide that the article is defamatory. (Incidentally, the harmonised defamation laws, not in place when the action was initiated, have removed the ability of corporations to bring actions for defamation unless they are non-profit organisations or have fewer than ten employees.) The NSW Supreme Court has yet to hear the newspaper 's defences so the Gacic case has not yet been finally determined.
The case of Obeid v John Fairfax Publications Pty Limited [2006] NSWSC 1059, again under the old laws, dealt with an article that alleged bribery in relation to planning approvals. The defendants were found to have acted unreasonably in failing to ensure that the article gave an accurate impression. Consequently, the defendant could not rely on the qualified privilege defence. The decision in the Obeid case highlighted an aspect of defamation law that has concerned legal professionals who act for media defendants. While the Reynolds principles laid down by the House of Lords were intended as a guide to whether a defendant had acted reasonably, the courts appear in many instances to be treating the Reynolds principles as "hurdles" that media defendants must overcome, rather than illustrations of what should be taken into consideration by the courts in deciding whether publication 's actions were reasonable. In the UK case of Jameel & Ors v Wall Street Journal Europe Sprl [2006] UKHL 44, the House of Lords has more recently indicated that the emphasis should be on the professional judgment of editors and journalists, suggesting that, where there is a public interest in the publication of a news story, a publisher establishing an absence of carelessness would establish qualified privilege.
As might be expected, there are recent indications of attempts by lawyers to get around new defamation laws by using other causes of action. Alan Bond, for example, has launched an action that claims that a newspaper article written by Paul Barry was misleading and deceptive and therefore in breach of the Trade Practices Act. In response to the defence 's argument that news articles are exempt from s52 of the Act, because of a media exemption in s65A, Bond 's lawyers claimed that the journalist, being a freelancer, was paid to provide a commercial service and that the exemption did not apply. The court rejected that contention and dismissed the matter.
Privacy
In 2007 privacy law in Australia is in a state of transition. While privacy issues are not new, there is increasing advocacy of a statutory cause of action that would very likely further restrict reporting. In addition to an Australian Law Reform Commission (ALRC) review of federal privacy law (it has just released its Discussion Paper 72, the penultimate stage of the inquiry), the NSW Law Reform Commissions (NSW LRC) and the Victorian Law Reform Commissions are conducting inquiries into questions related to privacy law. Meanwhile courts are proceeding to evolve what may become a common law tort of privacy. The case of Doe v ABC [2007] VCC 281 concerned the identification of an individual in breach of s4(1A) of the Judicial Proceedings Reports Act 1958 (Vic.), which prohibits the publication of information identifying victims of sexual offences. There is no novelty in restrictions on the publication of details of this nature. What makes the case a matter of concern for press freedom is that one of the causes of action cited and accepted by the court was for breach of the plaintiff 's privacy. This was in spite of the availability of a cause of action for breach of statutory duty.
The NSW LRC 's consultation paper, released in May 2007, was specifically concerned with the proposed introduction of a statutory cause of action for breach of privacy. In its discussion paper, the ALRC also expressed support for a statutory cause of action for privacy, although the scope of such an action favoured by the ALRC is narrower than that advocated by the NSW LRC. The NSW LRC 's preferred cause of action encompasses conduct that falls within other areas of law, such as defamation and intellectual property. An aspect of the scope of the cause of action favoured by NSW LRC, which is of particular concern to the media, is that it appears to be seeking to subvert the reforms put in place by the uniform defamation laws making truth alone a defence, by introducing in another form the former requirement that to establish the truth defence it was necessary also to demonstrate a public interest in the material.
It is difficult to assess the probable impact on freedom of speech of a tort of privacy at this preliminary stage in the process, where no draft legislation has yet been formulated.
The impact of ownership and control on access to information and images
In addition to the external threats posed to the press by governments, courts and corporations, press freedom is also affected by factors relating to ownership and control in the media market itself.
The Broadcasting Services Amendment (Media Ownership) Act 2006 (Cth) removed the cross-media ownership restrictions and replaced them with a requirement for a minimum number of voices in each particular metropolitan or regional market. Given that the changes have only been in operation since January 2007 it is too early to make any meaningful assessment of the impact of the reforms, even though there have been substantial mergers and acquisitions within Australia 's media industry already. (See Chapter 3 on media ownership law changes and their impact for more details.)
Issues relating to ownership and control, including contractual arrangements, have a significant impact on the right to publish images of sporting events. These issues affect access for journalists and photographers to sporting venues and the rights of organisations to broadcast video clips of sporting events.
In late 2006 Cricket Australia threatened to exclude print journalists whose organisations had not agreed to restrict their use of on-line material. The restriction demanded was for no more than 30 seconds of footage to be shown no earlier than one hour after play. Additionally, organisations were to be allowed to post only twelve photos, to be updated daily. The restrictions on online journalists ' attendance at press conferences also remained. These issues were eventually resolved by negotiation and compromise agreements. Similarly, a compromise was eventually found in the dispute between News Limited, Telstra and the Rugby League over the use of video footage from NRL games on news websites.
There have also been on-going concerns with the granting of exclusive rights to photograph AFL fixtures and possible attempts in the future to limit the number of photographers who have AFL access.
A coalition of international news organisations has recently been in negotiation with the International Rugby Board over coverage of the 2007 World Cup. The Australian Press Council supports their actions in the name of access by all journalists to the reporting of news, whether it be political, economic or sports. There should be minimum interference with the collection and reporting of news, in words and images, whatever the form that news takes.
The organisations presented a united front, sufficient to lead the Rugby authorities to reconsider whether they could afford to have all print media organisations worldwide off-side. The negotiations have led to some concessions particularly with regard to the publication of images. Questions related to on-line publication of match highlights remain to be solved. Nevertheless the game is not over. The likelihood is that international sporting organisations will continue their drive to obtain maximum revenue from sporting events.
Conclusion
The climate of restriction and obstruction of information by government in Australia has prevented journalists and publishers from keeping the Australian public informed about the actions and policies of its own elected bodies and other public institutions. The restrictions have been such as to lead to the formation of a unified coalition of Australia 's publishers and broadcasters, which has now launched a national "Public Right to Know" campaign. The coalition is seeking to obtain from governments a commitment to freedom of information, open government and protection of the right to free speech. The first step taken by the coalition has been funding an independent audit of access to information in Australia, headed by former NSW Ombudsman Irene Moss. The audit is due to be completed by November 2007.