7. Press Freedom and Access to information

Press Freedom 2007–2008

The erosion of free speech commented on in the 2006 State of the News Print Media in Australia and the 2007 Supplement appears to have been halted—if not reversed—in the past year. According to Freedom House, in its 2008 report, Australia is ranked 35th among the nations of the world in so far as press freedom is concerned (from 39 in 2007). Reporters sans Frontieres (in its 2007 list) ranks Australia in 28th place (up from 35, after a number of years in which its ranking has consistently fallen).

The major publishers and broadcasters, alarmed at the culture of secrecy in contemporary Australia, initiated the Right to Know campaign in 2007. The first step was an audit of conditions impacting on the Australian media. The audit was heading by former NSW Ombudsman Irene Moss. In early November 2007, the audit team presented its Report of the Independent Audit of Free Speech in Australia to the Right to Know campaign. It noted about 500 pieces of legislation, at the territory, state or federal level, which restricted media access to information, and the growing trend towards suppression of information by the courts. In particular it found that Freedom of Information laws were ineffective, due to costs, time delays and the imposition of ministerial certificates.

The audit report will be used as the basis of further action by the Right to Know campaign, which is now in the hands of the CEOs of the publishers and broadcasters. Possible priorities for the campaign include the reform of FoI law and practice, and the opening up to public scrutiny of government information generally; the enactment of effective shield laws that will enable journalists to protect their confidential sources; and changes to court procedures to ensure that information from open courts are available to the public through the media.

Anti–terrorism and related legislation

Anti–terror laws were still being strengthened in the last months of the Howard Government. 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.

One of the former government's final acts was to move 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 legislation 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.

Counter–terrorism legislation could be subject to regular, independent review. In September it was reported that Attorney–General Robert McClelland was considering recommending that the Inspector–General of Intelligence and Security, Ian Carnell, be given the power to regularly examine the suite of laws and review the way they are implemented. This is in line with recommendations made by the 2006 Sheller inquiry into security and counter–terrorism and a parliamentary joint committee on intelligence and security. At the same time the Senate is considering a Private Members' Bill, the Independent Reviewer of Terrorism Laws Bill 2008, which would achieve the same objectives.

The Clarke inquiry into the Haneef case (see Chapter 6) is due to report in late November. Mr Clarke's terms of reference include a review of the relevant security laws and it may be that his report will also make recommendations on changes to the current laws.

Meanwhile, the Attorney–General has instructed the Australian Law Reform Commission to review all legislation related to secrecy and report by October 31, 2009. The inquiry is to consider:

  1. relevant laws and practices relating to the protection of Commonwealth information, including the scope and appropriateness of legislative provisions regarding secrecy and confidentiality;
  2. whether there is a need to consolidate and modernise relevant provisions currently in the Crimes Act 1914 and other Commonwealth legislation for inclusion in the Criminal Code;
  3. the way in which secrecy laws in the Crimes Act interact with other laws and practices, including those relating to secrecy, privacy, freedom of information, archiving, whistleblowing, and data–matching;
  4. whether there should be different considerations for secrecy laws relating to the protection of national security and other sensitive Commonwealth information; and
  5. any related matter.

No timetable for the inquiry has yet been set.

The Press Council was represented at a meeting of the media and security personnel, convened by the Australian Strategic Policy Institute (ASPI). The intention was to formulate ‘protocols’ for the conduct of the media in any terrorism event in Australia. Arising from that discussion ASPI issued a discussion paper that demonstrated that ASPI had listened to the comments made by the media at the consultation. The Council responded with comments to the ASPI draft. It noted that the media would have the primary responsibility for communicating important information to the public and the predominant source for that information will be government officials. As is already the case in other emergencies, the media would be keen to cooperate in informing the public.

The Council expressed concern that governments may seek to constrain media organisations through the centralisation of information and by imposing restrictions on what could be published, either by way of ‘voluntary’ codes of conduct, protocols or by legislative mechanisms. Noting that the public has a right to information on matters of public concern and to have the facts communicated to them in a timely, responsible fashion, the Council expressed the view that the best way to ensure that important information is disseminated to the public in a crisis situation is to establish relationships between media professionals and government officials and to provide media organisations with open and timely access to information so that they are not forced to rely on informal sources in order to establish the facts. It also noted that the codes of conduct already in place in the industry would be sufficient guides for editors making decisions on what material to publish in the aftermath of a terrorist incident.

The Council encouraged ASPI to continue along the lines indicated by the draft discussion paper and looked forward to the development of cooperative mechanisms to ensure that the public is well informed through the media in the event of any terrorist incident.

Rules mandating that evidence be taken in camera have been a feature of the anti–terrorism legislation. In 2007–8, evidence was taken in camera in the “Benbrika” trial of a dozen terrorism suspects in Melbourne, but the judge generally succeeded in keeping the court open. A second major trial commenced in Parramatta, NSW, in late 2008. Six men are charged with terrorism offences. It will be interesting to see how frequently that trial moves in camera. It is impossible to quantify the number of in camera sessions since the existence of such sessions is often itself the subject of a suppression order.

Access to government information

Freedom of Information

During the year, there has been movement on FoI reform in several states and at the federal level. These developments are detailed in a paper by Rick Snell, Peter Timmins and Johan Lidberg, elsewhere in this section.

Whistleblowers and shield laws

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 to draw legislatively.

There are separate inquiries in the Australian and NSW jurisdictions on changes to whistleblower legislation. The Australian House of Representatives Standing Committee on Legal and Constitutional Affairs and the NSW Parliamentary Committee on the Independent Commission Against Corruption were conducting these separate inquiries. In NSW there is some limited protection for the disclosure of information to the media, although the time restrictions within the legislation mean that such protections are largely meaningless. The federal legislation has no protection for whistleblowers, like the one who provided The Australian with details of the Kessing report into the lax state of Customs at Sydney Airport, who believe that revelations to the media are justified in the face of official inaction. The outcomes of these inquiries will be reported in next year's report.

Meanwhile, governments, state and federal, continue to harass journalists in the hope of tracking down whistleblowers. While the federal legislation, referred to in the 2007 Supplement, which amended the federal Evidence Act to include a provision, based on the existing (and inadequate) NSW legislation, protecting journalists from revealing sources, has been passed, adequate shield law protection for journalists, promised by the state and territory Attorney–Generals, has not as yet been introduced in any jurisdiction.

In May 2008, police raised the Perth Sunday Times seeking material related to a story published in February—a story that may have embarrassed a senior Minister of the then government but was otherwise unrelated to any serious breach of the law. In September, federal police raided the home of a Canberra Times journalist, seeking material related to a story he wrote in June about defence intelligence.

Also in Western Australia, the Crime and Corruption Commission has been conducting secret hearings in which journalists are being interrogated with the aim of identifying the sources of leaks. It was noted that journalists subject to these hearings are threatened with prosecution and hefty fines if they disclose to anybody (including their employer) the fact of their interrogation.

In September 2008, the Queensland Government proposed amendments to the Crime and Misconduct Commission Act, which would narrow the scope of the public interest immunity currently available to witnesses who appear before the Commission. The public interest immunity provides the Commissioner with discretion to exempt witnesses from answering questions in certain circumstances. The proposed rewording meant the legislation would preclude the right for journalists to refuse to disclose confidential sources.

Other potential government restrictions

Occasionally threats emerge from governments or parliaments (state and federal) that would impinge on the ability of the press freely to report matters of public concern. The 2006 State of the News Print Media in Australia noted a number of these. Attempts to extend tobacco–advertising bans into the use of news images did not proceed. On the other hand, a number of states have racial and religious vilification laws that have the potential to restrict free speech and the accurate reporting of comments made by public figures.

In the current year, another such issue emerged in the Senate Standing Committee on Environment, Communications and the Arts' Inquiry into The Sexualisation of Children in the Contemporary Media Environment. The Australia Institute's 2006 report, Corporate Pædophilia, which claimed that large retailers were sexualising children in their advertising, prompted heated debate about the issue and ultimately led to the inquiry. While the main focus of the inquiry was the use of images of children in advertising, particularly in the fashion industry, the inquiry also looked at the use of images in magazines aimed at children and young people.

In its June report the committee said it believed the inappropriate sexualisation of children in the media was of increasing concern. It recommended broadcasters review their classification of sexual music videos, and magazine publishers consider introducing an age classification system similar to the one applied to film and television. Other recommendations include vetting of advertisements, for advertisers worried they are pushing the limits or for repeat offenders. The committee also recommended the development of a complaints clearing house to facilitate the lodging of complaints to the appropriate regulatory or self–regulatory body, but did not recommend any changes in the way in which the agencies dealt with complaints.

The Advertising Standards Bureau and the Press Council have discussed the issue subsequently and will seek to forward the recommendation together with Free TV, the Australian Communications and Media Authority, the MEAA and Commercial Radio Australia, amongst other bodies.

Constitutional Law

Unlike in the United States, the United Kingdom, the European Union, and in most democratic countries, there is neither a national Bill of Rights in Australia nor any constitutional guarantee of freedoms in the federal or state constitutions nor 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. In 2006, Victoria passed into law the Charter of Human Rights and Responsibilities Bill. There has still been no equivalent action by other states or territories, nor by the federal government.

During the period leading up to the 2007 federal election, neither the ALP nor the Coalition made a commitment to a Bill of Rights. The issue continues to be the subject of debate.

Court action to inhibit the free flow of information

In the 2006 State of the News Print Media in Australia, the Council noted the rejection by the Conference of Chief Justices of its proposal for a uniform method of reporting suppression orders. Nonetheless, the Council continues to observe the use of suppression orders by judges in most jurisdictions. News Limited now has nearly 1000 separate matters on its database of suppression orders

In mid–2007, the federal Attorney–Generals' department sought advice from the Council whether there was inadvertent non–compliance with suppression orders by the media due to a lack of knowledge of their existence. The department was investigating the possibility of a national register of suppression orders, something very close to the Council's original proposal to the chief justices. It asked for information on the following:

  1. Is there a problem in the media of inadvertent non–compliance with suppression orders due to lack of knowledge about their existence and duration?
  2. Does the Press Council have any views on the establishment of a national register of suppression orders to aid compliance?

In response, the Council noted its view that a password–moderated website, either national or drawing together the input from each jurisdiction, summarising the extant orders, notifying variations to orders, and updating information when orders are withdrawn, would be the best way of ensuring media compliance with suppression orders. The Council also forwarded its considered view on suppression orders and copies of draft templates for the notification of orders in any uniform scheme. The department has at the time of writing this report made no recommendation public.

The publishers' Right to Know campaign has appointed a former journalist Prue Innes, who served for many years as the Public Information Officer for the Victorian courts, to lead an inquiry into judicial suppression orders. The report is to be completed by late November 2008.

Access to courts and court documents

Naming and shaming

In late 2007, the NSW Legislative Council Standing Committee Law and Justice held an Inquiry into the prohibition on the publication of names of children involved in criminal proceedings. The media's main concern was with the 2004 and 2007 amendments to the Children (Criminal Proceedings) Act, which make it more difficult for the media to report on matters of public interest.

The committee's report included recommendations that, if implemented, would further severely restrict the ability of the press freely to report. In particular, recommendation 4, which suggests that the government amend section 11 of the Children (Criminal Proceedings) Act 1987 to extend the prohibition on the naming of juveniles involved in criminal proceedings to cover the period prior to charges being laid and to include juveniles who are reasonably likely to become involved in criminal proceedings. Such a system would make it much less likely that stories related to matters of public concern, including the activities of the Department of Community Services (DoCS), will be reported. Self–censorship is the likely result of any attempt to enact this recommendation.

Additionally there is no recommendation to ameliorate the negative impact on reporting of matters of public interest and concern of the 2004 and 2007 amendments. It is the 2004 amendments, and the 2007 changes to them, that have caused difficulties. The 2004 amendments effectively prohibit the identification of deceased child victims in order to minimise the trauma to the family of the deceased, especially surviving child siblings. Problems with the amendments, which were passed without adequate consultation, led to the 2007 changes. These allow for the senior available next of kin (SANoK) to give permission for the deceased child to be named.

A number of these cases have involved matters of significant public policy, especially related to the performance of the DoCS. The effect of the amendments is that the press can report these matters, with names, up to the time that charges are made, and then has to cease reporting them, unless permission is obtained from the SANoK.

The SANoK mechanism does not address the concerns with the 2004 amendments, and creates some problems of its own. In cases where one or both of the parents of the deceased child is charged with the crime, or is already incarcerated, there may be no SANoK available. In cases where there may be a SANoK who may not be a member of the immediate nuclear family of the deceased child, attempts by the media to discover the identity of such a person may involve a greater invasion into the privacy of grief than would have occurred if the prohibition did not exist.

In November 2008, the NSW Attorney–General said that he would not introduce any of the changes that would extend the period of non–reporting to before anyone was charged, when juveniles were only reasonably likely to be involved. However, he has also said that he will be taking the more restrictive NSW laws on naming juveniles involved in court proceedings to the Standing Committee of Attorneys–General to convince other states and territories to adopt the restrictions. He made no comments about whether he intended to alter the anomalous 2004 and 2007 provisions.

Access to court documents

In late July 2008, NSW Attorney–General John Hatzistergos undertook to overhaul laws governing media and public access to court information and said he will push the other states to do the same. The recommendations in an August 2008 departmental report would improve access to transcripts, affidavits and other information.

The report proposes a simple regime with just two categories of document—open access and restricted. Documents classified open access will be available to journalists and the public and may include police fact sheets, evidence transcripts, affidavits and pleadings. (Some reports have described this as “... better for NSW, but is still way behind the Victorian Supreme Court and the Federal Court”.) Those classified restricted, such as medical and psychiatric reports, will only be available if the court grants leave or the statutory provision confers a right of access. Currently, these types of documents are not normally released. The report says information should only be restricted when there are compelling reasons, for example to protect national or personal security interests, commercial trade secrets or vulnerable people in contact with the court. However, all documents not specifically listed as Open Access default into a Restricted Access category.

On the negative side, the report recommends blanket suppression of “sensitive information”, documents including “criminal and traffic antecedents” or details of prior offences. Then there's the restricted access proposal for physical exhibits, which can include video and audio recordings, photographs, weapons, and other materials of critical public interest in big trials. The report offers the “potentially dangerous nature” of exhibits as one reason for restricting media access.

The courts can also impose conditions on the release of any documents in the restricted category. It also recommends facilitating protocols between the Director of Public Prosecutions and the media for access to physical exhibits, along the lines of the model in place in Britain.

The report arose from the government's 2006 Review of Access to Court Documents, which received submissions from victims groups, media organisations, legal associations and privacy bodies.

The UK model

A speech given by Federal Police Commissioner, Mick Keelty, to the Sydney Institute in late January 2008, argued there should be a blackout on reporting of trials involving terrorism suspects “until the full gamut of judicial processes has been exhausted”. In part, his argument was based on a misinterpretation of the current state of the law on reporting trials in the UK, as he argued that there was a ban on such reporting. The Commissioner's assertion that in the UK a media blackout on the reporting of such proceedings from the time a person is charged with the crime until “after the case is disposed of, abandoned, discontinued or withdrawn” would surprise the judicial officers, lawyers, defendants and press who were present at the trial of those accused of the bombings in London on 21 July 2005. The trial was widely covered in the media and the daily reporting of the trial from a summary of week one posted on Friday 19 January 2007 through the verdict on 9 July 2007 can still be accessed on the BBC website.

Largely as a result of the efforts of the UK Crown Prosecution Service, a Protocol has been introduced into the courts of England and Wales that has greatly benefited the fair and accurate reporting of court proceeding and made courts more open to the public through media exposure. The August 2008 report to the NSW Attorney–General recommends facilitating protocols between the Director of Public Prosecutions and the media for access to physical exhibits along the lines of the UK model.

The Press Council has put together a proposal, communicated in a letter to the Directors of Public Prosecutions (DPPs) in the various Australian jurisdictions, urging the adoption of a protocol based on the UK practice aiming to facilitate media access to material tendered in open court. The general underlining principle as outlined in the UK Protocol adopted in 2005 is that if material has been shown in court it should be available for broadcast and publication to the general public as quickly as practicable, usually the same day on which it is presented in court.

In the UK the Protocol has led to greater coverage of the courts, and is seen to have made court reports more accurate and comprehensive. On television and online, news reports are visually led. The most welcome attribute has been that greater accuracy is obtained in reporting, as journalists do not have to rely on muffled recordings that are played in court. They are given transcripts of what is said.

The DPPs at a national meeting held in October 2008 discussed the matter. The outcome is not as yet certain.

Contempt by Publication

In a case in Western Australia, Paul Armstrong, the editor of The West Australian, had been charged with contempt after the publication of a letter to the editor. He was exonerated and judgment now stands as an incontrovertible declaration of the right of the press to publish material critical of judicial processes and, moreover, of the public benefit in the exercise of that right.

The letter appeared in The West Australian on 11 December 2006, while the relevant trial was in its closing stages. On the same day the trial judge discharged the jury on the grounds that the letter had caused such a significant degree of prejudice to the accused that the prejudice could not be cured by any directions to the jury.

In finding that The West Australian's publication of the letter had not prejudiced the administration of justice, WA Chief Justice Wayne Martin made a definitive statement of the importance of the public right to criticise judicial processes:

The efficient administration of justice depends heavily upon public confidence in the fairness and integrity of the processes employed. Public confidence in the integrity of the judicial process requires that conduct which, as a matter of practical reality, has a real or clear and definite tendency to cause jurors to take extraneous matters into account when considering their verdict, be constrained and where necessary, punished. However, public confidence in the administration of justice also depends upon the freedom of the printed and electronic media to provide the public with full and complete information as to legal proceedings. It also depends upon full and open public debate about events which occur in the courts. Subject to the limited constraint imposed by the law of contempt to which I have referred, every member of our society must be free to express his or her view in relation to the adequacy and propriety of the systems and processes used in the administration of justice. It is the function of the courts to protect the freedom of that debate, irrespective of the stridency of the criticisms that may be directed to the courts in its course. Public confidence in the courts and in the administration of justice requires nothing less.

Justices Wheeler and Miller joined with Martin in dismissing the motion for contempt on the basis that the jurors would have been capable of reading the letter without being consequently prejudiced against the accused. However, Miller JA expressed a degree of caution, commenting that it was ‘unwise’ to publish the letter during the final days of the trial, the publisher having been aware that the letter related to a trial in progress at the time of publication.

However, this view was rejected by the Chief Justice who responded with an unequivocal expression of support for the press's right to publish without interference from the judiciary:

Reporting of, and commentary upon, legal proceedings serves a vital public interest, by providing information to the public about what is occurring in our courts. Such publications should only be constrained when it is established, beyond reasonable doubt, that they have the proscribed effect upon the administration of justice to which I have referred. That is why, with respect, I do not share the view expressed by Miller JA that it is highly undesirable for a newspaper to publish letters to the editor which contain material relating to a criminal trial which is being conducted at the same time. In my respectful opinion, it is no part of this Court's function to advise editors of newspapers what is desirable or wise.

The press, notwithstanding these comments, will always have a moral responsibility to be mindful of the impact of published material on the course of legal proceedings. However, Chief Justice Martin's judgment, in particular, stands as a significant recognition of the validity of the media's role in scrutinising the legal system and of the right of the media to publish material critical of the judiciary.

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 first cases before the courts under the revised and harmonised defamation laws have been finalised. Judy Davis won her case against Nationwide News and was awarded substantial damages. Mercedes Corby won a case against Today Tonight, which settled before the hearing on damages. In Brett Holmes v Andrew Fraser, damages were awarded against a state MP in a NSW case heard before a judge alone.

Generally, the harmonised laws appear to be working well with a number of cases settling before litigation is commenced.

Privacy

In Australia, there is a federal Privacy Law, which largely deals with protection of the confidentiality of information on individuals held by government and by the private sector. There are also a myriad of federal, state and territory laws that regulate privacy protection, in areas such as telecommunications, surveillance, listening devices, health records, data matching, trespass, matters affecting children, adoption, sexual offences, juries, prisoners, security, and family law. But there is no common law or statutory cause of action for breach of privacy. Throughout the year there were judicial, legal and political activity in the area of privacy, apparently moving towards the development of such an action. Three separate Law Reform Commissions (Australia, NSW and Victoria) have been conducting inquiries into aspects of privacy and two have discussed the possible introduction of a cause of action for breach of privacy. In Western Australia, the former ALP Government floated the idea of a privacy law but did not introduce any such legislation prior to its electoral loss.

ALRC Inquiry

The Australian Law Reform Commission's final report, Australian Privacy Law and Practice, dated May 2008, was released in August 2008. The report is extensive, detailed and somewhat prolix, at 2,694 pages over three volumes. There are two aspects of the report that concern the media. The first is the media exemption to the existing privacy legislation and the second is the proposed introduction of a statutory cause of action for breach of privacy.

Chapter 42 of the report deals with the media exemption. The current legislation states that an act that is performed by a media organisation, in the course of journalism, is exempt, provided that the organisation is publicly committed to a set of privacy standards. At present, the legislation does not attempt to define “journalism”, while “media organisation” is defined as an organisation whose activities include the collection, preparation for dissemination, or dissemination, of material having the character of news, current affairs, information or a documentary, or material consisting of commentary or opinion on, or analysis of, news, current affairs, information or a documentary.

In response to concerns that the scope of the media exemption is too broad, the ALRC has recommended that a definition of journalism be inserted into the Act and that the privacy standards to which media organisations must be committed in order to claim the exemption must be “adequate”. The ALRC has also adopted the Privacy Commissioner's suggestion that the “media exemption” be renamed the “journalism exemption”. Were these changes to be enacted in legislation, they would have only a minimal impact on the way the Act operates in practice.

While the changes to the journalism exemption to the Privacy Act will be of concern to many media professionals, far more significant is the threat of a tort of privacy. Chapter 74 of the ARLC report deals with the need to protect personal privacy and recommends that federal legislation provide for a statutory cause of action for serious invasion of privacy. The test preferred by the ALRC is that there must have been “a reasonable expectation of privacy” and the conduct complained of must be “highly offensive to a reasonable person of ordinary sensibilities”. The ALRC also recommends the public interest in maintaining the claimant's privacy be weighed against other notions of the public interest, including the public interest in freedom of expression.

The report favours a formulation that includes a non–exhaustive list of the categories of conduct that would be actionable. The test favoured by the ALRC on first reading sets the threshold for actions at a workable level but nevertheless rests on the vagueness of ‘reasonable,’ a test always dependent on individual judicial prejudice. The requirement that the conduct complained of be highly offensive should exclude actions for trivial breaches of privacy. Even so, the introduction of the cause of action has the potential to act as an impediment to some journalistic activities. The use of covert surveillance can be expected to provide the basis for a cause of action, as would the publication of images of individuals involved in intimate acts, but the limits on other journalistic activities may not be so clear. Photographing private individuals in public places is one area where doubt can be expected to arise.

The ALRC has recommended that the journalism exemption should not extend to actions brought for breach of privacy, i.e. acts done in the course of journalism would still be subject to civil action, even if such acts are exempt from other obligations under the Act.

The unavailability of the journalism exemption will be compounded by the narrow defences recommended by the ALRC. Of the three potential defences recommended, the only one that can be considered to be of any utility to the media is that the publication is privileged under defamation law. When considering whether the particular conduct of a journalist in pursuit of a specific story can be defended on the basis of privilege, or whether such conduct can be considered to be outside the scope of the cause of action, the public interest will be of paramount importance. But where there is no obvious public interest in publishing material, the two primary arguments which defendants would be expected to pursue are that any expectation of privacy on the part of plaintiffs was not reasonable, or that a reasonable person would not have found the journalist’s conduct to have been highly offensive.

It remains unclear when, or even if, the recommendations will be implemented or the extent to which the government will adhere to the ALRC's recommendations. The Special Minister of State, John Faulkner, has simply stated that reforms to privacy will be considered by the government in stages, and that those reforms impacting upon the media—exemptions and the statutory cause of action—will not be considered until the “second stage” of privacy reform. When quizzed by journalists about the likely impact on media reporting, Faulkner emphasised that these reforms were “not a priority”, as far as he was concerned.

Protection of free speech

The right to privacy is one of the rights enumerated in the International Convention on Civil and Political Rights (ICCPR), in Article 17 of the convention:

  1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.
  2. Everyone has the right to the protection of the law against such interference or attacks)

This fact is referred to on more than one occasion by the ALRC in its report. The commission is less forthcoming about Article 19 of the ICCPR:

  1. Everyone shall have the right to hold opinions without interference.
  2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.
  3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:
    1. For respect of the rights or reputations of others;
    2. For the protection of national security or of public order (ordre public), or of public health or morals.)

Any attempt to guarantee the rights under Article 17 in the absence of guarantees of the rights under Article 19 would result in a very unbalanced situation, one not replicated in the jurisprudence of any comparable democracy, where the rights under Article 19 are guaranteed either in the Constitution or in legislation.

NSW privacy inquiry

The New South Wales Law Reform Commission is also conducting an inquiry on the Invasion of Privacy. In July 2008, the commission released its Consultation Paper 3 (2008), Privacy Legislation in New South Wales, which in proposal number three states that “New South Wales legislation should only apply to the handling of personal information by public sector agencies” and that privacy in private sector organisations should be regulated by the Commonwealth Privacy Act, in accordance with the ALRC's recommendation. In this case any reforms to existing NSW legislation will not adversely impact the media.

The report also calls for uniformity of legislation across Australian jurisdictions. It is important that the NSW Government clarifies whether it proposes that there be a complete absence of state legislation dealing with private sector privacy issues, thus leaving the regulation of privacy as it pertains to private sector organisations to the Commonwealth alone, or whether it proposes to introduce mirror legislation that reflects amendments in accordance with the ALRC's recommendations noted above.

The specific inclusion of photographs and images into the definition of personal information is likely to have unanticipated consequences that may impact significantly on the ability of the media to publish photographs of people. Even if the NSW legislation is confined in its scope to information held by NSW public sector agencies, the right to reproduce images for public consumption may be compromised if, for example, the images were held in photo libraries held by public agencies, such as the State Library. If the legislation were to make specific reference to images as a potential class of personal information, any definition should be extremely narrow, referring to the context in which the images were created, the purpose for which they were created, the degree of intimacy or intrusion into personal privacy that is conveyed in the photograph and the extent to which the images clearly identify the subject individual.

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. Sports have banned or restricted media coverage of some events, partly because of exclusivity agreements. In particular they have used restrictive agreements or copyright claims to limit access of photographers.

The News Media Coalition has made representations to the organisers of the 2007 Rugby world cup and to Cricket Australia about accreditation for journalists to the Australia/Sri Lanka Cricket test series. The coalition was also dealing more generally with various sporting bodies on the question of issues relating to rights to reproduce sports images. These negotiations are on–going.

In Australia, a particular issue arose from the decision of the Australian Football League (AFL) not to accredit photographers from Australian Associated Press (AAP). In 2007 in response to concerns over its media policy, which saw it exclude photographers from overseas news agencies from its list of accredited journalists, the AFL asserted:

To assist rural newspapers who do not have the resources to provide their own photojournalists, the AFL accredits 12 AAP photographers. The photos provided by AAP are free of charge to rural newspapers, provided they are used for editorial purposes and are not for resale.

In April 2008, it became apparent that the AFL had decided not to accredit AAP photographers for the coming season. In the light of the league's decision also to accredit photo–journalists from other publishers only on the basis of a continuance of their current arrangements for syndication of images, thereby not allowing for the supply of images to rural and regional publishers that previously relied on AAP, it appeared that the AFL was seeking to commercialise the reporting of the game by making the publications that previously relied on AAP use its own supplier, AFL Photos, for any pictorial coverage of the game. As major sporting events are legitimate news events, actions by sporting bodies that threaten the ability of the press freely to report news are inimical to the standards of press freedom to which Australian society subscribes.

In early June, the AFL responded to the concerns, arguing that “the AFL offered to accredit AAP photographers on identical terms to previous years, including the provision of photos to rural newspapers on a free of charge basis. However, AAP chose not to accept accreditation on this basis.”

In response to this assertion, AAP immediately approached the AFL to take up the implied offer of accreditation in the AFL's letter. When this proved fruitless, AAP Editor–in–chief Tony Gillies wrote to the AFL, noting that its letter “contains a number of incorrect and misleading assertions about AAP's treatment ...” He added:

First, the letter states that the AFL offered to accredit AAP photographers “on identical terms to previous years, including the provision of photos to rural newspapers on a free of charge basis”. This statement is incorrect.

... AAP was advised that the only way it could supply its subscribers ... with photographs of AFL matches was to purchase images that had been captured by the AFL (through GSP) for a fee. In implementing these arrangements, the AFL denied AAP the ability to undertake impartial photographic news coverage of AFL matches. ...

AAP photographers have been accredited with the AFL for news and photographic coverage since 2003 ... However this arrangement changed with the most recent terms and conditions of accreditation which did not include rights for AAP to capture images of AFL matches. In light of this, it is implausible to assert that the “AFL would have preferred that AAP continue the existing arrangements and to thereby ensure continuity of the supply of images to rural newspapers “. ... it is unfortunately entirely true to say that the AFL has “decided not to accredit AAP photographers” and that the AFL have “disaccredited AAP”.

Even recently, AAP again approached the AFL on the basis of the representations contained in the Letter [to the Press Council] and requested that it be accredited on the basis of the conditions that have applied in previous years ... This request was again denied.

As the national news wire agency, AAP has a fundamental mandate to preserve and protect its editorial integrity. ... AAP was not granted the photographic accreditation that it sought and it was not able to accept the AFL's proposed “alternative” (namely that AAP use AFL images sourced from GSP) as that alternative runs entirely against the principle of freedom of the press.

AAP remained unaccredited for its photographers through the AFL finals. The position for 2009 remains unclear but raises the question: who's next for disaccreditation as the AFL tries to commercial images of its game through its own supplier?

Conclusion

The climate of restriction and obstruction of information by government in Australia has ameliorated somewhat over the last year with proposals to make freedom of information more effective and to review whistleblower protections, anti–terrorism laws and secrecy provisions, but the threats apparent in moves towards an action for invasion of privacy, in the absence of any constitutional or legislative guarantee of free speech, mean that any optimistic note has to be tinged with some apprehension. Restrictions on reporting what were formerly open courts has led to a less well–informed public. There remains some hope that there will be improved reporting of the situation in regard to suppression and to a greater access to documents relied on it courts. But, until definitive action is taken in these areas, the restrictions remain.

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